The Philippine Baseline Bill and our Continental shelf: UNCLOS deadline- MAY 13, 2009
In the seventeenth century there was what was known as the “freedom of-the-seas doctrine” which essentially limits national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation's coastline. It is usually 3 nautical miles from shore from the “cannon shot rule” of Cornelius van Bynkershoek which itself was derived from the ability of shore defenders to fire a cannon shot 3 miles (one marine league) towards the sea.
In the early 20th century, some nations expressed their desire to extend national claims over offshore resources with concerns also over coastal fish stocks, coastal pollution wrought by oil tankers and transport ships, etc….
The first major challenge to the “freedom of-the-seas doctrine” was in 1945 when President Truman unilaterally extended American jurisdiction over all natural resources on their nation's continental shelf - oil, gas, minerals, etc.
After the Second World War, a number of nations started to claim a 12 mile territorial sea against the previous 3 mile limit.
Later, archipelagic nations like Indonesia and the Philippines asserted their right to dominion over the water that separated their islands.
On Nov. 1, 1967, Arvin Pardo, Malta’s ambassador to the U.N. called on the nations before the General Assembly to take stock and face the looming crisis that could devastate the seas. He closed with a call for "an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction". "It is the only alternative by which we can hope to avoid the escalating tension that will be inevitable if the present situation is allowed to continue".
The offshoot of Pardo’s call included the Third United Nations Conference on the Law of the Sea which after 9 years of deliberation finally adopted a Constitution for the Seas- United Nations Convention on the Law of the Sea (UNCLOS)
The UNCLOS laid down issues like navigation rights which included the “transit passage” as opposed to simple “innocent passage” in areas like straits.
It also incorporated into international law for states like Indonesia and the Philippines the “regime of archipelagic states” For such States, “the territorial sea is a 12-mile zone extending from a line drawn joining the outermost points of the outermost islands of the group that are in close proximity to each other. The waters between the islands are declared archipelagic waters, where ships of all States enjoy the right of innocent passage. In those waters, States may establish sea lanes and air routes where all ships and aircraft enjoy the right of expeditious and unobstructed passage.”
One of its most revolutionary feature was the Exclusive Economic Zone (EEZ), which “recognizes the right of coastal States to jurisdiction over the resources of some 38 million square nautical miles of ocean space. To the coastal State falls the right to exploit, develop, manage and conserve all resources - fish or oil, gas or gravel, nodules or sulphur - to be found in the waters, on the ocean floor and in the subsoil of an area extending 200 miles from its shore.”
“But with exclusive rights come responsibilities and obligations For example, the Convention encourages optimum use of fish stocks without risking depletion through overfishing. Each coastal State is to determine the total allowable catch for each fish species within its economic zone and is also to estimate its harvest capacity and what it can and cannot itself catch. Coastal States are obliged to give access to others, particularly neighbouring States and land-locked countries, to the surplus of the allowable catch. Such access must be done in accordance with the conservation measures established in the laws and regulations of the coastal State.
In the early 20th century, some nations expressed their desire to extend national claims over offshore resources with concerns also over coastal fish stocks, coastal pollution wrought by oil tankers and transport ships, etc….
The first major challenge to the “freedom of-the-seas doctrine” was in 1945 when President Truman unilaterally extended American jurisdiction over all natural resources on their nation's continental shelf - oil, gas, minerals, etc.
After the Second World War, a number of nations started to claim a 12 mile territorial sea against the previous 3 mile limit.
Later, archipelagic nations like Indonesia and the Philippines asserted their right to dominion over the water that separated their islands.
On Nov. 1, 1967, Arvin Pardo, Malta’s ambassador to the U.N. called on the nations before the General Assembly to take stock and face the looming crisis that could devastate the seas. He closed with a call for "an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction". "It is the only alternative by which we can hope to avoid the escalating tension that will be inevitable if the present situation is allowed to continue".
