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Philippine-China joint venture in EEZ 'illegal'

Publication Date : 10-03-2014

 

Philippine Supreme Court Senior Associate Justice Antonio Carpio warns that any move by Manila to enter into joint-development ventures with Beijing over the Philippines’ 370-kilometre exclusive economic zone (EEZ) will be a culpable violation of the Constitution.

Carpio said the basic law of the land mandated that the use and enjoyment of the country’s EEZ was exclusive only to Filipinos.

“Any joint venture with China under its terms will constitute a culpable violation of the Constitution, a sellout of our national patrimony,” he said.

Carpio spoke before the Philippine Women’s Judges Association on March 6 about protecting the country’s marine wealth in the West Philippine Sea (South China Sea), which he hoped would be “the advocacy of every Filipino.”

China’s offer to the Philippines and other claimant states for joint development of disputed areas, which China has been pitching in, setting aside sovereignty issues, posed three problems, he said.
First, China wanted to jointly develop only the EEZ of the Philippines but not that of China.

“In effect, China is saying to the Philippines, what is exclusively China’s economic zone is China’s alone but what is exclusively the Philippines’ economic zone belongs both to China and the Philippines. And if the Philippines does not agree, China’s warships will be there to prevent the Philippines from exploiting its exclusive economic zone,” Carpio said.

Unclos
Under the United Nations Convention on the Law of the Sea (Unclos), every coastal state is entitled to a 370-km (200-nautical mile) EEZ, subject to boundary delimitation in case of overlapping EEZs with other coastal states.

The EEZ is the area extending 370km from the baselines of a coastal state. Under the Unclos, EEZs must be drawn from the baseline of a coast of a continental land or island capable of human habitation of its own, according to Carpio.

A second problem has to do with the precondition that those states that agree to the offer should recognise the nine-dash-line map on which almost 90 per cent of the South China Sea is being claimed by China, he said.

Carpio said this meant that the participating state would have to vacate any island it possessed and give it to China, as well as renounce any maritime claim in China’s nine-dash-line area.

He said that if the Philippines agreed to the joint-development proposal, it would give up its “exclusive sovereign rights to exploit all living and nonliving resources in its EEZ,” and waive its exclusive right to exploit its own mineral resources on its extended continental shelf.

Carpio said these problems were the reasons other claimant states were not receptive to China’s offer of joint development. Vietnam, Brunei, Malaysia and Taiwan also claim parts of the South China Sea.
He said China’s joint development offer would negate the maritime entitlements of the Philippines under the Unclos.

“This is constitutionally impermissible because our 1987 Constitution mandates the State to ‘protect the nation’s marine wealth in its EEZ and to reserve its use and enjoyment to Filipino citizens. Any joint development with China constitutes a culpable violation of the Constitution,” Carpio said.

Chinese contractors
But he said Chinese companies could take part in the exploitation of oil and gas in the Philippine EEZ but only as “technical and financial contractors” of the government or Filipino companies under Philippine law and not Chinese law.

They can be paid in kind, an arrangement that is being observed in the Malampaya gas field where Shell is the technical and financial contractor of the government.

Carpio said none of the claimant states to the Spratlys had taken up China’s joint development offer because it would mean “a complete surrender to China’s outlandish, ‘indisputable sovereignty claims.’”

Arbitration in UN
He said the Aquino administration was fulfilling its constitutional duty to protect the nation’s marine wealth in its EEZ by filing an arbitration case against China in the United Nations.

“This exercise of pursuing the arbitration case against China is to reserve the use and enjoyment of our marine wealth in our EEZ exclusively to Filipinos, as mandated by the Constitution, which we have all sworn to uphold,” Carpio said.

He said that what was at stake in the filing of the arbitration case was whether the Philippines would keep or lose 80 per cent of its EEZ (including the Reed Bank and Malampaya) and 100 per cent of its extended continental shelf in the West Philippine Sea.

But Carpio maintained that China’s nine-dash-line claim did not comply with the basic requirement of the Unclos for drawing EEZs.
He said there was no basis under international law for China’s claim to a historical right to the waters enclosed within the nine-dash line in the South China Sea.

He noted that the Unclos had extinguished all historical rights of other states within the 370-km EEZ of the adjacent coastal state. Likewise, the Unclos did not recognise historical rights as bases for claiming EEZs or the extended continental shelves of other claimant states.

Scarborough Shoal
Carpio said China should be prohibited from claiming Scarborough (Panatag) Shoal, which lies off the coast of Zambales province.
While China claimed that Scarborough Shoal or Huangyan Island to the Chinese (or Nanhai Island based on documents showing that a Chinese astronomer Guo Shoujing visited it in 1279), it claimed in 1980 that Nanhai Island was in Xisha or the Paracels, this time to counter Vietnam’s historical claim of the Paracels.

The Chinese foreign ministry back then also said the island was visited by the Chinese astronomer in 1279.

“One could not imagine how Gou Shoujing went ashore to visit Scarborough Shoal when it was just a rock, with no vegetation, and did not even have enough space to accommodate an expedition party,” Carpio said.

Carpio also dismissed the Chinese claim that the Chinese astronomer had installed one of 27 Chinese observatories on Nanhai Island, as it was impossible to make such an installation on the shoal at that time.
“In short, it is both physically and legally impossible for Scarborough to be Nanhai Island—physically because no observatory could possibly have been installed in 1879 on the tiny Scarborough rocks, and legally because China has already officially declared that Nanhai is in the Paracels, more than 380 nmi (704 km) from Scarborough,” he said.

Scarborough Shoal is 230 km (124 nmi) from Zambales and lies within the Philippines’ EEZ. Because it is nonhabitable, the shoal has a 22-km (12-nmi) territorial sea and thus it cannot generate an EEZ, contrary to China’s claim, according to Carpio.

 

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