A.

) Philippine-China Joint Exploration

It is valid. Talks have started to jointly explore and extract Liquid Natural
Gas (LNG) in the West Philippine Sea. This is welcome news since our main
source of LNG, Malampaya, will be depleted in 12 years, if not sooner. LNG from
Malampaya supplies gas to three power plants with a collective capacity of 2,700
megawatts. It powers approximately 50% of Luzon’s power needs. We need a new
source of LNG soon and the West Philippine Sea has 190 trillion feet of it. With
the declaration of the disputed area as a “sea of cooperation and friendship,” we are
now free to tap this resource. Joint exploration should not be seen a cessation of
sovereignty, rather, it is an assertion of it. The West Philippine Sea and its
resources belong to the Filipino people and it is our right to extract it.

Since China is the encroacher and the Philippines is the encroached, is it safe
and constitutionaly sound for the Philippines to jointly explore the disputed waters
with China? The answer is yes, provided certain safeguards are put in place. These
are the constitutional provisions pertinent to the issue: Section 2, paragraph 4 of
Article XII of the Constitution states that: “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. In such agreements, the State shall promote the
development and use of local scientific and technical resources.” The constitution
further includes the proviso that “the exploration, development, and utilization of
natural resources should be under the full control and supervision of the State.”
 In other words, joint exploration can be pursued so long as the deal is
governed not by a bilateral treaty but by a mere Commercial Agreement written
under Philippine laws. It must explicitly identify the Philippine government as the
owner of the resource and China as the technical partner that only provides capital
and technology. The agreement must further state that absolute control and
supervision of the resources belongs to the Philippines and that the agreement is
only good for a fixed term, say 25 years. This is the same agreement entered into
by the Philippine government with Shell Philippines Exploration B.V. in the
exploration and extraction of LNG in Malampaya. It has worked without
complications. In fact, another claimant to the disputed waters, Vietnam, has a
standing joint exploration agreement with China National Offshore Oil
Corporation. The Vietnamese are already benefiting from the resources of their
part of the disputed waters. We should too.

Entering into a joint exploration agreement with China is a slippery slope.

Done right, we can enjoy the resources of our territories without compromising our
claims over it. Done wrong, the joint exploration can be construed as a cessation of
territory. This is why we must follow the constitutional provisions to the letter.
What is ours, is ours. No entity should prevent us from benefitting from our own
natural resources. Engaging in joint exploration with China, or any other nation for
that matter, works to our best interest so long as constitutional safeguards are
satisfied.

The said Philippine – China joint exploration in the West Philippine Sea is
indeed Constitutional and pursuant to the national interest. But we, the Philippines,
should thread carefully since this is a dangerous endeavor. To safeguard the
national interest and sovereignty of the Philippines, It must be emphasized in their
agreement that the Philippines is the owner and adminitrator of the resources found
in the vicinity while China is merely the partner of the owner. Moreover, the said
agreement or partnership should only last for a limited amount of time as stated
earlier. The important thing to take into account is to make sure that any
commercial agreement we enter with China will not undermine the Constitution
and the gains we have made in the UN tribunal. Senator Cayetano had already
dispelled concerns on a possible cooperation agreement infringing on the
Philippines’s sovereign rights when he earlier gave assurances that the government
would consult legal experts to make sure any pact with China would not violate the
Constitution or any of our laws.

2.) Philippine withdrawal from ICC

The Philippines withdrawal from the International Criminal Court is valid.

In recent weeks, the International Criminal Court (ICC) has captured the
imagination of the Filipino people. A seemingly obscure, but highly relevant,
international body has all of a sudden dominated public discussion, provoking a
ferocious debate among folks from across the political spectrum. The ICC was
catapulted to the headlines, when it was revealed, last month, that the institution’s
chief prosecutor Fatou Bensouda has opened a preliminary examination against the
Philippines. This is the first time in history that an incumbent Southeast Asian
government has faced the prospect of indictment by the ICC. Weeks later,
President Rodrigo Duterte acted upon his initial threat to unilaterally nullify the
country’s ratification of the Rome Statute, which undergirds our years-long
membership of the ICC. He also called upon other countries to exit the ICC, yet so
far no country has followed through. In 2011, the Philippine Senate ratified the
Rome Statute, effectively placing the country under the ICC’s jurisdiction. And the
details of which are actually accessible on the official gazette of the Republic of
the Philippines.

First and foremost, the ICC is a body found under the auspices of the United
Nations (UN), with the express purpose of avoiding the horrific mass atrocities,
which bedeviled sub-Saharan Africa (think of the Rwanda genocide) and the
Balkans (the violent dissolution of former Yugoslavia) and, more broadly, shocked
the world into action. After intensive global discussions in the UN at the turn of the
century, the ICC was established at The Hague, in Netherlands, which also houses
other major international arbitration bodies such as The Permanent Court of
Arbitration (PCA). The goal of the ICC is to discourage or, in an event of failure of
deterrence, ensure accountability and justice when mass atrocities occur,
particularly genocide, crimes against humanity, and war crimes. Second, the
location doesn’t have any political implication. The location of the court, which
was approved by members of the UN, is partly reflection of the fact that the
Netherlands has been the bedrock of international law, with no less than the 17th
century Dutch jurist Hugo Grotius, who is known as one of the fathers of modern
international law, hailing from that country. Yet, the location of the court by no
means suggest that the Dutch government or the European Union carries any any
influence over how these highly-independent bodies are run. In fact, in 2013, for
instance, the PCA ruled in favor of Mauritius, an African country, against the
United Kingdom, a European country (and still EU member, but likely not for
long) over a territorial dispute over the Chagos Archipelago in the Indian Ocean.
It’s true that superpowers such as Russia, China, and the United States haven’t
ratified (via their parliaments/congress) the Rome Statute or didn’t even bother to
sign (via executive branch) it to begin with. And they have been condemned
accordingly for avoiding accountability for their actions, including military
interventions abroad. Yet, more than 100 countries, including much of the
developed world and most prosperous Asian countries such as Japan and South
Korea, have ratified the Rome Statute, thus placing themselves fully under the
ICC’s jurisdiction. In short, the ICC continues to enjoy the support and confidence
of the world’s most prosperous nations. Third, the ICC has just opened
‘preliminary examination’ against the Philippines’ authorities involved in the drug
war, specifically the accusation of ‘crimes against humanity’ in light of alleged
extrajudicial killings under Duterte’s drug war. Crimes against humanity charges
are generally described as “a deliberate act, typically as part of a systematic
campaign, that causes human suffering or death on a large scale.” Article VII of
the Rome Statute defines it as “acts when committed as part of a widespread or
systematic attack directed against any civilian population.” Preliminary
examination, meanwhile, only means that the ICC is currently examining the
veracity of communications (complaints) and reports of alleged mass atrocities
under Duterte’s drug war. It’s far from clear whether the ICC will launch an actual
investigation, as a potential prelude to indictments of specific leaders, anytime
soon. In certain cases, it takes only few weeks or months (e.g., Sudan, Libya)
before the ICC moves from the stage of examination to actual investigation, while
in other cases it might take years (i.e., Ivory Coast).

In conclusion, The Philippines withdrawal from the International Criminal

Court is valid but could have been avoided. The timing was not too good since the
executive is currently under trial or investigation by the said organization and the
said act of withdrawal could be seen as a way to avoid the punishment to be
rendered by the ICC. There was no legal impediment as to the move of the
Philippines to withdraw from the ICC, and as the president stated, it is in relation
to the national interest. The only issue was that the timing was a bit unimpeccable.