Flashback Spratlys deal

Following are two articles that I wrote four years ago about the super-secret agreement on the exploration in the South China Sea with China and Vietnam.

Why the secrecy?
Malaya, Sept. 10, 2004

ONE of the agreements signed during President Arroyo’s recent visit to China was on Joint Marine Seismic Undertaking in the South China Sea between the Philippine National Oil Company and the China National Offshore Oil Company.

Malacañang hailed the agreement as next to the $400 million North Rail project to be financed by China in terms of importance. Malacañang spin masters even sold it to the public as “a welcome activity in the face of the soaring oil prices in the world market.”
Never mind that it would be a three-year study while the problem of soaring oil prices is now.

In his press conference last Monday, Foreign Secretary Alberto Romulo said, “The agreement provides for PNOC and CNOOC to undertake a joint seismic study of an agreed area in the South China Sea for three years to gather and process data on stratigraphy, tectonics and structural fabric of the subsurface of the area.”

Romulo stressed that “the agreement has no reference to petroleum exploration and production and provides for the participation of the national oil company of a third party.”

A China visit briefing paper said: “The Philippines will strongly support discussions for the participation in the undertaking of PetroVietnam, if the company is interested.”
We asked Romulo where in the South China Sea is the “agreed area” for the survey. He referred us to the Philippine National Oil Company or the Department of Energy.
My friend, Tress Reyes, called up the office of Eduardo Mañalac, PNOC president, who was the Philippine signatory in the agreement and she was told that they do not have the documents.

We called up Malacañang and all they gave us were press releases on the China visit. One of those releases said the agreement on the South China Sea “reflects the political will of the two countries to shelve differences and undertake cooperation.”

Where is that supposedly ground-breaking agreement, we asked everybody. We were given the run-around. Then we chanced upon the briefing paper by the Arroyo State Visit Secretariat in Beijing.

The document underscored two “important” items:
One: “Specific terms of the agreement are covered by an agreement of confidentiality. All public queries on particular technical matters shall be referred to the Department of Energy.”
Two: “No official of the Philippine government may give specific information on the area of cooperation as such is covered by terms of confidentiality and may trigger further sensitive questions.”

What kind of agreement is this that should be kept secret from the Filipino people?
We are interested because we learned that then Acting Justice Secretary Merceditas Gutierrez objected to the agreement, which in the beginning was for joint oil exploration. That was probably why Malacañang’s propagandists immediately linked it to the “problem of soaring oil prices.”

The DOJ objection was based on the area being within the Philippine 200-nautical mile exclusive economic zone. It cited the Constitutional provision that “The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State.” Sources said that the problem was solved with the change of terms from “exploration” to “survey”.

Romulo took exception to our question if the change of term from “exploration” to “survey” was a way of circumventing the Constitutional ban.

He said the PNOC-CNOOC undertaking, the expenditures for which will be shared by both parties, is consistent with Declaration of the Conduct of Parties in the South China Sea which states that “Pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities” which includes “marine scientific research.”

We asked, what happens after the survey?

The briefing paper said: “The PNOC-CNOOC agreement is a step towards possible discussions in the future between and among claimants on provisional cooperative arrangements in the South China Sea pending the complete resolution of disputes in the area.”

We are interested to know the agreed area to be surveyed and the terms of the accord because we are intrigued that China, which claims jurisdiction over the whole of the South China Sea, agreed to the undertaking. Aside from the Philippines, four other countries, Vietnam, Taiwan, Malaysia, Brunei have overlapping claims over some parts of the Spratlys islands in the South China Sea.

China, which occupies at least 10 of the estimated 53 islands in the Spratlys including the Panganiban or Mischief Reef , which is only 135 nautical miles from the southwest coast of Palawan, has always taken the position that any joint activity in the disputed areas would have to have their permission. It goes without saying that China will only agree to activities that serve its national interest.

What about Philippine interest? The Filipino people have the right to know.

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Undefined baselines
Malaya, sept. 13, 2004
Still in search of that much-hyped agreement for joint seismic study between the Philippine National Oil Company and China National Offshore Oil Corporation signed during the recent visit of President Arroyo to China which has been kept from the public, we asked House Speaker Jose de Venecia for a copy.

He referred us to PNOC. We told him that the office of PNOC President Eduardo Ma–alac, the signatory to the agreement, said they don’t have a copy.

