Melissa Loja and Romel Bagares, ‘Should we now slay the elephant in the room?

’ (Philippine Daily
Inquirer, 2 May 2021)

The elephant in the room in popular discourse about maritime entitlements won by the Philippines
before the South China Sea (SCS) Arbitral Tribunal is the status of the Kalayaan Island Group (KIG).

To recall, the KIG regime was established by the 1978 Presidential Decree No. 1596 attaching it to the
province of Palawan.

Recently, the Supreme Court (SC) issued a resolution in Republic v. Palawan (GR No. 170867, Jan. 21,
2020) expressly maintaining the legal status of the KIG by using and depicting the polygon-shaped
baselines of the KIG as defined by PD 1596.

The SC used the KIG baselines to rule that the Malampaya oil and gas fields are outside the province’s
jurisdiction. In doing so, it denied the province’s entitlement to the proceeds of the fields under the
Local Government Code’s 60-40 sharing scheme.

To make matters worse, in the same case, the SC gave the KIG its own continental shelf! This is contrary
to the 2016 SCS Arbitral Award, which said that all high tide elevations in the area under the UN
Convention on the Law of the Sea (Unclos) are only able to generate a territorial sea. Instead, the
continental shelf flows from Palawan, covering the Recto Bank, Panganiban Reef, and Ayungin Shoal.

Too, proposed bills filed with Congress still adopt the baselines of the KIG , notably House Bill No. 7736,
which seeks to reclassify the KIG as alienable and disposable land. (The bill begs the question: Why make
the Philippine-held maritime features there capable of private ownership—so they could be sold to and
purchased by dummies?)

Congress had also passed Republic Act No. 11259 dividing Palawan into three provinces, placing
“Kalayaan” under a proposed Palawan Sur. The people of Palawan resoundingly rejected this proposal in
a plebiscite held last March.

Even Justice Antonio T. Carpio’s ponencia in Ermita v. Magallona (GR No. 187167, Aug. 16, 2011)
upholding the constitutionality of RA 9522 had maintained the existence of the KIG using the baselines
of PD 1596.

The SC had not touched a hair of the Marcos-era decree.

One might think RA 9522 had done away with PD 1596, at least by implied repeal. After all, the new
baselines law had been passed purportedly to establish full Philippine compliance with the Unclos.

But no. Congress had incorporated PD 1596 in Section 2 of RA 9522, thus preserving the former’s
baselines.
Despite these incongruities, the SC in the Magallona case said the Constitution looks fine, even with RA
9522.

So, who killed PD 1596?

The SCS Arbitral Tribunal did. It had to.

The SCS Arbitral Tribunal struck down China’s nine-dash lines using Unclos. The Arbitral Tribunal also had
to strike down the baselines enclosing the KIG under PD 1596. Paragraph 1203 B (1) explains that “as
between the Philippines and China, the Convention defines the scope of maritime entitlements in the
South China Sea, which may not extend beyond the limits imposed therein.”

Consequently, paragraphs 574 and 575 of the Arbitral Award declared that any baselines of the
Philippines that enclose the Spratly Islands violate the Unclos, as the KIG cannot be constituted as an
offshore archipelago. It is the Arbitral Tribunal that nullified the baselines defining the KIG under PD
1596.

It had to, because under Article 25 of the rules of procedure of the arbitration, it had the due diligence
obligation to “satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well
founded in fact and law.”

Had the Arbitral Tribunal not nullified the KIG definition under PD 1596, the Philippines would have
continued to maintain a claim based on it.

The Arbitral Tribunal would have lost what scholars call its kompetenz-kompetenz. It killed PD 1596 in
defense of its legitimacy.

Should we now slay the elephant in the room, according to the mandates of the 2016 SCS Arbitral
Award?

***
Melissa Loja has a PhD in public international law. Romel Bagares served as co-counsel for petitioners in
the Magallona and Malampaya cases.

The doctrine of kompetenz-kompetenz indicates that an arbitral tribunal is empowered and has the
competence to rule on its own jurisdiction, including determining all jurisdictional issues, and the
existence or validity of an arbitration agreement.

https://www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html