An article by Barry Wain in the January/February 2008 issue of Far Eastern Economic Review raises some troubling questions about the joint seismic undertaking of the Philippines, China and Vietnam in the Spratlys. It suggests that the government signed the agreement without consulting with its ASEAN allies, to the detriment of its territorial claim and regional cooperation, and in possible violation of the Constitution.
The question deserves to be examined in depth for its constitutional and strategic implications.
The Spratlys (Kalayaan to us) lie nearly halfway between the Philippines and Vietnam in the South China Sea, along the vital shipping routes that link the Indian Ocean to Vladivostok and carry through the Straits of Malacca East Asia’s trade to Africa, the Middle East and Europe. The area is claimed separately by the Philippines, China, Taiwan, Vietnam, Malaysia, Brunei and France.
Incidents had occurred there between the Philippines and China since the seventies. The most significant was the Chinese occupation of Mischief (Panganiban) Reef in 1995, followed later on by their takeover of Scarborough Shoal. Clashes have also occurred there between Chinese and Vietnamese troops. Manila believes in a peaceful solution to this dispute, and has tried to enlist the support of ASEAN and the United Nations in its effort. China, however, opposes the “internationalization” of the conflict and insists on a bilateral solution, with each of the other claimant-states.
Nevertheless, some take the view that the dispute should not bar the claimant-states from working together to exploit the marine and mineral resources of the area for their shared benefit. In a speech to the Senate on Nov. 10, 1992, I proposed that we exert every effort to get the claimant-states to conclude a treaty which would declare the Spratlys a demilitarized multilateral economic zone and establish a cooperative regime for the joint exploration, development, utilization, conservation, management and equitable sharing of resources. The Executive did not respond to this proposal.
China’s occupation of Mischief Reef in 1995 confirmed the necessity of a regime that would prevent a repetition of that incident. Yet it also made the effort to launch such a regime doubly difficult. Where diplomatic notes failed to elicit the necessary response, it became necessary for our government to explore other means. Thus, at the Asia Pacific Parliamentary Forum in Lima, Peru on January 11-14, 1999, I presented a resolution “regretting certain actions taken by certain parties that threaten the stability and peace of the South China Sea and calling upon all concerned to adhere strictly to the recognized principles of international law, notably the 1982 United Nations Conference on the Law of the Sea, and existing regional declarations on the South China Sea.”
This provoked what is probably the only known Filipino-Chinese exchange on this issue in an international parliamentary forum. The Chinese delegate explained that the Chinese presence on the Reef was not military, that the structures they had built there were purely for “humanitarian purposes” (to shelter fishermen in bad weather), and posed no threat to the freedom of navigation in the nearby sea lanes of communication.
Within ASEAN, the territorial conflict inspired a focused effort to craft a Code of Conduct for parties to such disputes. But without alerting its ASEAN partners, the Philippines on Sept. 1, 2004 signed with China an “Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea by and between China National Offshore Oil Corporation and Philippine National Oil Company.” Vietnam initially protested, but on March 14, 2005, decided to join the two parties, through Petro Vietnam, in a “Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea.”
The agreement is said to cover 142,886 sq. kms. of the South China Sea, one sixth of which, according to the Review, forms part of the Philippine continental shelf, outside the area claimed by China and Vietnam.
Two major issues arise. First, is it in our national interest to be party to this agreement? Second, is it constitutional?
To the first, the answer appears to be yes. Given the growing global need for new energy sources, the merit of the accord seems beyond cavil. Cooperation negates confrontation, and we do not have the armed might to confront China or Vietnam. We cannot afford to be blindsided and prevented from seeing the merit of cooperation by the political sins of the administration.
But seismic mapping has basic naval applications. Correct scientific information about the seabed would be indispensable to a country with a submarine fleet. Like China. Can we then prevent China from using the information gathered from our joint seismic mapping to develop the routes and lairs of its submarine fleet in the Spratlys? What then would be our contribution to that undertaking? This obviously is an important security question.
And now the Constitution. Is the technical agreement legally binding as a stand-alone agreement, without a mother treaty that defines the basic policy and is duly concurred in by the Senate? Should the seismic survey prove positive for gas or oil, how would a decision to jointly mine the area find support in the Constitution, which limits foreign participation in any state exploration and development of mineral resources to 40 percent of the capital, and reserves the use and enjoyment of the nation’s marine wealth in its archipelagic waters, territorial sea and exclusive economic zone “exclusively to Filipino citizens”?
Are there higher and more fundamental issues that can override the restrictive provisions of the Constitution? Or are there geopolitical issues that make a joint energy extraction activity with China and Vietnam a real concern to other friends and players in the region?
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