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VOLUME 14 NUMBER 2

MARCH-APRIL 2013

Protecting Philippine Territory 2 | Philippine Territory and the UN Convention on the Law of the Sea

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hen President Aquino recently told the press that ‘What is our is ours,’ referring to Philippine territory, little did he realize that on account of the UN Convention on the Law of the Sea (UNCLOS), the country has suffered large-scale disasters, beginning with the fact that the Philippines lost its boundaries as a State, resulting in the loss of vast expanse of its territorial sea,” Magallona began the interview. He pointed out that the Philippines is about the only State in the world that has permitted its national territory to be revised by a treaty. The

4 | Managing the Disputes in the South China Sea: Can ASEAN Take the Bull by the Horns?

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he ASEAN ministerial meetings in Bandar Seri Bagawan on April 24-25, and the recent consultations between the ASEAN leaders and their Chinese counterparts give us reason for optimism about the future of ASEAN cooperation in managing the South China Sea disputes. Many of us recall the meetings in Phnom Penh in 2012, when ASEAN Chair Cambodia rebuffed the Philippine and Vietnamese proposals to mention

5 | Re-imagining the Nation’s Future

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ver the past few years, Filipino awareness of Philippine national territory has been sorely tested by decidedly negative experiences. Uncertainty over the precise location of our political and geographical frontiers has challenged commonly accepted notions about the shape and size of our national domain, and called the government to task for its apparently long-standing inability to adequately protect our nation's interests both domestically and internationally. But the uncertainties and media controversies that arise about anything that happens in the nation's borderlands are actually due to lack of familiarity with the historical basis and continu-


2 UP FORUM Volume 14 No. 2 March-April 2013

Photo from the UPSIO

PHILIPPINE TERRITORY AND THE UN CONVENTION ON THE LAW OF THE SEA... continued from page 1

Atty. Merlin M. Magallona and Celeste Ann Castillo Llaneta consequence is the worst disaster ever—“the loss of the country’s sovereign unity of its islands and interconnecting waters which are now open to the ‘right of innocent passage of all ships of all States’ without need of express permission from our government.” In other words, these waters have been internationalized under the UNCLOS as “archipelagic waters,” whereas, these are categorized under the Constitution as “internal waters”; where navigation by foreign ships are allowed by express permission. Magallona posed the problem: Do you know the categories of ships that are given the right to navigate in these archipelagic waters? “Warships, submarines, nuclear-powered ships, and ships loaded with toxic or noxious materials,” he said. He continued: “Take note that before the U.S.S.-Guardian and the Chinese fishing boat were grounded in Tubbataha, they already sailed through the archipelagic waters in the Palawan area, in which they were exercising their right of innocent passage under the UNCLOS.” Magallona emphasized that the aforementioned features of the UNCLOS are blatant violations of the Constitution. The country’s boundaries as defined by Article III of the Treaty of Paris, together with the US-UK 1900 agreement and the US-Spain 1930 corrective treaty, have been expressly transformed into constitutional definition of national territory by the 1935 Constitution. Marked off

as “International Treaty Limits” in maps, the same boundaries are not merely imaginary technical lines. They were provided by the authority of the United States, Federal Government in the Jones

Law and in the Tydings-McDuffie Act (the basis of Philippine independence) as determining in practice the scope of its sovereignty and jurisdiction. Magallona pointed out that by

the authority of the US Government, the Philippine Legislature in the Administrative Code of 1916 provided that the “territorial jurisdiction and extent of powers of the Philippine Government is comprised in the limits” defined by the said treaties. Moreover, according to Magallona, the country’s boundaries as thus determined were communicated formally to the United Nations Secretary General upon his request in a note verbale of 20 January 1956. This served as a notice to the international community as to the territorial scope of Philippine sovereignty. Note that this notice elicited no adverse reaction from any other State. Even during the US sovereignty over the territory within the scope of the Treaty of Paris, there was no protest from any source against the territorial scope of the country’s sovereign authority. So Magallona asked: Why eliminate the long-established boundaries? He was referring to his claim that the Treaty of Paris has ceased to be legal basis of the Philippine territory, which the UNCLOS has replaced in utter disregard of the Constitution. This was done when the UNCLOS became effective law on the Philippines, following its signature and ratification during the martial law regime when at the time there was absence of public information and discussion on the consequences of the UNCLOS. There is reason to believe, Magallona claimed, that the Philippine delegation that signed and ratified the UNCLOS was of the belief that it was contrary to the Philippine Constitution. This is why, according to Magallona, the delegation filed a formal declaration stating that “the signing of the Convention… shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.” On this account, the UNCLOS is problematical, he said. Magallona further explained: Although the entire declaration was objected to by other States parties as a reservation (which UNCLOS prohibits), the Batasan in its concurrence resolution succeeded in making it an Annex, forming part of its resolution, thus “with the understanding embodied in the Declaration.” continued on page 3 Map from A Primer on the Law of the Sea, by Merlin M. Magallona


UP FORUM Volume 14 No. 2 March-April 2013 3

Sen. Antonio Trillanes on Protecting Philippine Territory Sen. Antonio "Sonny" F. Trillanes IV

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n an interview with the UP FORUM, Sen. Antonio Trillanes shares his views on the issue of protecting Philippine territory. His discussion tackles the roots of the problem, the basis of our territorial claim over Panatag Shoal and Spratlys Islands, elevating the issue of the West Philippine Sea to the International Court of Justice (ICJ), and options for the Philippines in safeguarding our territory. On the problems affecting Philippine territory, Senator Trillanes said that these are rooted inthe scarcity of resources which is forcing other claimant countries to try to expand their territories; and the failure of the past administrations to clearly define our own national territory. According to Trillanes, the basis of our territorial claim over Panatag Shoal and Spratly Islands is Republic Act 9522 or the Philippine Archipelagic Baselines Law which was passed in 2009 in compliance with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). He said that invoking the UNCLOS is not enough to protect our territorial claims. While international law can be used politically to pressure nations, it has no power to compel the said nations to abide by it. In this regard, we need to have a credible defense posture to protect our own maritime interests and territorial claims.

"For now, I think we should defer to the wisdom of the Administration for choosing the International Tribunal for the Law of the Sea (ITLOS) as the avenue for presenting its case as regards the West Philippine Sea. The President is the sole source of foreign policy and it is articulated through the Department of Foreign Affairs. Whatever foreign policy they come up with, let us assume that they have done their homework and we should unite behind such policy pronouncement," Trillanes said. To safeguard our territories, Trillanes is recommending the following measures: A. Modernize the Navy and Coast Guard. Logically, the next step after having firmly Photo from Sen. Trillanes' website, http://www.trillanes.com.ph/gallery/photo/session/ and clearly established our territory is to protect it. 2. Enact the Philippine Maritime Aside from the basic demands of w establish the archipelagic sea Zones Act which seeks to define the naval defense, we should increase lanes in the Philippine archipemaritime zones of the country. our capability for maritime law lagic waters; -------------------enforcement operations. w prescribe the rights and obliSen. Trillanes earned his Master of B. Invest heavily on marine scientific gations of foreign ships and Public Administration, major in Public research and exploration of the EEZ aircraft exercising the right of Policy and Program Management, and continental shelf. archipelagic sea lanes passage from the UP National College of Public C. Comply with the other UNCLOS through the established archipeAdministration and Governance. Email obligations of an archipelagic State. lagic sea lanes; and him at senateoffice@trillanes.com.ph or 1. Enact the Philippine Archipelagic w provide for the associated prosenate.office.trillanes@gmail.com. Sea Lanes Act which seeks to-tective measures therein.

PHILIPPINE TERRITORY AND THE UN CONVENTION ON THE LAW OF THE SEA... continued from page 2 Since it can be shown how the UNCLOS violates the Constitution, may the Annex of the Batasan resolution restrict the legality of the UNCLOS as a treaty in domestic law? Magallona added that if the Philippines moves to denounce or terminate the UNCLOS, still its main benefits would accrue to the Philippines as general international law. This pertains, for example, to the exclusive economic zone and the continental shelf. Magallona is of the view that the enactment of the New Baseline Law in Republic Act No. 9522 dramatizes in one stroke the reor-

ganization of Philippine territory. When it established the straight archipelagic baselines, the new law formally assumes the status of an “archipelagic state” under Part IV of the UNCLOS. Consequently, all waters landward of those baselines are declared “archipelagic waters”, obviously at war with the Constitution proclaiming them as “internal waters”, i.e., “waters around, between, and connecting the islands of the archipelago regardless of their breadth and dimensions.” At the same time, Magallona added, the new law repeals the provisions of the old law defin-

The two photos, from left to right, are from http://untreaty.un.org/cod/avl/ha/uncls/photo10.html and http://www.un.org/Depts/los/convention_agreements/convention_20years.htm

ing Philippine territory pursuant to the Treaty of Paris. He concluded that by means of the new baseline law, the UNCLOS has replaced the Treaty of Paris as the legal basis of Philippine territory, consigning the latter to the “archives of historical memory.” Magallona became emotional in making it clear that under the Vienna Convention on the Law of Treaties, reflecting general international law, treaties establishing boundaries cannot be subject to “fundamental change of circumstances” and cannot be terminated for this reason. He stressed that what has happened

is the Philippine Government itself in effect “has terminated the Treaty of Paris by means of “fundamental change of circumstances,” which is impermissible in international law and in Philippine legal system.” --------------Prof. Magallona earned his Bachelor of Laws from the UP College of Law. He was UP Law dean in 1995-1999 and director of the Institute of International Legal Studies, UP Law Center, in 2000-2001. He was foreign affairs undersecretary from 2001 to 2002. He is currently professorial lecturer at the UP College of Law. Email him at forum@up.edu.ph.

