Transcript of the Press Briefing of former President and now Pampanga Rep. Gloria Macapagal Arroyo with former Executive Secretary Eduardo Ermita and Atty. Estelito Mendoza
April 20, 2017
FPGMA: With our Easter break and you don’t really have much to cover, we thought that we don’t have a lot time to gather you together, to get ourselves together. And in the occasion, we have a primer of Atty Estelito Mendoza, former secretary of Justice, and solicitor general and my principal lawyer.
So, he is, this is a primer on the ocean space or maritime area of the Philippines written by Atty. Mendoza and published by the Institute of Maritime Affairs on the Law of Sea of the UP Law Center. So when Atty. Mendoza suggested that I hold a press conference to launch this primer of his, I decided to invite also other people who are key to the formulation of my administration’s policy on the law of the seas and the South China Sea and the principal there was Executive Secretary Ed Ermita and we made him head of the commission that handled these matters.
Helping him do the job, I have also invited as resource persons if you have technical questions. We have Rear Admiral Vicente Agdamag who is Deputy Director General of the National Security Council and Deputy Administrator Efren Carandang of NAMRIA who did the surveys that allowed us to file the bill that became RA9522 which is our baselines law.
Atty. Mendoza is on his way, maybe Ed….. there is is Atty. Mendoza.
While you were walking down, I already explained to them that this being a break and they don’t have much news on legislations and inquiries, this is a good time for them to be the audience of our launching of your primer. I explained to them already a little bit and I have introduced Secretary Ermita so you have the floor.
Before we start I suggest you look in the footnotes of the primer.
Let me explain a little about the primer because there are as I have said many conversations on the law of the sea but evidently there is not enough understanding of even the basic principles involved. Maybe I should highlight the Philippine position of the law of the sea. Principally our position is called archipelagic principle. We have been fighting for this through several decades without success until finally when the law of the sea convention, the archipelagic principle was included there. This is the significance of the principle as you know our country is an archipelago composed of more than 7,000 islands. Without the archipelagic principle, each island will be an island by itself so there will be high seas between and among the islands- that means our country will not have a unified and integrated geographic location. Finally were able to achieve that in the law of the sea convention but even better, achieving that principle obtained its recognition as part of the principles in the law of the sea convention. But that would be meaningless unless baselines are drawn around the archipelago.
Let me say a little about the baselines. Baselines are the lines around an island or continent or archipelago by which you measure the length of the territorial sea, the contingent zone, the exclusive economic zone and the continental shelf. Incidentally these are the maritime areas over which a country has sovereignty and jurisdiction. The Philippine territorial sea which should not be more than 12 miles, exclusive economic zone which normally should be 200 nautical miles and the continental shelf of the same breadth unless we obtain an extended continental shelf which is beyond 200 nautical miles. We have achieved that during the Arroyo administration. We have obtained recognition of an extended continental shelf of what is known as the Benham Rise. That means we have exclusive jurisdiction to explore and exploit the seabed resources of the continental shelf.
We must now distinguish rights over maritime by incident to the territorial sea. On the territorial sea, you have a right over the seabed the waters and above. But continental shelf, you have rights only over the seabed and under it and not over the waters. But as I have said the importance of the baselines is without the baselines you can’t protect these maritime areas. You cannot claim sovereignty and jurisdiction over these maritime areas. So that’s an all important achievement during the Arroyo administration. You must remember the law of the sea convention was approved in the 1980s. 1980s to 2015 more than 30 years. Our country practically stood still. Theoretically we could not claim sovereignty over these areas because there were no recognized baselines. That was only achieved during the Arroyo administration by the enactment of Republic Act 9522. That as I said is the primary achievement during the Arroyo administration. That should have been achieved, the law of the sea convention was approved during the time of President Marcos, since then how many Presidents did we have? President Corazon Aquino, Presidrent Ramos, President Estrada until finally President Arroyo. So the situation stood still until the enactment of RA 9522 but the achievement of the Arroyo administration in the law of the sea goes far beyond that. Now what is catching the attention not only of the countries bordering the south china sea is the practically continuing tension in the south china sea. The posturing of the naval might of the United States, of China and other countries. That did not exist during the Arroyo administration, there was relative quiet and peace. Now you usually read about what is referred to as China Island Building Factory that refers to the reclamation of land
FPGMA: Built during the previous administration. Can I Interrupt? We were talking about, this (referring to the map) is instructional even for me when the guys from NAMRIA gave the briefing because they talked about territorial waters, the exclusive economic zone, the 200 exclusive economic zone, the third one is the continental shelf. So the Philippines under the law that we enacted this is the, that’s the baseline, that’s what we call the territorial… that one
Namria: That one what is inside is the archipelagic waters.
FPGMA: No you mentioned territorial sea.
NAMRIA: The territorial sea is the yellow one.
FGMA: That’s why this is the territorial sea and this is the 200-mile continental shelf and if in the border there is land even if it’s under water, the land contiguous outside that is the extended continental shelf and that is the Benham Rise which we were not supposed to discussed but since Atty Mendoza mentioned it…..
