Excitement over troubled waters

The waters of the Philippines are agitated again – and this time, the excitement is on the eastern side, over the Benham Rise (also known as the Bentham Plateau). 

The protagonists are the same: the Philippines and the People’s Republic of China. And once more, there is talk, much of it absurd, of the betrayal of national interests, treason even – despite the fact that a cursory check with the Revised Penal Code should make it clear that treason is a war-time offense!

Oil, gas, minerals – we have a penchant, probably not unfounded, for believing that Ali-baba’s cave is somewhere West of the Philippines beneath our troubled waters. What is not mentioned often enough though is that this is a very dangerous part of the world: seismically active, a region of sea where tectonic plates collide, where subduction is suspected to have caused the massive and highly destructive 1990 quake!

It is not Philippine territory. International law confines “territory” to the land area over which a State exercises sovereignty and to the territorial sea that should not exceed twelve nautical miles.

What has been established with scientific certainty though is that the Bentham Rise is part of the continental shelf of the Philippines – that submerged prolongation of the land mass of a State. As a natural feature appending to Philippine territory, it makes the Philippines the “titulary” of rights – called, in the UN Convention on the Law of the Sea “sovereign rights”. Specifically, over its continental shelf, the coastal state has exclusive rights over mineral deposits (whatever these may be) and to sedentary species.

But the characterization of the waters above the shelf remains unaffected by the rights the Philippines enjoys over Benham Rise. That is to say, when the underwater plateau lies beneath the Exclusive Economic Zone, the Philippines will enjoy over its EEZ no more and no less than what the law grants a State over its EEZ. Similarly, when the continental shelf lies beneath the high seas, then the waters remain what they are – with the “freedom of the high seas” customarily (and conventionally) recognized by international law in respect of the high seas.

The UN Commission on the Limits of the Continental Shelf agreed in 2012, that Benham Rise was indeed an undersea protrusion of the Luzon land mass – and therefore is Philippine continental shelf.

 

Innocent passage

So there is no reason for the hair-tearing and the insane frenzy that followed the sighting of Chinese vessels in the vicinity of the Benham Rise. Innocent passage is an acknowledged right of maritime vessels over the EEZ and, in fact, even over the territorial sea. The problem of course is that we are suspicious that the visitations are not that “innocent”. We have had sad experiences, after all.

If the Chinese attempt to fish or to extract marine resources from within our EEZ, that would certainly violate the sovereign rights the Philippines enjoys over its EEZ but would really have nothing to do with the Benham Rise. Things, of course, would considerably be different were any of our neighbors to attempt to drill into the Benham Rise. In such a case, we would have reason to protest the violation of our rights.

One other provision of law has to be mentioned: When the continental shelf extends beyond the breadth of the territorial sea, whatever may be extracted from that portion is subject to a “levy” that is collected for the sake of land-locked states — to me, a very inspiring “social justice” provision of UNCLOS. And before we start dreaming of supplying Saudi Arabia with oil when its wells run dry, it will be well to remind ourselves that the coveted deposits lie kilometers beneath the sea — and to drive even just a sliver of a pipe into the Benham Shelf will cost more than we can currently afford.

By all means, let us be vigilant.

It is our continental shelf; so has the relevant UN bodied ruled, and, as a consequence, we have sovereign rights that no public officer can bargain away, without betraying his oath of fealty of the Republic and to defend its Constitution.

And certainly, I continue to take umbrage at the sidelining of an arbitral tribunal ruling in our favor into which we put so much cogitative energy to win!

But let us not let the dogs loose, as yet, especially when we fear that there are bloodhounds on the other side, and all we have in our kennels are yapping chihuahuas! – Rappler.com

The author is vice president for administration and finance of the Cagayan State University and Dean of the Graduate School of Law, San Beda College.