UP  LAWYER:  SPRATLYS  DEAL  WEAKENED  RP  CLAIM


MANILA, MARCH 10, 2008 (STAR) By Aurea Calica - Instead of entering into contracts for a joint seismic study in the Spratlys with China that are “grossly disadvantageous” to the Philippines, the government should have first strengthened the country’s claims to the disputed territory, according to lawyer Harry Roque of the Institute of International Legal Studies of the University of the Philippines Law Center. Roque said President Arroyo was being prodded to work on the Philippines’ claims on the extended continental shelf based on the United Nations Convention on the Law of the Sea (UNCLOS) that would include the Spratlys, Scarborough Shoal and waters off Cagayan, among others.

The deadline for the submission of claims to the UN is in May 2009. Thus the Philippines will have to race against time and probably muster enough resources to beat this. Roque said it would take at least $2 billion to undertake the study of the country’s baselines and to prepare for scientific basis for the country’s claims before the UN. He expressed doubts if the country could catch up with the deadline because it would take time to prepare for the case.

Sen. Miriam Defensor Santiago is proposing the creation of a congressional commission on national territory to strengthen the country’s claims to internationally disputed territories like the Spratlys in the South China Sea. “We have sounded the alarm as early as 2005 because the UP Law Center already has two volumes of study regarding the extended continental shelf that we can assert to be part of our territory,” Roque said. The government is aware that the country might lose even the Spratlys and other areas as its claim extended to continental shelf areas teeming with fishery and mineral resources, which would be forfeited if the deadline were not met.

He said Mrs. Arroyo could be charged with dereliction of duty, a criminal offense, if the Philippines would fail to file its claim for the extended continental shelf by May of next year. “It is actually an extended deadline. It was supposed to be this year. Our claims will be forfeited if we are not able to establish its standard 200-mile exclusive economic zone (EEZ).” Roque said it was lamentable that Mrs. Arroyo prioritized agreements with China and Vietnam on Spratlys when she could have first dealt with the country’s claims.

He noted Indonesia had established its baselines that had included the Island of Palmas, which was also being claimed by the Philippines. He said the Joint Marine Seismic Undertaking (JMSU) in parts of the South China Sea signed by the Philippines with China and Vietnam could weaken the country’s claim to the Spratlys. The tripartite agreement on March 14, 2005 superseded the agreement between the Philippines and China on Sept. 1, 2004. Roque said Mrs. Arroyo could be held liable for violation of the Constitution in allowing foreign countries to explore the Philippines’ natural resources.

Since the Philippine Constitution and Presidential Decree 1596 say that the Spratlys is part of the country, it follows that the EEZ around the Spratlys should be for the Philippines’ exclusive exploitation. He added Mrs. Arroyo could have committed violations of the Anti-Graft and Corrupt Practices Act by giving full powers to the Philippine National Oil Co. to enter into such agreement. “She can be charged for entering into a grossly disadvantageous contract and having a pecuniary interest in a contract,” Roque said.

He said it was quite surprising that the Department of Foreign Affairs was not involved in the negotiations for the Spratlys deal when it involved foreign countries. “That is probably because the DFA is not cooperative,” Roque said. “Clearly, an agreement to jointly survey for the existence of petroleum resources in the Spratlys would be a derogation of the country’s sovereign rights (because) the exploration here would cease to be exclusive,” Roque said. He said the JMSU agreement should have been sent to the Senate for approval as a treaty as required by 1987 Constitution since it might compromise the country’s sovereignty and territorial integrity.

Critics of the government said Mrs. Arroyo could be impeached for failing to protect the country’s sovereignty by allowing such pre-exploration activities with China and Vietnam.

At present, the Philippines does not have a new definition of its territory, including the extended continental shelf based on the UNCLOS. Santiago said she would like the congressional commission to deal with the following problems, among others: analysis of the full impact of the UNCLOS, beginning with constitutional issues; identification of the boundaries of the Philippine state; and assessment of the Philippine claims to Kalayaan Island Group (KIG or Spratlys), the Scarborough Shoal, and Sabah in North Borneo vis-à-vis competing claims.

“The drawing of the archipelagic baselines encompassing the entire Kalayaan Island Group may prove to be a highly sensitive problem, owing to the existing claims of China, Vietnam, Malaysia, Brunei and Taiwan,” Santiago explained.

Various lawmakers have already sought an investigation into allegations of “sellout” and “treason” after the Philippines signed JMSU with China and Vietnam for a joint exploration and study of marine resources in the disputed Spratly Islands, saying the country could have weakened its claim on the Spratlys in exchange for billions of dollars of loan package from China.

