New baseline law most efficient option to enforce Arbitral Award

New baseline law most efficient option to enforce Arbitral Award

MANILA – Enactment of a new baseline law is the most efficient option to enforce the five-year-old South China Sea Arbitral Award won by the Philippines in its maritime dispute with the People’s Republic of China.

This, according to retired Supreme Court (SC) Justice Francis Jardeleza in a one-page letter to President Rodrigo R. Duterte dated June 5

“We respectfully submit that the best, most efficient, and practical option to enforce the Award is to… legislate a new Baselines Law, consistent with the [Arbitral] Award, “ he added in an online press conference Monday.

Jardeleza said the proposed law will amend Republic Act 9522, the current baselines law, to specifically name and identify the maritime features in the West Philippine Sea claimed or occupied by the country.

Under international law, legislation is an act of sovereignty that establishes territorial title.

Jardeleza, however, said the national legislation claiming sovereignty and sovereign rights must name the contested individual maritime features.

“Our proposed law does that thus, constituting an act of sovereignty in relation to each feature,” he added.

Jardeleza also urged the President to certify the bill as urgent, as passing the new baselines law “is the most inexpensive and yet most effective means of enforcing the Arbitral Award and strengthening our territorial and maritime rights in the West Philippine Sea.”

 The West Philippine Sea straddles maritime areas on the western side of the Philippine archipelago, including the Luzon Sea as well as the Kalayaan Island Group and Bajo de Masinloc, also known as Scarborough Shoal.

The proposed law identifies at least 100 maritime features in the West Philippine Sea.

Of these features, 35 are said to be rocks or high tide features that generate a territorial sea and a contiguous zone.

Jardeleza, who retired from the SC in 2019, was Solicitor General and agent of the Republic of the Philippines in the successful arbitral proceedings against China under the United Nations Convention of the Law of the Sea.

The Arbitral Award, which will mark its fifth year anniversary next month, invalidated the expansive Chinese Nine-Dash Line claim.

But since it was handed down on July 12, 2016, by the United Nations Convention on the Law of the Sea (UNCLOS) tribunal, many sectors in the Philippines have remained divided on how to secure its gains.

Worse, Jardeleza said, there had been a serious misunderstanding of the true import of the Award that threatens its biggest achievements.

The former SC  justice was assisted by international law academics — Dr. Melissa H. Loja and Prof. Romel Regalado Bagares – in drafting the proposed bill.

Jardeleza added that over the weekend, he had requested Presidential Spokesperson Harry Roque to hand-carry his letter to the President.

Light of day

In the online conference, the three proponents explained that if the new baseline law sees the light of day, it “ensures that the Philippines is the first claimant [over the Spratly chain of islands] to legislate the individual names and baselines of the claimed features.”

They said previous Philippine laws had dealt with the Spratlys as a single unit or an archipelago, without identifying and naming the features found within.

The UNCLOS Tribunal, however, declared that no littoral state can claim the area as such. Instead, it held that the maritime features in the area must be treated individually, with some of them being rocks able to generate a territorial sea.

Moreover, a number of these rocks are found in the Philippine Exclusive Economic Zone, including Bajo de Masinloc. These features remain contested.

“As some of these rocks and their territorial seas are occupied by a foreign state, it is necessary to delineate where the contested territorial sea ends and where our uncontested EEZ begins,” they said.

Philippine Maritime Features of the West Philippine Sea Act

Jardeleza’s proposed baseline law, if enacted, shall be known as  “Philippine Maritime Features of the West Philippine Sea Act”.

“This Act applies to the maritime areas on the western side of the Philippine archipelago collectively named as the “West Philippine Sea” under Administrative Order No. 29, Series of 2012. These areas include the Luzon Sea as well as the waters around, within, and adjacent to the Kalayaan Island Group and Bajo De Masinloc, also known as Scarborough Shoal,” the proposed law read.

One of its most important features states that the Philippines has sovereignty, sovereign rights, and jurisdiction, as appropriate, over the following identified maritime features in the West Philippine Sea, without prejudice to other such features that will be discovered or established as part of the Philippine sovereignty or jurisdiction in the future.

The proposed law states that the breadth of the territorial sea adjacent to the coast of each island shall extend to a distance of twelve nautical miles measured seaward from the baselines.

“The breadth of the contiguous zone shall extend to a distance of 24 nautical miles from the baselines from which the breadth of the territorial sea is measured,” it further read.

It added that the Philippines adopts the following baselines of each identified offshore rock or high tide feature within the West Philippine Sea, without prejudice to the determination of the baselines of other such maritime features over which the country has sovereignty and jurisdiction in the future.

It also highlights the rights of the Philippines over the territorial sea and contiguous zone of each maritime feature identified in this Act, as may be applicable, shall be exercised in accordance with Philippine laws and international law, particularly the United Nations Charter and the UNCLOS.

The proposed law also states that provisions of Presidential Decree No. 1596, Republic Act No. 9522 and Republic Act No. 3046, as amended by Republic Act No. 5446, and all other laws, decrees, executive orders, rules, judgments, and issuances inconsistent with this Act are hereby amended or modified accordingly.

It also states that the National Mapping and Resource Information Authority (NAMRIA) shall produce and publish charts and maps of the Philippines reflecting this Act, within six months of its effectivity.

“All departments, subdivisions, agencies, and instrumentalities of the Government shall use and employ the designations of the maritime features named and identified in this law in all communications, messages and public documents, to popularize the use of such designations in the general public, both domestically and internationally,” it added. (PNA)

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