MIRIAM URGES SPRATLYS PROTEST VS. TAIWAN

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, urged foreign affairs Sec. Alberto Romulo to send a note to Taiwan , through its Manila Economic and Cultural Office, to halt the proposed visit next week to the Spratly islands by Taiwan ’s defense chief and a group of legislators.

“The Philippines has good grounds to protest because it is a provocative act for Taiwan officials to visit their newly constructed airstrip on Taiping island in the Spratly chain,” the senator said.
Santiago said that the Taiwan visit to the Spratlys will violate the 2002 China-Asean Declaration on the Conduct of Parties in the South China Sea .

“Even if Taiwan is not a party to this Declaration, it has most likely evolved into regional customary international law, since it was signed six years ago by nine countries: China , Brunei , Cambodia , Indonesia , Malaysia , Myanmar , Philippines , Singapore , and Thailand . As customary international law, the Declaration binds all states in the Asian region, including non-parties,” she said.

Santiago explained that Taiwan was not invited to sign the Declaration, because China claims sovereignty over Taiwan , and China has insisted on a one-China policy in the United Nations.
The Declaration states “that the parties are committed to exploring ways for bringing trust and confidence on the basis of equality and mutual respect.”
The Declaration also commits the parties to “the freedom of navigation in and overflight above the South China Sea, as provided for by international law, including the 1982 UN Convention on the Law of the Sea.”

“The Taiwan airstrip jeopardizes the freedom of overflight above the Spratly chain. It is a provocative act and the Taiwanese visit there will add to the provocation. I hope that the foreign affairs department would be able to bring this controversy to the attention of President-elect Ma Ying-Jeou, before he takes office on May 20,” the senator said.

The Declaration binds the parties to exercise restraint and to hold dialogues and exchange of views between their defense and military officials.

“In our protest note, we should instead recommend that there should be dialogues between the Philippine defense secretary and armed forces chief of staff with their Taiwanese counterparts,” Santiago said.

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Transcript of Senator Miriam Defensor Santiago’s interview

On the baselines bills

I believe that the archipelagic baselines bills filed in both chambers of Congress were sincerely intended and crafted out of intellectual honesty. I won’t say anything derogatory to the authors of the bills, except that they separately treat the archipelagic problem, particularly what are the boundaries of our national territory in a piecemeal manner. They pick certain provisions from the UNCLOS and then they try to apply it in their bills. You can’t do that.

The Philippines is a geographical archipelago, but if it makes a declaration that it is an archipelagic state, immediately we lose our rights to our internal waters. They will become in effect a highway for foreign vessels. Secondly, we would lose our right to protect our local fishermen from poaching of foreign vessels. These are just examples. There are many consequences of a declaration of an archipelagic state.

So first we must talk to the experts, meaning the scientists familiar with the measurements of the maritime boundaries. And we must talk with the legal experts, if possible officials in the foreign affairs connected with the negotiation of the UNCLOS.

I am not necessarily against those bills but I think it is premature to act on them at this time since the bills happen to include the Kalayaan Island Group and other disputed islands within the baselines.

Even the international limits in the Treaty of Paris do not include those disputed islands within our territorial boundaries. In doing so, the bills constitute a violation or at least a disregard of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea. That could be considered an offensive act of aggression by China.

On some senators on the doubting the legality of JPEPA’s conditional concurrence

I simply have to educate them. They are afraid because they don’t know about it. Fear is usually the result of ignorance. They’ve never had any experience with it. But in the United States , they have been practicing it since the 19th century and nobody has ever objected. The United States has entered into treaties with the world’s greatest powers, especially with Russia during the Cold War, and Russia never objected.

I know that a colleague has issued a press release, which I view as entirely unfortunate. He has fallen into the trap a freshman normally would. When you read for example the Vienna Convention on the Law of Treaties, you have to be aware that the Vienna Convention is not a codification of general international law. It is not as if you are reading the Revised Penal Code, that if you don’t find it there, then it is not allowed by law. That is not the case with an international treaty particularly when it is multilateral in nature.

