President Rodrigo Duterte and his counterparts in the Association of Southeast Asian Nations vowed to exercise self-restraint to maintain peace, security, stability, safety, and freedom of navigation in the South China Sea.
President Duterte and the leaders of Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Singapore, Thailand, and Vietnam said in a statement that it was important to work actively towards the full and effective implementation of the 2002 Declaration on the Conduct of Parties in the South China Sea and the early conclusion of the Code of Conduct in the South China Sea.
The ASEAN 10 leaders said it was also important to “exercise self-restraint in the conduct of activities and avoid actions that may further complicate the situation.”
They also vowed to maintain the ASEAN region as a peaceful and secure area, even as they pledged to resolve any disputes and difference by peaceful means, such as dialogue.
The ASEAN leaders said maritime cooperation has to be enhanced as well, using internationally accepted treaties and principles such as the 1982 United Nations Convention on the Law of the Sea.
Disputes include the overlapping South China Sea claims by the Philippines, Brunei, Malaysia, Indonesia, and Vietnam and also involved third parties China and Taiwan.
There is also the boundary dispute between Malaysia, the Philippines, Brunei over North Borneo, which involved China and Taiwan.
Aside from the common dispute with China and Taiwan, ASEAN members also have additional disputes, such as the case of the overlapping claims by Indonesia, China, and Taiwan over the waters north of the Natuna Islands; the contesting claims of Malaysia and the Philippines over Sabah and many others.
In the partnership for sustainability statement, the ASEAN 10 leaders said they would continue to promote regional peace and stability.
These would be attained through “enhancing confidence-building measures such as the Code for Unplanned Encounters at Sea, the Guidelines for Air Military Encounters, Guidelines for Maritime
Interaction and the ASEAN Direct Communications Infrastructure, to promote communication, mutual trust and confidence, and reduce miscalculations and mishaps in the air and at sea.”
They also vowed to “support and promote the conservation and sustainable use of ASEAN’s coastal and marine environment, including to ensure food security, improve nutrition and promote benefits for the people.”
The ASEAN summit came as the Philippines sought to deal with the fallout from the ramming and sinking of a Filipino fishermen by a Chinese vessel near the Recto Bank in the West Philippine Sea.
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On Sunday, Justice Secretary Menardo Guevarra said the Philippines would not be surrendering its sovereignty by agreeing to a joint investigation of the incident with China.
Guevarra said the joint probe approved by Duterte and the Chinese government would not violate each other’s sovereignty, contrary to the opinion offered by ousted chief justice Ma. Lourdes Sereno and Foreign Affairs Secretary Teodoro Locsin Jr.
“There is no issue of sovereignty involved in the investigation of this marine or navigation incident at sea. Our EEZ [exclusive economic zone] is not part of Philippine territory,” Guevarra said, in a text message.
Guevarra explained the distinction between sovereignty and sovereign rights under the United Nations Convention on Laws of the Seas and international laws.
He said Recto Bank, being part of the country’s EEZ, is covered by sovereign rights of the Philippines, but not by its sovereignty that only covers its territory.
“We only have sovereign rights to exploit the natural resources found therein,” Guevarra said.
Under the UNCLOS, sovereignty pertains to the exclusive legal authority of a state over its waters, particularly its internal waters and territorial seas. The state essentially has territorial sovereignty over these waters.
On the other hand, “sovereign rights” pertain to “limited” entitlements or privileges of a state to its EEZ.
Article 56 of UNCLOS provides that a state has sovereign rights in its EEZ for the purpose of “exploring and exploiting, conserving and managing the natural resources…of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds.”
However, having sovereign rights over a particular area does not confer sovereignty and is not tantamount to sovereign territory, Guevarra said.
The Justice secretary also said the joint inquiry only intends to answer factual issues that could help resolve the incident and serve justice to the aggrieved party, particularly the 22 Filipino fishermen who were left afloat after their fishing boat sank.
“The only issues in the joint inquiry are—which party was at fault for the incident and the amount of restitution due to the offended party, and whether there was any liability on the Chinese side for leaving the scene of the incident without extending help to the Filipino fishermen,” he said.
Sereno, however, alleged that the joint investigation was an “act of overt surrender of our sovereignty.”
“Henceforth, any injury to any Filipino—whether fisherfolk, tourist, science researcher, student, soldier—caused by a foreign vessel or national in Philippine waters, can henceforth be decided by foreign countries, with the Philippine government itself but a participant,” Sereno argued.
Locsin, who earlier filed a diplomatic protest against Beijing over the incident, shared this belief.
He said on Twitter that “a joint investigation trenches on each other’s sovereignty.”
Locsin said there would be no joint investigation as the two countries would conduct separate investigations. The Palace, however, rejected his stand and announced that the President has given the go-signal for the joint probe.
Guevarra said the Cabinet will further discuss the joint investigation with President Duterte once he returned from the ASEAN summit in Thailand Sunday.
Opposition senators on Sunday rejected a joint investigation.
Senate Minority Leader Franklin Drilon said the Philippines should not allow a joint investigation since the law is on its side.
“There are clear violations of international treaties and our local laws committed by the Chinese vessel. A joint investigation will only serve their interest, not ours,” Drilon said.
Senator Francis Pangilinan, president of the opposition Liberal Party, said a joint probe would violate the country’s fisheries code.
“Our fisheries code mandates the government to safeguard the safety of our fishery and aquatic resources and to prosecute local and foreign violators. Part also of the government’s mandate is to address foreign illegal entrants in our waters,” he said.
Senator Risa Hontiveros said the joint investigation would favor only China as it continues to evade any accountability for its citizens’ actions in the West Philippine Sea.
“If China only intends to whitewash the incident and is unwilling to bring her erring citizens to justice for their acts, then any joint probe will be an exercise in futility,” she said.
Senate President Vicente Sotto III and Senator Sherwin Gatchalian, on the other hand, said they support a joint investigation to resolve conflicting accounts of the incident. With PNA
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