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.

25 March 2008

MIRIAM: CHARTER BANS ARCHIPELAGIC STATE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, warned that the Constitution has already defined the national territory, and any attempt to declare the Philippines as an archipelagic state under the UN Convention on the Law of the Sea (UNCLOS) would require charter change, because it would reduce the national territory.

“The Constitution states that the national territory comprises the Philippine archipelago, and all other territories over which the Philippines has sovereignty or jurisdiction. The Constitution does not describe the Philippines as an archipelagic state, which is a term of art used by the UN Convention,” she said.

The senator said that if the Philippines declares itself an archipelagic state, the declaration would contradict the Treaty of Paris which sets out the boundaries of our national territory, which are wider than those allowed by the UNCLOS.

Under the 1898 Treaty of Paris, Spain ceded the Philippines to the United States, and now serves as the basis for the present Philippine Baseline Law embodied in R.A. No. 3046, together with R.A. No. 5446.

“The Treaty of Paris sets out the International Treaty Baselines of the Philippine territorial sea. By contrast, the bills pending in Congress will eliminate such limits and thus, the Philippines would lose its boundaries,” she said.

Santiago cautioned against declaring the Philippines as an archipelagic state, because under the UNCLOS, the Philippines would be entitled to only 12 nautical miles of the territorial sea which, she said, is “an almost colossal reduction from the wider boundaries of the International Treaty Limits under the Treaty of Paris.”

“If the Philippines declares itself an archipelagic state, our zone of sovereignty would collapse. Our internal waters would become archipelagic waters where the ships of all states will enjoy the right of innocent passage. In addition, foreign states would have the right of so-called archipelagic sea lane passage. Ships of all states would have the right of passage and their aircraft would have the right of over flight,” the senator said.

Santiago also warned that if the Philippines declares itself an archipelagic state, it would adversely affect the environment, because of marine pollution from ships in the archipelagic waters. The result would be that the Philippines as an archipelagic state would have less enforcement jurisdiction over foreign vessels in matters of pollution, than a non-archipelagic state in its territorial sea.

Santiago said that the question of ownership over the Kalayaan island group, sometimes called the Spratly, is related to the issue of archipelagic base lines.

“If the Philippines declares itself an archipelagic state, then we need scientists to determine if, under international law, Kalayaan by itself constitutes another archipelago. Under UNCLOS, an archipelagic state can be composed of two archipelagos. If not, under international law, Kalayaan could be characterized as ‘other islands’ over which the Philippines is entitled to claim sovereignty,” she said.

Santiago said that the present bills seeking to extend the archipelagic baselines so as to include Scarborough Shoal are not advisable, because it would revise the Treaty of Paris.

“International law does not recognize the drawing of archipelagic baselines as a method of claiming territorial sovereignty,” she said.

Instead, Santiago proposed that the Philippines should claim sovereignty over Scarborough Shoal through the method of effective occupation under international law.

“The Philippines has already exercised many political and administrative acts of a sovereign nature over Scarborough Shoal. Such acts include military exercises, establishment of lighthouse, enforcement of laws against foreign vessels and nationals, which are evidenced by historical data,” the senator said.

Santiago also warned against the wording of the pending bills concerning Sabah.

“In 2001, with Dean Merlin Magallona arguing for the Philippines, the International Court of Justice relied on Philippine law, particularly Republic Act No. 5446, Section 2, which provides that the Philippines has acquired dominion and sovereignty over Sabah, North Borneo and hence, the baselines of the territorial sea include baselines of the territorial sea around Sabah. If the pending bills abolish Sec. 2, the effect is to remove from Philippine law the affirmation of sovereignty over Sabah,” she said.

Santiago was referring to the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan between Malaysia and Indonesia, where the ICJ ruled that the Philippines will not in any way be affected by its decision on the merits I the case between Malaysia and Indonesia.

Santiago said that under a resolution that she filed, no less than a congressional commission on national territory should be established because the present bills “do not fully appreciate the magnitude and depth of the country’s territorial problems. In fact, the present bills carry the risk of exacerbating the contradictions internal to the territorial regime.”