In any event, this is a very technical matter and I would be happy to educate my colleagues at this point. I think it is unfortunate to muddy the waters this early. The only question here is can we explain why Jpepa is advantageous to the Philippines during the plenary debate. Thereafter, we can proceed with subsidiary question of its procedural niceties.

Transcript of Senator Miriam Defensor Santiago’s interview
21 April 2008

On the rice crisis

The rice problem as we know is not national in nature nor is it regional (to Southeast Asia). It is global in nature. For the Senate to investigate the rice problem will have to confine itself to certain activities of Filipino corporations or nationals, for example: Are they hoarding? Are they manipulating? Is there a conspiracy in respect to trade? And so on. In effect, that would be a criminal investigation.

But if we are going to investigate the rice situation, that would necessarily be global in nature, and we simply do not have the faculties to conduct such an investigation.

Predictions that President Arroyo will be overthrown because of the rice crisis are not related to reality. If that is the case, then all other rulers in Southeast Asia will be overthrown as well.

On the baselines bill

The baselines bill is another mistake. In the first place, these people who have been so valuable in the media do not realize the profundity and the complexity of the baselines issue. I remember the very first article I wrote for the Philippine Law Journal of the University of the Philippines when I was taking my masters in the University of Michigan was on the archipelagic doctrine and that was the start of articles that my friends and I were writing at that time because it is very complex.

Akala nila basta magdrowing ka ng baselines, tapos na. And they included certain contested islands there. There are many complications there. The boundaries of the Philippines will become very much smaller if we declare it an archipelagic state under the UN Convention on the Law of the Sea because the boundaries of the Philippines , as specified in the Treaty of Paris are
so much wider. So why should we be in a hurry to narrow down our own internal waters? If we join the rush to comply with the archipelagic baselines deadline—which is May next year—that will give to all foreign vessels the right of archipelagic sea lanes passage that has been overlooked by all these commentators on our baselines.

Right now, the waters among and between our islands belong to the Philippines . The moment you declare the Philippines as an archipelagic state, foreign vessels will have the right to pass in these waters between our islands without asking for our permission and the freedom to do whatever they want as long as they don’t get caught doing it.

My proposal is to convene a commission of experts. That is the problem with the Senate. This is a very highly technical subject, and everyone is just shooting his mouth off for a sound byte. You cannot do that with this very complicated legal issue.

The UN Convention on the Law of the Sea does not impose a compulsory duty for archipelagic states to draw their baselines because the convention states that “the State may draw”. It does not say “shall draw.” There is no penalty if you don’t declare your baselines.

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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.”

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9 March 2008

SENATE SETS APRIL SPRATLY PROBE, JPEPA VOTE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that the public hearing on the controversial 2005 Spratly Islands agreement, as well as the Jpepa committee report, will be taken up on April 28, when Congress resumes session after the Holy Week break.

“Following Senate practice, the Spratly Islands investigation will probably be assigned to two committees: foreign relations committee for the constitutional and legal aspects, and blue ribbon committee for the criminal aspect,” she said.

Santiago said that the 2005 tripartite Joint Marine Seismic Understanding (JMSU) among the Philippines, China, and Vietnam, raises the issue of whether it violates the constitutional provision on Philippine sovereignty or jurisdiction over defined national territory.

“A mere scientific or technical cooperation agreement, which does not diminish or threaten Philippine sovereignty or jurisdiction, is constitutional,” she said.

The JMSU will collect data and information on the potential oil and gas reserves in the area, planned to last for three years, at US$15 million.

Santiago said that former Sen. Franklin Drilon, when he was justice secretary, issued a 1990 opinion stating it was “legally feasible” for the Philippines and Australia to conduct a similar Offshore Seismic Project.

She quoted Drilon, who ruled: “the project proposal which involves data-gathering, processing, and interpretation techniques envisioned pre-exploration activities which are not covered by constitutional limitations.”

