UNCLOS’ regime of islands
In the beginning, the bills delineating the country’s archipelagic baselines, filed in the House of Representatives by Cebu Rep. Antonio Cuenco and in the Senate by detained Sen. Antonio Trillanes IV were the same.
Both bills included the Scarborough Shoal in the vicinity of Zambales as part of the baseline and the Kalayaan Island Group in the Spratlys as “regime of islands.” While Cuenco’s bill has evolved into something else and has passed second reading, Trillanes’ bill has remained unacted on.
As a former Philippine Navy officer, Trillanes has a clear grasp about territorial waters (12 nautical miles from baseline); contiguous zones (24 nautical miles); exclusive economic zones (200 nautical miles); continental shelf (200 nautical miles) and extended continental shelf (350 nautical miles).
He also fully understands “regime of islands” as defined by the United Nations Convention of the Law of the Sea.
Unlike presidential spokesman Anthony Golez who told similarly clueless reporters “regime of islands” means “a group of islands whose ownership is being contested by the Philippines and other claimant countries.”
An Inquirer report said they asked Golez why Malacañang would support the exclusion of Kalayaan Islands, as well as Scarborough Shoal off Luzon, from the baselines’ law and he replied, “Because if we start claiming that as ours in our own law, what if China would all of a sudden pass a law stating that it’s part of China? How would you think we will react to that? To avert any strain in our diplomatic relations, it’s better to stick to the concept of regime of islands and let the resolution over the contested islands be brought before the proper forum, which is the UN.”
It’s a classic case of the blind regaling the blind.
We suggest that Golez read Article121 of UNCLOS. Included in the “regime of islands” are islands that are naturally formed areas of land, surrounded by water, which are above water at high tide.”
Under the regime of islands doctrine, the islands will generate their own maritime zones. “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
It must be stressed that whether Scarborough and KIG are included in the country’s baseline or not, they remain to be part of Philippine territory based on our historical claims over the islands. It’s similar to the case of Hawaii and Guam. They are not part of the United States’ main baseline but they are part of US territory.
Under Malacañang’s baseline option, both Scarborough and KIG would be considered regime of islands. Trillanes does not agree to the exclusion of Scarborough from the baseline. As explained by the detained senator through his staff, KIG cannot really be included in the country’s baseline under UNCLOS rules but Scarborough can qualify.
He said although including Scarborough would cause a slight departure from the natural configuration of the archipelagic baselines, it would still fall within UNCLOS Article 47 which states that “the length of such baselines shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.”
He said excluding Scarborough, which was the scene of Philippine Navy skirmishes with Chinese forces in 1999, would mean a loss of some 15,000 square nautical miles.
With KIG, it’s a different matter because the two possible base points, Sabina Shoal and Iroquois Reef, that could connect with the main archipelago don’t meet UNCLOS requirements. The other islets which meet UNCLOS requirements are occupied by other claimants.
The House of Representatives has passed HB 3216 which includes both Scarborough and KIG within the baseline. Malacañang has warned that if passed into a law that version would create problems because if we use that to measure our claim for extended continental shelf, the deadline of which would be on May 13, 2009, before the UN, it would be rejected for not being UNCLOS-compliant.
If our claim for extended continental shelf is rejected, that means the international community would also not recognize our jurisdiction over those maritime areas. As Henry Bensurto, secretary general of the Commission on Maritime and Ocean Affairs said, “There would be a lot of foreign ships in those areas. At which point is our Navy going to sink those foreign ships if you don’t have a clear line?”
Cuenco, chairman of the House committee on foreign affairs, said recommitting HB 3216 to committee level after it was passed on second reading would be a violation of House rules. To allow it would set a precedent of violations. He would rather that it be passed as it is, then cure it at the bicameral committee with the Senate version.