Presidential spokesperson Harry Roque praised President Duterte’s policies in the West Philippine Sea (WPS) as “careful, calibrated, and calculated.” In contrast, Roque assailed proposals from former foreign secretary Albert del Rosario and myself as “illegal, impractical, and irresponsible.” Let us examine President Duterte’s policies in the WPS from the lenses of the criteria specified by Roque.
First, in November 2016, a few months after the issuance of the landmark July 12, 2016 arbitral Award, President Duterte declared: “I will set aside the arbitral ruling. I will not impose anything on China.” President Duterte set aside the Award in favor of some $22-24 billion in loans and investment from China. In law, to “set aside” an award or a ruling is to abandon or reverse the award or ruling. The President has no power on his own to abandon or reverse the Award which affirmed the sovereign rights of the Philippines in its exclusive economic zone (EEZ) in the WPS. Setting aside the Award is not only illegal and unconstitutional, it also demonstrates a reckless, ill-informed and irresponsible act. To date, less than 5 percent of China’s promised loans and investments have materialized. No further loans and investments from China are expected in the remaining 13 months of the President’s term of office. President Duterte gave his full trust and confidence to President Xi Jinping whom Mr. Duterte trumpeted had promised to protect him from mutinies by the Philippine military. Obviously, the wily President Xi hoodwinked Mr. Duterte.
Second, in September 2016, President Duterte announced that the Philippine Navy shall patrol only the territorial sea of the Philippines facing the WPS and shall not patrol Philippine EEZ in the WPS. President Duterte stated: “[T]he territory is limited to the 12-mile limit. Hanggang diyan lang tayo.” This is clearly an illegal directive, being in patent violation of the Constitution which commands that the “State shall protect the nation’s marine wealth in its xxx exclusive economic zone.” Unless the Philippine Navy and Coast Guard patrol our EEZ in the WPS, we cannot stop Chinese ships from conducting seismic surveys for oil and gas in our EEZ in the WPS. We cannot also stop Chinese fishermen from poaching in our EEZ in the WPS. This directive of President Duterte is not only unconstitutional, it is also ill-conceived and irresponsible.
Third, President Duterte announced in July 2019 that he had entered into a verbal fishing agreement with President Xi allowing Chinese fishermen to fish in Philippine EEZ in the WPS. This verbal fishing agreement is illegal, being in clear violation of the Constitution which commands that the State “shall reserve the use and enjoyment” of the marine wealth in Philippine EEZ “exclusively to Filipino citizens.” Filipinos fish in the WPS with small wooden boats fitted with outriggers, while the Chinese, who have the largest fishing fleet in the world, fish with huge modern trawlers. We now import galunggong from China, the same galunggong Chinese fishermen take in the WPS. This verbal fishing agreement is not only unconstitutional, it is also plain dumb.
Fourth, President Duterte has announced repeatedly that “China is in possession of the WPS.” The President made this announcement on the following occasions: the November 2018 Asean-India Summit in Singapore, his July 2019 and 2020 State of the Nation Addresses, and most recently in a late night TV address last April 19, 2021. This is, of course, grossly factually incorrect, because China is actually in possession of only eight geologic features in the Spratlys plus Scarborough Shoal. The territorial seas of these geologic features—where territorial seas are applicable—constitute less than 7 percent of the total maritime area of the WPS. The freedom of navigation operations of the US and its allies in the WPS forcefully demonstrate that China is not in possession of the WPS. To concede that China is in possession of the WPS is not only grossly irresponsible, it is also clearly illegal because it is in derogation of our sovereign rights in the WPS.
Finally, President Duterte announced in his July 2019 State of the Nation Address that he is “inutile” when it comes to defending the WPS. In law, this statement is res ipsa loquitur — the statement speaks for itself: a betrayal of national interest.