SOVEREIGN STATES CAN SHARE THEIR SOVEREIGN RIGHTS
Former Foreign Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales released a statement saying that no public officer, even the President, can share what international law provides is the exclusive right to explore and exploit natural resources, known in international law as sovereign rights. With all due respect to the two, I disagree.
For starters, the fact that the scope of the exclusive economic zone (EEZ) is 370 kilometers (200 nautical miles) from a country’s basepoint or baselines makes it inevitable for countries to have overlaps in their EEZs. In the case of the Philippines, we have overlaps with China up north, given that Taiwan is only a stone’s throw away from our northernmost island; with Palau on the east, with Malaysia and Indonesia in the south, and with China in the west, the subject of dispute between the five
claimant states to the islands and waters of the West Philippine Sea (WPS).
Under the UN Convention on the Law of the Sea (Unclos), these overlaps must be resolved through “agreements” initially. Thus far, we have reached a delimitation treaty only with Indonesia.
Like all Filipinos, I would like to see similar delimitation treaties in all other areas with overlaps, although a multilateral treaty between claimant states is the ultimate solution to the WPS disputes. Pending conclusion of such “agreements,” states and because of their sovereignty, defined by political scientists as the “totality of all powers that a state may exercise,” can agree on provisional agreements with their neighboring states, including those that provide for joint fishing in the EEZ. This is not prohibited. In international law, what is not prohibited is allowed.
Legal basis
In the Philippines, the legal basis for this is the ponencia of former Chief Justice Artemio Panganiban in the case of Angara vs Tañada. In upholding the validity of the county’s accession into the World Trade Organization which literally, and as correctly pointed out by the petitioners, violated the literal provision of our Constitution providing for a “Filipino First” policy, our Supreme Court ruled that the Philippines may voluntarily surrender part of its sovereignty when it enters into a treaty or an international agreement: “a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of ... cooperation and amity with all nations .... One of the oldest and most fundamental rules in international law is
pacta sunt servanda— international agreements must be performed in good faith.”
The rationale for such a limitation was also explained in the Panganiban ponencia: “The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens.”
Ultimate interpreter
Where therefore the President as chief architect of our foreign policy deems it to the national interest to engage in joint fishing in our EEZ with any other country through an international agreement, such an agreement is constitutional, simply put, because the Supreme Court as ultimate interpreter of our Constitution has ruled so.
Quite a number of countries have in fact entered into joint fishing agreements not just over their EEZs but also even in their internal waters and territorial seas, both of which are subject to full sovereignty.
Joint patrol agreement
In our own region, China and Vietnam have for the past 15 years implemented a joint fishing and patrol agreement over the Gulf of Tonkin, whose waters are characterized as internal waters. This is proof that because of their inherent sovereignty, states can share natural resources even if their exploration and exploitation pertains to the states exclusively.
International practice also shows that state parties to the Unclos have entered into joint fishing agreements in their EEZs, including those which overlap with other states. Examples of these agreements include those between Japan and Taiwan, Norway and the European Union, the European Union and Morocco, the European Union and West African states, and between China and the East and West African states.
Foreign mining firms
The Supreme Court in La Bugal B’Laan Tribal Association vs the Department of the Environment and Natural Resources secretary has allowed the participation of foreign mining companies in our mining industry.
Said the court through the ponencia again of former Chief Justice Panganiban: “As written by the framers and ratified and adopted by the people, the Constitution allows the continued use of service contracts with foreign corporations—as contractors who would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the state—sans the abuses of the past regime. The purpose is clear: to develop and utilize our mineral, petroleum and other resources on a large scale for the immediate and tangible benefit of the Filipino people.”
If foreigners can engage in mining in our land territory subject to our full sovereignty, more so in an area which is subject only to sovereign right, that is where we have given our consent. The fact that the former Ombudsman is against the policy of joint fishing in the EEZ is understandable. She wrote a dissenting opinion in the La Bugal case.
All told, there is hence no legal impediment for the President to enter into an executive agreement to engage in joint fishing with China in our EEZ provisionally, or until our territorial dispute with the latter should have been settled with finality.
(The author served as spokesperson for President Duterte from October 2017 to October 2018, and is president of the Asian Society of International Law. He taught public international law and constitutional law in the University of the Philippines College of Law for 15 years before being elected to the House of Representatives in 2016.)