The offshoot of Pardo’s call included the Third United Nations Conference on the Law of the Sea which after 9 years of deliberation finally adopted a Constitution for the Seas- United Nations Convention on the Law of the Sea (UNCLOS)
The UNCLOS laid down issues like navigation rights which included the “transit passage” as opposed to simple “innocent passage” in areas like straits.
It also incorporated into international law for states like Indonesia and the Philippines the “regime of archipelagic states” For such States, “the territorial sea is a 12-mile zone extending from a line drawn joining the outermost points of the outermost islands of the group that are in close proximity to each other. The waters between the islands are declared archipelagic waters, where ships of all States enjoy the right of innocent passage. In those waters, States may establish sea lanes and air routes where all ships and aircraft enjoy the right of expeditious and unobstructed passage.”
One of its most revolutionary feature was the Exclusive Economic Zone (EEZ), which “recognizes the right of coastal States to jurisdiction over the resources of some 38 million square nautical miles of ocean space. To the coastal State falls the right to exploit, develop, manage and conserve all resources - fish or oil, gas or gravel, nodules or sulphur - to be found in the waters, on the ocean floor and in the subsoil of an area extending 200 miles from its shore.”
“But with exclusive rights come responsibilities and obligations For example, the Convention encourages optimum use of fish stocks without risking depletion through overfishing. Each coastal State is to determine the total allowable catch for each fish species within its economic zone and is also to estimate its harvest capacity and what it can and cannot itself catch. Coastal States are obliged to give access to others, particularly neighbouring States and land-locked countries, to the surplus of the allowable catch. Such access must be done in accordance with the conservation measures established in the laws and regulations of the coastal State.
Coastal States have certain other obligations, including the adoption of measures to prevent and limit pollution and to facilitate marine scientific research in their EEZs.”
The Convention also set a legal definition for the “Continental shelf” which is articulated in Art. 76. and the succeeding Article defines the right of the coastal state over its continental shelf part of which reads “if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State" and "rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.”.
The Convention set the 200 mile EEZ limit as the boundary of the Continental shelf for seabed and subsoil exploration. Those countries however with a broader shelf are given the ability to establish a boundary up to 350 miles from shore.
This is the issue at hand.
The Philippines ratified the treaty on May 8, 1984.
A coastal state wanting to avail of the Continental shelf provision is supposed to submit particulars of such limits to the U.N. Commission on the Limits of the Continental Shelf (CLCS) along with supporting scientific and technical data within 10 years of that State’s ratification or when the treaty came in to force which was in 1994.
So our ability to submit was supposed to be till 10 years then only but certain conditions precluded many countries from complying.
So the (CLCS) set a May 13, 2009 (ten years after the CLCS adopted their own Scientific and Technical Guidelines on May 13, 1999) deadline for countries that want to extend their jurisdiction by a maximum of 150 nautical miles from the boundary of their EEZ.
The Kalayaan Island Group (KIG) is only about 210-230 nautical miles (estimates vary) from Palawan. A claim of an extended Philippine geographical shelf in Palawan incorporating the Kalayaan islands within; greatly increases our right over them as well as the right to explore and exploit the same shelf.
However, the Philippines needs to show mostly geologic evidence (based on the scientific and technical guidelines of the CLCS) and that the extended continental shelf, or the underwater landmass beyond its EEZ towards the KIG is the extension of the one in Palawan.
But in order for us to do so, we first need a new baseline bill that will serve as the starting point for the computation of a 12 mile territorial sea, 24 mile contiguous sea, 200 mile EEZ and Continental shelf and an extended Continental shelf.
Of note also is Scarborough shoal; which at only 137 miles away from Palauig Zambales is effectively within our EEZ.
