What Cayetano missed in justifying South China Sea joint development
Foreign Affairs Secretary Alan Peter Cayetano briefs members of Congress during a hearing of the House Special Committee on the West Philippine Sea on May 30.
DFA/MJ Roldan

What Cayetano missed in justifying South China Sea joint development

Patricia Lourdes Viray (Philstar.com) - May 31, 2018 - 12:47pm

MANILA, Philippines — Foreign Affairs Secretary Alan Peter Cayetano cited a 1999 paper in justifying the possible joint development with China in the South China Sea, part of which is the West Philippine Sea.

The paper titled "When will conditions be ripe: Prospects for joint development in the South China Sea" discussed the advantages and disadvantages of joint development zones almost 20 years ago, way back when maritime entitlements were unclear.

In a Congressional hearing on Wednesday, the Philippines' top diplomat hit back at critics opposing joint development in the contested waterway.

Quoting a May 28 Manila Standard article, Cayetano read "A joint oil and gas exploration by China and the Philippines in the West Philippine Sea will 'somehow give up' the arbitration ruling that said Manila had sovereign rights over the disputed areas in the sea, a maritime expert said Sunday."

The maritime expert that the article was referring to was Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea.

Cayetano added that the same sentiments are being echoed by those who are not in favor of joint development in the West Philippine Sea.

He then proceeded to read an excerpt from the 1999 paper co-authored by Batongbacal and UP Prof. Aileen Baviera, "Most importantly, the joint development zone approach is attractive because its flexible nature allows it to reconcile in principle the needs of parties for simultaneously preserving sovereignty and territorial integrity, promoting peace and security in its neighbors and advancing profitable economic use of oceans."

What Cayetano did not mention in the hearing was that the May 28 quote he read was not a direct quote from Batongbacal but a summation by the writer.

The direct quote was, "Given that we have the arbitration ruling on our side, it’s really hard to think of a way to proceed with this joint development without somehow giving up the arbitration ruling."

Meanwhile, the 1999 paper that Cayetano mentioned does not reflect the post-arbitration situation of the Philippines and China as it was written 19 years ago, Batongbacal said.

In particular, it does not contemplate the ruling on maritime entitlements of the Philippines under the United Nations Convention on the Law of the Sea and the invalidity of China's claims to the resources of the West Philippine Sea.

"Whether [joint development zone] is an advantage or disadvantage, particularly whether or not it will 'preserve sovereignty and territorial integrity, promote peace and security, etc.' depends on specific situation," Batongbacal told Philstar.com.

"In 1999, the legitimacy of claims in the SCS was not yet clear, there was no clarification of maritime entitlements yet, nor the Supreme Court ruling stressing the requirement for 'full control and supervision by the State' of all natural resource exploration and development activities," he added.

The international maritime law expert stressed that the arbitration award clearly defined what areas belonged to the Philippines as its exclusive economic zone and continental shelf, including areas proposed for joint exploration and development.

As far as the July 2016 arbitral ruling is concerned, the areas are no longer disputed, meaning that the Philippine government cannot enter joint exploration or development with China without possibly violating the award or the Constitution.

"I have stressed publicly that the government cannot go into joint development without first establishing a treaty framework and implementing legislation, because this is the only way it can avoid the potential obstacles," Batongbacal said.

How China sees it

Meanwhile, joint development from Beijing's perspective would be based on the premise that it has sovereignty over the area.

In June 1986, former Chinese Vice Premier Deng Xiaoping, in a visit to the Philippines, told former Vice President Doy Laurel, "We should leave aside the issue of the Nansha Islands for a while. We should not let this issue stand in the way of China's friendship with the Philippines and with other countries."

It turns out that when China opened diplomatic relations with Southeast Asian countries as early as the 1970s, Deng made the proposal for resolving disputes over the Spratly Islands that the area has been an integral part of Beijing's territory since the ancient times.

According to the Chinese Foreign Ministry, both Laurel and then President Corazon Aquino responded "positively" to Deng's initiative. But this was more than 30 years ago and China's historic rights have already been invalidated by the UNCLOS-backed tribunal.

Batongbacal, on the other hand, stressed that any joint development between Manila and Beijing "can only be based on political accommodation, in the absence of a legal justification."

"Because of this, only a formal treaty with clear and well-written non-prejudice clauses, backed up by implementing legislation, will prevent any prospective joint development from having adverse legal effects on Philippine sovereignty or jurisdiction," Batongbacal said.

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