A HISTORY OF CONSTITUTIONAL CHALLENGES
According to Article XII, Section 2 of the Philippines’ 1987 Constitution, all natural resources in Philippine waters – either within the country’s 12-nautical mile territorial sea or 200-nautical mile exclusive economic zone (EEZ) – are owned by the state. The exploration and development of those resources must be under the full control or supervision of the state. The Constitution allows the state to enter into joint venture production-sharing agreements with commercial entities, but they must be 60 per cent Filipino-owned.
On two occasions, this constitutional provision has derailed efforts by the Philippines to conduct joint exploration in the South China Sea.
In 2005, the state-owned energy corporations of the Philippines, China and Vietnam agreed to conduct seismic surveys over a three-year period in the South China Sea.
However, the agreement, known as the Joint Marine Seismic Undertaking (JMSU), triggered a storm of controversy in 2008 when it was revealed that the survey covered parts of the Philippines’ EEZ, including undisputed waters. The China-leaning president at the time, Gloria Macapagal Arroyo, quickly distanced herself from the JMSU, and when it lapsed a few months later it was not renewed.
But even before it had expired, Arroyo’s political opponents had challenged the constitutionality of the JMSU. It took the Philippine Supreme Court 15 years to reach a decision, but in 2023 it ruled that the JMSU was unconstitutional because the Chinese and Vietnamese partners were wholly foreign-owned and therefore breached the 60 per cent Filipino-owned requirement.