Former Solicitor General: Joint exploration with China in disputed waters undermines Philippines' rights

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Former solicitor general Florin Hilbay

Metro Manila (CNN Philippines, July 26) — Any joint exploration of gas and oil between the Philippines and China in the disputed area of the South China Sea undermines the Philippines' exclusive economic rights, the former solicitor general said Wednesday.

Florin Hilbay, a member of the legal team that won the case against China with the Permanent Court of Arbitration in The Hague in July 2016, warned that a move like joint exploration was unconstitutional and that the Philippines would be diluting its award of exclusive economic rights.

"It would undermine our legal rights. We are already threatened because of China's incursions into the West Philippine Sea," said Hilbay on CNN Philippines' The Source.

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The West Philippine Sea is the area of the South China Sea that is within the Philippines' 200-mile exclusive economic zone.

In a landmark ruling, the international court declared on July 12, 2016 that the Philippines had exclusive economic rights over reefs and waters that lie within its 200-mile exclusive economic zone in the South China Sea. China refused to recognize the decision, and has constantly asserted its entire claim over the South China Sea.

"What Philippines vs. China did is to clarify the legal rights, and so we now have full legal rights. It's a binding decision because China is party to the UNCLOS," Hilbay added, referring to the United Nations Convention on the Law of the Sea.

Hilbay reiterated that the Philippines would be waiving the rights awarded to it by the arbitration court.

"Joint development that recognizes China's equal rights to that particular area, is an implied waiver of our constitutional rights and the decision," Hilbay said.

"And so a joint development, or any agreement regardless of the language of the agreement, that assumes that China has a claim over those waters is unconstitutional. It's a blatant violation of the Constitution," he added.

The issue of joint exploration surfaced when President Rodrigo Duterte on Monday after his State of the Nation Address said that he was open to exploring with China possible oil and gas in Philippine waters of the South China Sea. The announcement came just before a visit by Chinese Foreign Minister Wang Yi, who met with Foreign Affairs Secretary Alan Peter Cayetano.

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Cayetano downplayed on Tuesday the President's remarks, saying that possible joint exploration of the South China Sea began 31 years ago, during President Corazon Aquino's term. After a low point in bilateral relations with the previous administration of former President Benigno Aquino III, relations with China have warmed considerably since President Duterte adopted a foreign policy shift away from the west.

A joint venture in the South China Sea could be used against the Philippines by China if future leaders decide to raise the issue with an international court again, Hilbay warned.

"Then China's argument will be... your agreement with us saying you are entering into joint development. You cannot enter into joint development without [implicitly] recognizing our rights over your area," he said.

Earlier, Foreign Affairs Secretary Cayetano said the Malampaya Gas Field in South China Sea just off the island of Palawan proved that joint ventures were constitutional.

"Malampaya is an example of how the Philippine Constitution allowed exploration and development of our natural resources despite the cooperation with some foreign corporations or foreign entities," Cayetano said Tuesday.

The project is a partnership between Shell Philippines Exploration B.V. and Occidental Petroleum, an American oil and gas exploration company with operations in the Middle East and Latin America.

But Hilbay claimed that the Malampaya venture was incomparable to a proposed Philippine-China venture, since there is no foreign government involved that claimed any of the country's maritime entitlements in the former.

If the Philippines and China were to agree to joint exploration, it "will most likely be a government-to-government contract because you have to recognize the right of China," said Hilbay.

The South China Sea, also claimed in part by Brunei, Malaysia, Taiwan, and Vietnam, is believed to be rich in gas and oil.

The United Nations Convention on the Law of the Sea is an international law providing guidelines for territories and marine affairs, ratified by both China and the Philippines. The decision favoring the Philippines' claim over the disputed islands and waters of the South China Sea was based on this convention.

China is staking its claim on islands with the Philippines' 200-mile economic zone by building structures on reefs since 1994 like Panganiban Reef, also known as Mischief Reef.

China is said to have begun dredging operations on seven other Spratly Islands' reefs such as Kagitingan (Fiery Cross Reef), Calderon (Cuarteron Reef), Zamora (Subi Reef), Burgos (Gaven Reef), McKeenan (Hughes Reef), and Mabini (Johnson South Reef).

Law experts, including Associate Justice Antonio Carpio, have advised the Philippine government to file formal protests or raise the issue once again with the arbitral tribunal.