Photo from Wiki Commons, http://commons.wikimedia.org/wiki/File:International_Court_of_Justice.jpg


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MANAGING THE DISPUTES IN THE SOUTH CHINA SEA: CAN ASEAN TAKE THE BULL BY THE HORNS?... continued from page 1

Dr. Aileen S.P. Baviera in their Joint Statement the recent tensions between the Philippines and China and between Vietnam and China. The ASEAN customarily issues a joint statement containing the highlights of the discussions and agreements among its members after each meeting, but as a result of the chairman’s blocking mention of the disputes last year, there was no such joint statement for the first time in over forty years. Photo from http://www.nextupasia.com/the-asean-economic-community-for-2015-presents-opportunities-for-entrepreneurs-to-grow/

Cambodia’s argument, echoing China’s position, was that these were bilateral problems between China and selected states that were not a problem of ASEAN per se. On the other hand, the Philippines and Vietnam, joined by other member states, felt it necessary to officially record ASEAN's concern, particularly in the wake of the major escalation of tensions following the standoff between Manila and Beijing over Scarborough Shoal, and similar acts of assertiveness by China against Vietnam. In contrast, Brunei as this year’s ASEAN chair displayed much more adept diplomacy. It engaged the principal actors in informal consultations prior to the official meetings to prevent a repeat of the disastrous outcomes in Phnom Penh. Rather than displaying last year's open bickering and finger-pointing as to who was at fault, which sadly exposed the fundamental fragility of the group, the just-concluded summit this year presented ASEAN not only as having a united front on the importance of the South China Sea but as a pro-active agent. Brunei as chair announced that ASEAN’s management of the disputes would henceforth be undertaken at two levels: a process for claimants to discuss the disputes directly among themselves and consultations between ASEAN and China on promoting regional stability. The formula appears to accommodate China's preference for direct

bilateral negotiations between the parties directly concerned, while still legitimizing—as the Philippines has long argued— ASEAN's collective participation in the management of an issue that has affected the Association for many years. Following the ASEAN Summit, China's newly appointed Foreign Minister Wang Yi went on a regional tour of Singapore, Thailand, Indonesia and Brunei, where he delivered a message that many in the ASEAN

wanted to hear: talks on the regional code of conduct would proceed and China would actively participate in it. China issued a similar statement a year ago, but in the context of the ASEAN debacle then, it merely seemed as if China were rubbing salt into ASEAN's wound. Wang also reiterated China's proposal for the formation of an Eminent Persons Group that would complement the efforts of governments for an early agreement on such a code. ASEAN has accepted the proposal and announced the formation of an Eminent Persons and Experts Group. The senior officials (undersecretaries of foreign affairs) of ASEAN will meet on this issue at the end of May, while the foreign ministers of ASEAN and China have scheduled a special meeting on the Code in August, upon Beijing's invitation. Indeed, China's new leadership, with Xi Jinping at the helm, has been signaling once more the importance that China attaches to its relations with ASEAN. But there are also signals from both China and the ASEAN countries that any optimism as to the future of ASEAN-China relations, particularly in relation to a

Code of Conduct in the South China Sea, must be balanced with a dose of realism. One signal is that some Chinese voices still emphasize that the main task ahead is implementation of the 2002 Declaration of Conduct (DOC) rather than the crafting of a more binding Code of Conduct (COC). The DOC, a political declaration rather than a treaty, was the outcome of three years of negotiations between China and ASEAN that were originally intended to lead to the adoption of a legally binding code of con-

duct. It took the DOC parties another eight years just to agree to a set of implementing guidelines. Insisting on implementing the DOC now could mean an extended process of pursuing functional cooperation projects that the parties had earlier identified, such as disaster prevention and mitigation, marine search and rescue, and marine scientific research. No matter the constructive intentions, some may see this as China engaging in delaying tactics, buying time while it grows even more in leverage and strength in the region. Another concern is that China may use the prospect of an early conclusion of a COC to either persuade the Philippines to withdraw the case for ITLOS arbitration that it had filed against China in January. Or to try to

isolate the Philippines from the rest of the ASEAN for choosing a unilateralist, legal way out even when the prospect of a more consultative and pragmatic political solution, that is preferred by the rest, looms. This could be a difficult test of Manila's will and of its oft-stated reliance on international law. Yet another concern—and one which all parties to the Code must weigh carefully— is that a binding agreement, especially one that focuses on conflict prevention and the avoidance of armed confrontations at sea, is bound to create constraints on the presence and activities of their defense and law enforcement authorities. It requires a leap of faith to believe that all parties will equally abide by commitments made. How to deal with violations, for that matter,

is a question that may confound our negotiators. In the current scheme of things, there is such a high level of distrust among certain parties that indeed, we can expect the devil to be in the details. Finally, how will a code of conduct that applies to the parties to the dispute or even to ASEAN and China together, be received by other user-States and extra-regional powers who operate in the South China Sea? Their cooperation is important as well in seeing that the conflict prevention objectives of the COC are met. These issues are being flagged, not to dampen enthusiasm for the continued on page 12


UP FORUM Volume 14 No. 2 March-April 2013 5

Photo from http://www.iisd.ca/oceans/icp13/

RE-IMAGINING THE NATION'S FUTURE... continued from page 1

Atty. Jay L. Batongbacal ing evolution of our national boundaries. While most people have probably seen a map of the Philippines, they are not likely to know exactly how and why that map came to include the land and sea features it represents. This is the source of government's (and the general population's) seeming lack of agreement and consistency in our conception of the national territory and how we, as a 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 the territories ceded to the US by Spain in the Treaty of Paris of 1898 and the Treaty of Washington of 1900, as well as the territories belonging to the Philippines under the 1930 Convention between the US and the United Kingdom. The territorial lines drawn by the first and the third agreement, combined and appearing as an irregular “box,” have been described as comprising a technical description of our territorial boundaries. But such a description actually creates certain 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 expressly states that such islands also deemed to have been subject to the cession even though outside the box are part of Philippine territory. This calls the nature of that box into question: how can it be defining the territorial boundary if it excludes places that are part of it? The Philippine claim to Sabah is rather peculiar and disconnected from this legal definition. The 1930 Convention, on the other hand, draws a line separating the islands belonging to the Philippines and the islands belonging to North Borneo, which contradicts the idea of extending the reach of Philippine sovereignty beyond our side of the line. But the claim to Sabah is not based on any treaty, but on a document of cession executed by the Sultan of Sulu in favor of the Philippine government in 1962. In that document, the Sultanate transferred to the government its rights over the territory of Sabah, which in turn were previously and perpetually leased to the British in 1878, but included among the federated states of Malaysia when the latter was constituted in 1963. The Philippine claim to Sabah has thus been described as merely “proprietary”-- i.e., a claim to ownership of property. But this means that it is not a claim to sovereignty by a State, but to ownership by an ordinary propertyowner, which impliedly admits that it can be subject to the sovereignty of the State in which the property is located (Malaysia) 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 back to the Sultanate in 1989. If true, then the Philippines legally has very little to do, if any, in whatever grievances may persist between the Sultanate and Malaysia which is currently in full control of Sabah. In the meantime, there have been many changes in international law

Atty. Batongbacal was one of the panelists during the 13th Meeting of the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea held on May 29-June 1, 2012 at the UN Headquarters, New York.

affecting national territories and jurisdictions since the 20th century. Foremost among these changes is the 1982 UN Convention on the Law of the Sea (UNCLOS), a global convention 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 continued on page 12 Artwork by Arbeen R. Acuña


6 UP FORUM Volume 14 No. 2 March-April 2013

Managing the West Philippine Sea* Carlos L. Agustin, Lauro Baja Jr., Leticia Ramos-Shahani, Aileen S.P. Baviera, et al. This white paper was prepared by the WPS Informal Expert Group, and dowloaded from the UP Asian Center's foreign policy website (http://philippinesintheworld.org/?q=node/164). An abridged version was published in the September 22nd, 2012 issue of the Philippine Daily Inquirer (http:// opinion.inquirer.net/37294/managing-the-west-philippine-sea#ixzz2Ul4LW27n). The paper is an outcome of consultations and workshops held under the auspices of the UP Asian Center. The 10 authors of this white paper, who in the UN tradition constituted themselves as an informal “expert group,” are Commo. Carlos L. Agustin, former National Defense College president; Lauro Baja Jr., former foreign affairs undersecretary; Guillermo R. Balce, former energy undersecretary; Jay L. Batongbacal, UP College of Law professor; Dr. Aileen S.P. Baviera, UP Asian Center professor; Rodel A. Cruz, former defense undersecretary; Commo. Roland S. Recomono, former naval attaché to Washington D.C.; Malcolm I. Sarmiento Jr., former Bureau of Fisheries and Aquatic Resources director; VAdm. Eduardo Ma R. Santos, former Navy Flag Officer in Command; and Leticia Ramos-Shahani, former senator. One purpose of the white paper is to stimulate active public discourse on the country’s maritime concerns in the WPS.