SPRATLYS: WITHIN EXCLUSIVE ZONE  /  PALACE:  NOTHING  WRONG  WITH  DEAL

(STAR) MARCH 9, 2008, By Miriam Grace Go, abs-cbnNEWS.com/Newsbreak - Energy officials were aware as early as 2004 that the bilateral agreement they signed with China to explore the Spratlys for oil deposits covered an area that was within Philippine waters and should not have been allowed. The tacit admission was made when they decided half a year later to revise the map annexed to the Joint Marine Seismic Undertaking (JMSU) pact, according to interviews with government officials privy to the agreement.

This became clear at the closed door meeting in Malacañang on Friday, when the Department of Justice (DOJ) and lawyers were presented a map from the Department of Energy (DOE) that showed how clearly the area covered by the Philippines’ joint seismic survey with China and Vietnam is within the Philippines’ 200-nautical-mile exclusive economic zone (EEZ). abs-cbnNews.com/Newsbreak was shown the map presented to select members of the Cabinet led by Executive Secretary Eduardo Ermita. The map, a revision of the one annexed to the pact with China, showed that the survey area still encroaches on Philippines waters, and therefore violated local and international laws. The new map served as the annex to the tripartite JMSU pact that was signed on March 14, 2005, and now included Vietnam. The agreements were signed during the time of Energy Secretary Vince Perez, through the Philippine National Oil Corp. (PNOC) under president Eduardo Mañalac.

The original map, which was annexed to the bilateral pact the Philippines and China signed half a year earlier, showed a survey area closer to Philippine territory. It was revised after a Cabinet official pointed out in 2004 that the original location targeted by the JMSU with China was “too close” to Palawan. The revised map moved the 142,886-square-kilometer seismic survey area farther from Palawan toward the southwest.

Within exclusive zone

The new map shows that the new location is now slightly below the Malampaya exploration site, based on another map published earlier by the PNOC, which signed the JMSU pact on behalf of the DOE. The map that PNOC made public in 2005 did not show the lines of the Philippines’ EEZ. Still, the new survey area encroaches on Philippine waters. With a line showing where 200 nautical miles from Philippine territorial lines end on the new map, it was established that, still, around 80 percent of the 142,886-square kilometer area of the joint marine seismic undertaking (JMSU) is within Philippine waters. The 200-nautical-mile EEZ was delineated by the Philippines under Presidential Decree 1599 of President Ferdinand Marcos and is acknowledged by the international community under the United Nations Convention on the Law of the Sea (UNCLOS).

Weakened claim

Legal and science experts we consulted said that it doesn’t matter if the survey area was moved a little farther from the original location; it still violated both local and international laws. It was reported that Justice Secretary Raul Gonzalez, in a memo to President Arroyo, said that the “seismic work or pre-exploration activities,” which the tripartite agreement allowed, “is not prohibited in the Constitution.” He also pointed out the agreement “does not delve into sovereignty issues.” The issue is not as simple as that, according to international law and diplomatic experts we consulted. Worse, by agreeing to the area covered by the JMSU, the Philippines derogated its sovereign rights over the area. They said that allowing China and Vietnam to operate within this EEZ effectively acknowledged that the area, already belonging to the Philippines, is disputed.

“The bottom line is, we have weakened our case (before the international court) because we are saying that the area is not exclusively ours,” said a legal expert formerly with the Cabinet.

The Philippines is a claimant to a group of islands in the Spratlys. Its EEZ shows it is the country nearest to the disputed area.

Nothing wrong with Spratlys deal – Palace By Marvin Sy Sunday, March 9, 2008

Malacañang maintained yesterday there was nothing wrong with the agreement between the Philippines and China and that it was meant to jointly develop and transform certain areas in the disputed Spratly islands in the South China Sea into an “area of cooperation.”

Presidential Management Staff director general Cerge Remonde said the Joint Marine Seismic Undertaking (JMSU) is specifically meant to highlight the cooperation between the two countries to ease the tensions of conflicting territorial claims in the area. “The concept of the JMSU is to make the Spratlys an area of cooperation instead of an area of conflict,” Remonde said on state-run dzRB radio. Remonde said accusations that the exploration agreement is a sellout to the Chinese is part of the efforts of the opposition to destabilize the government and were meant to agitate the people to support calls for the resignation of President Arroyo.

Remonde added the claims of former Senate President Franklin Drilon about Ombudsman Merceditas Gutierrez posing some objections to the agreement on possible constitutional violations is something that should be discussed and clarified between them. “If we were to listen to the side of Ombudsman Gutierrez, I would not be surprised if what Drilon is saying is not true,” he said. Remonde said the government is ready to present the documents related to the JMSU agreement and allow the Department of Foreign Affairs to explain the technical aspects of the contract.

