By TESSA JAMANDRE
VERA Files
International law and constitutional law
experts are set to ask the Supreme Court on Wednesday to nullify
the three-week-old Archipelagic Baselines Law, barely a month
before the May 13 deadline for the Philippine government to
submit to the United Nations its claim over its extended
continental shelf under the UN Convention on the Law of the Sea.
Saying R.A. 9522 "dismembers a portion of the
territory of the Philippines, in violation of the Constitution,"
UP law professors Merlin Magallona and Harry Roque, their
students in constitutional law and public international law, and
Anakbayan party-list Rep. Risa Hontiveros will also ask the
tribunal to stop the government from registering and depositing
with the UN Secretary General a copy of the law signed by
President Arroyo on March 10.
The petitioners said the government should be
prevented from depositing the law with the UN because, once
deposited, "it becomes immediately binding on the Philippines
under international law, and its subsequent constitutional
invalidation by (the Supreme Court) cannot anymore undo the
irreparable harm."
R.A. 9522 redrew the country’s baselines to
comply with the UNCLOS requirements for an "archipelagic state,"
in the process excluding the disputed Kalayaan Island Group (KIG)
and Scarborough Shoal from the main archipelago and classifying
them instead of "regimes of islands." The limits of Philippine
territory defined in the law will determine the country’s
extended continental shelf, which is believed to contain
substantial amounts of oil, natural gas, minerals and polymetals.
The 70-page petition to be filed in the
Supreme Court named Executive Secretary Eduardo Ermita, Foreign
Affairs Secretary Alberto Romulo, Budget Secretary Rolando
Andaya, National Mapping and Resource Information Authority
Administrator Diony Ventura and Ambassador Hilario Davide Jr.,
Permanent Representative to the UN, as respondents. Davide is
supposed to deposit R.A. 9522 and the country’s claim over its
extended continental shelf with the UN.
The Department of Foreign Affairs’ Center for
Maritime and Ocean Affairs (CMOA) has not responded to VERA
Files’ request for a comment.
Magallona, Roque, Hontiveros and their
co-petitioners said the new law deprives the country of what has
been established in historical, legal and scientific terms as
part and parcel of its national territory.
The petitioners cited, among others, the
controversial 1898 Treaty of Paris which, they said, delineated
"a well-defined area of national territory" of the Philippines
when it was ceded by Spain to the United States.
They added that the 1900 Treaty of Washington
between Spain and the United States included Cagayan, Sulu and
Sibutu in Philippine territory, while the 1930 convention
between Great Britain and the United States defined the boundary
between the Philippines and Northern Borneo.
A mere statutory act—R.A. 9522 in this
case—cannot remake a constitutional definition of the national
territory, provided in the 1935, 1973 and 1987 Constitutions,
according to the petitioners.
Roque also said the scope and breadth of the
country’s territory predated the UNCLOS. "How dare Mrs. Arroyo
give away this territory to the detriment of the Filipino
people," he said.
The petitioners argued that the UNCLOS does
not compel the Philippines to categorize itself as an
archipelagic state or to draw the baselines for such a state on
or before May 13 this year. The May 13 deadline pertains only to
the submission of the extended continental shelf which, they
said, can be drawn from the established baselines.
An archipelagic state under the UNCLOS makes
use of the straight baselines method to delineate the national
territory. This entails drawing straight lines connecting the
outermost points of the outermost islands following the general
contour of the archipelago.
The petitioners said, however, R.A. 9522
"radically revised" the definition of the Philippine archipelago
under the Treaty of Paris. "The result is a roughly triangular
delineation which excludes large areas of waters within the 600
miles by 1,200 miles rectangle enclosing the ‘Philippine
archipelago’ as defined in the Treaty of Paris," they said.
"Hence, R.A. 9522 constitutes a drastic
reduction of Philippine territory and a treasonous surrender of
Philippine sovereignty, which is incomprehensible given that the
Treaty of Paris has been consistently incorporated in all of our
organic charters from the 1935 Constitution up to the present
1987 Constitution," the petitioners said.
Magallona, an expert on the UNCLOS who has
argued before the International Court of Justice twice, was
quoted in the petition as saying that by declaring the KIG and
Scarborough Shoal as regimes of islands, the country has lost
15,000 square nautical miles of territorial waters. Under UNCLOS,
a regime of islands consists of islands or naturally formed
areas of land surrounded by water that remain above water during
high tide.
"By surrendering the above-mentioned
territorial waters through the passage of R.A. 9522 excluding
the KIG and Scarborough Shoal from the baseline, the State has
reneged on its constitutional duty to protect our exclusive
marine wealth and the offshore fishing grounds of our
subsistence fishermen," the petitioners said.
R.A. 9522 weakened the country’s claim not
only over KIG but also over Sabah, they added.
The KIG is part of the disputed Spratlys
chain of islands in the South China Sea being claimed in part by
the Philippines, Malaysia, Taiwan and Brunei and in whole by
Vietnam and China. The Philippines officially staked its claim
over the KIG in 1978 through President Decree 1596, which
declared it a distinct and separate town of Palawan.