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ent islands within the Philippine Archipelago, subject to certain limitations on distances between base points. Without the archipelagic State concept enshrined in Part IV of the UNCLOS, the Philippines would have remained a scattering of islands separated by high seas. UNCLOS also provides guidance for states with overlapping jurisdictional claims, who may then resort to a range of peaceful dispute settlement mechanisms, among them the International Tribunal on the Law of the Sea (ITLOS), the International Court of Justice (ICJ), and arbitration arrangements. As of June 3, 2011, 163 states had ratified the UNCLOS. 4. The SCS borders the entire western seaboard of the country. Several key provinces including Ilocos Norte, Ilocos Sur, La Union, Pangasinan, Zambales, Bataan, Mindoro, and Palawan face the SCS. The sea is extremely significant from an international navigational, economic, geopolitical and strategic perspective, thus making the Philippines strategically important. Oil and gas resources have been proven to exist in areas adjacent to and closest to the coastlines of littoral states. Fisheries throughout the area have

Artwork by Arbeen R. Acuña

ensions among rival claimant-states to the waters and land features of the South China Sea (SCS)—particularly China, the Philippines and Vietnam—have escalated significantly in the last several years, bringing the Philippines to center stage as a key participant in the future of security and stability in our part of the world. While the surge in confrontational rhetoric and actions directed against the Philippines have added to the urgency of ensuring calibrated and effective responses, the territorial and resource disputes themselves are not new and have been the subject of policy action and deliberation for decades. The challenges arising therefrom are not expected to be resolved easily or soon, but will likely continue to demand the attention of government and the Filipino public for decades to come. This White Paper seeks to draw the attention of all concerned Filipino stakeholders—particularly those in government—to the urgent need for a strategic framework for the management of our territorial, maritime jurisdiction, and resource disputes in the West Philippine Sea (WPS). The authors are former or current public servants, coming from various areas of specialization, who have long been involved in past initiatives relating to Philippine policy in the WPS. The paper is not intended to provide answers to all the policy questions, but to suggest a policy agenda, and to underscore the urgent need for a strategic vision, more permanent institutions, as well as for more effective arrangements for policymaking and coordination to address such agenda. Contextualizing the Philippines and the West Philippine Sea Issues 1. The Philippines is a strategically located, resource-rich archipelago, lying at the maritime crossroads of Northeast and Southeast Asia, and connecting the South China Sea with the Pacific Ocean. It has been called a quintessential coastal state, an archipelagic and maritime nation with over 7,000 islands, entirely surrounded and interconnected by seas. Not many towns or cities in the country are more than 100 km from shore. 78% of its provinces and 54% of municipalities, almost all major cities, and 62% of the population are coastal. Just as the seas have shaped our history and the formation of the nation, we continue to depend on them for our livelihood and welfare, for communications and transportation, for defense and security, for leisure and the enjoyment of nature’s blessings. 2. The Philippines is the 12th most populous country in the world. While endowed with considerable mineral wealth, the world’s richest marine biodiversity and a strong pool of human resources, we suffer from widespread poverty, frequent natural disasters and vulnerability to climate change hazards. Generations of poor governance and inequitable social structures have also impeded economic progress, especially in comparison with rapidly growing neighboring states in the East Asian region. 3. The Philippines has signed and ratified the United Nations Convention on the Law of the Sea (UNCLOS), which grants coastal states sovereign rights over economic resources, as well as legal jurisdictions over certain types of sea-based activities within the 200 n.m. EEZ and the continental shelf measured from their baselines. UNCLOS offers the Philippines major advantages in terms of access to resources and some forms of regulatory jurisdiction over two million square kilometres of water and the seabed beneath. Through UNCLOS, the Philippines and Indonesia introduced and joined forces to gain acceptance of the concept of the archipelagic State. We successfully secured the international community’s recognition of our exclusive sovereignty over all waters around, between and connecting the differ-

historically supported the survival of coastal populations and are vital to food security in the region. Coral reef ecosystems in the nearshore and offshore areas nurture and propagate the region’s supply of fish. Commercial as well as military navigation have established the SCS as a major waterway and a lifeline for trade and energy supplies connecting countries in the Middle East, Africa, and South, Southeast, and Northeast Asia. Several countries—the Philippines, Brunei, China, Malaysia, Taiwan and Vietnam—have competing claims to all or part of the SCS, while great powers such as the United States and China are beginning to compete for naval power and influence here, thus making it a potential regional flashpoint. continued on page 7


UP FORUM Volume 14 No. 2 March-April 2013 7

MANAGING THE WEST PHILIPPINE SEA... continued from page 6

5. The international and regional environments profoundly affect Philippine interests and its relationships with other states. Global financial woes, turbulence in the Middle East, and competition for energy supplies are but some significant global developments that may directly impact our economy. In the region, the emergence of new powers China and India, the potential for strategic rivalry between the US and China, military flashpoints (such as the

Photo from the UPSIO

policy, among others: (1) to limit access to the fishery and aquatic resources of the Philippines for the exclusive use and enjoyment of Filipino citizens; and (2) to ensure the rational and sustainable development, management and conservation of the fishery and aquatic resources in Philippine waters including the Exclusive Economic Zone (EEZ) and in the adjacent high seas, consistent with the primordial objective of maintaining a sound ecological balance, protecting and enhancing the quality of the environment. RA 8550 further defines the area of its application to “all Philippine waters including other waters over which the Philippines has sovereignty and jurisdiction, and the country's 200-nautical mile EEZ and continental shelf." 3. In the WPS and other waters adjacent to the archipelago, fisheries are threatened by both reef degradation and overfishing. Foreign fishing fleets are systematically increasing efforts to improve catch, in some cases encouraged by their government as a means of asserting maritime claims. The Philippines, on the other hand, has not substantially increased its marine fishing effort for many years and places priority on resource conservation and protection. Uncontrolled fishing in the area will diminish resources for current and future needs of Filipinos, despite sovereign rights over fisheries and aquatic resources accorded to us under UNCLOS. Moreover, the biodiversity and productivity of the WPS are directly linked to the biodiversity and productivity of the country’s inter-island waters. Any diminution in the resources of the WPS may have negative impacts on the viability of our own inter-island fisheries resources. Hydrocarbons and Minerals 1. International research data indicate that the Philippines has significant oil and gas as well as other mineral deposits particularly around the Palawan/Reed Bank area. It is now believed that they are of such quantity that they could have transformative potential for a developing country such as ours. Access to these resources is therefore a core Philippine interest in the WPS. 2. Presidential Decree 87, also known as the Oil Exploration and Development Act of 1972, declares it a policy of the State to “hasten the discovery and production of indigenous petroleum through the utilization of government and/or private resources, local and foreign, under the arrangements embodied in this Act which are calculated to yield the maximum benefit to the Filipino people and the revenues to the Philippine government for use in furtherance of national economic development, and to assure just returns to participating private enterprises, particularly those that will provide the necessary services, financing and technology and fully assume all exploration risks.” 3. The country’s energy infrastructure, as well as energy supply and demand projections, will soon urgently require a fresh infusion of indigenous energy sources. Oil industry players have thus been preparing to begin commercial drilling activities. There is an unavoidable need for foreign capital and technology, but the international disputes in the area and recent escalation of tensions over drilling and exploration activities have created a perception of risk and uncertainty that discourages long-term investors. 4. Philippine policies on oil and gas cooperation or joint development in the WPS need to be clarified. The key obstacles to joint development are security concerns and commercial reservations about partnering with oil companies from rival claimant states, as well as fear of potential negative impacts on the country’s legal position. 5. Aside from fisheries and hydrocarbons, there is a need to conduct thorough assessments of other offshore mineral resources such as rare earths, iron, titanium, vanadium sands, manganese nodules and massive sulfides, as well as of the renewable energy potentials of the ocean. Promoting Maritime Security and Defense 1. The Philippine government, in its National Security Policy (2011-2016), outlines as one of its objectives to “capacitate the Philippines to exercise full sovereignty over its territory and to provide protection to its maritime and other strategic interests." The Philippine defense establishment is in transition from focusing on Internal Security Operations (counter-insurgency, counter-separatism, and counter-terrorism) to Territorial Defense. 2. Most states bordering the SCS have embarked on military upgrades and civilian or paramilitary law enforcement modernization efforts that are partly intended for the protection of their EEZ resources. Recent tensions arising over resource competition underscore the need for the Philippines to do the same. However, regional defense buildup in general raises the risk of confrontation in the area, and in view of the existing territorial and maritime jurisdiction disputes among regional states, may spark an arms race that will clearly not be in the Philippines’ national interest. 3. Of particular concern is the growing power projection of the People’s Republic of China (PRC), with its systematic blue water naval development and the so-called Island Chain Strategy contributing to uncertainty in the recontinued on page 14

