Carpio sees Philippine sovereignty safeguards in MOU with China

MANILA, Philippines — There is nothing wrong with the government’s pursuit of joint exploration of natural resources with China in the West Philippine Sea, acting Chief Justice Antonio Carpio said yesterday.

Carpio believes that the memorandum of understanding (MOU) forged by the two governments during the state visit of Chinese President Xi Jinping in the country last week had safeguards to ensure that the sovereignty of the Philippines would not be compromised.

“I think we’re pretty safe. The government has included service contractors, so if we cooperate, if the cooperation with China on oil and gas activities will be through service contractors, we’re very safe,” Carpio said.

However, Carpio also warned that the country should brace for the possibility of China seizing the resource-rich West Philippine Sea as its forces continue to assert control over the disputed waters.

Speaking before the first general assembly and forum of the Akademyang Filipino at the University of the Philippines Professional Schools in Taguig City on Saturday, Carpio reiterated China’s claims over the West Philippine Sea remain the “gravest external threat (to the country) since World War II.”

“We must prepare for the day when the politburo of China will instruct the powerful navy of China to enforce the nine-dash line as a national boundary of China,” Carpio said, referring to Beijing’s top policymaking body.

Carpio said if China seizes the West Philippine Sea, the country will lose an area larger than the country’s total land area.

“We are going to lose a huge maritime space. We lose all the fish, oil, gas and mineral resources here,” he warned.

Carpio stressed a service contract for the joint exploration of gas and oil in contested areas in the South China Sea could actually boost the country’s rights over its exclusive economic zones in the region.

“I don’t have any objection with that kind of arrangement because if China comes in through our service contractors, those service contracts expressly recognize that the area falls within Philippine sovereignty or sovereign rights,” he said.

The magistrate even suggested that the service contractor in the Philippines’ Recto Bank (Reed Bank), Forum Energy, could tap a Chinese firm as a subcontractor. 

Businessman Manuel V. Pangilinan’s PXP Energy Corp., through its London-listed unit Forum Energy Plc., holds an exploration permit covering Recto Bank.

Carpio said China “can come in as a subcontractor of Forum Energy or it can buy into equity of Forum Energy, or it could do both.”

“That’s okay because they (Chinese) are coming in to our service contractors,” he pointed out.

Pressed further on the issue, Carpio said the proposed 60-40 sharing scheme with Beijing in the possible exploitation of resources in WPS could be pursued for as long as the government can again make sure the country’s sovereignty would not be compromised.

“As long as the joint development complies with the Philippine Constitution and there is no waiver of our sovereign rights under the arbitral ruling, I have no objection,” he said.

Carpio on Saturday urged Filipinos to help in defending the West Philippine Sea by persistently urging the international community to point out to China the falsity of its claims.

Carpio encouraged foreign navies to regularly and frequently conduct freedom of navigation operations in the South China Sea.

He said the ruling of the arbitral tribunal also automatically meant that about a quarter of the South China Sea are the high seas where all vessels and aircraft can pass through without challenge.

Carpio was part of the Philippine delegation that won the country’s suit against China before the arbitral tribunal in The Hague in 2016. 

In the ruling, the Permanent Court of Arbitration (PCA) invalidated China’s nine-dash line claim to the South China Sea.

It also held that Beijing violated its commitment under the UN Convention on the Law of the Sea in building artificial islands within the Philippines’ exclusive economic zone (EEZ).

China has already reclaimed several features in the West Philippine Sea and turned them into military installations.

Carpio said Beijing is in a dilemma as it has been teaching its people the entire South China Sea is theirs when it was proven in the arbitral tribunal that it is not true based on historical documents.

“That’s why today, the Chinese government will not comply with the ruling of the tribunal because, if it does, then that delegitimizes them in the eyes of the Chinese people,” Carpio told the forum on Saturday.

Reassert first

An MOU entitled “Memorandum of Understanding on Cooperation on Oil and Gas Development between the Government of the Republic of the Philippines and Government of the People’s Republic of China” was signed during Xi’s visit last week.

It acknowledged that “through positive dialogue and practical cooperation,” the Philippines and China “have made substantial progress and meaningful gains in exploring opportunities and means to cooperate with each other in maritime activities, which has made significant contributions to peace, stability and development in the region.”

The deal stated that an inter-governmental joint steering committee and an inter-enterpreneurial working group will be established and led by ministries of foreign affairs as well as energy departments.

The Chinese identified China National Offshore Oil Corp. as the Chinese enterprise for each working group, while the Philippines has designated the Philippine National Oil Co. Exploration Corp. as the Philippine enterprise.

The MOU was also specific on the timeline of the agreement, stating that the “two governments will endeavor to agree on the cooperation arrangements within 12 months.”

The joint exploration, upon bearing fruit, would pave the way for another cooperation agreement on the exploitation of resources found, according to the same document.

But the MOU specifically stated: “This Memorandum of Understanding does not create rights or obligations under international or domestic law.”

An MOU, unlike a memorandum of agreement or an actual contract, is not yet legally binding to parties.  

Vice President Leni Robredo said the Duterte government should have demanded from China to recognize the country’s victory in the PCA first before signing any agreement with Beijing.

“If I were the government, I would tell (China) ‘recognize the ruling of arbitral tribunal. If you will not recognize it, our rights, then there’s no basis to enter into an agreement with you,’” Robredo said.

Robredo, a lawyer by profession, said the 1987 Constitution states that the country’s marine resources are exclusive for Filipinos.

She added the country’s partner-corporation must be majority-owned by Filipinos.

“Third, if ever we enter into joint explorations, it must be limited to technical assistance, and there is no sharing of resources,” Robredo said.

Communist Party of the Philippines (CPP) founding chairman Jose Ma. Sison said the MOU is “a clear act of treason” by President Duterte.

“The signing and approval of the memorandum under the direction of Duterte is a clear act of treason, a blatant betrayal of the sovereign rights and national patrimony of the Philippines and the Filipino people. While it is still arguable that the memorandum is still merely an ‘agreement to agree,’ the Philippines and the Filipino people must effectively reject the memorandum,” he said.

Sison said it was clear from the full text of the MOU that it ignores and sets aside the conclusive and final legal victory of the Philippines in its case against China before the PCA.

“By citing the memorandum, China can now insist ad nauseam and by force that the Philippine government has waste-basketed the final judgment that the mineral and marine resources under the West Philippine Sea belong to the Philippines,” Sison said.– With Jose Rodel Clapano, Helen Flores

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