MIRIAM WARNS RP WATERS IN PERIL

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, warned “alarmists in Congress” to stop pushing for a new baseline bill without expert advice, because the Philippines “would virtually lose sovereignty over our internal waters.”

“These alarmists will unwittingly turn over our internal waters to foreigners,” said Santiago, reacting to weekend news that some senators want a new baseline bill to be passed, without consulting international law experts.

Under the Philippine Constitution, Article 1, the internal waters are “the waters around, between, and connecting the islands of the archipelago.”

Santiago said that the move to pass immediately the baseline bill would be “a case of the blind leading the blind,” because RP internal waters would be transformed into “archipelagic waters” under the UN Convention on the Law of the Sea (Unclos).

She said that the “archipelagic waters” concept would allow foreigners to enjoy many rights inside Philippine territory such as: right of archipelagic sea lanes passage; right of innocent passage; traditional fishing rights by neighboring states; and right to repair or replace existing submarine cables laid by foreign states.

“Alarmists should understand that the right of innocent passage given to foreign vessels include the right of navigation and overflight, not only for foreign commercial vessels, but also for foreign military vessels and aircraft. Can we handle that?” Santiago said.

Santiago, also a constitutional law expert, said that Unclos conflicts with the Philippine Constitution, not only because of the archipelagic waters concept, but also because Unclos would severely limit Philippine sovereignty over the 200-mile exclusive economic zone (EEZ).

The Constitution, Article 12 Sec. 2 Paragraph 2 provides: “The state shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”

Santaigo said that under Unclos, this constitutional provision will become invalid, because Unclos provides that when RP does not have the capacity to harvest the entire allowable catch, RP should “give other states access to the surplus of the allowable catch.”

“In other words, instead of reserving the EEZ exclusively to Filipinos, RP has to allow foreigners to fish in the EEZ. Thus, the Supreme Court will certainly declare Unclos as unconstitutional. And then the foreign state may sue RP for violation of Unclos before a foreign tribunal,” said Santiago, the Senate’s recognized expert in international law.

The baseline of the Philippine archipelago consists of straight lines connecting the outermost points of the outermost islands.

The baseline is the starting point for computing the area of the 12-mile territorial sea, 24-mile contiguous zone, 200-mile exclusive economic zone, and the 200-mile continental shelf.

The Philippines needs a new baseline bill, in order to compute the area of the extended continental shelf (ECS), which can be up to 350 miles.

The deadline for filing a claim for ECS with the United Nations is 13 May 2009.

“Since we have one year to meet the deadline, why do we need to rush the baseline bill? First, we should create a Congressional Commission on National Territory, so that we can use as background material the report and recommendations of international law experts,” Santiago said.

Santiago said it was “grave error” for certain quarters to push for a baseline bill first, and then to create the commission later.

“That is putting the cart before the horse. International law is radically different from domestic law. There are only two international law experts in the Philippines. They are Justice Florentino Feliciano and Dean Merlin Magallona. All others are self-proclaimed,” said Santiago, herself listed as an international law expert by the United Nations.

Santiago said that experts have to decide whether the Philippines is a party to the Unclos.

The senator said that when during martial law the Philippines ratified the Unclos, it made an impermissible reservation to fix the limits of the Philippine territorial sea under the 1898 Paris Treaty.

Under the Vienna Convention, Art. 19, when a treaty prohibits any reservation, and a state ratifies the treaty but makes an impermissible reservation, that state is not a valid party to the treaty.

“Before we rush to a baseline bill, lawmakers should first have the benefit of advice from international law experts. Otherwise, to a great extent, we lose our sovereignty over our own internal waters. That would be anomalous, because our archipelago will become an open maritime highway. Filipino fishermen will have to compete in our own waters with foreign fishermen,” she said.

Santiago said that if Congress votes to defer the creation of the congressional commission and to pass a baseline bill first, she would refuse to defend the baseline bill.

“I cannot defend a bill that will turn over our internal waters to foreigners, and run the high risk of being declared as unconstitutional by the Supreme Court,” said Santiago, who is also a constitutional law expert.

Santiago said the Senate Rules prohibits senators who voted in favor of a committee report, to change their minds and oppose the bill in plenary session.

The committee report recommending that the commission should first be created and its report submitted, before the Senate discusses the new baseline bill, was signed by 14 senators.

“The point that the order of priority should be reversed has become moot and academic, because this particular committee report to create the commission has already been passed by a majority of senators,” Santiago said.