By Ado Paglinawan, Part 3
If you are seeing this for the first time, know that this is the third dissertation on this same topic.
The first part surgically exposed the insatiable greed of Filipino oligarchs, in collaboration with Indonesian and American interests, to unilaterally explore hydrocarbons for oil and gas at the vicinity of Redd Bank/Recto Reef in disputed waters between the Philippines and China.
Lawyers in the person of former foreign affairs secretary Teodoro “Teddy Boy” Locsin and former associate justice Antonio Carpio pontificated that this Joint Exploration is “impossible” under the Philippine Constitution.
But the Constitution itself, as we have closely examined, presents a caveat or flexibility. What is stringent, however, is how the language of the Service Contract entered into by the government and private companies limits conditionalities such as ownership of the project by the Philippine state and its being subject to Philippine laws.
At this juncture, there must be a clarification that the Service Contract is not the Constitution, and vice versa. By our imposition of the Service Contract upon China, which is a state, or through its duly designated state company, how could it not been obvious to Locsin and Carpio, that to insist on this instrument, ends up in an obvious deadlock.
Again I quote Locsin as he bragged that he was able to “kill” this project: “Nothing is pending; everything is over,” he added. “Three years on and we had not achieved our objective of developing oil and gas resources so critical for the Philippines — but not at the price of sovereignty; not even a particle of it.”
Locsin is publicly known to be a braggart and a humbug, but how easily he showed the world that he was stupid.
Which takes us to the second part, which clearly showed that he totally disregarded or simply misunderstood the Memorandum of Understanding that he himself signed in behalf of the Republic on November 20, 2018, that states: “All negotiations will be without prejudice to the respective legal positions of both governments, and does not creates rights or obligations under international or domestic (municipal or national) law.”
By imposing the Service Contract upon China, wasn’t he asking China to submit to the sovereignty of our Constitution, a national law, and wasn’t it clear to him that it is not our national law that will rule over the project but bilateral agreements between China and the Philippines, as per the MOU?
The solution therefore to this impasse, is way beyond a Service Contract, and even higher than our Constitution – it is on the very least at the level of an executive agreements and to the max, a treaty between the two states.
My part two illustrated in actual cases how that has already been accomplished in history in what in international law is regarded as “joint sovereignty” or “condominiums”, which brings us to the subject of this third part.
But before that let me cite the Filipino adage applies, “Kung gustong gawin, maraming paraan. Kung ayaw, maraming dahilan!” (If agreeable, many solutions; if disagreeable, many reasons.)
As early as 1986, Deng Xiaoping offered the idea of joint development to President Corazon Aquino, 36 years hence our lawyers are still debating about it. Can we call that Filipino ingenuity or as the bible tags as “useless disputations”?
Again, Solomonic wisdom, in addition to the cases I mentioned earlier, has an even more recent and closer paradigm worth pursuing through many contemporary sources available in the internet.
I stumbled into a Sea Treaty that Timor-Leste signed with Australia on March 6, 2018 in New York, billed as a landmark agreement between the two countries and provides a pathway for the final settlement of the continental shelf and exclusive economic zone (EEZ) maritime boundaries between the countries.
The treaty provides for a permanent maritime boundary governing all of the disputed area of the Timor Sea based on a median line between the opposite Australian and Timor coasts, with two connecting lateral lines to the east and west that run north to intersect with the 1972 Australia–Indonesia continental shelf boundary lines.
The 2018 Sea Treaty is actually a maturing of agreements between the two countries that started in 2002 when Timor-Leste gained full independence providing a great relief for the new nation on a promise of sustained economic benefits crucial for its nation-building. It was also a way for the country to bankroll its external defenses to ensure sustainable administration and control over its territorial waters.
The treaty created a Joint Petroleum Development Area in the disputed maritime area between the two countries and it did not compromise both sovereignties because it did not draw a final boundary between them. It also absorbed and accommodated four joint private venturers that had legal interests in the Greater Sunrise fields: Woodside, Shell, Conoco Phillips and Osaka Gas.
An authority was established to administer all petroleum-related activities in the area, with both Timor-Leste and Australia duly represented. A revenue split favoring Timor 70/30 applies in the case that there’s an onshore liquified natural gas plant in Timor, and 80/20 if there’s an onshore LNG plant in Australia.
