IF the tripartite agreement entered into by the Philippines with China and Vietnam to conduct a joint marine seismic undertaking (JMSU) in the disputed territories of the Spratly Islands is currently mired in controversy, the Arroyo government has only itself to blame.

The JMSU agreement supposedly governing “pre-exploration” activities as seismic surveys to determine the oil and gas potential of the Spratlys has been variably described as a “blunder,” a “sellout,” and worse, even an “act of treason.” And the allegations, not just coming from the usual anti-Arroyo critics, are not without basis.

The agreement, otherwise a completely reasonable and legitimate pact for joint cooperation between countries under international law, is primarily weighed down by a heavy cloud of suspicion resulting from questions being raised about its constitutionality.

“It is suspect for reasons entirely unique to Philippine constitutional law,” says Dr. Raul Pangalangan, former dean of the College of Law of the University of the Philippines, citing the “constitutional shortcuts” that were committed in forging the agreement.

Listen to the presentations on the Spratlys issue at the UP College of Law forum last Friday:

By themselves, cooperative arrangements for a joint development zone between countries engaged in disputes over contested territories like the Spratlys are normal. Such agreements, Pangalangan points out, are encouraged by international law, and which have also found expression in the Manila Declaration on the South China Sea of the Association of Southeast Asian Nations in 1992, and reaffirmed 10 years later in the ASEAN-China Declaration on the Conduct of Parties.

In fact, the concept of joint development zones, says Dr. Aileen Baviera, dean of the UP Asian Center, is a “very useful formula for very intractable territorial disputes.” As an ad interim solution, this is one way of managing the conflict, Baviera says. “We’re not giving away our islands and territories, (and there are) no implications on sovereignty in an ideal sense.”

Constitutional questions

But based on area coordinates provided in the annex of the agreement, the JMSU has been found to cover 24,000 square kilometers of undisputed Philippine territory, including some 80 percent of the Kalayaan group of islands being claimed by the Philippines. Part of this island group is Spratly Island, which is just 700 kilometers off Palawan.

“If we say that the Kalayaan group of islands is ours, why do we allow foreign governments, oil companies, navies, and commercial vessels to operate in these areas, without us having control over their activities?” asks Baviera. By entering into the JMSU, she says the Philippine government only served to legitimize or tolerate these activities in areas that the country claims as its own.

The 1987 Constitution explicitly provides that the State shall have full control and supervision over the exploration, development, and utilization of the country’s natural resources, including marine wealth in its archipelagic waters, territorial sea and exclusive economic zone. The use and enjoyment of these resources are exclusive to Filipino citizens. The State may directly undertake such activities or contract the services of corporations wholly owned by Filipinos or 60 percent of whose capitalization is owned by Filipinos.

“We learned our lesson from the Marcos years,” says Pangalangan, referring to the constitutional provisions mandating strict regulation of the exploitation of our natural resources.

Yet one more constitutional requirement overlooked, he adds, is the obligation of the President to report to Congress any contract entered into within 30 days from its execution.

“That report was never done,” Pangalangan says. “The agreement was kept secret and, in fact, even has a confidentiality clause.”

Not a mere business agreement

A careful reading of the tripartite agreement, former UP College of Law dean Merlin Magallona says, would show that it is a treaty rather than a business agreement between oil companies given its strategic importance and diplomatic sensitivity.

“The agreement is not only a seismic research agreement but a framework agreement within which some succeeding agreements may be done by the governments,” argues Magallona. “Such succeeding agreements for further cooperation mean that the parties will conclude an agreement for exploration. What then is its legality if it is not a treaty?”

Magallona, who was a former foreign affairs undersecretary under the Estrada administration, also thinks that the agreement does not stand by the signatures of the oil companies alone, and hence requires the approval of their respective governments, in effect making it an international agreement — a treaty — between governments. As such, he adds, it deserves the concurrence of two-thirds of the Senate.

The government, however, continues to insist on the constitutionality of the agreement, arguing that the JSMU only covers pre-exploration, and not exploration, activities. confined to seismic studies involving data gathering, collection and interpretation.

Seismic tests part of exploration

This, Pangalanan considers though to be an “after-the-fact concoction” in light of the admission made by geologist Eduardo Mañalac, the former Philippine National Oil Company (PNOC) president and CEO who signed the agreement on behalf of the Philippine government, that seismic studies already form part of the exploration stage.

