Where in the World is the Philippines?: Debating Its National Territory

7. What Next?

 WHAt nExt? A December 1991 “roundtable” in the Philippines recommended, among other things, “The Philippines should resolve ambiguities in Philippine law and practice towards a clear-cut, consistent and well-grounded definition of our national territory and maritime boundaries.”1 As discussed in the previous chapters, although Manila has made some significant advances in this regard, several issues pertaining to the national territory and maritime boundaries remain to be resolved. One of these is how to treat the waters between the Philippines’ archipelagic baselines and the Treaty of Paris limits. One view, whose adherents seem to be decreasing in number, is that the phrase in the current Constitution, “all other territories over which the Philippines has sovereignty or jurisdiction”, includes all the waters within the Treaty of Paris limits, which cannot but be considered as territorial waters. This view is held, even if the quoted constitutional provision omits the explicit mention of the Spanish-American treaty or any other agreement between two foreign powers as something redolent of colonialism. A contrary view is that such an interpretation of the constitutional provision would violate the UNCLOS, which the Philippines ratified, albeit with “reservations”, and which provides for territorial waters only up to 12 nautical miles beyond the baselines. A pragmatic outlook was expressed by the late ArturoTolentino himself, a leading authority on maritime issues and the head of the Philippine delegations to all three international conferences on the law of the sea. Tolentino pointed out that, if the Philippines regarded the waters beyond the baselines merely as its exclusive economic zone, the country would have authority over the resources of a larger expanse of water than if the waters within the Treaty of 1 Where in the World is the Philippines? Paris limits were viewed as territorial waters, a view that would not, in any case, be shared by other states. A related question is whether the treatment, as official policy, of the expanse of water beyond the baselines and within the Treaty of Paris limits as less than Philippine territory would require a constitutional amendment. This question has to be answered. A constitutional amendment would oblige Filipinos to go through a laborious and divisive political and legal process that could open many cans of worms in order to make the country’s maritime regime unequivocally compliant with the UNCLOS. A second issue is whether large bodies of water within the Philippine baselines, like the Sulu Sea and the Moro Gulf, can continue to be regarded as internal waters, when under the UNCLOS they do not qualify as such. Viewing them as archipelagic rather than as internal waters, as some suggest, would raise several questions. Would such a policy definition need a constitutional amendment? After all, Article 1 of the current Constitution states, “The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions (italics mine), form part of the internal waters of the Philippines.” Several pieces of legislation embody this assertion, including the 1932 fisheries act and the original, 1961 baselines law. Would declaring itself an archipelagic state require the Philippines to designate archipelagic sea lanes? Some say it would be in the Philippines’ national interest to do so; others argue, not necessarily. If the Philippines were to do so, where and in what directions? The Philippines has made a “partial submission” of its extended continental shelf. This covers the undisputed area of Benham Rise, northeast of Luzon. When will Manila make more such submissions? What areas will they encompass? In revising its archipelagic baselines early in 2009, the Philippines declared a regime of islands for Scarborough Shoal and the land features that it claims in the Spratlys. It should help if the country were to emphasise in public that this move had made the Philippine position more in line with the UNCLOS and urge China and Vietnam to do the same. There are other issues, including the complex one of the Philippine claim to areas of North Borneo. How does the Philippines propose to break the deadlock on this, or should it just let the status quo persist, with its adverse impact on the Filipinos in Sabah, on the heirs of the Sultan of Sulu, and on the situation in the southernmost part of the Mindanao region? The Philippines is particularly constrained in engaging in the bargaining and “give and take” of negotiations on jurisdictional issues. This is because What Next...