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:
- Dean Merlin Magallona: Backgrounder on Spratlys; Questions on the Tripartite Agreement
- Dr. Raul Pangalangan: The Spratly Islands Dispute Revisited
- Dr. Aileen Baviera: Implications for Philippine Diplomacy
- Prof. Harry Roque Jr.: Effectivities and Title to Disputed Territories
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.”
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.