PRESIDENTIAL SPOKESPERSON Harry Roque praised President Duterte’s policies in the West Philippine Sea (WPS) as “careful, calibrated, and calculated.” In contrast, Roque assailed proposals from former foreign secretary Albert del Rosario and myself as “illegal, impractical, and irresponsible.”
Let us examine President Duterte’s policies in the WPS from the lenses of the criteria specified by Roque.
First, in November 2016, a
few months after the issuance of the landmark July 12, 2016 arbitral Award,
President Duterte declared: “I will set aside the arbitral ruling. I will not
impose anything on China.”
President Duterte set aside
the Award in favor of some $22-24 billion in loans and investment from China.
In law, to “set aside” an award or a ruling is to abandon or reverse the award
or ruling. The President has no power on his own to abandon or reverse the
Award which affirmed the sovereign rights of the Philippines in its exclusive
economic zone (EEZ) in the WPS.
Setting aside the Award is
not only illegal and unconstitutional; it also demonstrates a reckless,
ill-informed and irresponsible act. To date, less than 5 percent of China’s
promised loans and investments have materialized. No further loans and
investments from China are expected in the remaining 13 months of the
President’s term of office. President Duterte gave his full trust and
confidence to President Xi Jinping whom Mr. Duterte trumpeted had promised to
protect him from mutinies by the Philippine military. Obviously, the wily
President Xi hoodwinked Mr. Duterte.
Second, in
September 2016, President Duterte announced that the Philippine Navy shall
patrol only the territorial sea of the Philippines facing the WPS and shall not
patrol Philippine EEZ in the WPS. President Duterte stated: “[T]he territory is
limited to the 12-mile limit. Hanggang diyan lang tayo.” This is clearly an
illegal directive, being in patent violation of the Constitution which commands
that the “State shall protect the nation’s marine wealth in its xxx exclusive
economic zone.”
Unless the Philippine Navy
and Coast Guard patrol our EEZ in the WPS, we cannot stop Chinese ships from
conducting seismic surveys for oil and gas in our EEZ in the WPS. We cannot
also stop Chinese fishermen from poaching in our EEZ in the WPS. This directive
of President Duterte is not only unconstitutional; it is also ill-conceived and
irresponsible.
Third,
President Duterte announced in July 2019 that he had entered into a verbal
fishing agreement with President Xi allowing Chinese fishermen to fish in
Philippine EEZ in the WPS. This verbal fishing agreement is illegal, being in
clear violation of the Constitution which commands that the State “shall
reserve the use and enjoyment” of the marine wealth in Philippine EEZ
“exclusively to Filipino citizens.” Filipinos fish in the WPS with small wooden
boats fitted with outriggers, while the Chinese, who have the largest fishing
fleet in the world, fish with huge modern trawlers. We now import galunggong
from China, the same galunggong Chinese fishermen take in the WPS. This verbal
fishing agreement is not only unconstitutional, it is also plain dumb.
Fourth,
President Duterte has announced repeatedly that “China is in possession of the
WPS.” The President made this announcement on the following occasions: the
November 2018 Asean-India Summit in Singapore, his July 2019 and 2020 State of
the Nation Addresses, and most recently in a late night TV address last April
19, 2021. This is, of course, grossly factually incorrect, because China is
actually in possession of only eight geologic features in the Spratlys plus
Scarborough Shoal.
The territorial seas of these
geologic features—where territorial seas are applicable—constitute less than 7
percent of the total maritime area of the WPS. The freedom of navigation
operations of the US and its allies in the WPS forcefully demonstrate that
China is not in possession of the WPS. To concede that China is in possession
of the WPS is not only grossly irresponsible; it is also clearly illegal
because it is in derogation of our sovereign rights in the WPS.
Finally,
President Duterte announced in his July 2019 State of the Nation Address that
he is “inutile” when it comes to defending the WPS. In law, this statement is
res ipsa loquitur — the statement speaks for itself: a betrayal of national interest.
(Originally published May 6, 2021 in the
Philippine Daily Inquirer. The
author, a former Associate Justice and, for four instances, acting Chief
Justice of the Supreme Court of the Philippines, writes on his regular column
in Inquirer.net)
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