Taiwan Straits, Korean peninsula and the SCS itself), a steady arms buildup among various countries, domestic political transitions in key neighboring states, and trends in ASEAN and East Asian regional integration are all relevant to stability and peace and therefore to the prospects for achieving greater development and security for the Philippines. Conversely, in this interdependent setting, what the Philippines does with respect to the WPS can and will have ripple effects on regional and global scenarios. 6. Rebuilding institutions for good governance, bringing the long-standing Mindanao conflict and the communist insurgency to a resolution, promoting social justice and human rights, improving the peace and order situation especially with respect to crime and terrorism, and consolidating gains in macroeconomic conditions– these are the domestic imperatives of longstanding that shall continue to demand the priority attention of government and the Filipino people. Each of these is critical to our national resilience, unity and progress, which in turn are indispensable for our ability to face emergent external challenges. The fundamental problem The Philippines has long-standing territorial and jurisdictional disputes with several states bordering the SCS, as well as undelimited maritime boundaries in various waters adjacent to the archipelago. These disputes affect the economic, national security, human security and environmental interests of the country, and moreover impact on regional stability and the prospects for successful regional integration in East Asia. Philippine efforts to assert sovereignty in the WPS and to implement provisions of the UNCLOS in its EEZ in line with national development and security goals are stymied by the claims and actions of other countries. In the last several years, territorial tensions among some countries bordering the sea have escalated, and these have occurred against the backdrop of broader geopolitical shifts, including rivalry for regional influence between great powers. This current geopolitical context may provide both challenges and opportunities for the advancement of Philippine interests and for the peaceful resolution of said disputes. There is a need for a comprehensive and strategic approach to policymaking on the WPS, taking into consideration the myriad short- to long-term interests of the country at stake, the fluid regional and international environment, and the domestic imperatives that will affect how government prioritizes the allocation of its efforts and resources. Imperatives of Philippine Policy in the WPS Sustainable Development of the Marine Economy and Resources Fisheries 1. The Philippines is the world’s 6th largest producer of fish, with fish being a main protein source and fisheries a main source of livelihood for our people. The waters west of Palawan, which flow from the SCS, account for 20 to 25% of our annual fish catch, while the areas offshore of Zambales are rich spawning grounds, underscoring the economic importance of the SCS to food security and economic welfare. 2. Republic Act 8550 or the Fisheries Code of 1998, declares as a national


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THE UP FORUM ROUNDTABLE DISCUSSION ON THE SABAH CLAIM

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n 1878, the sultan of Sulu entered into a deed of pajak over Sabah, with Austrian Gustavus Baron de Overbeck and Englishman Alfred Dent, who were representing a British company. The deed was written in Arabic. In 1946, Professor Harold Conklin translated the term pajak as “lease.” The 1878 Deed provided for an annual rental. This treaty constitutes the main basis of the territorial dispute between the Philippines and Malaysia over Sabah. The Philippine claim is based on the argument that the 1878 Deed was a treaty of lease. The Malaysian claim is based on the argument that the original document was a treaty of cession. It is claimed that Overbeck and Dent entered into the 1878 Deed as representatives of the British North Borneo Co. (BNBC), and thus attained sovereignty over Sabah. The BNBC turned over sovereignty to the British crown, which in turn devolved to Malaysia. Resolving the Sabah Issue In the dispute between the Philippines and Malaysia over Sabah, neither side appears to have considered the principle of effectivitès. This is a French term which refers to acts undertaken in the exercise of state authority, to which a state manifests its intention to act as a sovereign over a territory. Under international law, the presence of a population in a territory is not in itself determinative in deciding which state is the holder of the territorial title of sovereignty. But in brief, in a territorial dispute, the legal value of effectivitès is to be assessed according to the existence or not of legal title. Effectivitès undertaken by the Malaysian government do not create a territorial title, because Malaysia has no Miriam Defensor Santiago, LLM, JSD title of sovereignty over Sabah. Because the title of soverSenator eignty over Sabah is held by the Philippines, our title has Republic of the Philippines primacy over contradictory effectivitès of Malaysia. The effectivitès of Malaysia are unlawful and cannot in themselves create a title of sovereignty. When we analyze a territorial dispute, we have to painstakingly consider state conduct. Philippine state conduct serves to maintain our right of sovereignty over Sabah. Even if the Philippines has lost control of its territory, the Philippines continues to claim Sabah by issuing protests and by enacting legislation, or by taking relevant conduct regarding Sabah, by which the Philippines manifests its intent to remain sovereign.

Q.

Pacific Settlement of the Dispute The end game to achieve lasting peace in Sabah is to promulgate a treaty-based regime in Sabah. That is the long-term goal; but the short-term goal should be to extend immediate diplomatic protection to Filipinos in Sabah, by means of a fact-finding mission. Under the United Nations Charter, international law requires the pacific settlement of disputes, as follows: Art. 33. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Under the 1907 Hague Convention for the Pacific Settlement of Disputes, the method of inquiry and fact-finding can be used “to facilitate a solution of...disputes by elucidating the facts by means of an impartial and conscientious investigation.” This means that the Philippines and Malaysia should agree on a third party to carry out an inquiry, which should precede any pacific dispute settlement, specifically negotiation, mediation, good offices, and conciliation. A 1991 UN Resolution defines fact-finding as: “Any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent UN organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security.” My humble recommendation is that the disputants should settle the dispute in the first instance through the method of inquiry and fact-finding. This method does not resolve the investigation or application of the rules of law. What actually happened during the Sabah event last March 2013? Does the resort to armed force confer state responsibility on Malaysia for internationally wrongful acts? Under modern international law, the forceful actions of states are limited by the principle of necessity and the principle of proportionality. Necessity is a component of legitimate self-defense and requires that any forceful action must be by way of last resort. Proportionality is the principle that the use of force should be in proportion to the threat or grievance provoking the use of force. These are the human-rights issues that need to be immediately and equitably addressed. --------------Sen. Defensor-Santiago earned her Bachelor of Laws from the UP College of Law. Email her at mdsmedia@miriam.com.ph.

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UP FORUM Volume 14 No. 2 March-April 2013 9

THE UP FORUM ROUNDTABLE DISCUSSION ON THE SABAH CLAIM Leticia Ramos-Shahani, PhD Professor, Miriam College Senator, Republic of the Philippines (1987-1998) Former Deputy-Minister for Philippine Affairs and UN Assistant Secretary-General for Social and Humanitarian Affairs

l

e resolve the

) The President of the Philippines and the Sultan of Sulu must first have a frank and honest round of confidential discussions, assisted by personalities who should have no agendas to seize power or accumulate wealth, and motivated purely by patriotic goals. The President must realize that the Sultan of Sulu has legitimate proprietary rights over Sabah which require deep knowledge of the history of international law to understand, since proprietary rights are not the equivalent of sovereignty. Hence, the President has the duty to protect the Sabah claim within the limits of “proprietary rights” since the Sultan of Sulu and his followers are Filipino citizens. On the other hand, the Sultan of Sulu has to accept that he cannot just re-take Sabah which is now part of the Federation of Malaysia (a member of ASEAN and the United Nations), without disastrous results. His claim to Sabah, overtaken by other historical events, must be pursued through the rule of law, with the help of the Philippine Government. A united, negotiated position between the GRP and the Sultanate of Sulu should result from these talks. (2) The issue of Sabah will take a long time to resolve: beyond the PNoy administration and its current priority on the Mindanao Peace Agreement, dependent as the Sabah issue is, not only on basic principles but on volatile political issues, among them the rise and fall of political personalities; changes in government administrations; etc. The long-term goal of regaining the whole of Sabah or part of it should not be sidetracked by intervening events. (3) The drawing of the baselines of the Philippine Archipelago, the West Philippine Sea and the Sabah claim are interrelated. In the archipelagic baselines law submitted to the UN, Sabah was not included but with the footnote in the law that its non-inclusion did not affect our claim to Sabah. (4) In order to achieve a disciplined, systematic and sustainable system to nos. 1-3 above, the following are required: (a) It is the President and/or his Office who should make the major pronouncements on Sabah and all other matters on territorial disputes. A unit in his Office should coordinate the positions of all government offices; (b) The National Library should be the sacred repository of all documents relating to the Sabah issue with a controlled and systematic access to these documents. The Departments of Foreign Affairs and National Defense should have copies of these documents to which there should be limited access. Several of these documents are scattered—where? For instance, what happened to the contents of the tampipi of the late Ambassador Eduardo Quintero filled with documents on Sabah he copied from the Library of Seville? (c) The DFA should make a complete record of its decisions and actions on Sabah from the very beginning. There was a North Borneo Unit in the DFA for a long time until the Marcos years, when the heirs of the Sultan, identified by the Mackaskie decision, collected their share of the rental money paid by the Malaysian Government. I accompanied the Philippine representative to the UNGA when he officially protested the reliability of the referendum authorized by the Cobbold Commission concerning Sabah’s inclusion in the Federation of Malaysia. Sad to say, his performance was feckless and unimpressive; no one in the hall was paying attention to what he was saying. Foreign Secretary Narciso Ramos, among others, in l965 made a major statement before the UNGA on the Philippine claim to Sabah. (d) There should be one ambassador in the DFA appointed to deal only with territorial disputes, but who should not be assigned abroad but should remain permanently in the home office although he/she can travel outside the country. He/she should be treated like a career ambassador with powers to negotiate for the President. (e) The DND should make a record of all the fighting and violence which has taken place over Sabah—the Jabidah massacre, the recent invasion of Sabah, etc. (f) Reputable scholars designated by the UP and other institutions which have strong international studies departments should have access to documents, statements etc. on Sabah so that their independent advice and opinions can be sought concerning the steps to be taken, the interpretation of actions of leaders, the wording of important pronouncements, memos, press releases etc. (g) The government and private entities above can be collapsed when needed to form a reliable “think tank” to be of permanent service to the country and the Filipino people. --------------Dr. Shahani finished her elementary and secondary education at UP. Email her at lrshahani@yahoo.com.

