A Debate Over A Regime of Islands

On March 10, 2009, the President signed into law Republic Act No. 9522, entitled “An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes. ”

Congress passed the law in order to comply with a May 13, 2009 deadline of the United Nations for countries to define the boundaries of its continental shelf under the UN Convention on the Law of the Sea (UNCLOS).

Section 1 of the law defined the baselines of the Philippine archipelago.  The  geographic coordinates mentioned in Section 1 do not include the Kalayaan Island Group (KIG), or better known as the Spratly Islands (which are also being claimed by such countries as China, Vietnam and Malaysia).   Congress chose to deal with the KIG (and Scarborough Shoal) in Section 2, which provides:

The baselines in the following areas over which the Philippines likes (sic) exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under the Republic of the Philippines consistent with Article 121 of the United Nations Convention of the Law of the Sea (UNCLOS):

a)      The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and

b)      Bajo de Masinloc, also known as Scarborough Shoal.

Prior to the passage of the law, it appears that four options were being considered in defining the territorial baselines of the country:

1.      The main archipelago and Scarborough Shoal are enclosed by the baselines while KIG is classified as regime of islands. . . 

2.      Only the main archipelago is enclosed by the baselines while KIG and Scarborough Shoal are classified as regime of islands. . . 

3.      The main archipelago and KIG are enclosed by the baselines while Scarborough Shoal is classified as regime of islands.

4.      The main archipelago, KIG and Scarborough Shoal are enclosed by the baselines. . .

(see Senator Antonio F. Trillanes IV, The territorial baseline issue, Malaya, March 14, 2009) 

According to reports, the House of Representatives version of the bill includes the Scarborough Shoal and KIG within the baselines (see option 4) while the Senate version classified the disputed territory as a “regime of islands” (see option 2). The Senate position prevailed during the bicameral conference committee deliberations held for the purpose of reconciling the two bills. (see Congress set to ratify baselines bill,  Inquirer.net)

In her sponsorship speech on her version of the 2009 baselines bill, Senator Miram Defensor-Santiago explains the adoption of the “regime of island” principle. 

There are three important reasons why the bill adopts the “regime of islands” principle:

First, it has the advantage of avoiding conflicting basepoints with other claimants to the Spratlys. Conflicting basepoints is the reason why your Committee decided not to adopt other bills. The Committee takes the view that if a modern baselines bill includes conflicting basepoints with other claimant states, this would certainly be a source of diplomatic strain with such states as China , Vietnam , Malaysia , and Taiwan .

Second, the “regime of islands” principle increases the size of our archipelagic waters and EEZ by about 76,518 nautical miles over existing laws.

Third, the pending bill does not deviate from the natural shape of our archipelago, thus complying with Unclos, Article 47, para. 3, which provides that “the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.” 

(see Sponsorship Speech, The 2009 Baseline Bill

Not everyone agrees that KIG and Scarborough Shoal should be excluded from the baselines.  For example:

. . .  former Ambassador to the United Nations Lauro Baja says the baseline bill is seriously flawed because it excludes the disputed Kalayaan islands from Philippine territory.

Baja says the exclusion of the Kalayaan islands, which is part of the province of Palawan, runs counter to national interest.

That’s because Kalayaan is part of the Spratly Group of Islands, a disputed atoll in the South China Sea that is claimed not just by the Philippines but by China, Vietnam, Brunei, Malaysia, and Taiwan.

Baja says these countries have included the Spratlys in their own baselines, and that by excluding it from our own baseline law, the Philippines is effectively undermining our claim to Kalayaan.  (see Baja: Baselines bill weakens RP claim to Kalayaan, ABS-CBN News) , 

On the other hand, while Senator Trillanes does not have objections to the exlcusion of the KIG from the baselines, he disagrees with the exclusion of the Scarborough Shoal from the baselines. In his version of the baselines bill (Senate Bill No. 1467), he included the Scarborough Shoal in the baselines. He says:

. . . there are some misconceptions regarding the label “regime of islands” that it supposedly weakens our claim or reduces our sovereignty over the areas labeled as such.  On the contrary, “regime of islands” is defined in Art. 121 [of the UNCLOS] as: 1) island/s that is naturally formed, surrounded by water and is above water at high tide; and 2) it shall have its own 12nm territorial sea, 24nm contiguous zone, 200nm EEZ and continental shelf. In other words, islands classified as regime of islands are treated the same way as other land territory. The only possible reason that coastal states would be forced to classify their territory as a regime of islands is because such territory is impossible to enclose within the baselines without violating other UNCLOS provisions. The Falkland island group is one example. Since the UK is at the other end of the Atlantic which made it impossible to include Falkland in its own baseline, it has no choice but to classify Falkland as a regime of islands.

The Scarborough Shoal was included in the baselines [of Senate Bill No. 1467] primarily because its distance from Luzon is less than the 125nm limit. With this, our country stands to gain approximately 14,500sq nm of EEZ and continental shelf. Another reason for its inclusion is that Scarborough Shoal is basically a rock and according to Paragraph 3 of Art. 121, the regime of islands definition has an exception and that is: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Therefore, while it is advantageous for us to designate KIG as a regime of islands, we would be depriving ourselves of the EEZ and continental shelf of Scarborough Shoal if it would be designated as a regime of islands.  (see Senator Antonio F. Trillanes IV, The territorial baseline issue, Malaya, March 14, 2009)

ABS-CBN News has learned that some lawyers are considering questioning the baseline bill before the Supreme Court.  (see Baja: Baselines bill weakens RP claim to Kalayaan, ABS-CBN News) .