Baselines and sovereignty

Thursday, March 12, 2009
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It?s not unreasonable to expect another stinging diplomatic rebuke from China, now that President Arroyo has signed the Congress-approved territorial baselines bill into law. Closer to home, critics who claim that the law actually shrinks Philippine territory will now be able to go to the Supreme Court to contest its supposed unconstitutionality.

These two developments have long been predicted, given the controversial nature of the new law defining Philippine territory. About the only good news about yesterday?s signing seems to be the fact that we have made the deadline set by the United Nations for archipelagic states like the Philippines to set their own territorial boundaries, as a member of the UN Convention on the Law of the Sea.

But let?s consider China?s objection to the law first. Last month, when Congress approved its bicameral version of the proposed law, the Chinese foreign ministry issued what it called a ?stern protest? over the bill?s alleged violation of Beijing?s ?indisputable sovereignty? over the Kalayaan Group of Islands and the Scarborough Shoal, which the Chinese call Huangyan and Nansha.

Beijing summoned the Philippines? ambassador to China to explain Congress? action, but preempted any explanation by announcing that ?claims to sovereignty over Huangyan Island and the Nansha Islands by any other country are all illegal and invalid.? Indeed, the bill?like the new law?did not renounce claims to the disputed areas, even if they were only declared ?under [the Philippines?] regime of islands? instead of integral parts of Philippine territory.

But, as Executive Secretary Eduardo Ermita pointed out, China is very much aware of Philippine claims to the disputed islands. It would be unreasonable to expect Manila to renounce its long-established claims simply because the UN requires archipelagic states to determine the extent of their maritime jurisdiction, the measure of continental shelves, zones of economic development, areas of strategic importance for national security and areas subject to resource and environment management.

Besides, China (like the Philippines) is also a signatory to the China-Asean Code of Conduct that covers the disputed islands, which are also being claimed by Malaysia, Vietnam, Brunei and Taiwan. According to what is formally called the Declaration on the Conduct of Parties in the South China Sea of 2002, China and its Southeast Asian neighbors vowed to work for a partnership of good neighborliness and mutual trust and to seek a peaceful settlement of the disputes over the region through friendly coordination and negotiation.

China must certainly understand that Congress and Malaca?ang cannot by themselves renounce Philippine claims to the Spratlys and Kalayaan without arousing protests at home, simply because the UN wants Manila to define its territories. At the same time, by quickly and stridently protesting a mere gesture of reiterating a historic Philippine claim, Beijing seems to have forgotten its commitment to settle disputes with its southern neighbors in an atmosphere of trust and friendly negotiation.

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Back in Manila, several congressmen who have vowed to question the constitutionality of the baselines law once President Arroyo signs it will now get their chance to be heard?long after the debates and deliberations have been completed in Congress. Two of the foremost oppositors to the law in Congress, and who are expected to ask the Supreme Court to nullify RA 9522, are Nueva Ecija Rep. Eduardo Nonato Joson and Bayan Muna party-list Rep. Teodoro Casi?o.

Joson and Casi?o share the opinion that the new baselines law actually shrinks Philippine territory by effectively giving up the country?s claim to the disputed islands west of Palawan province. According to these two lawmakers, declaring the islands under the Philippine regime is tantamount to quitting the claim, which should have been reinforced by making them part of the country?s actual territory and within its baselines.

A top academic and legal expert, former University of the Philippines law dean Merlin Magallona, explains that the new baselines law is unconstitutional because it violates the provisions of the Treaty of Paris of 1898. That treaty set the territorial boundaries of the Philippines after Spain lost its war to the United States, which ended up possessing the former Spanish colony as its spoils and in exchange for several million dollars.

Magallona says that by bringing the territorial baselines closer to the Philippine coastline according to the dictates of the UN, the law must be declared invalid by the high court. As for the declaration of the disputed islands as merely under the regime of the Philippines, Magallona says that Manila has given up control of the seas around the Spratlys and the Kalayaan Group.

What this means, he says, is that all manner of seagoing vessels will now be allowed ?accidental passage? around the disputed islands. Magallona believes that by relinquishing control over the seas around the contested region, foreign fishing boats and even nuclear warships will now be allowed to enter seas that were once claimed by the Philippines for itself.

The coming days will tell if the signing of the baselines bill into law will once more generate a firestorm of protest?diplomatic or otherwise. At this point, however, what seems clear is that the government has acted with dispatch on the matter of territorial integrity, bearing in mind both the Philippines? historic claims and the sensitivities of its neighbors over a hotly contested group of potentially resource-rich specks in the sea.

Now it?s up to those who are opposed to this act of establishing our sovereignty to do their best?or their worst?to reverse that.