The Benham rise issue

There are those who want to assert our sovereignty over our exclusive economic zones handed to us by the United Nations Convention on the Law of the Sea (UNCLOS). They want to confront the alleged Chinese intruders who have been loitering around the area and are putting up structures in the same. This has been denied by the Chinese.

Before we lose our cool over the issue, let us first understand what exclusive economic zones are all about. These vast areas are not part of the territorial waters of this country which is only 12 miles from land. It does, however, grant the country less than sovereign rights to exploit resources thereto without preventing other nations from doing the same. In short, UNCLOS by awarding us an exclusive economic zone is not making the area part of the archipelago. It merely awards sovereign (not territorial) rights for the purpose of exploring and exploiting, conserving and managing the natural resources of the area. It does not, however, in any way, allow this country to restrict freedom of navigation or right of innocent passage (even of warships) or prevent other nations from fishing and doing things enumerated below.

In sum, under UNCLOS all states enjoy the rights of innocent passage which include: a) freedom of navigation; b) freedom of overflight; c) freedom to lay submarine cables and pipelines; d) freedom to construct artificial island, and other installations permitted under international law and conditions laid out by the convention; e) freedom of fishing, subject to conditions; and f) freedom of scientific research.

It is important to note that these freedoms are exercised by other states with due regard for the interests of other states in their exercise of the freedom of the high seas, and also with due regard for the rights under this convention with respect to activities in the area.
Given the above, assuming that a Chinese ship was seen in the area, this is no big deal since under convention rules anybody can pass through our EEZ. It is said that the ship lingered in the area for some time. Why not find out from the Chinese what they were doing instead of speculating because as said earlier there are legitimate things that are allowed by the convention by other states as enumerated above.

Before calling in the Yanks and invoking the Mutual Defense Treaty as proposed by no less than an associate justice of the Supreme Court, which could place our troops in harm’s way, why not sit down with the Chinese – cuentas claras!

When I led a delegation to Beijing a few months ago on Track 2 (back-channeling) negotiations, the Chinese invoked their historic rights over the South China/West Philippine Sea while our group insisted on the Hague decision. But, at the end of the day, the Chinese agreed to place the issue in the backburner which they say did not represent the sum total of our relations with them. As a result, they promised not to harass our fishermen in Scarborough who continue today to fish in the area. This is what I call creative diplomacy – a win-win solution.

Not only that, the Chinese have plowed in billions of investment funds which will among other things connect Southern Luzon to Northern Luzon by rail and Western Mindanao with Eastern Mindanao and even the northern to southern part, surely we do not want to upset the apple cart at this time.
It is a good thing, however, that we assert our rights. We should have done this when our former colonizer grabbed hundreds of thousands of land in Luzon to convert into US bases which enjoyed extra-territorial rights – such as keeping out Filipinos who I recall had to get a pass to enter Subic and Clark and Camp John Hay. I also recall when US sentries shot young Balugas of the Aetas who were mistaken for wild boars and US servicemen who raped Filipinas being bundled off to the US to escape Philippine justice.

Thanks to the magnificent majority in the Senate in the 1990s we got back our land from the Americans. By the way, we seem to have given up our rights over Sabah whose legitimate owners the Sultanate of Sulu passed on to this country? It hurts me to read in the papers about Filipinos being “deported” from Sabah and our countrymen maltreated in Malaysian jails. This does not seem to bother our nationalists who want to confront China.

Back to Benham Rise. First off, let us sit down with the Chinese. As a diplomat, my knee jerk reaction is to sit across the table. Secondly, let us form a group that will develop the area since we say that it is ours, period.

Incidentally, territorial claims have been there since time immemorial and in many cases these have been resolved peacefully. If space permitted I could discussed these one by one.

In the meantime, to preserve our rights over Benham Rise, it is expedient that we heed the advice of Congressman Lito Atienza and pass a bill that would establish a Benham Rise Protection and Development Authority which could be consolidated with a pending bill in the Senate, the Benham Rise Development Authority Act of a similar nature as proposed by Senator Gatchalian. Having set up the organization, let us now occupy the place, even put up structures as in Pag-asa. Remember that occupancy is 99 percent of the law. Incidentally, we should have done this with Scarborough and the others.