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Home Opinion Editorial Benham Rise and ‘sovereign rights’

Benham Rise and ‘sovereign rights’

 

PRESIDENT Rodrigo Duterte has received brickbats from various quarters for being unruffled at the report of his defense secretary, Delfin Lorenzana, that Chinese survey ships were spotted last year at Benham Rise, an undersea area off the coast of Aurora that is part of the Philippines’ maritime boundaries. The criticisms hint at a lack of basic understanding of the subject matter.

Benham Rise, a 13-million-hectare region said to be rich in mineral deposits, is not part of the Philippines’ national territorial waters that extend 12 nautical miles from the country’s landmass or baselines. What and where is Benham Rise?

The Philippine claim to Benham Rise goes back to a 2001 workshop led by the National Mapping and Resource Information Authority on how the country could comply with the United Nations Convention on the Law of the Sea (UNCLOS), the 1982 treaty that governs the oceans, and which took effect in 1994.




University of the Philippines professors recommended that Benham Rise, an area larger than Luzon island, be included as part of the country’s extended continental shelf prior to a deadline set under UNCLOS. The Philippines brought the matter before the UN Commission on the Limits of the Continental Shelf in 2009, and got the body’s nod in 2012.

Did that make Benham Rise part of Philippine territory? Not so fast. Beyond the 12-nautical-mile territorial sea where the country can undoubtedly exercise sovereignty under UNCLOS, the Philippines can only invoke “sovereign rights” – a lesser right that nevertheless allows the exploration, exploitation, conservation and management of natural resources.

Under UNCLOS, the Philippines has the automatic right to a 200-nautical-mile exclusive economic zone beyond its territorial sea, a fact upheld by the July 2016 ruling of the Permanent Court of Arbitration in The Hague.

To be able to exercise sovereign rights over Benham Rise, however, the Philippines had to seek approval from the UN to declare the area part of its extended continental shelf, which can reach up to 350 nautical miles from the landmass.

UNCLOS states that a coastal state “exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources…exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.”

Filipinos won’t even be able to fish over Benham. Natural resources in the continental shelf means “mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species,” meaning clams and shellfish that can hardly move at the bottom of the sea.

Duterte is thus correct not to make a big fuss of Lorenzana’s report, especially as the President has confirmed that Beijing had advised Manila beforehand on the activities of its vessels at the Benham Rise region. China is not even claiming Benham Rise.

In fact, Senior Associate Justice Antonio Carpio notes that even “if Chinese vessels were looking for submarine passages and parking spaces, that would be part of freedom of navigation and the Philippines has no reason to complain.”

Having said that, Lorenzana’s report merits attention, coming from a senior member of the Cabinet.

As Carpio explains: “If the Chinese vessels were conducting seismic surveys to look for oil, gas and minerals, then they could not do that because UNCLOS has reserved the oil, gas and minerals in the [extended continental shelf] to the Philippines.”

The level-headed response is to exert all efforts to prevent Benham Rise from becoming another flashpoint between Manila and Beijing, not useless hyperventilation.

And before Beijing thinks of claiming Benham Rise, the Philippines should take the steps necessary to prevent a repeat of the previous administration’s monumental blunder of being outwitted and outmaneuvered by China in Panatag (Scarborough) Shoal, if we don’t want to wake up one morning to news that artificial islands have suddenly appeared east of Luzon.

 

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