A right to resources, but not to territory

Carlos Chan, the Chinese Filipino patriarch of Oishi snack foods, is indefatigable even at 77. Having built 30 factories in East and South Asia, he now crosses over the Indian Ocean to start up in South Africa. The branch in Johannesburg test-runs this month, to go full blast by May. The market aim is to cover not only the vast nation of 55 million, but its neighbors as well, part of the continent's free-trade zone. Mr. Chan’s second son Archie and fourth Oszen are to oversee the expansion.

Mr. Chan calls the inroad to Africa his “latest adventure.” His words bring to mind historic events, which he is fond of retracing. Two millenniums ago Filipinos’ Malay ancestors crossed the same treacherous ocean, on wooden boats, bringing rice paddy agriculture, carabaos, and Southeast Asian bananas to Madagascar. Six times in the early 1400s Chinese explorer Zheng He voyaged to the continent for trade and cultural exchange. The lessons are not lost on Mr. Chan who, beyond personal business, treks to other South African cities, like Pretoria and Cape Town, to plan visits by Filipino and Chinese artists and scientists.

Oishi is a household term in China, where it has 17 production and printing plants, under Mr. Chan’s third son Larry. Mr. Chan had pioneered in Shanghai with eldest Carlson and Archie in 1993. Under Archie and Oszen, Oishi also is made in Indonesia, Thailand, Vietnam, Cambodia, Myanmar, India, and the Philippines. The mother Liwayway Marketing Corp. is manned by Mr. Chan’s wife Priscilla for treasury, daughters Rinby and Shera for product research and development and Carlson for new business.

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Let’s draft a Benham Rise protection strategy against foreign incursion, Sen. Ralph Recto urges. Options should include military, diplomacy, and economy. The vast undersea plateau east of Luzon, within the Philippines’ 200-mile exclusive economic zone, holds food, energy, and mineral resources. Those need securing for Filipino use. Other countries might poach the wealth or lay unfounded claims, like in our western seas.

Basic in any plan is the legality. Here Supreme Court Senior Justice Antonio Carpio’s expertise helps. Says he: “Under international law, Benham Rise is not part of Philippine national territory because we do not have sovereignty over it. However, we have sovereign rights (less than sovereignty) exclusively to explore and exploit the oil, gas, and other minerals in Benham Rise – which the UN Commission on the Limits of the Continental Shelf has confirmed to be part of our Extended Continental Shelf (ECS).”

Three Chinese ships were spotted in late 2016 crisscrossing the 13 million-sq-km sea feature the combined size of Luzon, Leyte, and Samar. From satellite photos Defense Sec. Delfin Lorenzana found “very concerning” the mooring of one service vessel for over a month. China was searching the seafloor for Pacific Ocean submarine parking, he surmised. The craft left only to have an injured sailor hospitalized in Surigao City on Mindanao’s Pacific coast. Lorenzana ordered the Navy to drive away future intruders.

Last weekend the Dept. of Foreign Affairs demanded explanations from its Chinese counterpart in Beijing and the embassy in Manila. President Rodrigo Duterte then revealed that China had informed him beforehand of the ships' passage, which was but proper. He said the foreign presence was not an incursion. “Benham Rise is our territory,” he added, “but we have the right to ask them their purpose.”

Precision in language is crucial. Carpio clarifies: “Other states, like China, have the right to conduct in Benham Rise: (1) fishery research because the fish in the ECS belong to mankind; (2) surveys on water salinity and water currents because the water column in the ECS belongs to mankind; and (3) depth soundings for navigational purposes because there is freedom of navigation in the ECS. If the Chinese vessels were looking for submarine passages and parking spaces, that would be part of freedom of navigation, and the Philippines has no reason to complain. However, if the Chinese vessels were conducting seismic surveys to look for oil, gas, and minerals, then they would be in violation of UNCLOS, which reserves the resources in Benham Rise to the Philippines as part of ECS.”

International law professor Julian Ku of New York’s Hofstra University supports Carpio. “UNCLOS Art. 76(8) makes ‘final and binding’ the recommendations (of the Commission on the Limits of the Continental Shelf),” he amplifies. “In Paragraph 1, Art. 77, a coastal state has sovereign rights over the continental shelf ... The rights are exclusive: if the state does not explore the continental shelf or exploit its natural resources, no one may undertake those activities without the express consent of the state.”

China’s embassy in Manila has denied the ships’ presence. In Beijing, its foreign ministry spokesman Geng Shuang disputed Philippine officials' territorial claims, and insisted on his navy’s right of innocent passage. He may be correct, but there's a question of credibility. He invokes the UNCLOS only for convenience on the issue of Benham Rise. But his authoritarian superiors ignore the same international pact in the West Philippine (South China) Sea. There, against a UN court ruling in July, China baselessly claims ownership of all the waters, against the EEZs of the Philippines, Vietnam, Malaysia, Brunei, and Indonesia. It has even built artificial islands, airstrips, and anti-missile weapons on seven reefs – a threat to freedom of navigation.

Awaiting congressional enactment is a Benham Rise Development Authority. The bill of Sen. Juan Edgardo Angara would have the agency lead the scientific research and exploration of the plateau, then regulate exploitation by Filipinos.

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