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Ambivalent opposition

 

"How do we really feel about our joint oil exploration agreement with China?"

 

Part I

There is much ambivalence in the stand of the opposition to the Joint Marine Seismic Undertaking which the country entered into with China and hurriedly joined in by Vietnam at the suggestion of former Speaker Jose De Venecia. The JMSU was signed on March 14, 2005. The Bayan Muna and a string of communist front organizations; the Liberal Party that represents the interest of the local oligarchy, the foreign interest groups, and the clerics; and the Magdalo Party, a motley group of former renegade soldiers, are all busy creating ruckus to embarrass the Republic.

They are most vocal in articulating their opposition to the joint venture agreement to explore oil and gas in the South China Sea which Noynoy renamed West Philippine Sea. Perhaps he felt that romanticizing it would serve as his legacy, ignoring that since time immemorial, that body of water has been known as the “South China Sea.”

They raise issues that are utterly ambivalent, contradictory and baseless. Principally, they claim that the joint undertaking is unconstitutional and detrimental to our national interest. Accordingly, the agreement is in derogation of our sovereignty.

If the issue of constitutionality is to be raised on the basis that all agreements must be ratified by the Senate, Section 21, Article VII of the Constitution states: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” However, the greatest drawback to this argument is our agreement to allow the Visiting Forces Agreement signed in 2000 and the Enhanced Defense Cooperation Agreement signed in 2012 to operate in this country.

We allowed the US to establish military bases here in violation of Section 25, Article XVIII, which states: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty concurred in by the Senate and, when Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

The Philippines signed these two agreements which specifically are not allowed by the Constitution unless ratified by the Senate. However, the US in both instances refused to treat the VFA and EDCA as treaties but merely executive agreements to skip the constitutional requirement of having them ratified by the US Senate. While the Philippine Senate complied with its constitutional obligation, the US prodigiously stood pat to treat them as executive agreements until the whole issue became moot and academic when the Supreme Court finally declared the agreement as valid.

Analyzing the applicability of Section 24, Article XVIII to the JMSU with China, the agreement to conduct scientific data to determine the location and volume of the undersea minerals is in the words of Secretary of Foreign Affairs Teodoro Locsin, Jr., an “agreement to agree.” Unlike the VFA and EDCA, the establishment of US military bases revolves on the physical presence of foreign forces and the use of our national territory which is clearly prohibited by the Constitution.

If one strictly abides by the Constitution, there are three distinct possibilities that could happen on this issue of joint exploration and foreign partnership agreement with China. First, treaties and executive agreements, to be valid and constitutional, must be ratified by the Senate. Second, some treaties or agreements, even if ratified, may nonetheless remain invalid and unconstitutional if they contain provisions in derogation of our sovereignty, territorial integrity and national interest. Third, even if a treaty or agreement does not contain provisions in derogation of our sovereignty, territorial integrity and national interest, it will remain invalid and unconstitutional if it contains a provision specifically prohibited by the Constitution like allowing a foreign power to establish military bases in this country.

Our joint venture agreement with China to explore oil and gas is not one that is specifically prohibited by the Constitution or would require the approval of the Senate. The area to be explored accordingly represents 80 percent of our exclusive economic zone—about 142,886 square kilometers. However, that area cannot be treated as part of our territorial waters where we could exercise exclusive sovereignty and jurisdiction. Rather, the exclusive economic zone which is an innovation introduced by the UN Convention on the Law of Sea in 1977 gave rights to countries adjacent to the sea to explore and exploit mineral resources under the seabed and subsoil.

Admittedly, Presidential Decree. No. 1599 or Establishing an Exclusive Economic Zone signed by President Marcos on June 11, 1978 merely complied to the new demarcation made by UNCLOS setting up a 200 nautical mile-limit from the outermost baseline of the Philippine archipelago as our exclusive economic zone. Marcos was intelligent and far-sighted;he did not specify or name any of those islands within the EEZ as part of our territory like naming the contested Scarborough Shoal, Panatag or Bajo de Masinloc as ours. Marcos knew that a declaration to that effect could spell trouble from other claimant states.

Nonetheless, it was understood that the Philippines had a rightful claim over that shoal applying the EEZ which is located only 140 nautical miles off Zambales. Besides, Panatag Shoal or Huangyan Dao to the Chinese is far from the contested Spratly group of islands which is located at the southernmost tip of Palawan.

Some say, even if China insists that Panatag Shoal or Huangyan Dao belongs to them for the fact that the island is outside the boundary demarcated in the Treaty of Paris on December 10, 1898, China’s ratification of the UNCLOS weakened its position from asserting ownership. The UNCLOS obligates China to recognize the 200-nautical mile exclusive economic zone, and that means recognizing the Philippines as having prior rights in that area. Thus, if both countries are technically prevented from asserting their claim, the best formula is to go back to the original Chinese formula of a win-win solution like the sharing of the fish harvest and mineral resources that could be extracted in the area which now appears to be working after a change of policy by the Duterte administration.

The joint venture with China does not violate the exclusivity principle of the EEZ. Rather, China decided to enter into a joint agreement. It likely realized that most of the area is well within the county’s exclusive economic zone, which is why it acceded to the 60-40 sharing in our favor for whatever resources that may be extracted in the area.

On the other hand, the motive of the opposition is clear, which is to derail any agreement with China. By urging the Supreme Court now to declare unconstitutional the JMSU agreement entered into by President Arroyo in 2005, they hope to kill two birds with one stone, which is to spoil altogether the MOU signed by China’s President Xi Jinping and President Duterte last November. 

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Topics: Rod Kapunan , oil and gas exploration , South China Sea
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