Any agreement between Manila and Beijing on a joint exploration for energy in the West Philippine Sea would not mean Philippine recognition of China’s claim to nearly all of the South China Sea, Malacañang said on Thursday after critics warned that such a deal, which President Duterte described as “like co-ownership,” was unconstitutional.
Prevailing jurisprudence allows the Philippines to undertake joint exploration with foreign entities, presidential spokesperson Harry Roque said.
China offer
Roque explained that Mr. Duterte’s statement in Marawi City on Wednesday that an arrangement to turn Beijing’s and Manila’s rival claims to the West Philippine Sea into virtual joint ownerships was preferable to the “massacre” of Filipino troops in a war with China.
“It’s like co-ownership. It’s like the two of us would own that,” Mr. Duterte said, referring to China’s offer of joint exploration for energy in the West Philippine Sea.
The West Philippine Sea refers to waters within the Philippines’ exclusive economic zone (EEZ) in the South China Sea, where Manila’s sovereignty was upheld in July 2016 by the UN-backed Permanent Court of Arbitration in The Hague in a challenge by the Philippines to China’s claim to almost all of the strategic waterway.
Roque noted that China and the Philippines were disputing sovereign rights in the area. Joint exploration would allow the Philippines to benefit from the resources in the area without dealing with the dispute, he said.
“Joint exploration is exactly what it is. It’s a practical solution for the Filipinos to utilize natural resources without having to deal with the contentious conflicting claims to territories,” Roque told reporters.
He claimed that the Supreme Court had ruled that the Philippines could enter into joint exploration and joint exploitation with foreign entities as long as this complied with the Constitution and was pursuant to a … written agreement signed by the President and submitted to Congress.
Warnings from experts
Mr. Duterte’s use of the term “co-ownership” with China sparked warnings from legal experts and lawmakers on Thursday.
Supreme Court Senior Associate Justice Antonio Carpio, a member of the legal team that argued the Philippine case before the Hague tribunal, said the entire Philippine archipelago and its resources belonged to the Filipinos only.
Citing Article XII, Section 2, of the 1987 Constitution, Carpio said the government “shall protect the nation’s marine wealth in its exclusive economic zone and reserve its use and enjoyment exclusively to Filipino citizens.”
“Since the Constitution reserves the use and enjoyment of the nation’s marine wealth … exclusively to Filipino citizens, the President cannot cede, in whole or in part, the ownership of the oil and gas in our [EEZ] to a foreign state,” Carpio said.
Exclusive rights
In addition, he said, the United Nations Convention on the Law of the Sea recognizes that the Philippines enjoys “exclusive sovereign rights to explore and exploit the oil and gas” within its EEZ.
“The President cannot cede, in whole or in part, this exclusive sovereign right of the Philippines in favor of another state,” Carpio said.
Former Solicitor General Florin Hilbay, also a member of the legal team in the Hague arbitration, warned on social media that Mr. Duterte would violate the Constitution if he entered into a deal for joint exploration with China.
“Here’s a clear example of culpable violation of the Constitution and betrayal of public trust. The West Philippine Sea is exclusively ours. He’s giving it away,” Hilbay said.
Roque insisted that what Mr. Duterte wanted was legal, and he challenged Hilbay to bring an impeachment complaint against the President.
“How can it be betrayal of public trust when the Supreme Court itself said it [could] be done?” he said.
Carpio’s and Hilbay’s opinions, he said, are in the minority, and are not prevailing jurisprudence.
Still, Bayan Muna Rep. Carlos Isagani Zarate said Mr. Duterte’s statement about co-ownership was a virtual capitulation to China.
“It sends a dangerously wrong message that the Duterte administration disregards our hard-won victory at the International Tribunal for the Law of the Sea,” Zarate said, referring to the Hague court’s July 12, 2016, ruling that invalidated China’s sweeping claims in the South China Sea and declared Beijing had violated Manila’s sovereign right to fish and explore for resources in the West Philippine Sea.
“It is as if the Duterte administration is reversing [the tribunal’s ruling] and is now giving the West Philippine Sea to China on a silver platter,” Zarate said.
“Justifying the arrangement with China as co-ownership can even be construed as a capitulation to China’s militarization program in the area,” he added.
JMSU ruling needed
Zarate urged the Supreme Court to rule on Bayan Muna’s challenge to the constitutionality of the Joint Marine Seismic Undertaking (JMSU) entered into in 2005 by the administration of then President Gloria Macapagal-Arroyo with China.
“China used it then to get data and map our resources in the [West Philippine Sea] so now we must not allow them to use the same modus operandi against us,” Zarate said.
The JMSU involved joint exploration for oil and gas in the West Philippine Sea by the oil companies of China, the Philippines and Vietnam.
The companies that signed the deal were Philippine National Oil Co., China National Offshore Oil Corp. and Vietnam Oil and Gas Corp.
The agreement covered about 80 percent of the Kalayaan Group of Islands occupied by the Philippines in the Spratly archipelago, in the South China Sea, and Recto Bank, a large, resource-rich underwater shelf in the West Philippine Sea known internationally as Reed Bank.
The Hague court’s ruling declared Recto Bank is within the Philippines’ EEZ.
Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, said Mr. Duterte’s comments came “very dangerously close to surrendering the gains” achieved by the Philippines in the Hague arbitration and to “conceding the Philippines’ exclusive rights and resources to a foreign power in violation of the Constitution.”
Batongbacal said Mr. Duterte should be “strongly advised that as President and a lawyer, even his idle statements could carry legal weight.”
But Roque said Mr. Duterte’s likening joint exploration to co-ownership was just meant to convey the fact that the Philippines and China would undertake a joint venture in the West Philippine Sea.
No ownership talk
There is no need to talk about ownership because titles do not come into play when the area concerned is an EEZ, he said. In EEZs, he added, there are only sovereign rights.
“There is no ownership in sovereign rights. It’s the exclusive right to explore and exploit natural resources, the right to conduct scientific research, and the right to build artificial islands,” Roque said.
According to Roque, there is nothing final yet, as the Philippines and China are still discussing the proposed joint exploration. —WITH REPORTS FROM NESTOR CORRALES AND AFP