-End-

Transcript of Senator Miriam Defensor Santiago’s interview after the fifth hearing on the JPEPA

8 October 2007

As a constitutional law student, I am personally godsmacked by what the imminent constitutional law expert have said. They were very strong in their view that the JPEPA is unconstitutional.

I have already emphasized that the constitutional issue is a threshold question because in a hypothetical case, even if the committee reports the treaty favorably to the plenary session in the Senate; and the Senate, by a minor miracle, approves it, the opposition, who is very emotional and committed to their cause, will certainly bring a case to the Supreme Court. If the Supreme Court decides that the JPEPA is unconstitutional, it will become unnecessary to discuss all other points. That is the most fundamental priority of all these hearings: is it constitutional or not. That is why I deliberately left the issue of constitutionality for last because it is a very technical issue and will be very difficult for the public to understand.

Among our experts is the preeminent legal scholar of this country and actually the most famous
international law expert for Asia, and therefore in the world, Mr. Florentino Feliciano. His paper
consisting of seventeen pages is categorical. He is citing chapter and verse the Constitution, not just one but several. In my personal view, when Justice Feliciano says something, that is no longer debatable. Even the administration spokesperson on this particular issue conceded that Justice Feliciano’s opinion is simply in the level of the supernatural—when he says something, there is almost nothing that you can say against it.

The same is true for the other expert in international law, former Dean of the UP College of Law and Oxford graduate Dean Merlin Magallona. Virtually, if we go by the objective analysis of these independent experts, the JPEPA is dead. JPEPA is unconstitutional in several constitutional grounds, and then they went on to explain which ones of these provisions are, and why they adversely impact the validity of the JPEPA.

But as I’ve said, we are not finished, in fact there will be an additional hearing to be presided by either Senator Roxas or Senator Angara. I have to keep an open mind until after that last hearing and until after all the parties directed should have submitted their written memoranda by October 23. But as a lawyer, for me the preeminent question is constitutionality. Once you have a valid and substantial constitutional question, then there is no point in discussing the JPEPA. It is the ultimate first priority. Since our objective experts who were testifying or having their papers read were categorical in their findings.

The power of the Senate is confined merely to ratification or rejection. We cannot possibly amend the treaty. What we can do is send back the treaty to the executive branch for renegotiation for amendment, addition, or exclusion as we shall see fit in the Senate floor. But of course, they will take my recommendation as chair of the committee into full significance.

If that is the case, I will first have to get a majority vote of my own committee. But notice there
were three administration senators present, but we were unanimous at least in this hearing that there is no question that JPEPA is unconstitutional.

But as I’ve said, I will struggle very hard against my own instincts to try and keep an open mind, because after all, there will be one more hearing, and then I still have to wait for the memoranda from all parties.

On the JPEPA provisions claimed by experts to be unconstitutional

The Philippine Constitution is one of the few in the world that has a nationality provision. In other words, we consider that, as a matter of Filipino nationalism, certain areas of business, trade and industry should be reserved only for Filipino citizens or corporations that has at least a majority or controlling share is owned by Filipinos. According to these experts, the JPEPA, if implemented, will violate these nationality provisions. Under the treaty, only Japanese entities may invest in the Philippines. However, there is a practice in international trade law where, to get around that requirement, they can form a corporation which would be the “grandfather,” and that corporation can form another one, and so on, until it reaches a point where the registered Japanese corporation is no longer controlled by the Japanese but might be controlled by Americans, Europeans or whoever. There is actually a backchannel or loophole in that provision, that is why it might be unconstitutional on that ground.

In the 1993 Oposa v. Factoran, the Supreme Court said that all activities on the part of the government must apply to the constitutional provision of protection of the environment on a balanced ecology. And so, it is likely that that provision will be applied as well, and that would be the second ground for unconstitutionality. That is the problem: it is not only one ground, but several. If you don’t get it declared in one ground or one provision, there are still other provisions you have to contend with.

That is why I am very worried about the fate of JPEPA even on committee level only. But in plenary level, we are already disadvantaged because the numerical majority belongs to the opposition, and this series of hearings provided the opposition senators with very strong ammunition. I for one confess that I will not be able to defend the constitutionality of the JPEPA
on the Senate floor.

-o0o-