Sovereignty vs sovereign rights: What do we have in West PH Sea?

Paterno Esmaquel II
Under international law, the Philippines has sovereign rights – not sovereignty – over the West Philippine Sea

PHILIPPINE WATERS. Does the Philippines enjoy sovereignty or sovereign rights over its waters, and what is the difference? Photo by LeAnne Jazul/Rappler

MANILA, Philippines – Filipinos fumed when President Rodrigo Duterte stressed that the Philippines has “no sovereignty” over its exclusive economic zone (EEZ) in the West Philippine Sea.

“No country in the world has sovereignty over its exclusive economic zone,” Duterte said in a speech on June 26. 

Duterte had also said on June 21 that the sinking of a Filipino fishing boat by a Chinese ship in Recto Bank (Reed Bank) in the West Philippine Sea “was not an attack on our sovereignty.” 

Is Duterte correct? 

Or as Presidential Spokesperson Salvador Panelo, a lawyer, asked a reporter in a press conference on June 27, “Ano ba ang difference ng sovereign rights at saka sovereignty. Meron ba (What’s the difference between sovereign rights and sovereignty. Is there a difference)?”

Rappler consulted two of the Philippines’ leading experts on the West Philippine Sea – Supreme Court Senior Associate Justice Antonio Carpio and Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and the Law of the Sea.

The short answer is: Yes, under international law, the Philippines has no sovereignty – and only has sovereign rights – over its EEZ in the West Philippine Sea. 

The Philippine government is duty-bound to defend its sovereign rights over the West Philippine Sea, experts said.

What is the difference between sovereignty and sovereign rights?

Batongbacal explained that sovereignty “is like full ownership of property, with all the rights it implies, including the right to destroy it.” Sovereignty applies to the Philippines’ landmass and its 12-nautical mile territorial sea. 

Exclusive sovereign rights function “like usufruct, a right to use and enjoy property,” said Batongbacal.

Sovereign rights allow the Philippines to exclusively fish and enjoy marine resources, such as oil and natural gas, in its 200-nautical mile EEZ in the West Philippine Sea. 

CHINA'S VICTIM. Gem-Ver is the Filipino fishing boat rammed and sunk by a Chinese ship in the West Philippine Sea. Photo by LeAnne Jazul/Rappler

“You don’t need to be an owner of property to be able to use and enjoy it. For example, if you rent property, you don’t own it but are using and enjoying it, and are entitled to even defend it against trespassers, because you have the sole right to possess it,” Batongbacal said.

Does the Philippines have sovereignty or sovereign rights over its EEZ?

Carpio explained: “Under international law, the Philippines has sovereignty over its territorial sea (12 nautical miles), and jurisdiction over its EEZ (beyond 12 nautical miles up to 200 nautical miles). International law does not recognize sovereignty beyond the 12-nautical mile territorial sea.”

Batongbacal also said “we don’t have sovereignty” over our EEZ.

What does the Philippine Constitution state?

Article I of the 1987 Constitution states:

“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas.” 

Carpio told Rappler: “The Constitution does not expressly say we only have sovereign rights in our EEZ. But under UNCLOS, which we have ratified and forms part of our domestic statutory law, we only have sovereign rights in our EEZ.”

The Constitution is however clear about its duty to protect its EEZ “exclusively” for Filipinos. 

Article XII, Section 2 of the Constitution mandates: “The State shall 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.”

How does one harmonize the Philippine Constitution and international law?

Carpio explained that the law operates in two areas – domestic and international.

EXPERTS. Supreme Court Senior Associate Justice Antonio Carpio (center) and maritime law expert Jay Batongbacal (right) speak in a forum on the South China Sea dispute on November 23, 2018. Photo by LeAnne Jazul/Rappler

“Our domestic law is anchored on our Constitution which defines our national territory to include ‘other submarine areas’ over which the Philippines has ‘sovereignty OR jurisdiction,'” said Carpio.

International law states that the Philippines has “sovereignty” over its territorial sea and “jurisdiction” over its EEZ. 

“The rule is, as repeatedly held by the Supreme Court, in case of conflict between our Constitution and international law, our Constitution will prevail, and this is what our government officials must follow,” the justice said.

“However, we can avoid a conflict by classifying our national territory into two: those over which the Philippines has sovereignty, and those over which the Philippines has jurisdiction,” he added.

Where do we go from here?

Carpio said the Philippines “must defend both types of national territory because that is the mandate of the Constitution.”

“Just because we do not have sovereignty, but only sovereign rights, in our EEZ does not mean we should not protect our EEZ. Sovereign rights are priceless too, that is why the Constitution directs the State to protect its marine wealth in its EEZ,” said Carpio.

Batongbacal said: “Going back to the EEZ, yes, we don’t have sovereignty over it, but that doesn’t mean we cannot defend our exclusive sovereign rights over it. Even though we don’t own or have sovereignty over the entire EEZ, we have every right to assert or defend our rights to the natural resources in it.”

Duterte however, downplayed the constitutional provision on the country’s marine resources.

CLOSE TIES. President Rodrigo Duterte is accompanied by Chinese President Xi Jinping inside the Great Hall of the People in Beijing prior to their bilateral meeting on April 25, 2019. Malacañang photo

“That provision is for the thoughtless and the senseless. The protection about economic rights, about the economic zone, resources? I am protecting the country and 110 million Filipinos,” the Philippine leader said on June 27.

He said the Constitution is meaningless if war with China erupts.

“I would say, ‘If you don’t have anything to wipe your butt with, use that Constitution of yours.’ Because that means war and that piece of paper, the Constitution, will become meaningless with no spirit except desperation, agony, and suffering,” Duterte said. – Rappler.com

Paterno Esmaquel II

Paterno R. Esmaquel II, news editor of Rappler, specializes in covering religion and foreign affairs. He obtained his MA Journalism degree from Ateneo and later finished MSc Asian Studies (Religions in Plural Societies) at RSIS, Singapore. For story ideas or feedback, email him at pat.esmaquel@rappler.com.