As I was emphasizing during the Arroyo administration there was relative quiet and peace after the enactment of RA 9522. As I’ve said that meant declaration of a 12 mile territorial sea and exclusive economic zone of 200 miles. China did not file a protest, that is very important. So China did not contest our baselines. Implicitly china did not contest our 12 mile territorial sea. China implicitly recognized our 200 miles economic zone but it protested our claim over the Kalayaan group of Islands and the Bajo Masinloc or Scarborough shoal. Those were the only particular items contested by China.
FPGMA: Can I again interrupt? So these are the baselines (referring to the map), China did not protest our drawing of the baselines but aside from the baselines in another section of the law that we passed, we defined a group of islands called the Regime of islands. So the Regime of Islands covered the Kalayaan Group and the Bajo de Masinloc. So China did not protest this, did not protest this. It protested this portion because, so together it’s a regime of island. That was China protested and also the Bajo de Masinloc which is outside the 200 mile economic zone.
It was a, well to me, up to now a source of inquiry why we filed the arbitral claim. As it turns out this turn out to be a very significant event to china. Because china now has stated categorically and explicitly that its island building factory incidentally from shoals in the Kalayaan group of Island was provoked by the arbitral claim of the Philippines.
FPGMA: Built during the previous administrations.
During the Aquino administration so in effect we were fighting in the Hague. Maybe we were winning in the Hague but China outflanked us. And China made it a point that while we were winning in the Hague, China was winning in the waters of the South China Sea. That is now going to be the most difficult problem of Pres. Duterte. These Islands which China has built during the Aquino administration. Now beyond that during the Arroyo administration there were not just peace and quiet. There was a cooperative effort not only among and between Philippines and China but including Vietnam. You probably have not noted that among the claimants in the South China Sea is Vietnam. Many of those features in the Kalayaan group are occupied not just by China but Vietnam. So there was during that time the joint seismic survey which was a joint effort of the Philippines, China and Vietnam that went because of that survey was borne by 3 countries with the understanding also that the result, the information that we gathered will be shared among the three countries. There were questions on the constitutionality but the point is that that shows that cooperation, not necessarily war in this South China Sea is a possibility and perhaps is the best solution.
FPGMA: But before Atty Mendoza has ended his statement, he was talking about the constitutional issues on the joint seismic research and in our briefing yesterday, the NSC and Secretary Emita clarified that in the language, in the text of the joint seismic agreement, it said that is without prejudice to any of the…. because it is a research survey, it does not affect the respective positions of the various countries or issues related to the area.
So Atty Mendoza is done so we have ten minutes for questions if you want.
Q: How should Administration Duterte approach this issue?
GMA: You know I can only share what happened in my Administration. I don’t know all the facts that are available to the current administration. So I do not dare make any recommendation. And I keep that attitude because of my own experience as President. There were so many other people in the peanut gallery telling me what to do and they didn’t have all the facts at their disposal. So as far I’m concerned president Duterte knows what he is doing and I don’t have specific recommendations to make. I have a general recommendation to make which I made during the National Security Council meeting that we held early in his administration. As far as China is concerned our strategic direction should be to emphasize our economic relations and transcend to the extent that we can matters that issue between us.
Q: Are you in favor of resorting to JMSU again?
FPGMA: Well as I said I cannot give a specific recommendation because I do not know all the facts that are available to the current administration. So that’s why when I give an opinion and I have done it and I have stated it even in a press con before, it is be strategic not operational or tactical.
Q: President Duterte said he will go on a jet ski…..
FPGMA: As I’ve said those are very tactical issues. I’ve given a general recommendation that I have made public. With China let us concentrate on our economic ties and to the extent that we can transcend the matters that issue between us.
Q: There is now the general impression that the President tends to bend backwards for China like when he said he was going to Pagasa Island and China reacted and then he said he was not going to do that anymore. As a former President, how is that reaction, how do you see that kind of reaction from your successor. Is it helpful? Is it a good style?
FPGMA: He knows what he’s doing.
Q: Don’t you think that….
FPGMA: He knows what he’s doing.
Q: Clarify ko lang po yung JMSU that was done before, it does not affect our claims?
FPGMA: Yes because it is research project. It is not even exploration. It is pre-exploration, it is research.
Atty Mendoza: Can I say somethimg about Pagasa? Pagasa is part of the Kalayaan group of Islands. I have been there during the Marcos administration. So we have a military contingent there. We have a school there. We have an airfield there. There is absolutely nothing wrong for Pres duterte to go there if he would like to. That is ours. We have claimed it, although China also claims it.
FPGMA: Pagasa is here right (referring to map). It is part of our regime of islands and that is the one that China is claiming in our regime of islands that section in the baselines.
Q: Do you think that the case that we filed in the Hague, that was a wrong strategy, more detrimental?
FPGMA: Atty. Mendoza knows that better than me.
