Middle-earth’s missive on the Spratlys

Like an urgent message from Middle-earth’s Rivendell to the Fellowship of the Ring, a note verbale (NV) concerning the Spratlys dispute issued unexpectedly out of New Zealand’s (NZ) Permanent Mission to the United Nations on Aug. 3.

To the uninitiated, it read like a rebuff of Malaysia’s partial United Nations submission for an extended continental shelf in the area nearly 15 months earlier, in December 2019. But a few paragraphs down the three-page note, it only made clear NZ’s position on the Law of the Sea after the landmark 2016 South China Sea (SCS) Arbitral Award (AA). Most interesting is the NV’s sixth point (page 2).

That is, that per the AA (paragraphs 574-75), “there is no legal basis on which to draw straight archipelagic baselines” in the SCS, “nor [is there] any legal basis to draw baselines around island groups” in the area.

The NZ NV echoes a 2020 Vietnamese NV on the same question, which says that “the baselines of the groups of islands in the East Sea” and Truong Sa “cannot be drawn by joining the outermost points of their respective outermost features.” The former straddles the West Philippine Sea (WPS) and the latter our Kalayaan Island Group (KIG).

These notes verbale have made stark the obsolescence of Presidential Decree No. 1596, the 1978 Marcos diktat that established an offshore archipelago out of a huge section of the Spratlys and appended it to the Philippine Treaty Limits of the 1898 Treaty of Paris.

It should be clear now why PD 1596 and its polygonal KIG establishing Filipino sovereignty over its waters, seabed, subsoil, and continental margin cannot be maintained. It is no different from the Chinese Nansha Qundao and the Vietnamese Truong Sa. All three have been decisively rejected by the AA.

NZ’s Aug. 3 missive should guide discussions on a proposed WPS baselines law to domestically adopt the gains we won in the AA. In his Aug. 12, 2021 column, Justice Antonio T. Carpio eschews it in favor of a presidential proclamation (PP).

Firstly, we are gratified to see Justice Carpio move closer to our position that the AA had reconfigured the Spratlys from a unity of islands to a regime of rocks, hence the need to domestically recognize it.

Indeed, none of his many previous prescriptions for enforcing the AA involved clearly marking out each Philippine-claimed Spratlys rock and the territorial sea (TS) each is entitled to. His column implicitly recognizes this need. In fact, actually doing it will be a momentous step, because until today, Chinese international law experts continue to insist on the Spratlys as an offshore archipelago.

Secondly, Justice Carpio himself, in his ponencia in Magallona v. Executive Secretary (2011), underscores why we need to amend Republic Act No. 9522, the Philippine baselines law, to implement the AA.

In this landmark ruling, the Court held that the baselines are “nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves.” Per the AA’s ruling, each rock in the Spratlys generates a new maritime zone, a TS.

Our baselines law has to account for that. A PP cannot substitute for an act of Congress.

Thirdly, we need a precise identification in the law of every feature we claim as ours (Eritrea/Yemen, 1998; Nicaragua/Colombia, 2012). Mere reference to “islands” without specificity—as PD 1596 and RA 9522 do—defies inter-temporal law recognized by the AA itself (Palmas arbitration, 1928).

Finally, the Kalayaan municipality as constituting the KIG under PD 1596 was reinstated by the Court in Republic v. Palawan (2020). This has to be corrected by Congress posthaste.

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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.