Joint exploration with China must fit within PH constitution – expert

Sofia Tomacruz
'The principal issue is still the question of: How do you deal with the constitutional limits that are before us?' says UP associate professor Herman Kraft

MANILA, Philippines – Joint exploration between the Philippines and China in the West Philippine Sea must fit within the framework of the Philippine constitution, according to Herman Kraft, Political Science associate professor at the University of the Philippines.

“This [agreement] will mean certain questions about the extent to which this fits within our constitution. Basically, that means that it works within the context of Philippine laws, Philippine sovereignty,” Kraft said in a recent Rappler Talk.

Philippine President Rodrigo Duterte and Chinese President Xi Jinping recently gave the “go signal” to craft a framework for joint exploration in the West Philippine Sea. 

The West Philippine Sea is the part of the South China Sea that belongs to the Philippines, but is claimed by China. 

Philippine Foreign Secretary Alan Peter Cayetano said the statement from Duterte and Xi was “very important,” as this signaled that joint exploration in the area could be done soon, should the framework be agreeable for both countries.

BILATERAL MEETING. Philippine President Rodrigo Duterte shakes hands with Chinese President Xi Jinping after their bilateral meeting at the Boao State Guesthouse on April 10, 2018. Malacañang file photo

Economic benefits?

Even though the Philippines won a 2016 Permanent Court of Arbitration (PCA) ruling which invalidated China’s claims in the West Philippine Sea, Duterte has downplayed this victory in exchange for economic benefits from China. (READ: Duterte: China ‘sincere’ about commitments to PH)

The West Philippine Sea is believed to hold vast amounts of oil and resources. For instance, the Reed Bank could hold up to 5.4 billion barrels of oil and 55.1 trillion cubic feet of natural gas, according to a report by the United States Energy Information Administration. (READ: Reed Bank ‘holds huge oil, gas reserves’)

Kraft pointed out that the principal issue that will be faced by the Duterte administration would still be constitutionality. 

He said, “The principal issue is still the question of: How do you deal with the constitutional limits that are before us? In other words, can the Duterte administration find a way by which it can suddenly say, ‘Okay, the constitution is immaterial to this whole thing,’ or, ‘There is a formula by which we can actually get around the constitutional limitations,’ and then actually proceed with talking about and implementing [a deal]?”

Kraft added, “The question is still: How do you deal with that legal requirement?” 



Besides the constitutionality of a joint exploration framework or agreement, Kraft also said there’s the issue of sovereignty.

“That question of sovereignty, again, this will mean the usual formula of setting aside sovereignty in order to be able to take advantage at this point in time of what kind of economic benefits we can get from that joint development,” Kraft said.

Among China’s 4 elements on “setting aside dispute and pursuing joint development” is that “sovereignty of the territories concerned belongs to China,” according to a report on its Ministry of Foreign Affairs website.

Kraft added that the issue of sovereignty must also be considered in light of the 2016 PCA ruling.

“Going in this pathway will again delay the entire process where you can resolve the issue of sovereignty, while at the same time for us, not gaining any advantage from the results of the arbitral decision,” he said.

“If we want to strengthen our position as far as our claim to these land features in the South China Sea is actually concerned, then we should be using or at least talking about the arbitral decision and the kinds of elements in it that are actually beneficial to us.” –

Sofia Tomacruz

Sofia Tomacruz covers foreign affairs and is the lead reporter on the coronavirus pandemic. She also writes stories on the treatment of women and children. Follow her on Twitter via @sofiatomacruz. Email her at