UNCLOS AND THE PHILIPPINE TERRITORIAL SEAS: PROBLEMS, PERSPECTIVES AND OPTIONS JOSE VICTOR VILLARINO CHAN-GONZAGA* ABSTRACT I The sea will be the center of world develapment in the third millenium. It is the last frontier for man's expansion on earth. And the 1982 United Nations Convention on the Law of ti < the Sea (UNCLOS III) embodies humanity's solemn belief that it is indeed the common heritage ii li of humankind. UNCLOS III creates a legal regime for the seas, which is substantially the consensus ofthe world as it crosses the threshold into the twenty-first century. Veritably, UNCLOS III is a triumph for the Philippines in the light of the adoption of the archipelagic doctrine advanced by this country as early as 1955 and established in legislation. Briefly, the principle states that the "island, waters and other natural features ofthe archipelago I form an intrinsic geographic, economic and political entity." This thesis studies the problem ofthe Philippines with respect to the twelve-mile breadth of the territorial seas provided for in the convention. UNCLOS III does not take into I consideration the distinct configuration of the Philippine territorial seas. And the Philippines has consistently advanced the view that its territorial sea is measured by the metes and bounds I delimited by the Treaty ofParis between the United States of America and Spain in 1898. This thesis posits the view that there is a serious possibility ofconflict with other States in the future. The Philippines cannot derive comfort from its declaration at Montego Bay that its sigriature does not affect its sovereign rights as successor of the United States under and arising from the Treaties of Paris and Washington. For it is considered to be a prohibited reservation which purports to exclude or to modify the legal effect ofthe provisions ofUNCLOS III in their application to the Philippines. In the end, this thesis warns of the possibility that the variance in UNCLOS III and the s Philippine Constitution will be brought to the fore. In that event, it is strongly suggested that if a choice has to be made, it should be to bow to the sovereign will of the majority ofthe world. To insist on the national sovereignty over the historic sea, is to cling to old dogmas inconsistent with the new law offering the greatest promise to the world of tomorrow. In addition, this thesis underscores the importance of UNCLOS III in the sense that to be a part of it is to be present in the "new, rich, still largely unknown world which will be the scene of the next adventure and ex-pansion of humankind." i.W .f0 ,: • Juris Doctor 1997, with honors, Ateneo de Manila University School of Law; recipient, St. Thomas More l Award {1997); recipient of the Ateneo de Manila University School of Law Best thesis Award. I 2 ATENEO LAw JouRNAL VOL. XLII N0.1 I 1997 UNCLOS AND THE PHILIPPINE TERRITORIAL SEAS 3 I Republic in 1946. Yet, more important is the fact that in that victory against Admiral Patricio Montojo can be found the very root of the problem the author is studying, a I problem which persists to this very day almost a century down the dusty roads of i I. INTRODUCTION world history. i i On December 10, 1898, the United States of America and Spain agreed on the "Together, we have illuminated the past, we explore the present, and we continue to· latter's surrender by entering into the Treaty of Paris. In that treaty, Spain ceded to the push the border of the future into what is yet to be." i United States the archipelago known as the Philippine islands. A line was drawn around the whole archipelago, which boundary line now marks the outer limits of the - ·National Geographic Society 2 World Headquarters i historic territorial seas of the Philippines. Washington, D.C. Roughly these outer boundaries are in the form of a rectangular frame, the upper The Philippines and the world stand at an important threshold in the history of border being a straight line slightly above 21 degrees North latitude, the left border hwnankind. Not only is another century coming to an end, but humankind is about to ; being 118 degrees East longitude, the right border being 127 degrees East longitude, journey yet into another millenniwn. and the lower border being slightly below 5 degrees North latitude. Inside this rectangular frame stands the triangular form of the Philippine archipelago. 