The Department of Justice on Wednesday said there is no need for the Senate to review the agreement entered between the Duterte administration and China on oil and gas development in the West Philippine Sea since it is not in the nature of a treaty.
Justice Secretary Menardo Guevarra said that the memorandum of agreement signed during the recent state visit of Chinese President Xi Jinping does not require concurrence of Senate under the 1987 Constitution.
“It’s not a treaty, and therefore does not require any senate concurrence or review,” Guevarra said, in an interview.
The Justice Secretary issued the statement after Senate President Pro Tempore Ralph Recto called for a legislative review of the MOU following concerns that it could compromise the country’s sovereignty or lead to a debt trap.
According to Guevarra, he has examined the MOU and did not find any violation of the laws.
“There are no sovereignty issues whatsoever as the MOU merely expresses a mutual desire to agree on specific cooperation arrangements within 12 months,” he explained.
Guevarra also pointed out that the agreement expressly stated that it “shall be without prejudice to the respective legal positions of the two governments and does not give rise to any rights or obligations under international or domestic law.”
“It’s just an MOU, it’s non-committal, non-obligatory, and non-binding from a legal standpoint. It’s a mere expression of mutual desires,” he maintained.
Guevarra disputed the opinion of former Solicitor General Florin Hilbay that the MOU may be unconstitutional.
Hilbay argued that the agreement is “incompatible with the full control and supervision standard or clause.”
“It is clear that we own the West Philippine Sea and it is against the Constitution if we allow China to jointly explore with us its natural resources like oil and gas jointly,” he said.
However, Senior Associate Justice Antonio Carpio, a vocal critic on China’s claims in the West Philippine Sea, rebutted Hilbay’s position, saying that the MOU is “safe” as it included a service contract provision.
“I don’t have any objection with that kind of arrangement because if China comes in through our service contractors, those service contracts expressly recognize that the area falls within Philippine sovereignty or sovereign rights,” Carpio said.
The magistrate even suggested that the service contractor in the Philippines’ Recto Bank (Reed Bank), Forum Energy, could tap a Chinese firm as a subcontractor
Businessman Manuel V. Pangilinan’s PXP Energy Corp., through its London-listed unit Forum Energy Plc, holds an exploration permit covering Recto Bank.
Carpio said China “can come in as a subcontractor of Forum Energy or it can buy into equity of Forum Energy, or it could do both.”
The MOU entitled “Memorandum of Understanding on Cooperation on Oil and Gas Development between the Government of the Republic of the Philippines and Government of the People’s Republic of China” was signed during Xi’s visit recently.
It acknowledged that “through positive dialogue and practical cooperation,” the Philippines and China “have made substantial progress and meaningful gains in exploring opportunities and means to cooperate with each other in maritime activities, which has made significant contributions to peace, stability and development in the region.”
The deal stated that an inter-governmental joint steering committee and an inter-entrepreneurial working group will be established and will be led by ministries of foreign affairs, as well as energy departments.
China identified China National Offshore Oil Corporation as the Chinese enterprise for each working group, while the Philippines has designated the Philippine National Oil Company — Exploration Corporation as the Philippine enterprise.
The MOU was also specific on the timeline of the agreement, stating that the “two governments will endeavor to agree on the cooperation arrangements within 12 months.”
The joint exploration, upon bearing fruit, would pave the way for another cooperation agreement on the exploitation of resources found, according to the same document.
However, the MOU specifically stated: “This Memorandum of Understanding does not create rights or obligations under international or domestic law.”