A Philippine Baseline Bill by Congressman Antonio Cuenco had already passed second reading in the House in December 2006. Protestations however from our own Department of Foreign Affairs regarding China’s (PROC) objections led to the non passage of the bill. (Anyone can give a guess as to why China’s voice is so important in our affairs)
Members of the Senate have also filed their counterpart bills. Senator Miriam Santiago has also opined how to go about defining our baseline. One of note however is the one proposed by Sen. Antonio Trillanes IV.
The position paper of Sen. Trillanes incorporates National Mapping and Resource Information Authority’s (NAMRIA) comparison of the several Baseline options available.
Sen. Trillanes recommends option 1 which is “The main archipelago and Scarborough Shoal are enclosed by the baselines while KIG is classified as regime of islands. This is the option adopted by SB 1467.”
SB 1467 is also supposed not to prejudice our claim over Sabah.
(It appears that SB 1467 is quite similar to Cong. Cuenco’s HB 1202)
Several countries have however still stated their possible inability to comply with the 10 year limit for an extended shelf option on May 13, 2009. However the last States Parties to the United Nations Convention on the Law of the Sea (SPLOS) definite decision I could gather on the matter says that States that have ratified the treaty before May 13, 1999 shall have their deadline ten years then.
The Convention also set a legal definition for the “Continental shelf” which is articulated in Art. 76. and the succeeding Article defines the right of the coastal state over its continental shelf part of which reads “if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State" and "rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.”.
The Convention set the 200 mile EEZ limit as the boundary of the Continental shelf for seabed and subsoil exploration. Those countries however with a broader shelf are given the ability to establish a boundary up to 350 miles from shore.
This is the issue at hand.
The Philippines ratified the treaty on May 8, 1984.
A coastal state wanting to avail of the Continental shelf provision is supposed to submit particulars of such limits to the U.N. Commission on the Limits of the Continental Shelf (CLCS) along with supporting scientific and technical data within 10 years of that State’s ratification or when the treaty came in to force which was in 1994.
So our ability to submit was supposed to be till 10 years then only but certain conditions precluded many countries from complying.
So the (CLCS) set a May 13, 2009 (ten years after the CLCS adopted their own Scientific and Technical Guidelines on May 13, 1999) deadline for countries that want to extend their jurisdiction by a maximum of 150 nautical miles from the boundary of their EEZ.
The Kalayaan Island Group (KIG) is only about 210-230 nautical miles (estimates vary) from Palawan. A claim of an extended Philippine geographical shelf in Palawan incorporating the Kalayaan islands within; greatly increases our right over them as well as the right to explore and exploit the same shelf.
However, the Philippines needs to show mostly geologic evidence (based on the scientific and technical guidelines of the CLCS) and that the extended continental shelf, or the underwater landmass beyond its EEZ towards the KIG is the extension of the one in Palawan.
But in order for us to do so, we first need a new baseline bill that will serve as the starting point for the computation of a 12 mile territorial sea, 24 mile contiguous sea, 200 mile EEZ and Continental shelf and an extended Continental shelf.
Of note also is Scarborough shoal; which at only 137 miles away from Palauig Zambales is effectively within our EEZ.
A Philippine Baseline Bill by Congressman Antonio Cuenco had already passed second reading in the House in December 2006. Protestations however from our own Department of Foreign Affairs regarding China’s (PROC) objections led to the non passage of the bill. (Anyone can give a guess as to why China’s voice is so important in our affairs)
Members of the Senate have also filed their counterpart bills. Senator Miriam Santiago has also opined how to go about defining our baseline. One of note however is the one proposed by Sen. Antonio Trillanes IV.
The position paper of Sen. Trillanes incorporates National Mapping and Resource Information Authority’s (NAMRIA) comparison of the several Baseline options available.
Sen. Trillanes recommends option 1 which is “The main archipelago and Scarborough Shoal are enclosed by the baselines while KIG is classified as regime of islands. This is the option adopted by SB 1467.”
SB 1467 is also supposed not to prejudice our claim over Sabah.