But what is most telling, says Pangalangan, is the government’s repeated use of the term “exploration” on the Philippine Information Agency’s website where a November 11, 2007 press release quoted Press Secretary Ignacio Bunye as saying that the “first phase or the exploration phase has been completed,” with the Chinese Premier expressing hope that “the three countries would continue the cooperation on the developmental level.”

Pangalangan also disputes government’s claim that the seismic tests are scientific in nature when these are being conducted not by disinterested parties but by three corporations engaged in the commercial extraction, development, and sale of petroleum.

‘Well studied suspicions’

“These arguments, coupled with well studied and considered suspicions in light of the national broadband network and North Rail scams, indicate that money could have changed hands in order to push for the tripartite agreement,” claims Pangalangan.

For Baviera, such suspicions also come naturally because of the lack of transparency in the project, a situation she says is further aggravated by the involvement of certain key personalities involved in other suspicious deals, and the continuing legitimacy questions on the government.

And for a major foreign-policy initiative, she says there is a conspicuous lack of policy coordination too as the Department of Foreign Affairs said it was not consulted on the matter.

On the “sellout” allegations, Baviera could not help but think of a likely quid pro quo deal. “We allowed two other claimants to explore in an area which is disputed with us. What did we ask for in exchange? What was the compromise? This is diplomacy, we give up something, what do we get in exchange? That is not clear to many of us.”

Spurred by looming energy crisis, rise of China

Baviera, however, acknowledges the regional and global context within which the agreement for a joint development zone in the Spratlys was made, even granting that, sans all the controversy, it would probably have gone down in history as an act of statesmanship on the part of the Philippines.

Both the Philippines and China actually had a change of mindset with regard to their South China Sea dispute, with China seeing the need to improve relations with the Philippines for a stable, regional political atmosphere, and to prevent talk of a China threat.

“Before 9/11, the main global threat being projected was China,” says Baviera. “China wanted to downplay all this talk.”

For the Philippines, the idea of jointly exploring and exploiting potential energy sources in the Spratlys with China took shape in the backdrop of the looming global energy crisis and the rapid rise of China as a regional and global economic power.

Besides, Baviera adds, the Philippines, with all the internal threats it is faced with, could not afford any additional external threats from the likes of China. So rather than deal with a more powerful and influential China later, she says it is prudent to do it now, at a time when China is still in a very cooperative mood.

Nonetheless, Baviera considers the JMSU a “highly risky proposition” for the Philippines given that the country has not raised its capability as a leverage against the other Spratlys claimants. By this, she means not only modernizing the military but also addressing the country’s other unresolved territorial questions that have to do with establishing its baselines, and staking its claim on its extended continental shelf.

“With all these issues up in the air, we are hardly in a position to negotiate with other countries on matters that have a bearing on territory and sovereignty,” she says.

As defined in the United Nations Convention on the Law of the Sea, the continental shelf is the natural prolongation of a coastal State’s land territory to the outer edge of the continental margin, comprising the seabed and subsoil of the submarine areas that extend beyond its territorial sea. Normally, the continental shelf extends to a distance of 200 nautical miles from the baselines. It could however be extended to 350 nautical miles provided coastal States can submit evidence to justify their claims that the outer limits of their continental shelves go beyond 200 nautical miles.

Inaction on continental shelf claim

But law professor Harry Roque Jr., former director of the UP Law Center’s Institute for International Legal Studies (IILS), says the Arroyo government has not acted on the studies done by the Extended Continental Shelf Project (ECSP) since 2002.

The project started in 2000 to prepare for the country’s filing of its extended continental shelf claim with the UN Commission on the Extended Continental Shelf. It involved IILS, UP National Institute of Geological Sciences (NIGS), Department of Environment and Natural Resources (DENR), Department of Energy (DoE), Mines and Geosciences Bureau (MGB), and National Mapping and Resource Information Authority (NAMRIA).

The ECSP was able to identify areas for which the Philippines could claim an extended continental shelf: the Spratlys as a natural prolongation of Palawan, Scarborough Shoal, and Benham Rise in the western Philippine Sea. The project also identified scientific and technical evidence to be obtained to support the country’s claim.

The original submission deadline already lapsed in May 2004, but has been extended to many countries to May 12, 2009. Roque, however, says time is already running out on the Philippines as the scientific and technical studies would require two to three years to conduct, not to mention P1.6 billion as these would require foreign contractors to do further seismic and other tests.

Roque says not only is Arroyo’s apparent inaction a dereliction of her constitutional and legal duty to protect the national interest, it constitutes a “sellout” of Philippine sovereignty.

