Prof. Herman Joseph S. Kraft tackles the
controversies surrounding the coveted Benham Rise
BY HERMAN JOSEPH S. KRAFT
Reports of sightings of Chinese surveillance ships caused quite a bit of fuss in the Philippines early during the year. The assurances made by President Rodrigo R. Duterte that they were there with his blessings did not really make Philippine hearts feel more at peace. The funny thing about the whole affair, however, was that those Chinese ships were discovered away from the usual spot where Philippine hackles are normally raised regarding Philippine territory and China. No, this was not about the West
Philippine Sea on the western coastline of the island of Luzon. This was a report about Chinese ships on waters off the east coast of Luzon. This was in Benham Rise.
Benham Rise is an undersea plateau of approximately 13 million hectares around 135 miles east of the province of Aurora. It was discovered in 1933 by US geologist Andrew Benham (after whom it was obviously named). While extensive exploration of the Rise still needs to be conducted, it is believed to be
rich in marine resources, natural gas, oil, and mineral resources. (Now where have we heard that before?) The Commission on the Limits of the Continental Shelf of the United Nations had awarded it to the Philippines as an extension of its continental shelf in 2012. The ruling grants the country “sovereign
rights” over Benham Rise, which means the Philippines has exclusive rights to explore and exploit resources there—much like an exclusive economic zone (EEZ).
The “fuss” regarding Benham Rise was further exacerbated by the revelation that China had proposed names to five features located in the underse a plateau, which were approved by the International Hydrographic Organization (IHO) in 2017. All of these features were “discovered” in a survey conducted by a Chinese survey ship in 2004. Three of the names were proposed in 2014, and the other two submitted in
2016. Considering that the “sovereign rights” of the Philippine s to Benham Rise were awarded in 2012, the issue over naming rights is very much connected to perceptions of what “sovereign rights ” mean. The Philippines should be the ones naming these features because Benham Rise is ours.
BUT IS IT? WHAT DOES IT MEAN TO SAY IT IS OURS?
A spokesperson of the Foreign Ministry of China, Geng Shuang, noted in 2017 that the Philippines cannot claim Benham Rise as its own territory. This was in response to a declaration from the Secretary of National Defense of the Philippines, Delfin Lorenza na, that a structure would be built somewhere in Benham Rise to signify the country’s taking possession of the geological feature (much like what China did initially with those fishermen’s shelter in Mischief Reef in 1995, which eventually became one of the
artificial islands it constructed in 2016). While the Chinese Foreign Ministry spokesperson did not win any pogi points with the Filipino people (this was probably furthest from the minds of people at the Chinese Foreign Ministry since it was clear to them that they w ere not out to win a popularity contest after all, much less one wi th Filipinos), it is nonetheless accurate.
From a legal standpoint, being granted “sovereign rights” is not the same as having sovereignty over Benham Rise, and, more importantly, as current acting Chief Justice of the Supreme Court, Justice Antonio Carpio pointed out, the award does not make Benham Rise part of the national territory of the Philippines. Under the UN Convention on the Law of the Seas (UNCLOS), having “sovereign rights” grants us exclusive rights to explore for and exploit oil, gas, and mineral resources in Benham Rise. We even have exclusive rights to whatever sedentary species might be harvested from there. This, however, does not mean it is “ours.”
Which brings us back to the question of naming rights. Does it matter? Jay Batongbacal, the Director of the Institute for Mari time and Law of the Sea Studies (IMLOS) at the University of the Philippines, raised this issue of Chinese names for those featu res in Benham Rise in a blog post. He points out, however , that the IHO has its own protocols for naming undersea features. This is probably similar to how
previously unknown comets or planets are recognized and given names. In the end, it is not about who was responsible for naming them, but rather how it happened that something that was previously unknown got to be known so that it could be given a name. And in this context, the Chinese have claimed
that the survey ship from which the discovery was made was involved in a perfectly legal act of innocent passage.
Under the UNCLOS, “innocent passage” applies to the passage of a ship along the territorial sea of a coastal state that does not compromise (roughly speaking) the coastal state’s “peace, good order, or security.” The conduct of research or survey activities is, in fact, not considered to be “innocent”
and requires permission from the coastal state. This is, however, on waters where coastal states exercise sovereignty over. In areas where “sovereign rights” apply, like the EEZ of a coastal state or its extended
continental shelf, it is presumed that freedom of navigation applies, that is, ships can pass as long as they are not engaged in activities that violate the exclusive rights of the coastal state to explore for and exploit resources.
Those features that have been named are well within the exclusive economic zone of the Philippines, not just the extended continental shelf—an area in which any foreign ship should not be doing any exploration or surveying in the first place. To go by what has been claimed by the Chinese government, how long were these ships passing by “innocently” that they were able to locate and identify undersea features accurately enough for them to propose names to the IHO? Batongbacal believes that Filipinos should expect more proposals to name features resulting from this particular “innocent passage.” The question is if they were well within the EEZ of the Philippines (and not just the extended continental shelf),
how long were they there? What exactly were they doing? Could an innocent passage really lead to “discoveries” of undersea features?
To go back to the quote from President Duterte
about going to Benham Rise to assert Philippine
rights there, his insistence on asserting these
rights shows his heart is in the right place and
is clearly the correct path. But he has also
asserted his willingness to go to war if anyone
claims ownership of Benham Rise.