Lack of familiarity with the historical basis and continuing evolution of our national boundaries is the source of government’s (and the general population’s) seeming lack of agreement and consistency in the conception of the national territory and how the Nation-State should respond to external challenges to its integrity and stability.
Philippine national territory was legally described by the 1935 Constitution as being comprised of all territories ceded to the US by Spain in the Treaty of Paris of 1898 and the Treaty of Washington of 1900, as well as territories under the 1930 Convention between the US and the United Kingdom.
The territorial lines drawn by the first and third agreements, combined and appearing as an irregular “box,” have comprised a technical description of our territorial boundaries. But such description creates anomalies, because the Treaty of Paris left some features (e.g., the Batanes Islands, the Turtle Islands, one-half of Sibutu Island, Scarborough Shoal) outside the box, while the Treaty of Washington states that such islands also deemed to have been subject to the cession are part of Philippine territory.
The Philippine claim to Sabah is disconnected from this legal definition. The 1930 Convention draws a line separating the islands belonging to the Philippines and the islands belonging to North Borneo.
The claim to Sabah is based on a document of cession executed by the Sultan of Sulu in 1962. The Sultanate transferred to the Philippine government its rights over the territory of Sabah, which was previously and perpetually leased to the British in 1878, but included among the federated states of Malaysia when it was constituted in 1963.
The Philippine claim to Sabah has been described as merely “proprietary.” It is not a claim to sovereignty by a State, but to ownership by an ordinary property-owner, which impliedly admits that it can be subject to the sovereignty of the State where the property is located rather than the State of its owner. Complicating this peculiarity is the assertion by the current Sultan of Sulu that his family revoked the 1962 cession to the Philippines and reverted all rights to the Sultanate in 1989.
In the meantime, there have been changes in international law affecting national territories and jurisdictions.
Foremost is the 1982 UN Convention on the Law of the Sea (UNCLOS) that expresses international consensus on the extent to which State territories and jurisdictions can be exercised beyond their shores. UNCLOS recognizes a system of maritime zones radiating from baselines. Inside the baselines, the State has complete sovereignty over internal waters; beyond them, its sovereignty is subject to allowing innocent passage of foreign vessels within 12 nautical miles, reduced to specific jurisdictions within 24 nautical miles, and then limited to only exclusive resource rights in the waters from 24 to 200 nautical miles seaward (or to a maximum of 350 nautical miles on the seabed).
In the 1970s, the Philippines pushed for recognition of the Treaty of Paris and the Treaty of Washington lines as the outer limits of Philippine territory, but this was rejected by the international community. The Philippines then officially agreed to the compromise formula of the maritime zones in UNCLOS. But even with the enactment of Republic Act No. 9522 in 2009 to establish archipelagic baselines conforming with the technical requirements of UNCLOS, the Philippines has not officially defined an UNCLOS-compliant territorial sea or contiguous zone extending from those baselines. Yet, it has asserted rights to a 200-nautical mile exclusive economic zone and continental shelf. Just [recently], it secured validation of its claim to an additional continental shelf area in the Benham Rise Region—its first successful expansion of national resource jurisdiction in accordance with international law.
Around the same time it fought diplomatically for expanded maritime space, the Philippines exercised and consolidated its sovereignty over the Kalayaan Island Group west of Palawan. It entered a complicated contest, over the islands and the maritime spaces they generate, with Vietnam, Malaysia, Brunei, China and Taiwan, in an area that is also a focal point of interest for the maritime trading and naval powers of the world. Cooperation and compromise are the only means by which these disputes should be resolved, because the Philippines cannot even hope to engage in a contest of force.
The global economy’s shift toward Asia, the rise of China as world power, the American rebalancing in Asia-Pacific, the ASEAN attempt at regional integration, the resurgence of maritime trade, and the regional drive toward economic development place the Philippine national territory at a maelstrom of competing domestic and foreign interests.
The issues that bedevil us today are outcomes of unresolved clashes between the rich cultural legacies of our past and the barren colonial worldviews that define our present. The University should now direct its intellectual energies toward re-imagining our nation’s future.
Atty. Jay L. Batongbacal is an associate professor at the UP College of Law, and the director of the UP Institute for Maritime Affairs and Law of the Sea. He was a member of the technical team that prepared and defended the Philippines’ claim to a continental shelf beyond 200 nautical miles in the Benham Rise Region.
Condensed from the original article published in the UP Forum March-April 2013
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