FVR broke the ice, didn’t hit iceberg

THE TEAM of former President Fidel V. Ramos that went to China to rekindle chilly relations with the neighbor reported Saturday that it has succeeded in breaking the ice – without hitting the iceberg.

Sent by President Rodrigo Duterte for exploratory talks, the panel has opened direct dialogue while steering clear of the iceberg of sovereignty and other sensitive issues lurking ahead.

Ramos told the press: “We talked about fishing – the return of the fishing status quo before the conflict – that we restore fishing according to the rights accorded by tradition.” He was referring to Panatag (Scarborough) shoal off Zambales where Filipino, Chinese and Vietnamese fish.

Note that Ramos invoked tradition and not the July 12 award (ruling) of the Permanent Court of Arbitration at The Hague that China has refused to accept.

The deft diplomatic reference was noted by the Chinese, who agreed to hold more meetings to build trust, reduce regional tension and broaden cooperation. A list of tentative topics for followup was given to the Chinese side headed by Fu Ying, former ambassador to Manila.

The tenor of the talks was a far cry from the confrontational front advocated by hawkish elements in Manila and some allies wanting to use the Philippines to pressure China to a corner.

• Phl-China mineral ventures debated

SOME parties, meanwhile, are girding for further discussions on how the Philippines can venture into joint projects with another country (e.g. China) tapping mineral resources in its maritime areas.

But prematurely bringing up joint mineral projects in disputed territories would raise issues impinging on sovereignty, and may just torpedo the warmup conversations with China.

Article XII (National Economy and Patrimony) of the Constitution says in Section 2: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries… and other natural resources are owned by the State. xxx 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 60 per centum of whose capital is owned by such citizens….

“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.”

Supreme Court Senior Associate Justice Antonio T. Carpio, among others, has warned that the joint development of mineral resources in the Philippine exclusive economic zone violates the Constitution. What is allowed, he says, is the contracting of other companies to do the drilling just like what has been done in the Malampaya gas fields.

As defined in Article I of the Constitution: “The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

Although Article XII cites an exclusive economic zone (extending 200 nautical miles from the country’s shore), Article I defining the national territory does not mention the EEZ as granted by the United Nations Convention on the Law of the Sea.

• Can SC interpret UNCLOS provisions?

ARBITRATION expert Mario E. Valderrama says that Article XII appears to be a roadblock to carrying out “doable” mineral development projects jointly with China.

He notes: “Article XII, particularly its Section 2, did not only declare that all natural resources are owned by the State and reserve exclusively to Filipinos the use and enjoyment of the nation’s marine wealth. It went extraterritorial by including the marine resources in the country’s exclusive economic zone.

“The issue arises: Did UNCLOS make the Philippines the owner of the natural and marine resources in the Philippine EEZ and continental shelf? Or, did UNCLOS merely grant sovereign rights to the Philippines to exclusively exploit, etc., the resources?

“The reasonable view is the latter. This is so, because the grant is subject to the legal regime provided in UNCLOS. On the point, were it not for the grant the Philippines would not have any right to the resources at all, save those which are also available to other states.

“Second issue: A treaty has the same status as a statute. The Constitution prevails over statutes and treaties. Ergo, the UNCLOS provisions should give way to the provisions of the Constitution.

“The fallacy here is that UNCLOS is a take-it-or-leave-it treaty. As stated in UNCLOS Article 309: ‘No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.’ An adhering state is not allowed to say that its adherence is subject to its laws. Besides, a grant is subject to the rules of the grantor and not to the rules of the grantee.

“For that matter, UNCLOS Articles 310 and 311 make it clear that there could be no exclusion or modification to the legal application of the provisions to an adhering state. And, while it may be that agreements between two adhering states may modify the rights and obligations of the two states, such agreements are only applicable between them.

“Moreover, as a general proposition, UNCLOS does not interfere with the sovereignty and jurisdiction of a state within its territorial jurisdiction. UNCLOS is focused on the high seas, i.e., those outside the territorial jurisdiction of states and resources located outside the territorial jurisdiction of states.

“Accordingly, the application of Article XII should be limited to resources within the territorial jurisdiction of the Philippines as defined in the Constitution.

“Would the Philippine Supreme Court have jurisdiction on the matter? The reasonable view is that it has none. The issue involves the interpretation of UNCLOS provisions. And, with all due respect, this is beyond the jurisdiction of the Honorable Supreme Court.”

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