As I said I do not know the reason that claim was filed. I cannot say that it is right or it is wrong. What I can only say is that as far as China is concerned it says it provoked their island building factory. Perhaps I cannot say that their claim was directly the Chinas 9 dash line but before that I do not remember China having claimed any right of navigation or interfere of the right of navigation of any country on the basis of the 9 Dash line. Incidentally the arbitral tribunal made no ruling on whether the China the 9 dash line is valid or not. The rule is that by virtue of the 9 dash line, it does not establish the right of China over any territory.
Q: Atty. Mendoza, according to our Constitution, do you think Pag-asa or the EEZ is part of the Philippine territory?
Well there is a general reference to reiterating to maintaining, our sovereignty and jurisdiction but there is no specific statement of what those consist of -Kalayaan or whatever.
Q: Considering that the Constitution says that portions that we have control of and you were just saying we have control over the Kalayaan, would that be enough to make it part of the Philippine territory as defined by the Constitution?
We have a claim. But China and Vietnam have taken over several of those islands and then the arbitral claim, they are referred to as figures over a long period of time before the Arroyo administration. Maybe during the Ramos administration but at that time even if they have taken over the islands, they kept them just peacefully. There were not used as fortresses or were fortified for any armed action or naval activity.
Q: As a lawyer, based on the Constitution, how would you interpret, would you say that the islands that we have control over are part of the Phil. Territory?
It’s very hard. Let me just point out one aspect in the law of the sea convention what we referred to as internal waters in our constitution has now has been referred to as archipelagic waters. The Supreme Court in the case of Magallona vs Ermita ruled that is not unconstitutional. And as the matter of fact in the 1987 article 12 section 2 it already mentioned archipelagic waters. So the constitution is keeping in step in the development in the law of the sea.
FPGMA: So Secretary Ermita won in the case maybe you wanna add something Ed?
Well in reference in what was brought up before the Supreme Court. When RA 9522 was passed in 2009. There was a case brought before the Supreme Court trying to prevent or issue a temporary restraining order for its implementation and the ruling of the Supreme Court was that the areas covered and referred to in RA 9522 are constitutional and therefore the petition file before it by Magallona and Harry Roque was denied or thrown out by the Supreme Court .
FPGMA: And I think in the briefing yesterday you explained to us the difference between the economic zone and the regime of islands. The EEZ we have total control over that land and sea whereas in regimes of island we have control over the land but the sea is open isn’t? so that is the distinction between.
Q: Did you publish this to become a basis or policy on the south china sea issues?
Well this is just a primer, as you will note the opinions are largely in the footnotes but the text of the law of the sea convention and all the laws are quoted verbatim so there can be no mistake.
Q: Are you going to give the President a copy or seek an audience with President about what you wrote?
I don’t know. I’ve sent to copy to Malacanang and it’s really up…. I don’t seek an audience. It’s available,, they can look at it.
LAST WORDS FROM PRES. ARROYO?
FPGMA: No. from Secretary Ermita. You know when I was president my field was Economics. He was security. Security I leave to the experts. And so Sec. Ermita happened to be former Vice Chief of Staff of the Armed Forces and former Defense Secretary and this is security so matter so we’ll let him give the last words.
Anyway, the question was asked whether this matter is a joint undertaking will recommended or how can this be resumed. I want to inform you that this so called Joint Marine seismic undertaking was agreed upon in March of 2005 between China, Vietnam and Philippines. And it had a life of 3 years. So that on June 30 2008 it has lapsed and therefore it depends on whatever information the administration may get about whether there was any benefit at all that came out of this joint marine seismic undertaking, but I think the important thing is as expressed by Pres Arroyo and Atty Mendoza, because of such joint undertaking there was no tension among claimant countries because under the JMSU it was nothing but an agreement to gather data to find out what is it that you can find in that area which later on after interpretation can be used in whatever future undertaking, But in the tripartite agreement it is specifically stated that the agreement is just a pre-exploratory activity therefore should not be misconstrued otherwise. Some people at that time filed a case before the Supreme Court questioning the wisdom of allowing the JMSU and precisely again the SC came out with the decision that there was no violation in the Constitution because it was agreed from the beginning that it’s a pre exploratory activity.
Maybe this will be a good footnote to close this I think it is a privilege now of Secretary Ermita to have his name in this SCRA in a winning case. And you may be interested to know the one who penned the decision, it was a unanimous decision, was penned by no less than Justice Antonio Carpio and it upheld Ermita. The losers were professor Magalona and Roque. They included in the petition, 30 students of theirs in the international law. They thought they would find themselves in this draft, indeed they are now in the SCRA but they are now part of the losing party.
Q: Tingin nyo ba may failure si Pres. Duterte na i-assert yung sovereign rights ng Philippines sa Benham and sa Scarborough since he was open to share it with China?
As president Arroyo said we don’t know all the facts but from what I see it is a personal opinion I think Pres. Duterte is navigating the troubled waters of the China Sea very well.
FPGMA; Good ending, good ending. Let’s quit while we’re ahead!