(The following article was published in rappler.com last October 20, 2016.)
In the face of bewilderment over President Rodrigo Duterte’s “independent foreign policy,” it is proper to ask, exactly what constitutes such a policy? What should underlie the President’s curse-laced pronouncements against the United States and European Union and his friendly overtures to China and Russia?
The starting point for Duterte’s foreign policy should be the Philippine Constitution, which he and every other president before him have sworn to uphold and protect. While Duterte is given much leeway in determining foreign policy, he being the country’s top official and diplomat, it is the Constitution that provides the basic parameters and direction for the exercise of such power.
So what does the Constitution mandate, in terms of foreign policy? More importantly, is Duterte following it?
The national territory
Article I defines our national territory to include all the islands, waters and the airspace within the Philippine archipelago, including the seabed, subsoil, submarine areas and areas under our control and jurisdiction. This necessarily includes areas covered by our 12-mile territorial sea, our 200-mile Exclusive Economic Zone (EEZ) and 350-mile Extended Continental Shelf, over which we have sovereignty and jurisdiction as provided for under the United Nations Convention on the Law of the Sea (UNCLOS).
The baseline from which to determine our territory and its maritime areas is contained in our Baselines Law (RA 9522). Under this law, Bajo de Masinloc (Scarborough Shoal) and the Kalayaan Island Group (Spratly Islands), while being outside the country’s baselines, are still part of the national territory as “Regime of Islands” provided for in UNCLOS.
President Duterte and all Filipinos are sworn to secure and defend this territory. Thus, he is constitutionally barred from bargaining off our maritime and territorial claims to China or any competing claimant country in the West Philippine Sea.
A peaceful and independent foreign policy
The general principles of our diplomacy are spelled out in Article II, or the Declaration of Principles and State Policies.
Article II, Sec. 2 states that the Philippines “renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”
This provision mandates Pres. Duterte to renounce wars of aggression like those launched by the US and the EU in the Middle East, Asia or any part of the globe. The Philippines should not be a party to, or a launching pad or training site for, such military actions. Furthermore, we should strive to achieve good, peaceful, mutually beneficial relations with all nations. Duterte’s decision to end US military exercises and patrols in the country as well as his plan to abrogate the Enhanced Defense Cooperation Agreement (EDCA) is certainly within this mandate. In the same vein, Duterte should insist on both the US and China to demilitarize the South China Sea conflict.
Article II, Sec. 7 states: “The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.”
It is this provision that Duterte invokes when he says the Philippines is no vassal state of the US. Our relations with China, Russia, the ASEAN bloc or any other country should not be dictated by the US, China or any other foreign interest but by the need to assert our sovereignty, protect our territory, promote the national interest and uphold our right to self-determination.
Article II, Sec. 8 states that the Philippines “adopts and pursues a policy of freedom from nuclear weapons in its territory.” The US has defied this prohibition on nuclear weapons by preventing Philippine authorities from inspecting their ships and aircraft and by neither confirming nor denying the presence of such weapons. This is another argument for abrogating the RP-US Visiting Forces Agreement (VFA), RP-US Mutual Logistics Support Arrangement (MLSA), and EDCA.
Related to these provisions, Article VIII, Sec. 25 prohibits the presence of foreign military bases, troops, or facilities except under a treaty concurred in by the Senate and recognized as such by the other state. Thus were the US bases removed from Philippine soil upon the expiration of the RP-US Military Bases Agreement in 1991. Absent such a bases treaty, the US has erroneously relied on the 1951 Mutual Defence Treaty and, subsequently, the VFA to justify its permanent military presence in the country.
Under Article II, Sec. 19, the declared state policy is to “develop a self-reliant and independent national economy effectively controlled by Filipinos.”
It is in Article XII on the National Economy and Patrimony that such a state policy is elaborated.
Article XII, Sec. 1 orders the State to “promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets,” with a caveat that it shall “protect Filipino enterprises against unfair foreign competition and trade practices.”;
Article XII, Sec. 2 directs the State to “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.”
This provision is problematic with regards to the recent Permanent Court of Arbitration (PCA) ruling which declared Scarborough Shoal a “traditional fishing ground” for the Philippines, China and Vietnam, thus not for the exclusive use of Filipino fishermen. An acceptable scheme for joint use will have to be worked out among the three countries without abandoning our territorial and maritime claims over Bajo de Masinloc.
The same section allows the President to 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” subject to the condition that “In such agreements, the State shall promote the development and use of local scientific and technical resources.
This would be the most applicable framework for possible “joint undertakings” with China with regards oil exploration in Recto Bank or any part of our EEZ. Such cooperation should be made from the standpoint that the area is ours and China, or any foreign entity, can only be allowed participation as providers of technical or financial assistance.
Unfortunately in the case of the Malampaya Gas Field, government allowed foreign corporations to control 90% of our natural gas resources, with government share at a mere 10%. Likewise, in a previous ruling, the Supreme Court allowed 100% foreign-owned mining companies to exploit and control our mineral resources via a financial and technical assistance agreement (FTAA). Duterte should abandon this precedents and insist on Filipino ownership and control over our natural resources.
With regards to land, Article XII, Sections 3, 7 and 8 taken together limit ownership to Filipino citizens and corporations.
Article XII, Sec. 10 directs Congress to “enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos” and that “In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.” Furthermore, “The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities,”;
Article XII, Sec. 11 reserves public utilities to Filipino citizens or companies and limits the participation of foreign investors in the governing body of any public utility to their proportionate share in its capital, provided all the executive and managing officers of such corporation or association must be Filipino citizens;
Article XII, Sec. 12 directs the State to “promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive” while Sec. 14 limits the practice of all professions to Filipino citizens, save in cases prescribed by law.”
Subsistence fishermen are specifically protected from foreign intrusions in in Article XIII, Sec. 7 on Agrarian and Natural Resources Reform.
Sectors considered vital to the promotion of Philippine culture, namely education, mass media and advertising, are also reserved for Filipino citizens and corporations as provided for in various provisions.
What this all boils down to is the promotion and protection of Filipino industries, land, labor and goods from foreign domination and control. The provisions are quite insistent on the point that our national resources should primarily benefit Filipinos and Filipino-owned entities. It explicitly directs Congress and the Executive to take steps towards this objective.
The challenge for Duterte
The 1987 Constitution revolves around four themes – respect for human rights and civil liberties, democratic governance and the prevention of another dictatorship, the promotion of social justice, and the upholding of national sovereignty. It is no perfect document but it is the country’s highest law binding all citizens, especially the President.
With respect to an independent foreign policy, the provisions cover not only our territorial and maritime claims or our diplomatic relations but, even more substantially, protectionist policies on the economy and national patrimony.
Ironically, previous governments have violated these provisions by maintaining the country’s neocolonial relationship with the US and pursuing an export-oriented, import-dependent, foreign-investment led, service-oriented economy for the last three decades.
Duterte’s distancing himself from the US and EU is a good start. But the real challenge is for him to follow the Constitution to the letter by abandoning the much travelled road of previous presidents and treading the path of independent diplomacy and economic sovereignty.#