A Maritime Zones Law, Diplomacy, and our National Interest
I was greatly encouraged but very cautious with the shift in the narrative to defend our maritime areas and resources when President Duterte, in his speech at the 75th UN Assembly on 22 September 2020, stated unequivocally that the decision of the 5-member Arbitral Tribunal in the Philippines vs. China case is “now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon.”
The WPS/SCS dispute is complex with intertwined issues in Philippines-China relations. The nature of this regional dispute necessitates alliances with other like-minded nations as underscored by the President when he welcomed “the increasing number of states that have come in support of the award and what it stands for – the triumph of reason over rashness, of law over disorder, of amity over ambition. This – as it should – is the majesty of the law.”
With the refocusing of our strategy in the WPS, the Philippines should now act quickly to pass into law the bill to establish UNCLOS-consistent maritime zones, namely, the 12NM Territorial Sea, 24NM Contiguous Zone, 200NM Exclusive Economic Zone and Continental Shelf, and, in specific applicable areas, an Extended Continental Shelf. These zones will begin from the archipelagic baselines that were defined and described in RA 9522; whose constitutionality was upheld by the Supreme Court in Magallona et. al. vs. Ermita et. al. “RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest,” the SC decision stated.
The Philippine Congress, even up to this current session, has endeavored to enact a law on the maritime zones that would, among other provisions, repeal PD 1599 on exclusive economic zones and PD 1596 (EEZ) on the Kalayaan Island Group (KIG). The law should provide for the delimitation of any overlapping EEZ with neighboring coastal states following the Philippines-Indonesia EEZ Boundary Treaty that entered into force on 01 August 2019. Furthermore, the law should also provide for a 12NM territorial sea around high-tide features or rocks within our EEZ including the KIG and the Panatag/Scarborough Shoal in line with the decision of the Arbitral Tribunal that these features are not entitled to an EEZ or continental shelf. The PH-RI EEZ and the Philippine Rise (Benham Rise) Extended Continental Shelf adopted in 2012 under UNCLOS Part VI are among the clearly defined maritime areas of the Philippines. The latter should be supported by HB00035 on the Benham Rise Research and Development Institute, which is still pending in the 18th Congress.
The President will leave a legacy when his terms ends in 2022 with the maritime zones law. It is noted that the National Economic and Development Authority is seeking Congressional approval this year of the Philippine Maritime Zones and Archipelagic Sea Lanes bills, as among the proposed measures for 2020. Alternatively, Congress could act now by treating these pending bills as a bipartisan priority legislation.
The Philippines adopts the dualist model in treaty implementation wherein the appropriate legislation needs to be passed for an international agreement to have binding legal force at the national or local level. Thus, the legislated maritime zones will provide unequivocal parameters for concerned government agencies in exercising our sovereignty and sovereign rights to secure, explore, and exploit the natural resources in our waters, seabed, and subsoil in line with the Constitution and UNCLOS. The President will need to clearly define maritime zones to support his recent order to resume development work in our EEZ from Palawan, particularly in areas covered by Petroleum Service Contract (SC) Nos. 59, 72 and 75, a decision that brought some positive comments from China. Energy Secretary Alfonso Cusi said: “We need to explore so we may address the country’s energy security.”
The WPS/SCS dispute must be addressed carefully with a clear understanding of our national maritime interest. The Constitution provides that: “The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.”
War is not an option, as pointed out by former Senior Associate Justice Antonio T. Carpio in reaction to the President's visible uneasiness over military conflict with China. Our Constitution renounces war as an instrument of national policy which the President obeyed when he stated in an interview, “I would suggest that we better just call off and treat this, I said, with diplomatic endeavors.” It takes one spark to start a regional conflict and many years to end it through diplomacy, as can be seen in current conflicts in various parts of the world.
Diplomacy will therefore play a key role in defending and promoting our maritime interests and will be a generational task for our diplomats and other public servants, even beyond President Duterte's term. A coalition of nations that support international law principles such as the sanctity of treaty obligations, the rule of law, and freedom of navigation will further broaden and deepen our engagements through the diplomatic route. It takes time, hard work, and patience for diplomacy to produce results. But certainly, diplomacy works!
As we muster our foreign service corps for this task, the Philippine negotiators must be clear on our strategic objective and tactical approach towards a rising and aggressive China. I believe our diplomats at the negotiating table would be in a position of strength with legislated maritime zones compatible with UNCLOS and international jurisprudence including the Arbitral Award.
China's invalid claim over the SCS with its 9-dash lines cannot be considered just and must be challenged. The Philippines must therefore take a firm action on this issue. Henry Kissinger, in his book Diplomacy, observed that ”states do not receive credit in any world for doing what is right; they are only rewarded for being strong enough to do what is necessary.”
The Filipinos must therefore be strong to do what is necessary to secure and defend our maritime zones and its resources.
*This article was commissioned by ARS in behalf of the Foundation for the National Interest through the support of The Asia Foundation for the project on "Governance, Security, and Development in the Philippine Maritime Domain.i