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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 City 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, which part of 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 Kalayaan islands and Scarborough Shoal.
“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.
Claim to Benham Rise
The Philippine claim over Benham Rise was
prepared long before Congress enacted Republic Act 9522, or 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.
It was Philippine Ambassador to the UN Hilario
Davide who filed the country’s partial submission with the
commission. Among those who traveled to New York for the submission
were lawyer Henry Bensurto, secretary general of the Center for
Maritime and Ocean Affairs of the Philippine Department of Foreign
Affairs, and Ambassador Minerva Falcon, head of the department’s
Foreign Service Institute.
A Philippine delegation is again expected to
travel to New York to deposit the rest of the submissions in August,
when the commission meets en banc.
Within UN rules
Bensurto said in an interview before leaving for
New York that UN rules allow a partial submission. The
government’s executive summary quoted the UN commission 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.”
Galo Carrera-Hurtado of Mexico, a commissioner
of the Commission on the Limits of the Continental Shelf, 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 could 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.”
Supreme Court case
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 Republic Act
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.
Republic Act 9522 redrew the country’s
baselines to comply with the UN convention requirements for an
“archipelagic state,” in the process excluding the disputed
Kalayaan islands and Scarborough Shoal from the main archipelago and
classifying them instead of “regimes of islands.” The UN
Convention on the Law of the Seas 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 Kalayaan islands 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.
Republic Act 9522 weakened the country’s claim
not only over the Kalayaan islands but also over Sabah, they argued.
The Kalayaan Island Group 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.
No legal effect
Administrator Diony Ventura of the National
Mapping and Resource Information Authority (NAMRIA), which is
involved in preparing the claims, said the case against Republic Act
9522 would 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 R.A. [Republic Act] 9522 there. When we were preparing it
then, the R.A. 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 Commission on the Limits of the
Continental Shelf 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
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