(It appears that SB 1467 is quite similar to Cong. Cuenco’s HB 1202)
Several countries have however still stated their possible inability to comply with the 10 year limit for an extended shelf option on May 13, 2009. However the last States Parties to the United Nations Convention on the Law of the Sea (SPLOS) definite decision I could gather on the matter says that States that have ratified the treaty before May 13, 1999 shall have their deadline ten years then.
Unfortunately, the Philippines is in that dilemma.
Indonesia submitted its claim on June 18, 2008.
Even Myanmar submitted its claim on Dec. 16, 2008. It ratified the treaty on June 20, 1996.
A number of columnists have commented that other factors have contributed to a stagnant Baseline Bill. One is the Joint Marine Seismic Undertaking (JMSU) and the BJE MoA-AD. The JMSU has however expired last July and has not been renewed. The BJE MoA-AD has been stricken down by the SC.
Should the Philippines be able to pass a baseline bill and subsequently submit a claim for an extended Continental shelf; such claim must include technical data.
If we are not ready with “adequate” technical data, (GOOD FAITH BE DAMNED), we can probably pass whatever we have and wait for CLSC’s recommendations while gathering further data. (Such a timetable however is currently unknown to me)
But with a deadline only 4 months away, one would think such a bill would be foremost in the mind of our legislators. What I have read is but the resumption of CHACHA.
However, with more than 8 years of stewardship in the 10 years to submit an extended shelf claim, there is no need to stress under whose helm the issue of the rise or fall of a Philippine baseline (and with it the claim on a Philippine extended continental shelf) lies.
If the Philippines succeed with a claim of an extended Continental shelf, all this might be forgotten.
If it fails; there could be hell to pay.
(Edited version- Took note of UNCLOS coming in to force in 1994 instead of just date of our signing the treaty.)
Even Myanmar submitted its claim on Dec. 16, 2008. It ratified the treaty on June 20, 1996.
A number of columnists have commented that other factors have contributed to a stagnant Baseline Bill. One is the Joint Marine Seismic Undertaking (JMSU) and the BJE MoA-AD. The JMSU has however expired last July and has not been renewed. The BJE MoA-AD has been stricken down by the SC.
Should the Philippines be able to pass a baseline bill and subsequently submit a claim for an extended Continental shelf; such claim must include technical data.
If we are not ready with “adequate” technical data, (GOOD FAITH BE DAMNED), we can probably pass whatever we have and wait for CLSC’s recommendations while gathering further data. (Such a timetable however is currently unknown to me)
But with a deadline only 4 months away, one would think such a bill would be foremost in the mind of our legislators. What I have read is but the resumption of CHACHA.
However, with more than 8 years of stewardship in the 10 years to submit an extended shelf claim, there is no need to stress under whose helm the issue of the rise or fall of a Philippine baseline (and with it the claim on a Philippine extended continental shelf) lies.
If the Philippines succeed with a claim of an extended Continental shelf, all this might be forgotten.
If it fails; there could be hell to pay.
(Edited version- Took note of UNCLOS coming in to force in 1994 instead of just date of our signing the treaty.)
http://baselineissue.blogspot.com/
http://www.spiritus-temporis.com/spratly-islands/philippine-claims-on-the-spratly-islands.html
http://www.miriam.com.ph/labels/Dean%20Merlin%20Magallona.html
http://daccessdds.un.org/doc/UNDOC/GEN/N99/356/61/IMG/N9935661.pdf?OpenElement
http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm
http://www.un.org/Depts/los/clcs_new/clcs_home.htm
http://www.un.org/Depts/los/clcs_new/issues_ten_years.htm
http://www.ellentordesillas.com/?p=2328
http://www.manilamail.com/archive/aug2008/08aug21.htm
http://newsbreak.com.ph/index.php?option=com_content&task=view&id=4296&Itemid=88889066
http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm
http://www.malaya.com.ph/apr24/edducky.htm
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