Trojan Horse in the West Philippine Sea

In the recently concluded Belt and Road Forum in Beijing, the special envoy for intercultural dialogue Jose de Venecia Jr. revived proposals for joint oil and gas exploration in the West Philippine Sea, citing the joint seismic marine undertaking among the Philippines, China and Vietnam during the term of President Gloria Arroyo as a model for cooperation. He said “[i]t is obvious as members of the Asean family that today, with China, we must find ways and means to jointly develop the area’s
hydrocarbon potential to help lessen our common dependence on distant petroleum sources in the Middle East.”

The government must exercise utmost caution and tread very carefully on this matter, for the protection of the national interest.

Prior to Philippines v. China, the idea of joint exploration and development in the WPS may have had some plausible justification on the ground that the rights of the Philippines and China in our exclusive economic zone were theoretically contested. After that decision, such plausible deniability is no longer tenable. Simply put, joint exploration and development are incompatible with the Constitution.

The arbitral award declared that the Philippines does not share with China any overlapping entitlements. In the language of our Constitution, areas in the WPS believed to contain oil and gas, such as Reed Bank, are part of our “marine wealth” and the State must “reserve [their] use and enjoyment exclusively to Filipino citizens.” Because they “are owned by the State,” their “exploration, development, and utilization … shall be under the full control and supervision of the State.”

What this means is that any joint agreement to explore, develop, and utilize our marine wealth with China is null and void. Such agreements effectively impair the authority of the State to control and supervise the use and enjoyment of our marine wealth through its institutional machineries—the executive, legislative and judicial branches. They also materially diminish the rights of Filipinos to the benefits arising from such resources. We cannot, for example, compel China to submit to the Commission on Audit and/or pay income or franchise taxes for its share in the income—forms of control sovereigns traditionally impose.

The most insidious aspect of a joint agreement with China is the fact that the basis of such economic sharing is the recognition of China’s sovereign rights over our exclusive economic zone—a culpable violation of the Constitution and an implied waiver of our victory at The Hague.

The Duterte administration must realize that whatever economic gains there may be from any joint agreement with China over the WPS can only be made at the expense of giving away our sovereign rights over the area. Joint agreements are a Trojan Horse against our country’s continuing efforts to effectively assert the rights we have won at The Hague.

Lest anyone forget, China is bound by that judgment because it is a party to the UN Convention on the Law of the Sea. We must construe its present refusal to abide by that judgment as a strategic effort on its part to buy time as it attempts to secure a waiver of judgment—express or implied—from any post-Aquino administration.

In response to criticisms that President Duterte has been timid on the matter of enforcing the Philippines’ rights against China, he recently revealed that he had previously informed Xi Jinping of his intention to drill oil in our EEZ, but was threatened with war. He seems to imply, in the balance of his remarks, that he does not intend to go to war with China over oil.

This is, of course, well and good, insofar as practical politics goes. But one also hopes that such a pacifist line is not later transformed into a pragmatic justification for entering into an unconstitutional and inequitable joint agreement over the WPS that simultaneously waives our sovereign rights.

Florin T. Hilbay is a former solicitor general. He was agent to the Republic in Philippines v. China.