by Tessa Jamandre
VERA Files
THE Philippines has filed before the United Nations a claim over Benham Rise, an extinct volcanic ridge off the east coast of Luzon, beating the May 13 deadline for states to submit claims over their extended continental shelves.
The Philippine delegation deposited the claim with the UN Commission on the Limits of the Continental Shelf (CLCS) in New York on April 8, making clear it was only a “partial submission.”
This means that other submissions, including those over disputed territories, would be made later. The disputed Kalayaan Island Group (KIG), also known as the Spratly Islands, and Scarborough Shoal are also said to be part of the country’s extended continental shelf and are believed to contain oil, natural gas, minerals and polymetals.
By filing the claim over Benham Rise, which is undisputed territory, the government has stopped the clock on the UN deadline and buys time to sort out border issues with its neighbors over the KIG and Scarborough.
“As a gesture of good faith, the Philippines makes this partial submission in order to avoid creating or provoking maritime boundary disputes where there are none, or exacerbating them where they may exist, in areas where maritime boundaries have not yet been delimited between opposite or adjacent coastal States,” said the government in its partial submission.
The UN defines the continental shelf as the “the seabed and subsoil of the submarine areas that extend beyond its territorial sea” up to 200 nautical miles from the archipelagic baseline. A continental shelf that goes farther than 200 nautical miles is called the extended continental shelf.
The Philippine claim over Benham Rise was prepared long before Congress enacted Republic Act No. 9522, also known as the Archipelagic Baselines Law, whose constitutionality is being questioned in the Supreme Court.
The Benham Rise Region is bounded by the Philippine Basin on the north and east, and by Luzon on the west and south. The submission asserted that Benham Rise is an extension of the Philippines’ continental shelf based on seismic, magnetic, gravity and other geological data collected.
The executive summary of the Philippine submission said the baselines used in the partial submission conform with the requirements of the UN Convention on the Law of the Sea (UNCLOS) and were used as the basis for delineating the maritime territorial and jurisdictional zones, including the continental shelf.
Among those formed the Philippine delegation were lawyer Henry Bensurto, secretary general of the Department of Foreign Affairs’ Center for Maritime and Ocean Affairs, and administrator Diony Ventura of the National Mapping and Resource Information Authority.
Bensurto said in an interview before leaving for New York that UN rules allow a partial submission. The government’s executive summary quoted the CLCS rules of procedure that “partial submissions may therefore be made by a single coastal State for areas of its continental shelf that are not the subject of a maritime boundary dispute or a future maritime boundary delimitation.”
CLCS Commissioner Galo Carrera-Hurtado of Mexico helped the Philippines prepare its submission.
The Benham Rise Region is not subject to any maritime boundary disputes, claims, or controversies, the executive summary said.
The country’s west coast facing the South China Sea is another matter. The Archipelagic Baselines Law has redrawn the country’s outer limits and from there, its extended continental shelf and exclusive economic zones overlap with Japan, China, Vietnam, Taiwan, Palau, Malaysia and Indonesia.
All these overlaps projected from the newly enacted baseline law will have to be subject to border delimitation agreements before a complete and final submission to the UN is made.
Bensurto said that if an agreement is reached in border talks, then the Philippines can submit a claim unilaterally or jointly with the country concerned.
“For the controversial areas we don’t give up any claim, but we allow time, process, diplomacy or whatever tools are available to resolve it because anyway that is not going to be subject to any deadline,” he said. “So we just…do a partial submission in an area that is noncontroversial, nondisputed because if we insist to submit on contested areas nothing will happen, it will just be shelved.”
University of the Philippines law professors Merlin Magallona and Harry Roque, their students in constitutional law and public international law, and Anakbayan party-list Rep. Risa Hontiveros have questioned the constitutionality of RA 9522 before the Supreme Court.
They also asked the High Tribunal on April 2 to issue immediately a temporary restraining order and writ of preliminary prohibitory injunction upon learning that the Philippine delegation was leaving on April 5 to file a partial claim in New York, but to no avail.
The 71-page petition filed said the new law “radically revised” the definition of the Philippine archipelago under the Treaty of Paris, resulting in a roughly triangular delineation that excludes large areas of waters within the 600 miles by 1,200 miles rectangle enclosing the “Philippine archipelago” as defined in the Treaty of Paris.
