Tuesday, September 20, 2011

Spratly Islands 101

MANILA, Philippines -- Joint Development in Mineral Agreements is not controversial in international law. What makes the China-Vietnam-Philippines 2005 Joint Marine Seismic Undertaking (JMSU) suspect, if not downright unlawful, is that it was signed in violation of the Philippine Constitution, and may have been signed in exchange for bribe-tainted loans. It isn?t that we sold potentially oil rich shores so cheaply, but that we bartered our souls.
One, we must distinguish between title over land and title over the waters surrounding the land (or to be more precise, over the maritime territories, which will include the submerged lands and the resources beneath what is called the continental shelf). Each kind of title is derived from a different source.

Our title over our islands derives from the 1898 Treaty of Peace between Spain and the United States: ?Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line: ?.? Significantly, the Spratlys lie within those lines demarcated within the treaty limits. (The United States paid Spain the sum of $20 million. It could?ve been a neat real estate deal, except that we, the dark-skinned natives, were only accidentally part of the package?and proudly waged war.)
On the other hand, our claim over the waters and the maritime zones derive from the 1982 Convention on the Law of the Sea, which grants us the sole exploitation rights over our natural resources within our Exclusive Economic Zone (which extends to 200 nautical miles around the coastal state) and, more relevant to fossil fuel extraction, to our continental shelf (defined as the ?natural prolongation of the land mass? up to the same 200 nautical mile limit).

Within that framework, ?joint development zones? are not a problem. Indeed, in our part of the world, there have been other such cooperative regimes: Thailand and Malaysia; East Timor and Australia; Malaysia and Brunei; and China and Vietnam.

These are in fact fostered as provisional regimes so that states can access their mineral assets without having to wait until a final ?boundary delimitation? that typically takes one or two generations.

That is exactly what the Chinese are saying: The JMSU is a way of ?shelving disputes and going in for joint development.? That is what the ASEAN?s Manila Declaration of 1992 says: ?South China Sea issues involve sensitive questions of sovereignty? and so its members should ?explore the possibility of cooperation ... without prejudicing the[ir] sovereignty.? That is also what the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea urged: to ?exercise self-restraint [and] refrain from [engaging in] activities that would complicate or escalate disputes.?

Moreover, cooperative zones do not entail loss of territory. Indeed, considering that the Philippines has neither the capital nor technology, the only thing it can share with its partners is exploitation rights over part of its territory. That is why the JMSU contains this disclaimer: the agreement ?shall not undermine the basic position held by ? each Party on the South China Sea issue,? adverting to the perennial debate over who owns the disputed Spratly Islands in what some Chinese experts call ?a Chinese pond.?

The real problem lies elsewhere. It lies in the Philippine Constitution, which reserves to the state the exclusive power of ?exploration, development, and utilization of natural resources,? although it can choose to do so through cooperative agreements with Filipino corporations. That clause ends with the reporting requirement?not complied with, either?namely: for the President to notify Congress of every such contract within 30 days.

The official Malacañang line now is that the JMSU is ?purely scientific in nature??not exploratory?and is solely for geological data-gathering to test a portion of the Spratlys for possible oil reserves. However, its worst enemy is itself, via its own statements in the website of the Philippine Information Agency (PIA).

According to the PIA, Press Secretary Ignacio Bunye said at a press briefing in the Shangri-La Hotel: ?The discussion (between President Arroyo and Premier Wen) centered on the joint exploration of the three countries?. The first phase or the exploration phase has been completed and the Chinese Premier expressed hope that the three countries would continue the cooperation on the developmental level.? Finally, contemporaneous statements by the other partners, China and Vietnam, and by Malacañang itself, repeatedly use the word ?exploration.?

Finally, it is not as if there is a bright-line distinction that divides the ?scientific? from the ?exploratory.? Eduardo Mañalac, former president of Philippine National Oil Co., has stated that from an engineer?s standpoint, what the JMSU contemplates is already ?exploration? for all practical intents. But the Palace could have been more believable if the scientific study had been undertaken by an academic or scientific agency. What makes the official line implausible is that the deal was signed by three commercial corporations engaged in actual petroleum extraction. A geological study does not become ?scientific? merely because it uses expert methods. It becomes so because it aims to discover truths that lie beneath the surface, whoever profits or loses. Just like the protesters at Mendiola Street are scientific, while Ms Arroyo?s minions are exploratory.

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I will give a five-day lecture on this topic (Aug. 11 to 15) this summer at The Hague Academy of International Law, entitled ?Disputed Islands in the South China Sea and Southeast Asia under International Law.? If interested, check out the website at http://www.hagueacademy.nl.

spratly islands

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