The unbearable lightness of a rock
Ask a random passerby to name at least five rocks in the former Kalayaan Island Group (KIG), and the likely answer you would get would be Pag-Asa, or Bajo de Masinloc, which is not even in the KIG. The 1986 Constitutional Commission delegates could not even agree on the KIG features. There are close to a hundred forlorn and sometimes fleeting features there that convenience and custom have lumped together as KIG.
It is nearly five years now since the South China Sea (SCS) Arbitral Award instructed us to claim the rocks of the KIG as individual territories and not as a collective entity.
The Arbitral Award brought clarity to Section 2 of Republic Act No. 9522—that the KIG shall be treated as a regime of rocks, with each rock given baselines. Baselines transform a rock into solid territory. Under Unclos, baselines must be drawn to a relevant coast. To know that coast, the territory to which it appertains must be fixed and certain.
A territory has identity by name and coordinates, and its acquisition must be through acts of sovereignty specific to it. In Eritrea/Yemen, the Tribunal held that evidence of intention to claim islands à titre de souverain (under sovereign title) “is an essential element of the process of consolidation of title,” and must specifically mention rather than make general references “to the islands” (para. 241, Phase1). Evidence of such intention consists of public assertion of sovereignty, including legislation openly seeking to regulate activity on the disputed island with specificity (Nicaragua/Colombia, Burkina Faso/Republic of Mali).
Each rock must be identified and given baselines through law, such as the new Philippine Baselines Law proposed by retired Supreme Court justice Francis H. Jardeleza, with the help of the authors. It is a legislative act, and not an executive issuance, that establishes territorial title; for only a law can create rights, obligations, and jurisdictions as manifestations of territorial sovereignty.
Baselines extend a rock as territory to a distance of 12 nautical miles of territorial sea (TS). They grant a rock such power that its TS can push back against the 200-nautical-mile exclusive economic zone (EEZ) and continental shelf (CS) of an oppositive landmass (Nicaragua/Honduras).
Prior to the SCS Arbitration, the Philippine definition of EEZ/CS was a full 200 nautical miles generated by the archipelagic baselines under RA 9522. In the arbitration, our lawyers could not maintain this definition of the Philippine EEZ/CS as it would trigger a territorial sovereignty issue over the rocks situated inside the zone and a maritime delimitation issue with the 12-nautical-mile TS of each rock.
Thus, in our Memorial, the Philippine EEZ/CS automatically enclaved the 12-nautical-mile TS of each rock regardless of territorial title, defining its extent as “the waters, seabed and subsoil of the South China Sea within 200 M of the Philippine coast, but beyond 12 M from any high-tide feature” (para. 6.6). On that basis, the Arbitral Tribunal issued the Admissibility Award (para. 375) and Final Award (para. 683).
As the EEZ/CS generated by the archipelagic baselines under RA 9522 is automatically pushed back by the TS of each rock, said TS must be generated by baselines established also by law. An ordinance power cannot create greater rights than a legislative power.
The adoption of baselines of rocks to implement the Arbitral Award and carry out the mandate of RA 9522 will break up the Kalayaan municipality as an artificial unit established by Presidential Decree No. 1596 (1978) into scattered rocks, with some separated by high seas. Kalayaan will lack the contiguity required under the RA 7160 or the Local Government Code of 1991. Only a law can exempt it from RA 7160, not a presidential proclamation.
Finally, it will address the reinstatement by Palawan vs. Republic (2020) of PD 1596. Only a law can set it right.
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Melissa Loja has a PhD in international law. Romel Bagares teaches international law at two Manila law schools. They may be reached at [email protected]