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10 UP FORUM Volume 14 No. 2 March-April 2013 Photo by the UPSIO, taken at the UP Institute of Islamic Studies Library, with the assistance of the UP IIS Library staff

An Outline of the Philippine Claim to Sabah Atty. Merlin M. Magallona

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. From the time it was acquired by the Sultan of Sulu from the Sultan of Brunei up to 24 April 1962 when it was formally ceded and transferred to the Republic of the Philippines under the title of sovereignty, the Sultanate of Sulu had continuously been the rightful sovereign of the portion North Borneo known as Sabah. 1.1. In the course of internal armed conflict in the Sultanate of Brunei referred by some historians as “civil war,” lasting for more than 10 years, the Sultan of Brunei requested the assistance of the Sultan of Sulu, with the promise that in the event of victory he would grant him the territories in North Borneo under his dominion. Following the victory of Sultan Muaddin of Brunei, with the armed intervention of the Sultan of Sulu, accordingly he ceded Sabah to the Sultan of Sulu in 1704. 1.2. By the Declaration of 24 April 1962 issued by the Heirs of the Sultan of Sulu, the territory of Sabah as thus required by cession from the Sultan of Brunei was ceded and transferred in sovereignty to the Republic of the Philippines. The Declaration was entitled “Recognition and Authority in Favour of the Republic of the Philippines.” 1.2.1. By this Declaration, the Philippine claim to sovereignty and dominion over a portion of North Borneo became a legal claim. After the cession from the Sultanate, the Philippines acquired the rights over the territory of North Borneo which it was duty-bound as a sovereign to protect and preserve. 1.3. This Declaration followed the petition of 5 February 1962 of the Heirs of the Sultan of Sulu addressed to the Department of Foreign Affairs. In this Petition the Heirs expressed their intention to have the portion of North Borneo included in the national territory of the Philippines. 1.3.1. By the Instrument of 12 September 1962, the Republic of the Philippines accepted the cession of sovereignty over Sabah proclaimed by the Sultanate of Sabah. 1.3.2. On 24 April 1962, congress adopted “Resolution urging the President of the Philippines to take the necessary steps for the recovery of a certain portion of the Island of Borneo and adjacent islands which belong to the Philippines.

1.3.3. On the basis of the Declaration of 24 April 1962 of the Heirs of the Sultan of Sulu on the transfer of sovereignty over Sabah, Congress enacted Republic Act No. 5446 amending the Baseline Law in Republic Act No. 3046, the amendment providing that the “Philippines has acquired dominion and sovereignty” over Sabah situated in North Borneo. 2. Malaysia’s claim to sovereignty over Sabah was based on its inclusion in the formation of the Federation of Malaysia. It is a claim of derivative title, based on: (a) whatever interests the British Government had in Sabah, which were derived from (b) whatever interests the British North Borneo Company (BNBC) had in Sabah, which were derived from whatever interests Overbeck and Dent derived from their 1878 agreement

with the Sultan of Sulu. 2.1. Sufficient evidence has been shown on the side of the Sultan of Sulu that the Deed of 22 January 1878 executed by Sultan Mohammed Jamadul Alam with Gustavus Baron de Overbeck and Alfred Dent was an agreement of lease. “In consideration of this (territorial) lease…[they] promise to pay His Highness… and to his heirs and successors the sum of five thousand dollars annually to be paid each and every year.” 2.1.1. Written in Arabic, the agreement had been authoritatively translated by an American and by a Dutch scholar as “lease.” In the Spanish translation, the agreement has been described as an “arrendamento” which means “lease.” 2.1.2. In a speech before the House of Commons, the British Prime Minister himself, William Gladstone, made reference to the Deed of 1878

as a contract of lease: “We do not see how this Protectorate Agreement [of 1888], viewed in the light of the 1878 contract, can possibly divest the Sultanate of Sulu of the latter’s sovereignty or dominion. On the contrary, after 1888, the British North Borneo Company entered into a Confirmatory Deed with the Sultan of Sulu, thereby confirming and ratifying what was done in 1878. And we hold the view that far from repudiating the lease contract of 1878, the British North Borneo Company, said to be under British protection, confirmed British protection, confirmed and reiterated in 1903 the existence of lease relationship.” (Emphasis added.) 2.1.3. Overbeck and Dent as private individuals have no legal status in international law to assume the power of sovercontinued on page 11


UP FORUM Volume 14 No. 2 March-April 2013 11

AN OUTLINE OF THE PHILIPPINE CLAIM TO SABAH... continued from page 10 eignty involved in the cession of territory. 2.1.4. Overbeck and Dent therefore had nothing to transfer in terms of title to sovereignty over Sabah to the British North Borneo Company (BNBC). 2.1.5. By Proclamation of 25 November 1957, the Sultan of Sulu declared “The termination of the said lease in favour of Gustavus Baron de Overbeck and Alfred Dent, their heirs and assignees, effective the 22nd day of January 1958, and that from and after that date all the lands covered by the said lease shall be deemed restituted to the Sultanate of Sulu.” 2.2. When the British Government granted a royal charter to the BNBC, did it provide authorityfor the BNBC to acquire territory by title of sovereignty? 2.2.1. Lord Earl Granville, British foreign minister, in his letter of 7 January 1882 to British Minister Morier: “The British Charter therefore differs essentially from the previous Charters granted by the Crown to the East India Company, the Hudson’s Bay Company…, in the fact that the Crown in the present case assumes no dominion or sovereignty over the territories occupied by the Company, nor does it purport to grant to the Company any powers of Government thereover; it merely confers upon the persons associated the status and incidents of a body

corporate, and recognizes the grants of territory and the powers of government made and delegated by the Sultan to whom the sovereignty remains vested. (Emphasis added.) 2.2.2. In response to the protest of Spain and the Netherlands in regard to the grant of BNBC Charter in North Borneo, Glanville replied: “The territories ceded to Mr. Dent will be administered by the Company under the suzerainty of the Sultans of Brunei and Sulu, to whom they have agreed to pay a yearly tribute. The British government assumes no sovereign rights whatever in Borneo. (Emphasis added.) 2.2.3. In making assurances to the Dutch Minister Count de Bylant, Glanville stressed that BNBC was purely a private commercial enterprise, declaring: “The Majesty’s Government have already explained to the Government of the Netherlands that the grant of the Charter did not in any way imply the assumption of sovereign rights in North Borneo. It is therefore unnecessary to pursue this discussion further.” 2.2.4. Reinforcing Glanville’s position, Julian Pauncefote, assistant permanent undersecretary of the British Foreign Office, declared: “We must be careful…to preserve the Sultan’s status as a Sovereign to the east coast of Borneo.” Further he said: “The sovereignty of North Borneo is vested in the Sultan of Sulu”; any stipulation Britain might make “respecting that territory

must have the previous assent of the Sultan signified by him through the Company.” (Emphasis added.) 3. However, in derogation of the foregoing commitment and declarations, on 26 June 1946 the British Government entered into an agreement with the British North Borneo Company (BNBC) whereby “The company…transfers and cedes the Borneo Sovereign Rights to the Crown with effect from the day of transfer, to the intent that the Crown shall, as from the day of the transfer, have full sovereign rights over, and title to, the territory of the State of North Borneo and that the said territory shall thereupon become part of His Majesty’s dominions.” The agreement was entitled “Agreement for the Transfer of the Borneo Sovereign Rights and Assets from the British North Borneo Company to the Crown, 26th June 1946." 3.1.Taking into account the said Agreement of 26 June 1946, the British Crown upon the advice of his Privy Council ordered as follows: "1. This Order may be cited as the North Borneo Cession Order in Council, 1946, and shall come into operation on the fifteenth of July 1946.” “2. As from the fifteenth day of July, 1946, the State of North Borneo shall be annexed to and shall form part of His Majesty’s dominions and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo.” 3.2. The colonization of North Borneo by the British Crown by