RA 9522 redrew the country’s baselines to comply with the UNCLOS requirements for an “archipelagic state,” in the process excluding the disputed KIG and Scarborough Shoal from the main archipelago and classifying them instead of “regimes of islands.” UNCLOS defines a regime of islands as islands or naturally formed areas of land surrounded by water that remain above water during high tide.
By declaring the KIG and Scarborough Shoal as regimes of islands, Magallona, Roque and their co-petitioners said the country has lost 15,000 square nautical miles of territorial waters.
RA 9522 weakened the country’s claim not only over KIG but also over Sabah, they added.
The KIG is part of the disputed Spratlys chain of islands being claimed in part by the Philippines, Malaysia, Taiwan and Brunei and in whole by Vietnam and China. The Philippines and Malaysia, meanwhile, have conflicting claims over Sabah in northern Borneo.
NAMRIA’s Ventura said the case against RA 9522 will have no legal effect on the extended continental shelf as partially submitted to the UN.
“As long as our measurement is in accordance with the UN process and procedure, there is no effect,” he said. “Extended continental shelf is a different topic….We didn’t include RA 9522 there. When we were preparing it then, the RA wasn’t there yet and the line that we used there is according to the guidelines of the CLCS.”
Ventura said the partial submission was arrived at from a purely scientific undertaking, including studies that prove that Benham Rise is the “natural prolongation” of the country’s land mass.
“There’s even the historical evolution of the land supported by a hydrographic survey and an underwater map,” he said.
From 2004 to 2008, multi-beam echo-sounding survey cruises were conducted to collect hydrographic data to determine the morphology of the seabed in the Benham Rise Region. The data were supplemented by additional data from international bathymetric surveys and an analysis of international research projects.
The Benham Rise Region also satisfies the 350-mile constraint line set by the CLCS since the outer limits of the continental shelf are located landward of the constraint line. The constraint line is located 350 miles from the baselines from which the breadth of the territorial sea is measured.
As to the Constraint Line requirement—2,500 meters plus 100 miles—the outer limits of the continental shelf beyond 200 miles in the Benham Rise Region is delineated by straight lines not more than 60 miles in length, connecting fixed points not more than 60 miles from the foot of the continental slope.
Multi-beam bathymetric measurements were used to determine the location of the 2,500 meter isobath in the areas of the Benham Rise Region beyond 200 miles from the baselines from which the breadth of the territorial sea is measured.
The UN commission will publish the government’s executive summary and open it for questioning within a three-month period.
(VERA Files is the work of veteran journalists taking a deeper look at current issues.)
We are only playing safe with the claim on Benham Rise east of the Philippines. I hope we could read a little more of our history and that of Guam, both discovered by Magellan and both ceded to the US at the same time. Common sense will point out that we have a better historical claim on Guam over anybody else. Its much closer to us even than the US and China. Another partial submission would be in order unless we are afraid of the US as always.
Yeah but history and proximity are not the only considerations in laying claims. If they were, China and Indonesia could claim us, LOL. The Philippines never established sovereignty over Guam. The Spaniards did, but Aguinaldo’s government never claimed it.
Aguinaldo and company, like my great grand father were not schooled yet with the art of greed and squatting. No need that time for there were fruits waiting to fall and some gold ducats for their trinkets and teeth from more learned incursionists. But now that gin is discovered and tong-its is in vogue, we advance in our hierarchy of needs. Well, Guam is good also for us. A friend said the U.S. military paid for the use of a swath of his family foregone real estate in Guam and Saipan complex. Still better than Scarborough. Let’s leave the Indons and Chinese research their own claims around us. We might still recover from the Indons that Miangas if we really have better brokers.
Val, would these brokers fill the bill — Motor-mouth Miriam, or mealy-mouth Mikey?
Valdemar, again, history and proximity are not the only considerations in making a claim. You have to prove too that you have established sovereignty in that particular place before you could claim it is historically yours. This is elementary international law.
Besides, from the pragmatic point of view, it would be foolish to claim Saipan and Guam complex. Both are US territories whose peoples have chosen to be part of the Uited States.
To claim means you have the physical and political influence to do so. Does RP have it?