The agreement that the Philippines and China signed last week is tantamount to a “waiver” nullifying the international arbitral court’s ruling that affirmed the country’s sovereignty in the West Philippine Sea, former Solicitor General Florin Hilbay said on Tuesday.

According to Hilbay, the memorandum of understanding (MOU) entered into by both countries only revived China’s claim that it owned everything within its so-called nine-dash line in the heavily disputed South China Sea, including waters within the Philippines’ 370-kilometer exclusive economic zone known as West Philippine Sea.

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“Here you have a [foreign] government still claiming the waters and the continental shelf even after we have already won, and we agreed to that. That’s a waiver [of our victory],” Hilbay told reporters.

‘Formal waiver’

“Any reasonable international lawyer or expert [in maritime laws] might conclude that the document itself is a formal waiver by the Philippine government of the [arbitral court’s] decision,” he said.

Under the Memorandum of Understanding on Cooperation on Oil and Gas Development, the Philippines and China will form a joint steering committee that will negotiate an agreement for joint exploration for oil and gas in the West Philippine Sea.

According to the agreement, the two countries will try to reach a joint exploration deal within 12 months, and that the accord will be without prejudice to their legal positions.

Gov’t-to-gov’t deal

Contrary to acting Chief Justice Antonio Carpio’s position, Hilbay said any joint gas and oil exploration based on the agreement will be considered a government-to-government arrangement even if it would be done through “service contractors.”

Hilbay led the Philippine legal team that argued the Philippines’ challenge to China’s claim to nearly all of the South China Sea in the Permanent Court of Arbitration in The Hague.

The court, in a ruling handed down in July 2016, invalidated China’s sweeping claim and upheld the Philippines’ sovereign right to fish and explore resources in the West Philippine Sea.

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Carpio, who had criticized President Duterte’s decision to put aside the arbitral decision in exchange for loans and investments from China, was also part of the legal team.

“[The arbitral ruling] means that China’s claim is invalid and bogus. This [agreement] revives the validity of that claim of China,” Hilbay said.

Surprised at Carpio’s stand

“This is a formal legal document that binds us with another country. Any legal document that … says [the agreement] has ‘no prejudice to the respective legal positions of both governments’ is a dangerous sign of waiver,” he added.

Hilbay said he was surprised at Carpio’s stand on the agreement.

Carpio said on Sunday that the agreement was consistent with the 1987 Constitution and that it did not undermine the arbitral ruling.

“I’m hoping that he will take a second hard look at the document. Maybe because it’s an MOU, or an agreement to agree, he thinks it’s an innocuous document,” he said. “I disagree. I think it’s a formal legal document that binds us.”

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