On Jan. 28, the Congress of the Philippines passed the third and final reading of Senate Bill 2699, otherwise known as the 2009 Baseline Bill, based on a bill designed by Senator Miriam Defensor Santiago. The 2009 Baseline Bill, which is aimed at defining the Philippines’ archipelagic baseline, will not include the Kalayaan Islands — the name the Philippines uses to refer to the highly disputed Spratly Islands — and the Scarborough Shoal, as previous drafts did.
Instead, the disputed areas will be treated separately under the “regime of islands” as provided for by Article 121 of the UN Convention on the Law of the Sea. Santiago, the Senate’s foreign relations committee chairwoman, has said these moves were basically aimed at avoiding disputes with surrounding countries.
However, by treating the contested land territories of the Kalayaan Islands and Scarborough Shoal under the “regime of islands” as outlined in the Law of the Sea, the Philippines will still be able to make a claim to these disputed areas and, in addition, under the “regime of islands” each island will have its own territorial sea, contiguous zone, exclusive economic zone and continental shelf, which will actually increase the size of the Philippines’ archipelagic waters.
It therefore appears that the Philippines will continue to draw its baselines based on the 1961 Baseline Law and then use the “regime of islands” to separately handle the disputed zones of the Kalayaan Islands and Scarborough Shoal.
The reason why the Congress of the Philippines is now dealing with this baseline bill is that the House of Representatives passed the second reading of the bill in December 2007, a version that included the Kalayaan Islands and Scarborough Shoal in the archipelagic baseline of the Philippines.
However, because of the sensitive nature of that version and opposition from China, Philippine President Gloria Macapagal Arroyo sent a letter to the House of Representatives asking for the case to be put aside. Following this, during a parliamentary meeting in May Santiago discussed the issue of the baseline bill to help draw up a new version. Therefore, the baseline bill that has been passed is the result of that particular meeting.
However, the bill is contestable for two reasons.
First, it will continue to make the claim that the Spratly Islands and Scarborough Shoal are Philippine territory and these claims will continue to fuel disputes with other claimants to these islands. To be precise, the Philippines’ claim to the Spratly Islands and the Scarborough Shoal is not in line with historic fact.
The Spratly Islands and the Scarborough Shoal were never part of Philippine territory. Estelito Mendoza, a lawyer who represented the Philippines at the UN Conference on the Law of the Sea made this point clear last year at a hearing on the baseline bill in the Congress of the Philippines when he said that the Kalayaan Islands would not be included in the Philippines’ archipelagic baseline because the Philippines lacks adequate naval and air forces to protect this disputed group of islands and because there is a risk of breaking international law.
Mendoza also said that the biggest problem with the disputed islands was that for centuries, the Philippines never even viewed the Kalayaan Islands as part of the Philippine archipelago.
The second contestable point is that the baseline bill includes an attempt to legally make the Batanes Islands part of the Philippines’ archipelagic baseline. However, the Batanes Islands are located north of the 20th parallel of north latitude, which means that Manila would be in breach of Article 3 of the Treaty of Paris of 1898 signed by the US and Spain. According to the article, Spain had to concede the areas south of the 20th parallel to the US.
However, the Batanes Islands are north of the 20th parallel and were therefore not conceded to the US. In 1961, the Philippines promulgated “Republic Act 3046: Act to Define the Baseline of the Territorial Sea of the Philippines,” which extended the border of the Philippines further north to include the Mavudis Island, also known as Y’Ami Island, which is located at the northernmost point of the Batanes Islands.
Therefore, according to the maritime border agreement signed between Spain and Japan on Aug. 7, 1895, and the content of the negotiations on the Treaty of Paris, Taiwan still has a chance to fight for the sovereignty of the Batanes Islands.
The baseline bill would make the Philippines an archipelagic state and directly influence the right of Taiwanese ships and boats to pass through the waters of the Philippine archipelago, as well as the rights to fish near the waters of the Luzon Strait that Taiwanese fishermen have traditionally enjoyed.
According to the regulations of the Law of the Sea, an archipelagic state must respect the fishing rights of surrounding countries in the waters around its islands and allow the free passage of boats and ships in those waters. The Philippines has never had a clear definition of the waters surrounding its islands.
However, if the Philippines continues to emphasize the definitions of borders as listed in the Treaty of Paris, foreign ships will not be allowed to travel in the archipelagic waters of the Philippines. This means that Taiwanese fishermen would lose the fishing rights they traditionally had in the Luzon Strait. Should Manila fail to respect the agreement of 1898, it would be incumbent upon Taipei to lodge a protest.
The government must address this situation accordingly, as the baseline bill will soon be passed by the Philippines’ House of Representatives and, if passed, would have a serious impact on Taiwan’s territorial and maritime rights.
Chen Hurng-yu is a professor in the Department of History at National Chengchi University.
TRANSLATED BY DREW CAMERON
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