Make no mistake about it, I am making this statement with all due respects to the Supreme Court.
But hello IMHO, the recent ruling of the Supreme Court on the Joint Memorandum on Seismic Understanding actually legislates a dangerous precedence. It is wrong, superfluous and irrelevant.
It is wrong because the JMSU involves an area that is at best considered an exclusive economic zone of the country. Assuming arguendo that it is an EEZ, Philippine laws and sovereignty cannot apply to EEZs because they are not Philippine territory. It is obvious that the area is disputed by other countries.
It is superfluous because the JMSU has long been terminated, ergo the issue is moot and academic. The pact was signed in 2005 during the administration of President Gloria Macapagal-Arroyo. By July 1, 2008 the deal lapsed and was not extended. At its worst, the timing of this decision is overdue by almost 15 years.
If the intention of the Supreme Court is to resurrect the dead by creating a barring jurisprudence on the proposed Joint Exploration between the Philippines and China for the exploration of oil and gas resources in the Reed Bank in order to provide for a counterpoise to the recent successful state visit of PBBM to Beijing and an advantage to the ambitions of Forum Energy, Philex and First Pacific of the foreign Salim Group, it is irrelevant.
If the Court ruled that the JSMU is unconstitutional “for allowing wholly-owned foreign corporations to participate in the exploration of the country’s natural resources without observing the safeguards provided in Section 2, Article XII of the 1987 Constitution”, on the contrary the exploration, development, and utilization (EDU) of natural resources in the Reed Bank by China and the Philippines safeguards 60% benefit in our favor.
This faux pas cannot be taken at face value, however, because it is no secret that vested interests stand to take advantage of this ruling to sabotage the proposed Joint Oil and Gas deal with China and our true national interest.
Be that as it may, the Solicitor-General must file for a motion for reconsideration to correct a judicial mistake. To begin with, the ruling stretches and violates the definition of territorial seas by the United Nations Convention of the Laws of the Seas.
UNCLOS’ Part II Section 1 GENERAL PROVISIONS Article 2.1 says, “LEGAL STATUS The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.” Article 3 says “BREADTH OF TERRITORIAL SEA Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”
Secondly, it supersedes the distinctions made by the Convention on the matter of exclusive economic zones that could shall not extend beyond 200 nautical miles from the baselines earlier mentioned.
In Part V SPECIFIC LEGAL REGIME OF THE EEZ Article 55.1 says
“1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources…”
The entitlement mentioned involves sovereign rights, not sovereignty. The inclusions in fact are: “(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment;” and “(c) other rights and duties provided for in this Convention.”
At its worst and in a very real sense, it poisons the waters.
In fact, the continuation that the recent Supreme Court ruling and all those involved in the frenzy of disinformation on this matter, conveniently excludes in important UNCLOS caveat:
“2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.”
I wish to emphasize: “the coastal State shall have due regard to the rights and duties of other States…”
UNCLOS anticipates that because of location of States on the ground may result in an overlap, counterclaims and disputes will be very much possible.
The application of the 200 nautical mile principle is not automatic, and cannot be onerous or unilateral. To resolve this, the Convention provides
“3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.”
Included in the resolution of disputes in Part VI are agreements arrived through bilateral negotiations with a conflicting State.
Even if no overlap is present, perfection of entitlement to an EEZ must be applied for in the United Nations, processed and duly granted by the international body, just as we accomplished to assure our exclusivity in the Benham Rise east of the Philippines.
Few parties venture this far to fully understand this issue. The laziness results in misinformation.
I have written four articles in the Asian Century Journal last September 2022 which may be instrumental to finally allowing the Joint Exploration by China and Philippines for oil and gas resources in the Reed Bank, and further arriving at a bilateral code of conduct in the South China Seas and elsewhere.
We are a nation imprisoned by legalisms. The bible calls it endless disputations by busybodies. Always remember, before any Constitution was made by men, God enabled men with common sense. What good are laws that sentence human beings to perditious poverty?
Why do we allow oligarchs and foreigners to conspire in their greed protecting the ruling class and the powerful in looting the natural and financial resources by twisting the law in their favor.
We allowed the Americans and the Anglo-Dutch to milk us in Malampaya in Palawan, exceeding 90% of benefits derived from our natural resources within our sovereign jurisdiction. We even carried the burden of paying their taxes.
But we fiddle on the roof, so to speak, when the Chinese are only asking for 40% outside our territorial seas?
Our history is replete with nightmares where laws have been used against the nation’s progress and development, and this explains why many of our citizens live in abject poverty.
Basta ya, enough already. If we love our country, let not us make it fractious, but prosperous.