This was included in a working paper dated July 6, 2012 submitted by Lucio Blanco Pitlo III when he was pursuing his Masters in Asian Studies at the University of the Philippines. How could Locsin and Carpio have missed this?
In fact, Pitlo even recommended that in the case of a joint exploration between the Philippine and China, downstream activities should be placed towards the Philippine-side because we are closer to potential hydrocarbon-rich waters, and if I may add, a pipeline can easily be connected with the existing one at Malampaya onto the refineries in Batangas province.
In this manner, he said “the Philippines can improve its local downstream resource industry, generate jobs, provide continuous energy supply and spur economic growth.”
The UP scholar continued, “State-owned Chinese energy companies such as CNOOC, CNPC and Sinopec have the capital, technology and expertise to help PNOC and local Filipino energy companies develop the country’s indigenous energy industry, reducing the country’s dependence on imported oil.
“For China, such a joint cooperation will provide it a proximate source of energy, reduce oil and gas imports from the volatile Middle East, help foster stability in its maritime corridor and win the goodwill of other claimant countries, as well as the international community.”
Thinking on the long run, Pitlo projected “Joint resource exploration is a way to improve the stability and security of contested areas, avert conflicts, foster cooperation in sustainable resource extraction, environmental conservation, scientific studies and joint response to natural disasters.”
Pitlo underscored that this is a good way for Manila and Beijing to resolve their territorial disputes because energy security, harmonious relations, good international image and overall peace and stability in one of the world’s busiest sea lanes are all at stake.
He said, the international community is closely watching the stand-off between the Philippines and China in the South China Seas. China knows it has to engage in confidence-building that it is a good neighbor and a responsible regional and world power.
Other countries in the region, including Korea, Japan, Vietnam, Malaysia, Indonesia and Brunei claimants are closely monitoring China’s behavior in the hope that it may indicate how Beijing is likely to respond to their own maritime claims.
In like manner, our government is also being observed at home and abroad as Pitlo said, “Manila wants to demonstrate that it is able to implement an independent foreign policy without being portrayed as part of a ‘grand conspiracy’ against China, which would doubtless harm the Philippines’ own image.”
He explained that the benefits of joint exploration for a resource-rich but capital- and infrastructure-deficient country like the Philippines includes attracting much needed investment and obtaining the necessary technologies to fully exploit its resources. It also mitigates conflict and reduce tensions, and so diminish the pressure to expand national defense capabilities.
But for this praxis of joint sovereignty to happen polemics must be put aside to give way to serious discussion, and pragmatism should prevail over virulent nationalism in order to take advantage of actual facts on the ground, economic needs and security demands.
To summarize, thus far. What we need is Solomonic wisdom.
It has become self-explanatory that the letter of the Service Contract cannot allow the joint venture. So either change the language of the Service Contract or raise the discourse to the level of an executive agreement or a treaty to accommodate the joint venture.
If the Philippine Senate will not make it possible to pass either as an executive agreement or treaty, then we have to abolish the Senate.
If we cannot abolish the Senate, then we have to amend the present Constitution and make it suit – a form and substance – that will enable the absolute sovereign, the people of the Republic, to be free and able to pursue not just their happiness, but sustain their very life and existence.
We are already more than 100 million. It is about time we submit that it is vital for this government to start, albeit late, delivering basic services, as the Supreme Court affirms, at the least cost to the consumers. The joint exploration for oil and gas between the Philippines and China is a sine qua non, an essential condition, for the economic survival of our country, most specially after the onslaught of the Covid pandemic.
It was the Class D and E of our people, the masses millions of whom are under the poverty line, who composed the majority of 32 million who elected the sitting president to power.
Thereby conversely, it is treason for our laws to work to further enrich a few at the expense of impoverishing the many who are poor.
It is tyrannical for the Constitution to be a purveyor of injustice.
¡Basta ya! Enough is enough! People make laws to serve humanity, not the other way around.
Let us not impose on our people the need for a violent revolution just be able to line these traitors against the wall, to justify the call for “¡Preparen, Apunten y Fuego!”
Instead, we should prepare, aim and fire for the brightest future possible for the national interest to reign, under a lasting regime of peace and reason.
As they say it in Italy, capisce?