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Commentary

The Constitution and the West Philippine Sea

12:08 AM October 26, 2016

Prior to Philippines v. China, we had claims under the United Nations Convention on the Law of the Sea (Unclos) about our maritime entitlements in the West Philippine Sea. So did China. The arbitration resulted in an overwhelming validation of the Philippines’ arguments, and an emphatic rejection of China’s. The four corners of every page of Philippines v. China determines with finality our specific rights in the West Philippine Sea.

In gist, the decision declared unlawful China’s nine-dash line. It recognized the full breadth of our exclusive economic zone, and our rights over Ayungin Shoal, Mischief Reef, and Reed Bank. The tribunal further recognized traditional fishing rights within the territorial sea of Scarborough Shoal.

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The character of the Philippines’ and China’s claims is now different. We don’t have mere claims; we now have rights. Our rights trump China’s claims. We won, it lost.

Strategically, what President Benigno Aquino III has done is replace the platform for asserting our rights from one based on politics to another based on law. We did not just win chips that may be bargained away. We have replaced the table where the game is played. We got permanent leverage.

Philippines v. China must be read in relation to Art. XII, Sec. 2 of our Constitution: “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” The decision is the legal baseline for our foreign policy in the West Philippine Sea. This is a nonnegotiable, prepolitical constitutional mandate for every administration.

Let me focus on specific areas of concern.

Historic rights. The purported basis of China’s nine-dash line was the existence of historic rights that predated the Unclos. For various reasons, the tribunal rejected their existence and validity. Every administration has the obligation to not give any more credence to these imaginary rights. It would be sadly ironic if the country that debunked these imaginary rights end up validating them while everyone else in the world use our victory as basis for rejecting China’s claims.

Traditional fishing rights. The tribunal characterized Scarborough Shoal as rocks entitled to a territorial sea of 12 nautical miles within which Filipinos and other nationalities enjoy traditional fishing rights. China is now under legal obligation to recognize these rights.

We should be wary of the temptation to agree to any permission system for traditional fishing at Scarborough Shoal not only because such a system is a diminution of our rights but also because, more important, such system could implicitly and dangerously carry a recognition of China’s territorial rights over Scarborough Shoal. The incremental move forward is a rights management agreement which may cover the peaceful and responsible exercise of fishing rights, while setting aside territorial disputes over the rocks.

Joint development. The characterization of Reed Bank as a submerged reef within our exclusive economic zone negates the possibility of joint development with China. Our victory at The Hague makes joint development a constitutionally untenable bargaining stance. But the larger problem is that entering into such an agreement implicitly revives China’s expansive claims. This is because joint development assumes China has rights that extend to our waters.

The President is the chief architect of foreign policy. He has wide leeway, constrained by the Constitution. A wide variance between the mandate of the Constitution and his preferred foreign policy will impact the national interest, affect his legacy, and trigger the accountability provisions of our Constitution.

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One must therefore be careful about gambling on any sudden pivot. Instead of an easy layup, we might end up with broken ankles and lost territories.

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

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TAGS: China, Constitution, Maritime Dispute, Philippines, South China Sea, Unclos, West Philippine Sea
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