means of Cession Order of 1946 appears to cede and transfer all “the rights, powers and interests” of BNBC in North Borneo which the British Government itself openly acknowledged as excluding the power of sovereignty and that territorial sovereignty remained with the Sultan of Sulu. 3.3. Hence, the legality of British annexation of North Borneo, including Sabah, persists as a fundamental issue in the Philippine claim to Sabah. 3.3.1. Former American Governor-General in the Philippines, Francis Burton Harrison, described the annexation as “political aggression” and urged the Philippine Government to take action. 4. When Sabah was incorporated into the formation of the Federation of Malaysia, the illegality of annexing Sabah as a Crown Colony remains in Malaysia’s succession-in-interest from Great Britain. 4.1. Through the Government of Malaya, the British Government announced that its territories in North Borneo, including Sabah, would form part of a new Federation of Malaysia. 4.2. The Philippines protested the British decision and called Britain’s attention to the sovereign rights of the Philippines over Sabah. After protracted negotiations, the British Government agreed to meet Philippine representatives to discuss the problem of North Borneo. Held in London in 1963, the negotiations proved to be inconclusive. In the meantime, the founding continued on page 12

Artwork by Arbeen R. Acuña, first appeared in Bulatlat, March 11, 2013, http://bulatlat.com/main/2013/03/11/sultan-stop-sabah-aint-spratlys/


12 UP FORUM Volume 14 No. 2 March-April 2013

AN OUTLINE OF THE PHILIPPINE CLAIM TO SABAH... continued from page 11 date of the new Federation was announced. 5. On the initiative of President Diosdado Macapagal, a Summit conference was convened in Manila from July 30 to August 5, 1963. In this conference, on 31 July 1963, President Soekarno of Indonesia, President Diosdado Macapagal and Prime Minister Tunku Abdul Rahman of the Federation of Malaysia “approved and accepted the Manila Accord, paragraph 12 of

which stipulates as follows: “The Philippines made it clear that its position on the inclusion of North Borneo in the Federation of Malaysia is subject to the final outcome of the Philippine claim to Borneo. The Ministers took note of the Philippine claim and the right of the Philippines to continue to pursue it in accordance with international law and the principle of the pacific settlement of

disputes. They agreed that the inclusion of North Borneo in the Federation of Malaysia would not prejudice either the claim or any right thereunder. Moreover, in the context of their close association, the three countries agreed to exert the best endeavors to bring the claim to a just and expeditious solution by peaceful means… of the parties’ own choice, in conformity with the Charter of the United Nations and the Bandung Declaration.” (Emphasis added.) 5.1 In the same Summit Conference, Photo by the UPSIO, with the assistance of the UP Institute of Islamic Studies Library

Haji Butu, W.C. Cowie, Sultan Jamal-ul-Kiram and Alexander Cook. Cowie, manager of the Company, sought to aid the Sultan Jamalul Kiram II to end the Mat Salleh revolt in North Borneo in 1898. (N. Tanling "Sulu and Sabah" p. 286). Alexander was the Officer-inCharge of Sandakan. Photo from The Genealogy of the Sulu Royal Families (2003) by Sururul-ain Ututalum and Abdul-Karim Hedjazi, published by Professional Press (USA).

MANAGING THE DISPUTES IN THE SOUTH CHINA SEA: CAN ASEAN TAKE THE BULL BY THE HORNS? ...continued from page 4

RE-IMAGINING THE NATION'S FUTURE...continued from page 5

long awaited COC, but to provide early warning of possible pitfalls in order to anticipate and avoid them. This code of conduct was needed yesterday, and could have prevented much adversity and alacrity among neighbors. But now is a good time to start. The COC may bring the region closer to Deng Xiaoping's exhortation for claimant states to "shelve the disputes and pursue joint development." Or, by minimizing the risk of armed confrontation, it may help provide the proper security climate for political negotiations on the sovereignty claims to take place. Whichever path the claimant states choose to take in the future, the COC will require not only the highest level of commitment by all the parties concerned, but the longest duration of commitment as well if it is to produce the desired results. --------------Dr. Baviera earned her doctorate in political science from UP Diliman. She is professor and former dean of the UP Asian Center. Email her at aileen. baviera@gmail.com.

miles, reduced to specific jurisdictions within 24 nautical miles, and then limited to only exclusive resource rights in the waters from 24 up to 200 nautical miles seaward (or to a maximum of 350 nautical miles in the seabed, depending on certain criteria). This system determines how much of the world's oceans should pertain to a coastal State and how much should be considered the “common heritage of mankind” and thus equitably accessible to all States.

the three Heads of Government signed a Joint Statement on 5 August 1963, paragraph 8 of which reads: “In accordance with paragraph 12 of the Manila Accord, the three Heads of Government decided to request the British Government to agree to seek a just and expeditious solution to the dispute between the British Government and the Philippine Government concerning Sabah (North Borneo)…The three Heads of Government take cognizance of the position regarding the Philippine claim to Sabah (North Borneo) after the establishment of the Federation of Malaysia as provided under paragraph 12 of the Manila Accord, that is, that the inclusion of Sabah (North Borneo) in the Federation of Malaysia does not prejudice the claim or any right thereunder.” (Emphasis added.) 6. Malaysia had repeatedly acknowledged the Philippine claim to Sabah and that it is a claim that should be settled as soon as possible, including the prospect of settlement in the International Court of Justice. On its part, the Philippines persistently offered the settlement of dispute arising from its claim to Sabah. 6.1. In February 1964, the Malaysian Prime Minister had the understanding with the Philipcontinued on page 13

In the 1970s, the Philippines pushed for recognition of the Treaty of Paris and the Treaty of Washington lines as indicating 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. In spite of this agreement, it has taken its time in implementing the formula; even with the enactment of Rep. Act No. 9522 in 2009 to establish archipelagic baselines in conformity with the technical requirecontinued on page 13

Photos, from left to right, from http://cimsec.org/keeping-up-with-the-senkakus-china-establishing-a-new-reality-on-the-ground-er-sea/scarborough-shoal-2/, and http://globalnation.inquirer.net/44799/is-chinese-fishing-fleet-outside-or-inside-ph-territory


UP FORUM Volume 14 No. 2 March-April 2013 13

AN OUTLINE OF THE PHILIPPINE CLAIM TO SABAH... continued from page 12 pine President to discuss “as soon as possible the best way of settling the dispute, not precluding reference to the International Court of Justice.” 6.2. In August 1964, the two governments agreed in an exchange of aides memoir to a meeting of their representatives in Bangkok for the purpose of clarifying the Philippine claim and of discussing the means of settling the dispute. 6.3. In February 1966, in response to Malaysia’s diplomatic note reiterating its assurance to comply with the Manila Accord and the concomitant Joint Statement, the Philippines proposed that “both Governments agree as soon as possible on a mode of settlement that is mutually acceptable to both parties.” 6.4. In June 1966, the two Governments, in a joint communiqué, agreed once again to abide by the Manila Accord and the Joint Statement; they reiterated their common purpose to clarify the Philippine claim and the means of settling it. 6.5. In July 1968, the Philippine delegation presented the Malaysian delegation with a written question, “Will you discuss with the modes of settlement of our claim at the conference in Bangkok, irrespective of your own unilateral assessment of the sufficiency of the clarification given?” Malaysia’s answer was unqualifiedly in the affirmative.

RE-IMAGINING THE NATION'S FUTURE...continued from page 12 ments of UNCLOS, the Philippines has not yet officially defined an UNCLOS-compliant territorial sea or contiguous zone extending from those baselines. And yet, it has asserted rights to a 200-nautical mile exclusive economic zone and continental shelf. Just last year, it secured validation of its claim to an additional continental shelf area in the Benham Rise Region, which to date is its first successful expansion of national resource jurisdiction in accordance with international law. Around the same time as it fought

6.6. In August 1968, again in a joint communiqué, the two Governments agreed that talks on an official level would be held as soon as possible regarding the Philippine claim to Sabah. 6.7. The foregoing undertakings assume significance for the reason that they are not unilateral acts of the Philippines; they are commitments jointly made by Malaysia and the Philippines. They repeatedly affirm Malaysia’s recognition of the existence of the Philippine claim to Sabah and its willingness to settle the dispute arising from this claim. 6.7.1. In complete disregard of its commitments, Malaysia has been in full retreat. It is now in denial of the existence of the Philippine claim to Sabah. In consequence, it rests its case on the illegality of the colonization of Sabah by the British Crown.

