BY ANTONIO T. CARPIO
THE PHILIPPINES’ territorial claim to the Spratlys is limited only to the Kalayaan Island Group (KIG), as formalized in Presidential Decree No. 1596 and clarified in Republic Act No. 9522. China’s and Vietnam’s territorial claims cover the entire Spratlys. Malaysia’s territorial claim is limited to a few high tide-features off the coast of Borneo, while Brunei’s territorial claim is solely to Louisa Reef off the coast of Brunei.
The Philippines never claimed the entire Spratlys, a collection of high-tide features situated off the coast of Palawan and Borneo facing the South China Sea. Last month, Rep. Ann K. Hofer filed House Bill No. 9835 and Rep. Luis Raymund Villafuerte filed HB 9662. These two House bills are verbatim reproductions of the draft bill proposed by retired Justice Francis Jardeleza and lawyers Melissa Loja and Romel Bagares. These three lawyers claim that their proposed bill is an inexpensive and effective means of enforcing the Arbitral Award of July 12, 2016.
Unfortunately, these two House bills will not only exacerbate the Spratlys territorial dispute, they will also make the Philippines the laughingstock in the international legal community. As pointed out by Prof. Jay Batongbacal, the director of the Institute for Maritime Affairs and Law of the Sea at the University of the Philippines, these two House bills make new maritime and territorial claims to the Spratlys. I completely agree with Prof. Batongbacal.
First, these two House bills claim Rifleman Bank, Kingston Shoal, Orleana Shoal, Johnson Patch, and Owen Shoal, which are all submerged features within the extended continental shelf of Brunei, just beyond Brunei’s exclusive economic zone. These submerged features are separated from the Philippines’ extended continental shelf by the extended continental shelf of Malaysia. In short, to claim these submerged features, the Philippines will have to jump over the extended continental shelf of Malaysia. This is similar to China’s claim to the Philippines’ Reed Bank, a claim that jumps over the high seas of the South China Sea to lay claim to a submerged feature in the West Philippine Sea more than 550 nautical miles from Hainan Island.
Any Philippine claim to these submerged features in Brunei’s extended continental shelf is not only patently contrary to the UN Convention on the Law of the Sea (Unclos) and customary international law, it also defies logic and common sense. The resources of submerged features within the extended continental shelf or exclusive economic zone of an adjacent coastal state belong exclusively to the adjacent coastal state. As if this egregious blunder is not enough, these two House bills also claim Brunei’s Louisa Reef, a territorial claim to a high-tide feature off the coast of Brunei. Louisa Reef is outside the polygonal lines of PD 1596, and was thus never claimed before by the Philippines.
Second, these two House bills claim Royale Charlotte Reef, a submerged feature within the exclusive economic zone of Malaysia off the coast of Borneo. Even assuming that the unoccupied Royale Charlotte Reef is a high-tide feature, it is still outside the polygonal lines of PD 1596, and thus the Philippines never claimed it before as its territory. These two House bills, moreover, claim as Philippine territory Swallow Reef, a high-tide feature occupied by Malaysia. Swallow Reef is outside the polygonal lines of PD 1596, and thus the Philippines never also claimed it before as its territory. These new territorial and maritime claims in the two House bills will surely exacerbate the Spratlys dispute.
Third, these two House bills claim Jubilee Bank, Ladd Reef, and Coronation Bank, submerged features within the extended continental shelf of either Vietnam, Malaysia, or Brunei but definitely outside the extended continental shelf or exclusive economic zone of the Philippines. These submerged features cannot be claimed by the Philippines under Unclos. Moreover, these two House bills claim as Philippine territory Spratly Island, a high-tide feature occupied by Vietnam. Spratly Island is outside the polygonal lines of PD 1596 and was thus never claimed before by the Philippines as its territory. These new claims of the Philippines will again only exacerbate the Spratlys dispute.
Clearly, these two House bills will needlessly open a new maritime and territorial dispute between the Philippines on one side and Malaysia, Vietnam, and Brunei on the other side. Do we want this? (©Philippine Daily Inquirer 2021)
