During his State of the Nation Address (Sona) on July 22, President Duterte made it very clear that “… the West Philippine Sea is ours. There [are] no ifs and buts. It is ours… we have been acting [applause] along that legal truth and line. But we have to temper it with the times and the realities that we face today.”
The President spent a large portion of his speech — in my estimate, about 18 percent of its length or roughly 17 of his 93 minutes of delivery time — to this raging controversy involving our national territory, sovereignty and honor.
He explained that “[t]he avoidance of conflict — armed conflict — and protection of our territorial waters and natural resources compel us to perform a delicate balancing act,” and that he tried to avoid “war, even on a limited scale… [because] [m]ore and better results can be reached in the privacy of a conference room than in a squabble in public.”
He stressed that “our ownership of the [WPS] is internationally recognized. However, both the United Nations Convention on the Law of the Sea (UNCLOS) and the Arbitral Award in the case of… ‘Republic of the Philippines vs People’s Republic of China’ recognize instances where another state may utilize the resources found within the coastal state’s Exclusive Economic Zone (EEZ).”
Fact-checking the President, Senior Justice Antonio T. Carpio instantly reacted, saying that factually and legally, China is not in possession of the entire WPS, and that in any event, its claim over almost the entire South China Sea had been rejected by the said arbitral award.
Moreover, Carpio said the President cannot — by himself, in a private conversation with Chinese President Xi Jinping — allow other states or their nationals to fish in our EEZ because our Constitution (Art. XIII, Sec. 2, 2nd par.) reserves the “use and enjoyment” of the marine wealth of our country’s EEZ “exclusively to Filipino citizens.” Furthermore, traditional fishing rights are allowed only to foreigners in our “archipelagic waters and territorial sea.”
The learned justice may be correct in his textual reading of the Constitution. However, I think a liberal interpretation may allow the President, with the concurrence of “at least two-thirds of all the Members of the Senate,” to enter into a treaty or agreement regarding the use and enjoyment of such wealth.
In any event, in my humble view, we need not fear that our President may have entered into, to use Carpio’s language, “a lopsided agreement” with the Chinese leader because, if indeed he had done so, such agreement or treaty, by the express wording of our Constitution, shall not be “valid and effective” absent the Senate’s concurrence.
On the other hand, I am glad the President has boldly clarified his stance that the WPS belongs to us per our Constitution, the UNCLOS and the arbitral award of the Permanent Court of Arbitration.
Significantly, the President vowed in his Sona to enforce the award “in due time,” paraphrasing Ecclesiastes 3 of the Good Book that “[t]here is a time… for everything. A time to negotiate and a time to quarrel… a time to antagonize and a time to make peace and a time to go to war, and a time to live and a time to die.”
And even if he will not aggressively enforce it as his critics demand, he has, by his Sona, asserted, not waived, our maritime rights and the arbitral award, thereby allowing his successors, at their discretion, to enforce them aggressively via other options short of war.
Under our laws, President Duterte determines our foreign policies, subject only to constitutional and statutory limits. Some may criticize, rally against, rant endlessly and even spit on his policies; that is their right. But their criticisms will amount to nothing unless he adopts or accepts them; that is his prerogative.
Be that as it may, I think everyone, including his critics, should be mollified that, to repeat, he has not waived our maritime rights or the arbitral award, as his critics had feared.
For this reason, I will not nitpick on the factual and textual issues at this point. For now, I would rather focus on and offer a toast to his bold presidential incantation that the “West Philippine Sea is ours… no ifs and buts.” Cheers!