Map recopied from the book Philippine Claim to North Borneo, vol. 1 (1963) by the Department of Foreign Affairs, published by the Bureau of Printing.

diplomatically for expanded maritime space, the Philippines also exercised and consolidated its sovereignty over the Kalayaan Island Group located west of Palawan. In so doing, it entered into a complicated contest, over both the islands and the maritime spaces they generate, with Vietnam, Malaysia, Brunei, China and Taiwan, in an area of the world that also happens to be 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. It is therefore not surprising that our national territories and jurisdictions now face numerous challenges.The global economy's shift toward Asia, the rise of China as a world power, the American rebalancing in the Asia-Pacific, the ASEAN attempt at regional integration, the resurgence of maritime trade, and regional drive toward economic development place the Philippine national territory at the center of a maelstrom of competing domestic and foreign interests. The issues that bedevil us today

are the 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. Batongbacal earned his Bachelor of Laws from the UP College of Law. He is assistant professor of the UP College of Law and director of the Institute for Maritime Affairs and Law of the Sea of the UP Law Center. Email him at jay.batongbacal@gmail.com.

Photos, from left to right, from http://globalnation.inquirer.net/36247/chinese-news-anchor%E2%80%99s-territory-remark-unintentional%E2%80%94del-rosario, and http://ph.news.yahoo.com/289-filipinos-deported-sabah-arrive-mindanao-003822161.html


14 UP FORUM Volume 14 No. 2 March-April 2013

MANAGING THE WEST PHILIPPINE SEA... continued from page 7 gional security environment, particularly in light of its expansive maritime claims and growing nationalism among its people. In addition, the active deployment in the SCS of PRC civilian or paramilitary law enforcement vessels, and provincial government organs taking action on their own have made the security environment in the SCS more complicated. 4. In the WPS, there is a conflation of defense challenges and law enforcement imperatives due to the geographical overlap of Philippine EEZ/continental shelf (areas that are subject to civilian jurisdiction) with the disputed areas including KIG and Bajo de Masinloc which harbour foreign military presence (and are therefore a military concern). In view of the limited capabilities of both our military and civilian law enforcement agencies, and the need to allocate resources for their upgrading, their respective roles and mandates will need to be clarified for the short-term, medium-term and long-term planning horizons. Law Enforcement and Contributing to Good Order at Sea 1. Pursuant to UNCLOS, the Philippines as a coastal and archipelagic state has exclusive sovereign rights to explore and exploit the living and non-living resources within its 200 n.m. EEZ and continental shelf. It exercises full sovereignty over its 12 n.m. territorial sea measured from its archipelagic baselines, and over all archipelagic waters enclosed within them, subject only to the recognition of innocent and archipelagic sealane passage rights in favour of foreign ships. There is debate, however, on whether, when, and where to establish archipelagic sealanes. 2. The most topical dimension of the disputes triggering the tensions is foreign fishing activities in Philippine territory and EEZ. Given the lack of capability and assets of our civilian law enforcement agencies, the Navy has had to be deputized for ‘anti-poaching’ operations. Use of the Navy against fishermen projects a militarist posture and leaves us vulnerable to allegations of threat to use force. Demilitarization of the fisheries disputes had in fact earlier been recommended by various quarters. There must be a proper mix of military action and civilian law enforcement approaches to the disputes, as determined by the nature of the specific threat or challenge. 3. In consideration of the territorial disputes, we need a clearer definition of where the metes and bounds of Philippine law enforcement jurisdiction are, balancing the promotion of vital national interests with the need to prevent armed hostilities. The growing deployment of vessels by PRC to protect Chinese fishermen and to obstruct Philippine enforcement operations in our territory/EEZ, creates new challenges to our law enforcement efforts. Fishing and other activities by Filipino nationals will be constrained, while allowing Chinese law enforcement to go uncontested may be interpreted as a negation of Philippine sovereignty. 4. A National Coast Watch System was established through Executive Order 57, as a “central inter-agency mechanism for a coordinated and coherent approach on maritime issues and maritime security operations towards

Photo from http://globalnation.inquirer.net/36647/filipino-chinese-ocean-comradery-fades-amid-row

enhancing governance in the country’s maritime domain”. EO 57 also abolished the Commission on Maritime and Ocean Affairs which since 2007 had functioned as the coordinating mechanism at the strategic level. Asserting Sovereignty Over Territory and Exercising Sovereign Rights Over The Exclusive Economic Zone 1. The EEZ/continental shelf under UNCLOS should not be confused with and regarded as equivalent to land territory over which a coastal State exercises full sovereignty and control. Within the EEZ/continental shelf, a coastal State is generally entitled to exclusive sovereign rights to explore and exploit the living and non-living natural resources of the superjacent waters (in the case of the EEZ) and the seabed and subsoil (in the case of the continental shelf). These are rights that are less than full sovereignty, and are ancillary to an adjacent territorial sea or land area. 2. While focus has been on the exclusivity of maritime territories and jurisdictions, UNCLOS also requires coastal States to cooperate pending the resolution of disputes, and encourages them to share the resources of the sea

through provisional agreements like joint development arrangements. Part IX of UNCLOS also allows cooperation and shared management of semienclosed seas like the South China Sea. 3. While international litigation may be helpful, it is not a singular solution to the multiple and complex problems that have arisen, or may arise in the future, in the West Philippine Sea. It will take much time and effort to bring just one case before an international tribunal, and it often takes many years to be resolved; in the meantime, incidents and issues may arise that will require practical, timely, or urgent responses. Advancing an Effective and Pro-Filipino Diplomacy and Foreign Relations 1. Art.2 Sec.7 of the Constitution states that “The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest and the right to self-determination.” Art.2, Sec. 2 of the Constitution also states that “the Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.” 2. In the field of foreign relations, the WPS disputes have had the most impact on our ties with China, the United States, and with Southeast Asia/ASEAN. The disputes have led to an undesirable sharp deterioration in our relations with China, an increased need to strengthen defense cooperation with the United States, while challenging us to help build a common ASEAN position that would help the Philippines and the region withstand any threat to stability and peace. The United Nations moreover continues to serve as a main pillar framing our approach to the WPS challenges. 3. The Philippines has been actively promoting peaceful settlement of the WPS disputes, through bilateral and multilateral initiatives, since the early 1990s. The Philippines also proposed, initiated, and led in drafting the ASEAN-China Declaration of Conduct (DOC), and has been most insistent in further evolving the DOC into a legally binding Code of Conduct. 4. In the last two years, the Aquino government’s strategy in addressing the disputes have focused on pursuing a rules-based approach, reliance on international law, and a preference for multilateral diplomacy. These appear to enjoy considerable domestic as well as international support. On the other hand, its staunchly nationalist and at times seemingly provocative stance against China, as well as open calls for US involvement and support, have caused concern among some neighboring states in ASEAN. Organizing for Future Challenges 1. Law of the Sea concerns in the WPS are cross-cutting issues that impinge on both foreign policy and domestic policy. Domestic archipelagic imperatives (i.e. access to resources, protection of the environment, national security) are the true driving force behind national policy. Only a strong domestic capability (e.g. credible defense and pro-active maritime resource development programs) can be the basis of effective diplomacy and relations with the international community. Archipelagic development and security require a strategic and whole-of-government approach. 2. Recent challenges facing the country in asserting its sovereignty and sovereign rights in the WPS have helped in uniting the Filipino people. Territorial integrity, national patrimony, and the principles and norms we choose to live by in our relations with other countries and peoples all help shape our national identity. But there is little informed policy debate among Filipinos on the maritime challenges we face. Carrying this forward to the next generations requires developing a critical mass of experts and enthusiasts, as well as promoting lively debates and discourses about maritime issues and the challenges and opportunities they present. These will involve participation by government, academe, media, NGOs, private industry, and grassroots local communities. 3. Coverage of maritime issues in popular media is also lacking. There is a need for the Filipino people to rediscover our archipelagic heritage and to write our own story as a maritime and seafaring nation. The mass media, social networks on the Internet, the educational system, and government information agencies are all potential instruments for information dissemination, awareness-raising, stimulating lively and analytical debates, and mobilizing public support on the one hand. They are also instruments for gauging public sentiment and soliciting feedback on government policies and actions. Ultimately, the tough decisions government will have to make with regard to the WPS should be for the benefit of the people. Their understanding of the issues and participation in the decision making will be vital to any successful policy. Guiding Principles and Major Recommendations The following are proposed guiding principles for Philippine policy on the West Philippine Sea. continued on page 15


UP FORUM Volume 14 No. 2 March-April 2013 15

MANAGING THE WEST PHILIPPINE SEA... continued from page 14

and build up their core competencies and primary mandates; and e. Anticipation of various scenarios which security forces may encounter, taking into consideration the shift from internal security operations to territorial security operations and the shift from “threat-based” to “scenariobased” contingencies. 5. That bilateral and regional diplomacy pertaining to WPS: a. Should be strategized in the context of comprehensive foreign policy

