Is Digong’s ‘60-40’ offer to China legal?

A maritime law expert, Jay Batongbacal, says that before President Duterte proceeds with his proposal to give China a 40-percent share of resources extracted in contested areas in the West Philippine Sea, he should first answer one very important question: Is it legal?

A maritime law expert said on Saturday that President Duterte’s proposed 60-40 deal with China on joint exploration of resources in the West Philippine Sea was only a “side issue,” since the bigger question was whether it had legal basis given the Philippines’ win in the arbitration case in The Hague.

Jay Batongbacal, director of the University of the Philippine Institute for Maritime Affairs and Law of the Sea, said that if such agreement pushed through, China would still end up gaining more compared to the Philippines and even over other claimants in the contested waters.

Fundamental question

“The sharing formula, whether 50-50 or 60-40, only addresses the division of output,” he told the Inquirer.

“It does not answer the fundamental question on whether there is really legal basis for joint exploration and development,” he said.

Batongbacal said the arbitration case ruling was clear about China not having any overlapping continental shelf with the Philippines.

If Mr. Duterte went ahead with the deal, “it could be implied as stepping back from what was won.”

Mr. Duterte revealed in a speech that he suggested the deal to avoid a war with the Asian giant.

Ruling ignored

It does not answer the fundamental question on whether there is really legal basis for joint exploration Jay Batongbacal UP maritime law expert

Recalling his conversation with Chinese President Xi Jinping on the sidelines of the Boao Forum for Asia earlier this month, he said, “Anyway, China has offered joint explo- ration and joint operation. And I said, maybe, we give you a better deal, 60-40.”

Despite the Philippines’ major victory in The Hague, the Duterte administration had downplayed the ruling and had chosen to engage in warmer ties with China.

Batongbacal said the Philippines had no obligation to share anything since it had been ruled that China had no right over the disputed waters.

China’s advantage

“The proposed joint development only reinforces China’s position that they did not want to implement the [Hague] decision at all,” he said.

“If we decide to share, it’s purely on a political basis,” Batongbacal said.

He also said that even if it would have only a 40-percent share, China would still end up gaining more, since the deal would legitimize its claim in the area.