In her column published on manilatimes.net on Dec. 23, 2023, Anna Malindog-Uy proposed, among others, possible joint ventures in the utilization of the resources in the South China Sea to pave the way for a non-confrontational resolution of maritime and territorial claims involving the Philippines and China.
The article consistently used the term South China Sea (SCS). It did not say that while China is claiming almost the entire body of water as part of its territory, the Philippines is only claiming isles and other features in the West Philippine Sea that belong to its territorial waters, Exclusive Economic Zone, and Extended Continental Shelf. The Philippines’ claim was upheld by the July 12, 2016 decision of the Hague-based Permanent Court of Arbitration.
Citing the Dec. 20 phone conversation between Philippine Foreign Affairs Secretary Enrique Manalo and Chinese Foreign Minister Wang Yi, where the two diplomats reportedly committed to resort to dialogue to resolve differences, Uy argued for a “strategy/paradigm shift.”
She said such a shift requires (1) a long-term, future oriented plan toward “a peaceful and amicable resolution of the dispute over the contested SCS without either country sacrificing their respective claims and positions; (2) adopting “a more oriental or Asian way of dispute resolution“ instead of the “Western-oriented direct confrontational-megaphone diplomacy”; (3) a clear understanding of the “sensitive and complicated” nature of the dispute; and (4) shedding the “winner-take-all” mentality and treating instead the SCS “as a zone of peace, cooperation, and joint development concerning the two countries’ claims and positions.” [underscoring supplied]
Uy proposed that the Philippines and China “should rather focus on win-win pragmatic cooperation instead of conflict/dispute in the SCS and focus on ‘low politics’ like possible joint ventures in how the maritime resources of the SCS should be managed, harnessed, and developed jointly that would benefit both sides tangibly and amicably.”
However, the Supreme Court has ruled that joint ventures covering the country’s archipelagic waters and exclusive economic zone with wholly-owned foreign corporations are illegal under the 1987 Philippine Constitution.
Section 2, Article XII of the Constitution states:
“All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
“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.”
In the decision dated January 10, 2023, the Supreme Court, voting 12-2-1, declared unconstitutional and voided the Tripartite Agreement for Joint Marine Seismic Undertaking (JMSU) by and among China National Offshore Oil Corporation (CNOOC), Vietnam Oil and Gas Corporation (PETROVIETNAM), and Philippine National Oil Company (PNOC) involving an area in the South China Sea covering 142,886 square kilometers (“Agreement Area”).
The Supreme Court acted on the petition for certiorari and prohibition assailing the constitutionality of the JMSU filed on May 21, 2008 by then Bayan Muna Partylist Representatives Satur C. Ocampo and Teodoro A. Casiño, among others.
The decision reads: On March 14, 2005, CNOOC, PETROVIETNAM, and PNOC (collectively, the Parties), with the authorization of their respective Governments, signed the JMSU in Manila, Philippines. The JMSU has a term of three years, starting from the date of commencement of its implementation (Agreement Term). According to its fourth whereas clause, its execution is an expression of the Parties commitment “to pursue efforts to transform the South China Sea into an area of peace, stability, cooperation, and development.” [emphasis supplied] Consequently, the Parties desire “to engage in a joint research on petroleum resource potential of a certain area of the South China Sea as a pre-exploration activity.”
Despite the “noble intentions” of the agreement – to foster international cooperation and to prevent the escalation of conflict in the SCS as claimed by respondents – it was declared void for violating the Constitution.
In granting the petition, the Court said the PNOC “bargained away the State’s supposed full control of all the information acquired from the seismic survey as the consent of CNOOC and PETROVIETNAM would be necessary before any information derived therefrom may be disclosed.”
“In their last attempt to maintain the constitutionality of the JMSU, respondents claimed that it was signed to foster international cooperation and to prevent the escalation of conflict in the South China Sea. These intentions are noble and it is not for Us to question the wisdom behind the State’s foreign policy. Nevertheless, as early as Angara v. The Electoral Commission, We declared that the Supreme Court is the final arbiter that checks the other departments in the exercise of their power to determine the law, and to declare executive and legislative acts void if violative of the Constitution. By virtue of Our rule as the guardian of the Constitution, We hereby declare the JMSU unconstitutional for failure to comply with Section 2, Article XII of the Constitution,” the Court concluded in the decision penned by Associate Justice Samuel H. Gaerlan. [emphasis supplied]
“The constitutionality of the JMSU, which was signed on March 14, 2005, was assailed on the ground that it violated Section 2, Article XII of the 1987 Constitution which mandates that the exploration, development, and utilization (EDU) of natural resources shall be under the full control and supervision of the State.
Petitioners argued that the JMSU was illegal as it allowed foreign corporations wholly-owned by China and Vietnam to undertake large-scale exploration of the country’s petroleum resources, in violation of the Constitutional provision which reserves the EDU of natural resources to Filipino citizens, or corporations or associations at least sixty (60%) percent of whose capital is owned by such citizens,” the SC said in a news item posted on its website on Jan. 10, 2023.
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