PH realities beyond the Arbitral Award

The West Philippine Sea (WPS) baselines law that we propose was initially opposed by Justice Antonio T. Carpio on the grounds that the rising seas will soon take over the disputed features in the WPS and render the proposed law useless, and that a presidential proclamation suffices.

We responded in public for a that it is a betrayal of our law enforcers to belittle the significance of these features and, in the same breath, taunt them to sacrifice their lives defending the same features. In previous commentaries in this paper, we explained that the Philippine exclusive economic zone (EEZ) and continental shelf (CS) in the WPS are generated by the archipelagic baselines defined under Republic Act No. 9522. Yet, in view of paragraph 6.6 of our Memorial and paragraph 683 of the Final Award in the South China Sea (SCS) Arbitration, this EEZ/CS is automatically pushed back by the territorial sea (TS) of each rock inside the area. To know the extent of each impeding TS, the baselines of each rock will have to be drawn by law. A mere presidential proclamation cannot generate a TS that is more powerful than the EEZ/CS generated by RA 9522.

Moreover, there are pending bills in Congress declaring the Philippine EEZ/CS in the WPS, without regard to the contested TS in the area. If these bills become law, they shall compel, under pain of dereliction of duty, our navy and coast guard to enforce our economic laws even in the contested TS of features occupied by China, Vietnam, or Malaysia. International law proscribes the use of force in contested territories.

In his Aug. 5, 2021 column, Justice Carpio questioned the proposal and its adoption by House Bill No. 9835 and 9662 for listing Louisa Reef, Swallow Reef, and Spratly Island, even when these features are claimed and occupied, not by the Philippines, but by Brunei, Malaysia, and Vietnam, respectively. He warned of a rupture in our relations with these neighbors.

Indeed, we listed 128 features but emphasized in footnote 10 that the list is “subject to confirmation” by the National Mapping and Resource Information Authority (Namria). In many a public forum, we disclosed that the list is tentative, respecting the exclusive power of Congress, with the aid of Namria, to officially declare the number and names of the features being claimed.

Moreover, there are difficult questions of constitutional and international law attending any decision on each feature.

Firstly, the 1986 Constitutional Convention had no common understanding of the Kalayaan Island Group (KIG) being claimed under Presidential Decree No. 1596. One commissioner equated the KIG to Cloma’s “Freedomland” and another stated that “we have a group of five islands called Kalayaan.” We cannot presume to know better than them.

Secondly, Annex 97 of our Memorial named only 43 features being claimed by the Philippines. Even if we remove Louisa Reef, Swallow Reef, and Spratly Island from the 128 features in the list, 82 must still be accounted for. Namria would be in the best position to know where and what they are.

Thirdly, in paragraph 8.4 and Figure S8.2 of our 2015 arbitral submission, we signified the intention to file an extended CS (eCS) beyond the WPS. Malaysia beat us to it. In 2019, it claimed an eCS in the same area. In its communication opposing the Malaysian claim, Vietnam declared that it reserves the right to also claim an eCS there. We cannot second-guess the role of Swallow Reef in relation to Sabah Island and Spratly Island in these conflicting claims.

These are the realities that the Philippines must face if it wants to move beyond the Arbitral Award and enforce it, with or without China.

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Francis H. Jardeleza, a retired associate justice of the Supreme Court, was State Agent in the SCS Arbitration. Melissa Loja has a Ph.D. in international law. Romel Bagares teaches international law in three Manila law schools.