1. The West Philippine Sea and its resources are part of the national patrimony. Our national interest in the WPS is defined as that which will serve the greatest good of the greatest number of the Filipino people; 2. Our policies and strategies with respect to resource development, defense, law enforcement, diplomacy and international law shall be consistent with this definition of the national interPhoto from http://globalbalita.com/2013/01/28/declare-scarborough-shoal-as-rocks-not-island-philippines/ est; 3. We affirm commitment to the peaceful settlement of inter-state disputes on the basis of justice, equality, mutual respect, and upholding internationally accepted rules and norms of behavior. 4. We affirm commitment to an independent foreign policy that upholds the dignity of the Filipino people and our tradition of courage and self-reliance; 5. WPS policy should demonstrate the positive contributions that the Philippines and the Filipino people can make to the Asia Pacific region and to the world. This White Paper recommends the following courses of action. 1. That government take steps to establish, revive or strengthen permanent, high-level institutions that shall: a. Undertake policy formulation, strategic planning, policy coordination and period assessments of goals such as promotion of national security, economic development and the policy environment; the welfare of nationals; b. Ensure that the implementation of plans and programs will be in accorb. Should contribute ultimately to strengthening regional and international dance with policy guidelines; peace and stability based on international law, norms and standards; c. Serve as crisis management mechanisms tasked to provide early warning c. Be guided by our long-term aspirations for our relations with ASEAN, and quick response to incidents; China, the United States, neighboring countries in Southeast Asia and d. Be supported by adequate resources and staff, including provision of Northeast Asia, and other key stakeholders. strategic analyses and real-time intelligence; and 6. That programs be undertaken to inculcate archipelagic consciousness and e. Provide institutional continuity regardless of changes in administration identity of the Philippines and the Filipinos as a maritime nation, includand leadership. ing but not limited to: 2. That government develop a comprehensive, long-term program for intera. Preparation and wide dissemination of information (e.g., primers and refnational legal action on issues relating to the disputes, and establish the erence materials) outlining Philippine interests for popular consumption; appropriate institutions and rules for undertaking such a program. b. Building grassroots constituencies for advocacy for the marine and Such a program may include but not be limited to the negotiation of coastal environment safety and freedom of navigation, disaster-preboundaries, filing of cases, seeking arbitration and/or advisory opinion on paredness and response, good neighbourliness and regional cooperation, critical issues from competent bodies, while taking into consideration the among others; need to create favourable political, diplomatic and security conditions for c. Introduction of relevant multidisciplinary courses and content into all conflict resolution. levels of education and training in government; 3. That government develop strategic economic resources development prod. Investment in developing next-generation expertise on the legal, security, grams for the Philippine EEZ, with respect to: international relations, fisheries, geography, geology, marine scientific a. Sustainable and responsible fisheries, with government assistance for and other dimensions relevant to the WPS. artisanal/small-scale fishermen; This initiative began months before the most recent tensions with China b. Optimized exploitation of oil and gas resources, balancing economic erupted over Bajo de Masinloc. Intended to draw attention to the strategic interests and the sovereignty/security concerns; questions, the paper does not provide specific recommendations on how to c. Exploratory surveys of other offshore mineral resources; manage the most pressing or immediate concerns. The problems we face in d. Establishing where necessary, transitional guidelines and rules for law the WPS are not new, as we have been grappling with many of these issues enforcement in selected EEZ areas under dispute, taking into considerfor decades. It is possible that many more years will pass before we achieve ation domestic laws and the relevant UNCLOS provisions; and our aspirations of a West Philippine Sea that is truly free from conflict, safe e. Enabling and capacitating organs for law enforcement and for the protecfrom any form of violence or illegal activity, where Filipinos are able to tion of Filipinos engaged in the exercise of sovereign rights over the EEZ. enjoy as well as to share nature’s bounty, where countries live in equality and 4. That government develop a clear, feasible, and resolute security and demutual respect, and where strong regional institutions are in place upholding fense strategy for the WPS, based on: shared principles and norms. We hope that this White Paper will be an impora. Sound understanding of shifting regional dynamics and geopolitical retant step in that direction. balancing taking place; 10 August 2012 b. Factual and accurate threat and risk assessments looking at capabilities, -------------------political intentions and actions of adversaries; * In this paper, the term "South China Sea" (SCS) refers to the entire semi-enclosed sea bordered c. Correct appreciation of our own security and defense capabilities and by China, the Philippines, Malaysia, Indonesia, and Vietnam. On the other hand, the term "West Philippine Sea" (WPS) refers to only the part of the South China Sea that is the subject of Philippine weaknesses, including the potential for allied assistance and the influence sovereignty and/or jurisdictional claims. WPS is inclusive of the Kalayaan Island Group or KIG, of remaining internal security challenges; Bajo de Masinloc (a.k.a. Panatag or Scarborough Shoal), and the 200­-nautical mile Exclusive d. Clear definition of the distinct as well as coordinated roles and responEconomic Zone (EEZ) and Continental Shelf (CS), accounted from the archipelagic baselines sibilities of our civilian and military organizations, in ways that build on defined in Republic Act 9522 (Philippine Baselines Law). The UP FORUM Dr. Clarita R. Carlos UP College of Social Sciences and Philosophy Dr. Edna A. Co UP National College of Public Administration and Governance Dr. Emil Q. Javier UP President (1993-1999)

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Message of the UP President

The University on Sabah Alfredo E. Pascual EDITOR'S NOTE: This message was delivered at the Interagency Consultation on Sabah Issues held at Bulwagang Tandang Sora, CSWCD building, UP Diliman on March 18, 2013. The event was organized by the UP Institute of Islamic Studies in cooperation with the Office of the President, the House Committee on Muslim Affairs, and the Center for People Empowerment in Governance (CenPEG).

O

nce again, the nation faces an issue of profound significance and consequence. The Sabah question has bedevilled the leadership of the Philippine republic since its establishment in 1946. While many tried, no Philippine administration was able to deal with the issue with resolve, comprehensiveness and rigor. As a consequence, the issue has remained unsettled and unsettling for many Filipinos. Worse, it has in various historical periods, become a divisive element in the political fabric of the nation particularly in the formulation of national policies for the southern part of the country. It has also become a pesky thorn in our relations with our neighbours in the ASEAN region, particularly Malaysia. But then again, as recent events now show, what appeared to be a dormant issue can easily explode into violence, leaving in its wake conflicting perspectives not only among policymakers but academics as well. This situation could have been brought about by extraordinary historical circumstances. In the beginning, our colonial situation prevented us from effectively taking an active part in defining our sovereign role in the domains of the Sultanate of Sulu. The Malolos Republic, which provided the first opportunity to define the country’s territorial sovereignty, did not reckon with the historical particularities of the sultanates even if Dr. Jose Rizal had proposed North Borneo as a Filipino settlement during his exile in Dapitan. It was because the nascent Republic was still caught in a war with two colonial powers. Clearly, discourse on sovereignty, over Sabah was restrained by the actions of the country’s colonizers and by other competing powers in what historians call the Sulu zone. In more recent times, particularly after the Second World War, the leadership of our Republic, from one administration to another, did not give priority to the analysis and development of policy positions on the various aspects of the Sabah question even if the State already exercised its sovereign powers and resources were available to consolidate its position. We can excuse the colonial period for failure to develop a holistic and consistent outlook and systematic action on Sabah. But the State in the contemporary period from independence to the present

time had the wherewithal and the institutional capacities to more substantively reckon with the Sabah question. This, in brief, is what we would like to impress in this gathering. The events at Lahad Datu, controversial and divisive as it may have been to the country, give all of us an opportune moment to revisit the Sabah question. At no other time in our recent history since the Jabidah massacre had the Sabah question starkly stared us in the face. The recent events at Lahad Datu clearly show that there was a failure of our policy and intelligence community. We have relegated the Sabah question too far in the back burner that we can only make reference to the debates between Senators Jovito Salonga and Lorenzo Sumulong when we look for policy positions on the issue. Now the State is again called upon to marshall its resources to develop a coherent, strategic and comprehensive position on the Sabah question. While we may have failed in the past to develop a coherent, consistent and comprehensive policy on Sabah, the nation now has the opportunity to take stock of the situation and establish once and for all its strategic position. This could also be the moment to act with decisiveness as the Republic approaches a far-reaching agreement with the MILF on the Bangsa Moro sub-state. Again, the lack of a comprehensive policy on the Sultanate of Sulu and its domains has moved the sultanate to feel left out of this agreement. The juramentado has once again arisen to pursue its part in the establishment of a Moro sub-state. The University can help the Republic in marshalling its resources to develop a strategic position on Sabah. What we can provide is the intellectual resource to help shape a strategic view and course of action on Sabah. The policy infrastructure on Sabah is not well established; the operational platform is not defined. I urge you to use this forum to analyze the roots of the problem, to find common ground, and most important of all develop workable recommendations that I can submit to our national leaders for consideration. It is only by doing this that we can truly say that UP is indeed the national university that provides a unique and distinctive leadership in our national development.

Map in the background recopied from the book Philippine Claim to North Borneo, vol. 1 (1963) by the Department of Foreign Affairs, published by the Bureau of Printing.


UP Forum March - April 2013