8 Responses to The Spratlys deal: Selling out Philippine sovereignty?

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jojo

March 17th, 2008 at 2:18 pm

As this Duke Law Journal article points out, the International Court of Justice generally decides on territorial disputes with three primary contexts: treaty law, uti possidetis, and effective control.

Viewing treaties as contracts, the court employs them to reflect mutual consent as to the disputed boundaries. So used, a treaty supersedes all other possible justifications for a territorial claim because it is the most direct expression of both parties’ wishes with respect to the disputed land. Such was the case in “Sovereignty over Certain Frontier Land.” (1959 I.C.J. 209, 221–22).

A treaty requires the approval of the Senate.

Did Malacañang submit the JSMU for lawmakers’ approval?

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jojo

March 17th, 2008 at 3:15 pm

Ergo, the JMSU it is invalid as it was signed ultra vires sans a review by Congress.

Secondly, under Articles 46-53 of the Vienna Convention on the Law of Treaties, the JMSU can be rendered invalid if it can be proven that Arroyo agreed to it through fraudulent conduct on the part of either the Philippines or China, by the direct or indirect corruption of its representative by another party to the pact.

If Arroyo continues to commit a serious case of dereliction of duty and betrays Philippine interest in the pursuit of realpolitik, it will be up to the people to correct her ways.

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jojo

March 17th, 2008 at 5:22 pm

In JCC’s world (if he is ever appointed as state prosecutor), a loudspeaker will be mounted on every street corner with announcements like these: “All Filipino residents of Chinese origin, please report to your nearest racial profiling center, as we have concerns regarding how you gained your wealth.”

I imagine the surprise of these fellows hearing that announcement: Kris Aquino, Jose Mari Chan, Atoy Co, Mikee Cojuangco, Viva Hot Babe Gwen Garci, Mayor Alfredo Lim, Teresita Ang See, Washington SyCip, Alexander SyCip.

However, JCC will have a hard time forcing the following to report to his racial profiling center as they have already gone on to the next life: Jose Rizal, Emilio Aguinaldo, Sergio Osmeña, St. Lorenzo Ruiz, Jaime Cardinal Sin.

Oh dear.

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jcc

March 18th, 2008 at 7:13 pm

I have already demolished your argument that I am for “ethnic cleansing” and explained my position why I have branded the Chinese China as the “global enemy” now you are trying to interject extraneous issues into the controversy in an attempt to strengthen your argument of which you are not good at, and quite frankly exposes your behind which is full of shit.

My Chinese bias is limited to those who:

a) engaged in immoral business practices
(dummying for high government officials and
underpaying their workers)
b) bribed government officials
c) manipulate government officials
d) communist Chinese who are intruding into Sptratlys.

My chinese bias is not so expansive as to include honorable Chinese or Chinese descents in the likes of Jose Rizal, Cardinal Jaime Sin, St. Lorenzo Ruiz, Corazon Aquino, Jose Mari Chan, Teresita Ang See and other honorable Chinese.

Though there are insignificant numbers of people who believed that some of the people you have mentioned appropriately belong to the categories above-mentioned if you ask the Luisita farm workers in the case of Cory, the Marcos clan in the case of Cardinal Sin, the Bacolod sugar can planters in the case of Jose Mari Chan, the Andres Bonifacio admirers in the case of Rizal and the families of the slain members of the Kuratong Baleleng in the case of Teresita Ang See. (Ms. See is a known friend of Senator Lacson who is perceived as behind the slaying of the kidnap-for-ransom gang of Kuratong Baleleng)

Unfortunately I do not share the personal bias of those persons.

Now you quack about the sell out of the Spratlys by the “matron” in Malacanang.

The Chinese have long coveted the Spratlys long before GMA become the President. The Chinese had been rearing to go into these islands militarily. You should be glad that GMA engaged them diplomatically while they are still in the mood talking to us. It is convenient for us to accuse her of selling out to the Chinese over the Spratlys to serve our own bias. We were not able to dislodge her on the ZTE scandal and now we are we are raising the Spratly sell out finally boot her out from office.

Read your facts carefully:

1995 China China occupied Philippine-claimed Mischief Reef. Philippine military evicted the Chinese in March and destroyed Chinese markers.

1996 China In January, Chinese vessels engaged in a 90-minute gun battle with a Philippine navy gunboat near Capones Island.

1997 China The Philippine navy ordered a Chinese speedboat and two fishing boats to leave Scarborough Shoal in April; the Philippine navy later removed Chinese markers and raised its flag. China sent three warships to survey Philippine-occupied Panata and Kota Islands.