We also told him about a Department of Foreign Affairs directive saying “no official of the Philippine government may give specific information on the area of cooperation as such is covered by terms of confidentiality and may trigger further sensitive questions.”

JDV brushed aside our interest on the copy of the agreement and instead lauded the accord as a breakthrough that will lead to more cooperative efforts in the South China Sea.

We asked him where specifically will the joint seismic study be. JDV said: “Part Philippine territory, not disputed, and part disputed.”

We were taken aback. We allowed China to explore our territorial waters in exchange for a joint exploration of an area which we both claim? (Of course, the Arroyo government does not want to use the word “exploration.” But what is really a “seismic study?” )

We asked former Sen. Leticia Shahani, who was a diplomat before she entered politics. Her reaction: “I don’t think they know what they are talking about. They have no right to do that (enter into any agreement with China on disputed areas in the South China Sea) until we have told the Chinese to get out of Mischief Reef.”

We also asked Comm. (ret.) Rex Robles, who was deeply involved in the issues affecting South China Sea, having been chief of the Naval Planning. He said: “There’s no such thing as undisputed Philippine territory in the South China Sea. The whole area of the China Sea including the Natunas airfield to the South, Palawan to the East and Singapore to the West are part of the claim of the Chinese.”

Robles said it would be more worrisome if the agreed area for “joint seismic study” is in Philippine internal waters.

Both Shahani and Robles said the agreement signed in Beijing should be made public.

Robles, who served as vice commander of the Western Command that covers Palawan where a number of Chinese fishermen have been appre-hended, said: “It would be interesting to see how the Philippines navigated the dilemma of not falling under the Chinese policy of vassal states (In the olden times, China as a Middle kingdom considered surrounding countries as vassal states) and asserting our territorial rights.”

The islands in the South China Sea which include the Spratlys group of islands are claimed wholly by China and partly by the Philippines, Vietnam, Malaysia, Brunei and Taiwan. Vietnam has raised concerns over the PNOC-CNOOC agreement, which they said is a deviation from the agreement between China and the Association of Southeast Asian nations to avoid any actions which may heighten tension in the area.

One major disadvantage of the Philippines in asserting its claim over the disputed islands in the South China Sea is our failure to define our maritime baselines under the 1982 UN Convention of the Law of the Sea.

The UNCLOS established the mode which an archipelagic state, like the Philippines, may draw straight baselines, called archipelagic baselines, joining the outermost islands and drying reefs from which the breadth of its territorial sea, contiguous zone and continental shelf may be measured.

The sovereignty of an archipelagic states extends to the waters enclosed by the archipelagic baselines as well as airspace over the archipelagic waters.

It is interesting that the briefing paper on the PNOC-CNOOC agreement prepared by the Arroyo China visit secretariat stated: “Without a legal framework and estab-lished maritime baselines, the Philippines is unable to discuss joint development arrange-ments in the South China Sea with China and/or any other party.”

So, why did Arroyo allow PNOC to enter into a “joint seismic study” with China’s oil company?

In 1987, Shahani filed a bill defining the country’s archipelagic baselines which included the Kalayaan Islands in the Spratlys. It became controversial, however, because it did not include Sabah.

In 1993, she again proposed a bill to amend the existing baselines to comply with the criteria set by the UNCLOS, this time with the provision that “it is without prejudice to the delineation of the baselines on the territorial sea around the territory of Sabah… over which the republic of the Philippines has acquired dominion and sovereignty.”

Nothing happened with that Shahani bill.

Robles said the Philippines has been unable to define its archipelagic baselines partly because it requires expensive technology. “Those areas (in the Spratlys) are tenuous. If you put up structures, there’s the danger of it collapsing.” Although, Robles added, Vietnam has been able to develop structures in submerged areas.

Robles said it is also lack of political will.

In 1994, there was a proposed joint project by the Department of Energy and the National Mapping and Resource Infor-mation Authority (under the Department of Environment and Natural Resources) and the Department of Defense to construct lighthouses in the vicinity of the Reed Bank near Palawan as a start of defining the country’s archipelagic baselines. It was to cost P178 million. The project was jeopardized partly by wranglings over which depart-ment was to oversee the project.

The waters of South China Sea has been described as “treacherous”.

We hope that does not apply to the PNOC-CNOOC agreement on seismic study in the South China Sea. We won’t know until the Arroyo government makes public the agreement.