“Drilon in 1990 said that a seismic project with Australia was legally feasible. Now Drilon in 2008 is saying that a similar seismic project with China could be a legal basis for impeaching President Arroyo. He will have to explain his mental calisthenics before the committee,” she said.

Santiago said that in his 1990 opinion, Drilon stated that after completion of the seismic project, “the President may enter into a service contract with a wholly-owned Australian corporation for large-scale exploration, development, and utilization of petroleum resources in accordance with P.D. No. 87, and other pertinent laws.”

“In 1990, Drilon approved not only the seismic project, but even a service contract with a foreign country for the use of petroleum resources. By contrast, in 2008, Drilon implies that a similar seismic project, without a service contract is already illegal and exposes the President to impeachment. This is a flip-flop that shows intellectual inconsistency,” she said.

Santiago cited the 1992 ASEAN Declaration on the South China Sea issued in Manila, where ASEAN foreign ministers resolved, “without prejudicing the sovereignty and jurisdiction of countries having direct interests in the area, to explore the possibility of cooperation in the South China Sea relating to the safety of maritime navigation and communication, protection against pollution in the marine environment . . .”

Santiago said the 1992 Declaration was followed by the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, which she said “is merely a political declaration, without binding legal force, seeking to turn a sea of disputes into a sea of cooperation, pursuant to the policy of the late Chinese leader Deng Xiao Ping.”

Deng advocated the principle of “putting aside the disputes and jointly exploiting,” the area of the South China Sea.

“There is a curious question of timing. Since the pact was signed three years ago, why is it only now that it is being assailed as alleged presidential misconduct? What is the basis for the charge by a foreign writer that it is an alleged sellout?” she said.

Santiago warned that RP-China relations should not be dragged into the political fray, noting that China has extended preferential loans to the Philippines for various development programs, and is now the main financial provider for Southeast Asia, ahead of the World Bank, the Asian Development Bank, and aid programs from the US and Japan.

“The anti-Arroyo campaign should not be turned into an anti-China campaign. We should consign power plays to the domestic arena. International relations and diplomacy are too important to our national interest to be used as partisan political ploys. It takes decades to build up good interstate relations,” she said.

In another development, Santiago said that when Congress resumes on April 28, she will release a Full Committee Report recommending conditional concurrence with Jpepa.

“Ordinarily, a committee report is only two pages, bearing the signatures of committee members. But this time my committee report will be so extensive that it will be a bound volume. Jpepa is an extraordinary treaty, raising significant issues of constitutional and international law,” she said.

Santiago said that Jpepa committee report will comprise at least four documents: the standard format with the signatures of nearly all 23 senators who are members of the two committees; the draft Senate resolution setting out the conditions for concurrence; the report on the constitutional and legal issues filed by herself as chair of the foreign relations committee; and the report on the trade and industry issues to be filed by Sen. Mar Roxas as chair of the trade and commerce committee.

The senator said she finished Jpepa hearings in November last year, but Sen. Edgardo Angara requested additional hearings that took another month.

“In January, the Senate could not take up Jpepa, because the budget always takes priority. In February, it was overtaken by the NBN probe. This March, there is an extended Congress break. That is why April, when session resumes, is the earliest date available,” she said.

Santiago said she hopes Japan will accept the conditions, without resubmitting the Jpepa to the Japanese Diet or parliament.

“The constitutional issues are paramount. Hence, the Senate should ensure that the Supreme Court will not declare Jpepa unconstitutional. If we do not take scrupulous care in the Senate and the court declares it unconstitutional, such declaration of unconstitutionality will not be a valid defense, if Japan later sues the Philippines for nonperformance of contract obligation. This is a provision of the Vienna Convention on the Law of Treaties,” the senator said.

Santiago will be abroad until November this year, to campaign for the post of judge of the International Court of Justice where, if elected by the United Nations, she will be the only female among 15 judges elected worldwide on the basis of the highest qualifications in international law.
But Santiago said she plans to be in Manila when session resumes in April, so that she can deliver her Jpepa sponsorship speech and defend it, as well as preside over the Spratly Islands hearing, before resuming her hectic campaign schedule abroad.

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