OF LAW AND POLITICS

PH GOVERNMENT, BEING THE STEWARD OF THE NATION’S PATRIMONY, NEEDS TO BE TRANSPARENT ON BENHAM RISE, RENAMED AS THE PHILIPPINE RISE.

Jaime S. Bautista

The news that the Philippines had given its consent to China to conduct scientific research in Benham Rise, renamed Philippine Rise, has provoked much controversy.  The Benham Rise, with a submarine area roughly the size of Greece, is believed to be rich in gas deposits.  There is, therefore, great anxiety, in being informed about the measures that the Philippines is taking to ensure that the Philippines is adequately safeguarding its sovereign rights to explore and exploit the natural resources in this submarine area.

As a maritime country located in the center of the archipelagic continent, the Philippines actively participated in the three UN Conferences on the Law of the Sea, to advocate the creation of new maritime zones for coastal states and lobby for the emergence of a New International Economic Order.  The Philippines has been a leader of the Group of 77, which emerged at the Third UN Conference on the Law of the Sea (UNCLOS III) as a negotiating bloc to reflect the perspectives of developing countries.  UNCLOS III was conducted over a nine-year period between 1973 and 1982 with 11 negotiating sessions spread across 585 days and held in three countries.  One of the beneficial outcomes for the Philippines from this Conference was the recognition of its sovereign rights to the Benham Rise.

Concept of Sovereign Rights

Benham Rise is located in the Philippine Sea near Aurora province.   This submarine area is the “natural prolongation” of the land territory of the Philippines, and by virtue thereof, the Philippines has the sovereign rights to explore and exploit its natural resources under the doctrine of the Continental Shelf.  

However, Benham Rise is not part of the Philippines’ territory over which the Philippines enjoys sovereignty or the full plenitude of powers to control the activities in the area. 

The concept of sovereign rights means that the Coastal State should exercise its rights without unjustifiably interfering with navigation and other rights and freedoms of other States in the area as provided in the Convention.

Continental Shelf Doctrine

Under the UN Convention on the Law of the Sea, the Continental Shelf of a State extends up to 200 nautical miles from the baselines from which the territorial sea is measured.  The Coastal State may have an Extended Continental Shelf up to 350 nautical miles from the baselines, but always observing the provisions of the Convention. 

In  2008, the Philippines submitted the required data to the Commission on the Limits of the Continental Shelf (CLCS), defining the outer limits of its Expanded Continental Shelf in Benham Rise.  The CLCS found the data to be in accordance with the Convention.   The reported outer limits for its zone in Benham Rise, being in harmony with the recommendations of the CLCS, are now final and binding.

The sovereign rights of a Coastal State to explore and exploit the natural resources in its Continental Shelf are exclusive in the sense that no other State can exercise these rights without the consent of the Coastal State.  

Moreover, these rights do not depend on occupation or proclamation by the Coastal State.  The Coastal State has rights to its continental shelf ipso facto, ipso jure and ab initio.  Other States cannot claim they had pre-existing rights to the natural resources in the continental shelf, before the entry into force of the UN Convention on the Law of the Sea.  This provision in the Convention was to ensure that the rights of the Coastal State to its Continental Shelf was protected and could not be challenged by other States.

Overlap between EEZ and Continental Shelf

The Continental Shelf substantially overlaps with the 200 NM Exclusive Economic Zone, but not the Expanded Continental Shelf because it goes beyond 200 NM.  The Convention provides that the rights of the Coastal State over its continental shelf do not affect the legal status of the superjacent waters or of the airspace above those waters. 

Thus, the Philippines rights over Benham Rise, in the submarine area beyond the 200 NM from the baselines (the Expanded Continental Shelf) cover only the mineral and other non-living resources of the sea-bed and subsoil, together with the living organisms belonging to sedentary species.  These rights do not cover the water column or the exclusive right of fishing.  The superjacent waters of the Expanded Continental Shelf are high seas open to all States.  They are covered by the rules of the Convention and other rules of international law, with freedom of navigation and fishing and other freedoms, subject to the provisions of the Convention. 

This is different from the Philippines’ rights over its Continental Shelf (up to 200 nm from the baselines) because the superjacent waters have the legal status of Exclusive Economic Zone.   In its EEZ, the Philippines has sovereign rights for exploring and exploiting the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and subsoil, as well as to other activities for the economic exploitation of the zone, such as the production of energy from the water, currents and winds.

Sovereign Right to Regulate Marine Scientific Research

The Philippines enjoys sovereign rights to regulate, authorize and conduct marine scientific research in its Continental Shelf.  While the Convention encourages states to cooperate in marine scientific research for peaceful purposes and to increase scientific knowledge for the benefit of mankind, the Convention gives coastal states full discretion to decide whether to give its consent for research in exploring and exploiting the natural resources.  This right gives premium to the value that the natural resources may have for the economic development of the coastal state.    

With respect to pure research and not for economic motivation, the Convention provides different rules depending on whether the research is to be undertaken within the Continental Shelf or in the Expanded Zone.  The Coastal State may not withhold its consent for pure research in the Expanded Continental Shelf, even if the research may have direct significance for the exploration and exploitation of natural resources.  However, consent may be withheld if the research is to be made in an area in which exploitation or detailed exploratory operations are occurring or will occur within a reasonable period.  But if the research is for exploitation of the resources, the sovereign rights of the Coastal State to deny consent remain protected.

Exercise of Sovereign Rights

Until Harry Roque, the President’s Spokesman, disclosed that China’s research has the blessing of the President and suggested, according to a newspaper, that ”anyone opposed to the joint research project should go to Congress and raise the issue there”, it was not clear whether the Philippines’ consent could not be withheld because of the nature of the research.

Roque’s statement suggests that China’s research is not intended to be one for pure research so that the Philippine Government had the full discretion to grant or deny China’s request.  As the Government is the steward of the nation’s patrimony (which is for the benefit not only of present but also of future generations), the Philippine Government  needs to be transparent on Benham Rise  and should disclose the protocol that it followed for considering China’s request, the reasons for its consent, and the conditions it imposed on China.  The Government should also disclose whether China has complied with its obligation to fully share with the Philippines the results of previous surveys conducted under previous agreements.

The Philippine Government could have anticipated the controversy that followed its failure to timely disclose the grant of consent to China’s research.  After all, China’s nine-dash line encroaches on the Philippines’ EEZ and Continental Shelf in the West Philippine Sea although this claim does not affect the Philippines’ sovereign rights over Benham Rise, which is located on the eastern side of the Philippine Archipelago.

As for Roque’s suggestion, Congress may wish to consider conducting an inquiry in aid of legislation, to determine whether China has provided the Philippines with the information that the Convention requires it to provide to the Coastal State.  The inquiry may result in legislation imposing conditions relating to the granting or withholding of research not only with respect to Benham Rise but also in the different maritime zones of the Philippines.  The passage of legislation will provide clear guidelines to protect and preserve the nation’s patrimony for the benefit of our present and future generations.