1998 Vietnam In January, Vietnamese soldiers fired on a Philippine fishing boat near Tennent (Pigeon) Reef.

1999 China In May, a Chinese fishing boat was sunk in a collision with Philippine warship. In July, another Chinese fishing boat was sunk in a collision with a Philippine warship.

1999 China In May, Chinese warships were accused of harassing a Philippine navy vessel after it ran aground near the Spratly Islands.

Oh boy, we are totally screwed.

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jojo

March 20th, 2008 at 9:57 am

JCC, ruminate on this regarding your matron:

Roque says not only is Arroyo’s apparent inaction a dereliction of her constitutional and legal duty to protect the national interest, it constitutes a “sellout” of Philippine sovereignty.

Is treason an impeachable offense? In other countries, treason merits a firing squad.

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jcc

March 23rd, 2008 at 11:40 pm

Men Basically Evil?

Some people suffer the delusion of portraying their bias as objective truth. I do not. I often claim that my views are my bias and if my bias is contrary to the bias of someone else, it was convenient for them to hail their bias as the objective truth and mine, purely my own bias.

I do not begrudge anyone whose opinion is contrary to mine but I regret the attitude of some who upon reading my posts would easily conclude that I am a “nationalist hypocrite” and an abominable “racist” if not downright stupid.

This tends to confirm only my thesis that men are “basically evil”, which I also attributed to Einstein.

If men are not basically evil, then how come they can easily see the evil in someone else: i.e., GMA, Abalos, etc, JCC. Why can’t these detractors see the evil in themselves which they can easily find in others?

If men are basically good (which is biblical, men being crafted in the image of God), what is the source of all the evil in this world? No one else inhabited this place we called Earth except men! If all the bad things that permeated man’s soul is a result of the environment, that environment is man made and not devil made. Does that not support my thesis that man is basically evil?

First I am not a nationalist, real or hypocrite.. I believe in the interdependence of nations and I also believe in the theory of “butterfly effect”. A flap of a butterfly wing in the North Pole can cause an avalanche that can inundate a country in Asia. The poor performance of the US dollars in America can trigger high prices in the basic commodities in the Philippines and skew the foreign exchange rate that affects the remittances of overseas workers from the Philippines.

I believe that we should enlist America as a counterweight against Communist China’s overreaching our shores. (Spratlys), rather than swoon over China which is a godless society.

Einstein said: “Nationalism is an infantile disease, the measles of mankind”. He further said:

“The fanatical atheists, he explained, “are like slaves who are still feeling the weight of their chains which they have thrown off after hard struggle. They are creatures who – in their grudge against traditional religion as the “opium of the masses” – cannot hear the music of the spheres”.

Someone who claimed tha GMA sold our sovereignty over the Spratlys to the Chinese communists are the real “nationalists”, but definitely, I am not a nationalist as the word is understood in the Philippine context.

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jojo

March 24th, 2008 at 2:44 pm

JCC,

here are your cognitive biases (based on your rants thus far) base rate fallacy, bias blind spot, confirmation bias, déformation professionnelle, focusing effect, framing, hyperbolic discounting, illusion of control, information bias, omission bias, selective perception, status quo bias, ambiguity effect, anchoring, attentional bias, clustering illusion, hindsight bias, illusory correlation, overconfidence effect, rosy retrospection, selection bias, stereotyping, egocentric bias, Lake Wobegon effect, notational bias, system justification.

Point two. China is not communist. It practices state monopoly capitalism. No country can claim to be communist, because if it were so, it would have had no government at all.

Point three. Your “godless” Chinese are either Buddhist, Taoist, Christian, Muslim, and Hindu. Others practice either ancestor worship or indigenous religions Bön and Dongbaism. In 2005, an adherents.com survey revealed that only 14% of the entire Chinese population were atheists.

Point four. Asking the US to help resolve the Spratlys controversy is wishful thinking at best. Obviously, you are an amateur on the subject of geopolitics.

Point five. Don’t stray too far on the subject on hand. Did Arroyo sell Philippine sovereignty to the Chinese when she agreed to the JMSU and failed to inform Congress about it?

Otherwise, stop abusing yourself. It’s pitiful.

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Norman E. Nabatar

January 6th, 2012 at 8:43 pm

To cut short this argument perhaps we can narrow it down to whether one would like or prefer the US over Red China. I am a Protestant Christian and I have no love for Roman Catholics who are covert Communists. If war breaks out I am with the Americans.

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