Deputy presidential spokesman Lorelei Fajardo said Malacañang is open to any investigation into the said agreement, but expressed concern over the motive of the investigation.

Ambassador to Japan Domingo Siazon also took exception to the claims made by Drilon that Washington became annoyed by the agreement entered into between the Philippines and China to conduct exploration in the Spratlys.

Drilon was quoted as saying that Siazon had revealed the US was “pissed off” by the Philippines warming up to China as evidenced by deals, contracts and loans.

“Except for the agreement to do a joint seismic study which I had not read at all, I was not aware of deals, contracts and loans that had been entered into with China,” Siazon, a former foreign affairs secretary, said in a statement.

“In my profession and long experience as a diplomat, it is highly unlikely that in my conversations with the third highest official of the Philippines, I would be using the word ‘p....d’,” he said.

“Most likely, I solicited the support of then Senate President Franklin Drilon to convince President Arroyo to resume visiting Japan, as her last visit was in December 2003,” Siazon said.

‘Consummated’

The DFA explained the agreements in question were only for pre-exploration activities, which is only meant to determine if there are oil or gas deposits in the area.

Officials said that if there are positive signs of oil or gas deposits, then there will be a final agreement on joint exploration which the Senate has to ratify.

Senators, however, asserted the JMSU is a form of treaty which should have been ratified by the Senate.

According to Senators Panfilo Lacson and Jamby Madrigal, the exploration agreement had been consummated, which means administration officials must explain before the public why President Arroyo should not be held liable for “treason” or “sellout” of the country’s sovereignty and territorial integrity.

Lacson and Madrigal pointed out the JMSU in parts of the South China Sea between the Philippines and China was signed on Sept. 1, 2004 while the Tripartite Agreement for JMSU among China, the Philippines and Vietnam was signed on March 14, 2005. This means the first had expired last year while the other would end by next week even if given a leeway of a few months before actualimplementation, they said. “Were the agreements renewed? That is what we have to find out because the accords were effective for only three years,” Lacson said. Lacson claimed his sources informed him that then Foreign Affairs Assistant Secretary Alberto Encomienda, director of the Maritime and Ocean Affairs Center and also part of the National Mapping and Resource Information Authority (NAMRIA), was opposed to the idea because of its implications to the country’s claims in the South China Sea.

The NAMRIA is also responsible for the study of the country’s baselines, which should be redefined by May next year under the United Nations Convention on the Law of the Sea (UNCLOS).

Senate President Manuel Villar Jr. said the Senate would still investigate the agreements even if they were put on hold.

Lacson and detained Magdalo leader Sen. Antonio Trillanes IV urged the Senate national defense and security committee to lead the inquiry. Madrigal, for her part, wanted the Senate to convene itself as a committee of the whole to review the agreements. Lacson said the agreements were also signed in the shadow of the regional code of conduct in the South China Sea pushed by the Philippines seeking to restrain all territorial claims that might trigger conflict in the area. “After we get the Association of Southeast Asian Nations to support us in this code of conduct, we left them and entered into agreements with China and later on Vietnam,” Lacson said.

He said the details of the agreements were confidential and could not be disclosed until after five years, based on the accords signed by the parties. Like Lacson, Madrigal said if the agreements were not renewed, then there was nothing more to suspend because they had been implemented.

No need for Senate ratification

Justice Secretary Raul Gonzalez, however, said the JMSU does not need Senate ratification since the agreement only calls for pre-exploration activities. Gonzalez also assured national sovereignty is protected in the tripartite agreement.

“What’s important here only is that we protect the national sovereignty in the sense the requirement of Article 12 of Section 2 of the Constitution is not violated,” Gonzalez said. “But the Philippines has exclusive right to develop, explore, and utilize our natural resources,” he added.

Gonzalez belied claims made by former Senate President Franklin Drilon and his own government sources that the JMSU was signed by the Philippines in exchange for financial considerations from China that will finance other big projects. “I’ll also disagree with that because Vietnam is part of this (agreement),” Gonzalez pointed out.

“That has never been raised as far as I’m concerned, but then if they have that evidence they should come up with that. There was no requirement like that because we’re not borrowing even one centavo from Vietnam and yet Vietnam is part of this transaction,” he added.

Gonzalez also challenged critics to raise their concerns before the Supreme Court and question the JMSU. Gonzalez explained the agreement is only for pre-exploration, and if there will be exploration, then there should be a renegotiation and the requirements of the Constitution must be met.

“The moment you speak of exploration that’s already violation of the Constitution. That’s why Drilon said ‘it’s only a pre-exploration agreement.’ We have not yet reached the exploration process,” he said. - With Aurea Calica and Pia Lee-Brago


Chief News Editor: Sol Jose Vanzi

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