UNCLOS is of 'PH nationality,' says former SolGen Mendoza.
"Why do I say that the archipelagic principle, as you now find it in the convention, has a Philippine nationality?" said former Solicitor General Estelito Mendoza during a lecture he recently delivered at the University of the Philippines Law Center in Quezon City entitled The Law of the Sea Negotiations: The Philippines and the Archipelagic Doctrine. "Let me suggest to you on how this agreement came about."
UNCLOS is the international agreement that came out of the UN conferences from 1973 to 1982. The agreement consists of 320 articles and 9 annexes. To date, 155 countries have ratified the UNCLOS which officially came into force on Nov. 16, 1994. The Philippines became the 11th country to ratify UNCLOS on May 8, 1984.
UNCLOS defines the limits of the territorial sea, the contiguous zone, and the exclusive economic zone (EEZ) of a coastal or archipelagic state. Mendoza was the only delegate who was able to attend all ten sessions of the Third United Nations Conference on the Law of the Sea (UNCLOS III).
During UNCLOS III in 1973, the Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction which was established by the United Nations General Assembly in Dec. 18, 1967, formed three principal committees.
The First Committee was assigned to study the international regime of the sea-bed and ocean floor beyond national jurisdiction. The Second Committee as assigned to study the archipelagic principles, the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone, the high seas, land-locked countries, shelf-locked states and states with narrow shelves or short coastlines. and the transmission from the high seas.
The Third Committee was assigned the topic of the preservation of the marine environment.
"In our case (the Philippine delegation led by then Sen Arturo Tolentino), we were just focused on the archipelagic principles," Mendoza said. "We didn't get involved too much on the others. We were just watching out as to whether any of these articles were going to prejudice our position."
Mendoza recalled that the Philippine delegation identified other archipelagos who were interested in having the archipelagic principle included in the convention. Those they identified included Indonesia, Fiji, and Mauritius.
Mendoza said they agreed to convene a meeting in Manila. He said no representative from Mauritius came so it was just Indonesia, Fiji, and the Philippines.
He said when they got together he suggested that they complete a draft of the principles so that they would submit it the earliest possible time in the Law of the Sea Conference. "At that time it was not yet the formal conference, it was just what was known as the Seabed Committee," Mendoza recalled.
Mendoza suggested they meet in a boat supplied by the Bureau of Coast and Geodetic Survey through Mario Manansala. "We agreed we would board that boat and we would discuss aboard the boat, and we would not get off the boat until we had reached agreement."
They met for two days - May 25-26, 1972. During the two-day meeting, Mendoza said agreeing on the substance was easy. What made the effort difficult was to agree on the language.
"While we understand what we wanted to state, we speak different English. I speak American English. Indonesia speaks Dutch English, and Fiji speaks English English because they were under the United Kingdom. If Mauritus was there, it would have been more difficult because they were under French control for a time."
Finally, they agreed on a paper that would be subject to confirmation by the respective governments of the delegates. "I presented the paper not only to (then) Justice Minister Vicente Abad Santos but also to President Marcos and he approved it, he said.
The group submitted a document entitled "Archipelagic Principle as Proposed by the Delegations of Fiji, Indonesia, Mauritius, and the Philippines."
This was presented on Mar. 14, 1973, to Sub-Committee 2 of the UN Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction. The text which is exactly the same as that which had been agreed upon in Manila.
"That means our respective governments approved what we negotiated and agreed upon in Manila," Mendoza said. "That is why I can say that the paternity -- based on "jus soli" -- of the archipelagic principle which eventually found its way into the Convention on the Law of the Sea is Philippine."
GOV'T LACKS ASSERTION
Mendoza also declared that the problem with the Philippine government, especially when it comes to defining the maritime jursidiction of the country, is that it is "not conscientious enough to do what it should to put things in order."
"We have not been conscientious in assuring that we protect our basic archipelago," stated Mendoza, the only delegate who was able to attend all ten sessions of the Third United Nation Conference on the Law of the Sea (UNCLOS III).
While the UNCLOS defines, among others, the limits of the territorial sea, contiguous zone and the exclusive economic zone (EEZ) of a coastal or archipelagic State, there was a lack of effort on the part of the Philippines to assert its territories by law.
In actuality, he pointed out there is no lack of effort on the part of the government to define by legislation the country's maritime zones, from territorial waters all the way to exclusive economic zones, to continental shelf.
In fact, even before the Law of the Sea Convention was approved on March 20, 1968, then President Marcos issued Proclamation No. 379 declaring as subject to the jurisdiction and control of the Philippines all minerals and resources in its continental shelf.
"So even before the convention we have already proclaimed sovereignty over our continental shelf," Mendoza noted.
Furthermore, on June 11, 1978, President Marcos issued PD 1599 establishing an exclusive economic zone (EEZ). By that time, EEZ became part already of customary international law.
"Yan ang mabuti noong panahon na iyon, mabilis (That is what's great about that time, everything moves fast)," he said. "Hindi na inaantay pa ang Congress, action agad (We do not need to wait for Congress, there's immediate action)."
Mendoza also cited as an example Republic Act 9522 which defined the archipelagic baselines of the Philippines, claimed sovereignty over the Kalayaan Island Group under Section 2, sub-paragraph A which described the territory as a "Regime of Islands"--a concept defined in UNCLOS for similar bodies of land.