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The Legal Status of the Philippine Treaty Limits and Territorial Waters Claim in International Law: National and International Legal Perspectives

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The Legal Status of the Philippine Treaty Limits and Territorial Waters Claim in International Law: National and International Legal Perspectives University of Wollongong Thesis Collections University of Wollongong Thesis Collection University of Wollongong Year 2010 The legal status of the Philippine Treaty Limits and territorial waters claim in international law: national and international legal perspectives Lowell B. Bautista University of Wollongong Bautista, Lowell B., The legal status of the Philippine Treaty Limits and territorial waters claim in international law: national and international legal perspectives, Doctor of Philosophy thesis, Australian National Centre for Ocean Resources & Security - Faculty of Law, University of Wollongong, 2010. http://ro.uow.edu.au/theses/3081 This paper is posted at Research Online. THE LEGAL STATUS OF THE PHILIPPINE TREATY LIMITS AND TERRITORIAL WATERS CLAIM IN INTERNATIONAL LAW: NATIONAL AND INTERNATIONAL LEGAL PERSPECTIVES A thesis submitted in fulfilment of the requirements for the award of the degree Doctor of Philosophy from University of Wollongong Lowell B. Bautista, BA, LLB, LLM Bachelor of Arts in Political Science, University of the Philippines Bachelor of Laws, University of the Philippines Master of Laws (Marine and Environmental Law), Dalhousie University Australian National Centre for Ocean Resources and Security (ANCORS) Faculty of Law University of Wollongong 2010 ii Certification I, Lowell B. Bautista, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Australian National Centre for Ocean Resources and Security (ANCORS), Faculty of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Lowell B. Bautista 1 May 2010 iii iv Abstract The fundamental position of the Philippines regarding the extent of its territorial and maritime boundaries is based on two contentious premises: first, that the limits of its national territory are the boundaries laid down in the Treaty of Paris which ceded the Philippines from Spain to the United States; and second, that all the waters embraced within these delineated lines seaward of the baselines constitute its territorial waters. The position of the Philippine Government is contested in the international community and runs against rules in the United Nations Convention on the Law of the Sea, which the Philippines signed and ratified. This situation poses two fundamental unresolved issues of conflict: first, is the issue on the breadth of its territorial sea, and second, its treatment of supposed archipelagic waters as internal waters. The twin issues of the legal status of the Philippine Treaty Limits and its extensive historic claims to territorial waters have been subject of much academic debate and serious criticisms. The delimitation of Philippine territorial and maritime boundaries in conformity with international law necessitates the reform of the existing national legal, policy and administrative framework to resolve fundamental issues of conflict between domestic legislation and international law. This thesis, proceeding from both a national and an international legal perspective, clarifies the legal status of the Philippine Treaty Limits and territorial waters claim in international law, with a view to facilitating such reforms. v vi Acknowledgements It is difficult to look back at the last four years I spent writing this thesis and not get emotional. How do I reduce to a single page all the wonderful, helpful, selfless people I have encountered throughout my PhD journey and who have made it a period of my life I will treasure forever? It has been an exhilarating adventure in the truest sense, and a long and winding, at times tumultuous, voyage. It is a pleasure to pay tribute to the many people who made this thesis possible. Of all the persons that have contributed to the realisation of this work, I owe my deepest gratitude to my principal supervisor, Professor Martin Tsamenyi, for his insightful comments and constructive criticisms, for his constant encouragement and good humour, for always finding the time to read my drafts despite his hectic schedule. I am grateful to him for making me believe in myself because of his belief in me, for teaching me the value of hard work, discipline, and scholarship in research, for opening opportunities for me to grow professionally, and just for being an inspiration. It has been such an honour and a privilege to be supervised by Martin. I could not ask for a better supervisor. I am grateful to my secondary supervisor, Associate Professor Clive Schofield for his incisive comments and for allowing me take part in collaborative projects which will further my growth as a scholar. His impressive list of publications continues to inspire me to work even harder to be the scholar I want to be. I am indebted to the Australian government and the University of Wollongong for providing me the financial support to