3 A look at the world today reveals how different it r.as become from the world which began this century. It has started lifting the various barriers around nations, I This delimitation was embodied expressly in Article Iii of the Treaty of Paris. and for the very first time, there seems to be a consensus for greater political, social, and Such was reiterated in the subsequent Treaty of Washington between the United States economic cooperation in order to establish a totally new world order. Concededly, and Spain on November 7, 1900 and in the Treaty of January 2, 1930 between the there are parts of the world which still experience the horrors of war and the ravages of United States and the United Kingdom of Great Britain and Northern Ireland. disunity. But these are mere aberrations in an international system which has pledged Is another fifty years to the United Nations Organization (UN) and has negotiated possibly m This territory delimited by the treaties has thus been consistently claimed by the the most comprehensive trade agreement in history-the General Agreement on Tariffs Philippines as part of its historic waters/ seas. The claim rests on the theory that by the and Trade (GATT-UR). i Treaty of Paris, Spain ceded to the United States an archipelago, that is, a body of water studded with islands, and that this body of water is bounded by the latitude and The third United Nations Convention on the Law of the Sea (UNCLOS III) is a longitude lines found in such treaty and which lines were referred to by the Jones Law monumental landmark in the cooperation and togetherness of the international I o£August29,1916, bytheHare-Hawes-Cutting LawofJanuary17,1933, by the Tydings- community during some of the best years of humankind, in the century it is about to McDuffie Law of March 24, 1934 and by the Treaty of January 2, 1930, as boundaries. leave behind. In Decemberof 1982, 119 States and organizations affixed their signatures All these, the theory continues, establish "historic" title, to use the 1973 phrase, over to the Convention during the ceremonies at Montego Bay. the territory. The UNCLOS III is especially important to the Philippines as it is an ocean or I Further, the Fisheries Act passed by the Philippine Legislature and approved by maritime State which is nestled on a strategic area of the Pacific, which ocean is dubbed the American Governor-General already mentioned these boundary lines, stating to be the arena of the twenty first century. And "as distribution of land has more or less I categorically that the waters within these lines were territorial seas of the Philippines. been determined, we are now concerned with the apportioning of the seas."1 I Moreover, the maps issued by a Washington government bureau during the Commonwealth period, showed the boundaries indicated by the Treaty of Paris and A. Background of the Study along these boundaries were the words "Commonwealth of the Philippines."4 Ii The guns of Commodore George Dewey did something more than the obliteration On December of 1970, the General Assembly of the United Nations approved GA of a Spanish fleet in the harbor of Manila. It began almost a half-century of American i ill Resolution No. 2750 authorizing the Secretary-General to convene the third Convention rule over the Philippine islands that culminated in the inaugt.!.ration of a Philippine i! on the Law of the Sea. Thus representatives of the United Nations met over the period I 2 The Baselines of the Philippine Archipelago, II PHIL Y.B. INT'L L. 107. 3 }ORGE COQU!A, SELECTED EssAYS ON lHE LAw OF THE SEA 7 (1982) [hereinafter COQUIA, SELECTED ESSAYS]. 1 4 fiANNs BUCHHOU:, LAw OF THE SEA ZONES IN THE PACIFIC OcEAN 115 (1987). L ARTURO TOLENTINO, THE PHJUPPINFSAND THE LAW OF THE SEA 74 (1987). 'I VOL. XLII N0.1 4 ATENEO LAw JouRNAL I 1997 UNCLOS AND THE PHILIPPINE TERRITORIAL SEAS 5 f from 1974 to 1982 to discuss the evolving issues of the modem world relating to the C. Statement of the Problem uses and conservation of the seas. Finally in 1982, the final Convention text of 320 l articles and nine annexes was submitted to the nations of the world for their I This thesis is an analysis of the apparent conflict between the Philippine consideration and approval. ratification of the 1982 UNCLOS and the intent of the framers of the constitutional I provision on the national territory. lt also reviews the basis of the Philippines' claim The traditional uses of the sea before World War II made that era of ocean politics to the Treaty of Paris delimitation, under the prinCiple of international law; and how relatively simple and straightforward. However, the new era of ocean politics has this claim is affected by the Tolentino declaration during the signing of the convention. been rather complex.5 Specifically it seeks to the following questions: I 1. What exactly did the Treaty of Paris intend by delimiting the territory of the The UNCLOS Ill is considered a giant leap towards a more systematic and efficient i development of the seas.