THE recent ruling of the Supreme Court declaring the “Joint Marine Seismic Understanding (JMSU) among the Philippines, Vietnamese and Chinese oil firms” unconstitutional, is quite intriguing. It came a few days after the visit of President Ferdinand Marcos Jr. to China, where one of the landmark gains was the resumption of talks and negotiations on possible joint oil and gas exploration/cooperation in the Reed Bank (Recto Bank) in the disputed waters of the South China Sea (SCS), or the West Philippine Sea (WPS) as it is referred to in the Philippines.
Hence, the Supreme Court ruling on the JMSU may constrain the Marcos administration’s pursuit of joint oil and gas cooperation with China. This ruling to some extent is akin to a “downer” or a “depressant” to the resurgent optimism and buoyancy as the Philippines and China resumed negotiations to actively explore ways for pragmatic maritime cooperation, including joint oil and gas exploration. Therefore, it begs the question, how will the Marcos government take this, and will this Supreme Court ruling affect the negotiations and talks on the possible joint oil and gas development and cooperation between the Philippines and China in the Reed Bank?
To note, in a joint statement between the People’s Republic of China and the Republic of the Philippines on oil and gas cooperation published on Jan. 5, 2023, both sides agreed to bear in mind the spirit of the memorandum of understanding (MoU) on cooperation on oil and gas development between the PRC and the Philippines signed in 2018, and agreed to resume discussions on oil and gas development at an early date, building upon the outcome of the previous talks, with a view to benefiting the two countries and their peoples.
Unfortunately, the 2018 MoU on cooperation on oil and gas development was overturned because the Philippines was constrained to proceed in view of some related constitutional restrictions, including the fact that the Philippine side insisted that the laws that would govern any possible framework of agreement on joint oil and gas cooperation with China must be Philippine laws, to which expectedly China did not agree. In the same manner, due to the lack of willingness for cooperation from the Philippines, the China-Philippines-Vietnam tripartite marine seismic undertaking has failed to move forward. The tripartite agreement expired in June 2008.
Clarifying issues
In the advent of the resumption of the negotiations on the joint oil and gas cooperation between the Philippines and China in the Reed Bank, and given the complexities of the SCS dispute, an objective and pragmatic approach is the best way forward. In this regard, it is worth clarifying some issues that have been the source of confusion and miscommunication regarding the already complex situation of the contested waters of the SCS, particularly between the Philippines and China.
First, the 2016 SCS arbitration award accorded the Philippines, which has been misinterpreted and subjected to political manipulation by many to muddle the objective reality surrounding the contested waters of the SCS.
The Permanent Court of Arbitration (PCA) ruling did not denote a victory of sovereignty over the territorial and maritime claims of the Philippines in the disputed SCS. This is precisely because territorial matters are not subject to the United Nations Convention on the Law of the Sea (Unclos).
This means that the arbitral tribunal did not tackle matters related to territorial sovereignty over the disputed maritime features between the parties, which further implies that the tribunal did not decide who owned the maritime features located in the SCS, such as the Spratly Islands, that are claimed by China and the Philippines and even Vietnam. Similarly, the tribunal did not delimit (demarcate or set limits) any maritime boundaries between the Philippines and China in the SCS.
The award simply clarified the maritime entitlements of the Philippines in the West Philippine Sea, declared the nine-dash line of China as being without basis, acknowledged the damage to the marine ecosystem and resources caused by reclamations in the SCS, and even ruled that the surrounding waters of the Scarborough Shoal as a traditional fishing ground where Filipinos, Chinese, and even Vietnamese, can fish. It also stated that the shoal is a rock that cannot generate an exclusive economic zone (EEZ) because it cannot sustain life.
Furthermore, under Unclos, it is essential to note the difference between sovereignty and sovereign rights, which are two different things. Based on Unclos, sovereignty bestows full rights, or supreme authority, of a country within its territorial waters, which stretch to 12 nautical miles. Anything within the 12 nautical mile area is Philippine territory, meaning that anything within that zone is subject to Philippine laws. Thus, under international law, the Philippines has sovereignty over its territorial sea but does not have sovereignty beyond the 12 nautical mile territorial sea. Thus, the Philippines does not have sovereignty over its EEZ based on Unclos. It has sovereign rights to use the resources in its EEZ.
The EEZ, as prescribed by the 1982 Unclos, is an area of the sea in which a sovereign state has special rights regarding the exploration and use of marine resources, including energy production from water and wind. It stretches from the baseline to 200 nautical miles from the coast of a coastal state. The EEZ is outside or does not include the territorial sea or the continental shelf beyond the 200 nautical mile limit. The Reed Bank and the area covered by the expired JMSU are part of the Philippines’ EEZ, where it has sovereign rights, not sovereignty. Nevertheless, these areas are still disputed.
In this regard, as proposed by lawyer Harry Roque, an international law expert, the Supreme Court ruling on JMSU must be revisited and reconsidered. The Philippine government should file a motion for reconsideration through the Solicitor General.
Conclusion
There are practical ways both sides could consider concerning the proposed cooperation in joint oil and gas development. First, both sides should respect whatever consensus has already been reached. Second, both sides should maximize bilateral consultative mechanisms and multilateral mechanisms through the Asean, without affecting the two countries’ respective standpoints on sovereign and territorial issues. Third, to focus on substantive issues rather than on politics. Last but not least, to take a positive attitude and outlook in carrying out constructive dialogue with strategic visions to promote development cooperation projects and establish a strategic partnership with China and collaborate on practical solutions to the SCS dispute, which include joint exploration and development of fishing, oil, and gas resources in the SCS, coupled with continued shared infrastructure and coordinated investments.
This is a win-win strategy and a solution akin to turning a dilemma into an opportunity that engenders tangible benefits and fosters a better and progressive future for all Filipinos and Chinese, rather than the “zero-sum game” or a “winners take all” approach.
With the gains of the recent state visit of President Marcos to China, there’s so much to look forward to as we pursue efforts toward achieving mutually beneficial and win-win cooperation between the Philippines and China. I hope the Chinese and the Philippine governments will persevere in making all these happen for the benefit of the Filipino and the Chinese people.
Source: The Manila Times
https://www.manilatimes.net/2023/01/19/opinion/columns/intriguing-supreme-court-ruling-on-jmsu-implications-and-consequence/1874921
