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POSTSCRIPT / September 17, 2019 / Tuesday

Arbitral Ruling: The ace Duterte wasted

By FEDERICO D. PASCUAL JR.

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THE LANDMARK ruling of the Permanent Court of Arbitration at The Hague in 2016 that favored the Philippines over China was a legal leverage that President Duterte could have used in his negotiations with President Xi Jinping, but he squandered it.

Instead of using that arbitral ace in his big-stakes geopolitical poker with his counterpart, Duterte set it aside — or ignored, reserved, held back, or whatever synonym his apologists used to explain away and nullify his virtual surrender to a shrewder Chinese player.

It was a good thing some sharp lawyers in his Cabinet clarified – before Xi could take advantage of the confusion over terms — that when Duterte said “set aside” he did not mean waiving or abandoning the ruling that was based on the United Nations Convention on the Law of the Sea (UNCLOS).

At the outset, Duterte should have invoked the arbitral ruling, never mind that Xi refused to respect it, and bargained from that position of strength on joint mineral exploration in the Philippines’ exclusive economic zone, an area that China wants to penetrate.

Duterte’s bedrock starting position should have been that China must first recognize Philippine sovereign rights over its EEZ, as affirmed by the arbitral ruling based on the UNCLOS that both countries had signed with the rest of the civilized world.

The President could not have missed the aggressive and unfriendly intentions of China when it grabbed, built up and militarized strategic isles and reefs in Philippine maritime areas in contemptuous disregard of UNCLOS and the arbitral ruling.

Duterte should have suspended serious talks the moment Xi refused to recognize the sovereign rights of its neighbor in its own EEZ. Xi’s hinting of war, as Duterte reported back home, only accentuated China’s belligerent stance.

Instead of dropping the dialogue, Duterte told the world his fear of China’s superior military – yet still pursued talks for more deals. It was disquieting to see the President of the Philippines pleading from a position of weakness.

The Philippines is still rich in natural and human resources despite these assets having been abused and mismanaged. Hypothetically, if China and its neighbors were suddenly reduced to relying only on their own resources – in kanya-kanya fashion — Filipinos have a better chance of surviving honorably.

China is under pressure to look for more sources of food, fuel and raw materials – as well as markets — beyond its boundaries. It needs the Philippines more than Filipinos need China.

Duterte need not rush into lopsided economic contracts with China, in the process sacrificing national pride and hocking patrimonial assets. But he is in a hurry to show his countrymen solid achievements within his six-year presidency.

In his first visit to Beijing in 2016, Duterte gambled. He bet all his chips on one number – China – even making a big show of abandoning long-standing friends and allies in an embarrassing show of fealty to his imagined future benefactor.

And Xi, having mastered the Davao mayor’s psychology and the tricks of transactional Philippine politics, knew as early as then that Duterte was ready to bite his offer of massive assistance to make good his extravagant promises.

 Who’ll check Duterte’s China deals?

AS IT looks now, unless a deus ex machina descends on the stage to stop Duterte, Xi will continue to walk him in the three remaining years of his term, because either the client is scared or hypnotized by promises of more billions for his infrastructure program and whatever else.

It is alarming that our 24 senators and some 300 congressmen – intimidated or their sense of duty deadened — are so engrossed with kung anu-ano that NOT ONE OF THEM seems to have noticed that the country looks like it is being sold piecemeal down the Yangtze River.

Why are members of the Congress hesitant to scrutinize Duterte’s liaison with China, to exercise their oversight function on the contracts and commitments he has made with Xi? After all, these deals will bind not only the present but also future administrations and generations.

The Constitution itself mandates in Article XII, Section 2: “The President shall notify the Congress of every contract entered into in accordance with this provision, within 30 days from its execution.”

A memorandum of understanding (or agreement?) was reportedly signed with China in November last year on joint mineral exploration. The Congress should ask about this and other contracts, agreements or commitments sealed by Duterte.

For reference and context, reread the Constitution. Section 7 of Article III (Declaration of Principles and State Policies) says: “xxx In its (the State’s) relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.”

In Article XII (National Economy and Patrimony), Section 2 says in part: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy xxx and other natural resources are owned by the State.

“xxx The State… may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens.

“xxx The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

“The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country.”

 

(First published in the Philippine STAR of September 17, 2019. Follow the author on Twitter as @FDPascual.

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