Extracting WPS resources beyond the arbitral award

Just after our people were getting united in our goals and methods of asserting our rights in the West Philippine Sea (WPS), and after President Duterte publicly promised he would take up the arbitral award with President Xi Jinping, Chinese Ambassador Zhao Jianhua strongly reiterated China’s rejection of the award, firmly saying that China “will not accept it…”

Though it may want to retain our friendship, the People’s Republic, I think, will not budge. Why? Because an acceptance of the award would mean that it accedes to (1) freedom of navigation in the South China Sea (SCS) and allow the warships and warplanes of America and other powers to roam freely therein, (2) dismantle and abandon its reclamations, constructions and installations in the SCS, and (3) give up its claimed “historic rights” over almost the entire SCS, rights that are assiduously taught in Chinese schools to be essential parts of its heritage.

However, I believe that out of the close rapport between Presidents Duterte and Xi, China may allow us to exploit, develop, extract and enjoy the natural gas, petroleum and oil in the bowels of the WPS without invoking the China-abhorred arbitral award. Why?

In my column on April 23, 2017, I wrote that, after decades of negotiations, the Philippines was recognized as an integrated “archipelagic state” entitled to the 12-nautical-mile (NM) territorial sea, 24 NM contiguous zone (CZ), 200 NW exclusive economic zone (EEZ) and 350 NM extended continental shelf (ECS).

To confirm our entitlement to these maritime rights, we were obligated by the Law of the Sea Convention (LOSC), which was approved by the United Nations (UN) on April 30, 1982 and became effective on Nov. 16, 1994, to establish via a domestic law the baselines from which these rights would be measured.

Accordingly, Congress enacted Republic Act No. 9522 on March 10, 2009 (1) defining the baselines of our archipelago from its northernmost point to its southernmost part, including therein the Spratlys and Scarborough, and (2) declaring the Philippines’ sovereignty and jurisdiction over them.

A month later, on April 13, 2009, China promptly sent a “Note” to the UN Secretary General taking “exceptions” to RA 9522, alleging that this law “illegally claims” the Spratlys and Scarborough which “have been part of the territory of China since the ancient time.”

Significantly, China’s exceptions to RA 9522 were limited only to our declaration of sovereignty and jurisdiction over the Spratlys and Scarborough, not to our sovereign rights recognized by the LOSC in our TS, CZ, EEZ and ECS (collectively known as the WPS). Since it did not contest such sovereign rights, which include the rights to explore, extract, develop and enjoy the natural resources therein, China may be deemed to have impliedly accepted them.

Consequently, I believe that even without the arbitral award, President Duterte could simply invoke the above facts to President Xi, who may just confirm or pass sub silentio China’s implied recognition of our maritime entitlements under LOSC and allow us to harvest the natural resources, including the fish, in the WPS.

In this manner, the Philippines may be able to extract and enjoy this sea wealth through the constitutionally allowed modes of “co-production, joint venture, production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens.”

Or the President may also opt to use the more flexible “financial and technical assistance agreements” with foreign-owned corporations, over which the Supreme Court, in La Bugal-B’laan v. Ramos (Dec 1, 2004), gave the President wide discretion to negotiate.

Indeed, even without invoking the arbitral award, we should be able to enjoy the valuable treasures of the WPS before modern science and technology render them valueless with discoveries of green substitutes for minerals, petroleum and other mineral oils.

How about the Spratlys, especially Pag-asa Island which we occupy and want to develop further, and Scarborough, which China occupies but has desisted from reclaiming and developing? Ah, I will leave them to the negotiating skills of President Duterte when he meets President Xi later this month.

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