undertake this degree through an International Postgraduate Research Scholarship (IPRS) and University Postgraduate Award (UPA). To my dearest friend Dr Mary Ann Palma, there is not enough space here to express how much I appreciate all that you have done for me. Thank you for all the endless chats, for laughing at my silly jokes and antics, for listening to me and being there for me throughout all the happy, heartbreaking, and everything-else-in-between moments in my life the past decade or so, for all the encouragement and support, and for just being a true friend. I am enormously grateful to Ms Myree Mitchell for always being so accommodating, understanding, and patient to me all these years. I am thankful to the other staff members at ANCORS: Dr Chris Rahman, Quentin Hanich, Dr Robin Warner, Associate Professors Lee Cordner, Warwick Gullet and Greg Rose, for treating me as a colleague and trusting in my abilities, and providing me with opportunities that help me grow professionally. To all my fellow student colleagues at ANCORS, who I consider my comrades-in- arm and kindred spirits: Zaki Ahmad, Kresno Buntoro, Nang Khemakorn, Daisuke Sekine, Andi Arsana, Filimon Manoni, Anthony Morrison, Joytisha Jit, Georgia Patu, Dorina Basurto, Wayne Kuo, Ben Milligan, Mikhail Kashubsky, Ronnie Gavan, Shilpa Rajkumar, and Adham Abdulla. Thank you guys for providing a stimulating and fun environment in which to learn and grow, for all the fun and laughter, the delicious pot lucks, for all the emotional support and camaraderie. vii Special thanks go to Jane Mbendo-Brassington, who I will never forget for all the countless hours we spent together at the office cracking our heads working on our theses; Amelia Emran, who is back in Malaysia but whose friendship and companionship linger; and Hazmi Rusli, my Cambodian brother whose friendship I have come to discover quite late but I treasure so much. To my best buddy Mark Bayani, for all the brownies and beers, for driving me around and accompanying me to senseless drives that go nowhere, and for being there for me when I was at the lowest point in my life, daghang salamat, bai! To Sheila Aquino, for all the kindness and generosity she has extended to me, and for being God’s instrument in my salvation, of which I am eternally grateful. To my International Christian Church family: Pastors Roger and Joy Lingal, Kuya Rolan, Ate Joan and Robin Zita, Alex and Katty Sybell, Emma King, Nanay Connie Bertulfo, Andrew Stylianou, Angie and Jonathan Cruz, Kuya Joe and Ate Ampie Salimao. Thank you for being my family here in Australia, for bringing me closer to God and helping me in my Christian walk. To all my new-found friends at Jesus Lord of the Harvest Fellowship, especially Alda and Niko Regala, LA Gutierrez, Aileen Gutierrez, Genere Dudang and Pastor Rodel Ramos, for embracing me wholeheartedly and treating me like family. To my good buddies Mark Lasala and Mark Castellano, for all the times we spent hanging around together at the beach, watching movies, or just doing nothing, for the sleepless PS2/Xbox 360 games you two would have at my old apartment; to my good friends Christine Mantilla and Toni Rose Castellano, for all the emotional and crazy moments we all shared. Thank you guys, for making me feel like a real kuya. To the Alpha Phi Omega Australia especially Tita Jojie and Tito Russell Familar, and Ate Irene and Darrin Patterson, for all the fun moments spent over camping, and free flowing alcohol. To all the staff and former colleagues at the Institute of International Legal Studies of the University of the Philippines Law Centre, where I honed my writing and editorial skills; to my mentor Dean Merlin Magallona, to whom I owe my passion for the law of the sea; and to other more senior Filipino scholars who have helped me in my journey throughout the years as a young student and scholar trying to find my place under the sun, such as Jay Batongbacal, and Dean Aileen Baviera: maraming salamat po sa inyong lahat. To my beloved country, the Philippines, and the Filipino people (especially including those scattered around the globe in diaspora): I wrote this thesis with Pinoy pride and an unwavering confidence that one day our great nation will be able to delineate all our territorial and maritime boundaries. To the Reyes family: Fernando, Lorenda, Joan, Ryan, Ryshelle and Jannly: for opening your hearts and homes to me and welcoming me into your family with open arms. To my parents and family: Nanay, Tatay, Ledon, Leilani, and Lloyd, my brother-in- law Ghick and sister-in-law Rachel, my nephews Marcus Andrei and Mark Adrian, viii and my niece Christine. Thank you raising me, for allowing me to pursue my dreams, for always believing in me, for being proud of me, for loving me. To God, for the precious gift of life, for giving me hope and a future, for never leaving nor forsaking me in times of need, for reminding me that there is more to life than the senseless pursuit of fame and fortune, for showing me that my purpose in life is far greater than my own personal fulfilment, happiness or peace of mind.
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