EXPLORING EXPLORATION FITTING THE JOINT MARINE SEISMIC UNDERTAKING AND OIL EXPLORATION LAWS INTO THE MOLD OF SECTION 2, ARTICLE XII OF THE 1987 CONSTITUTION

Ma. Christina E. Tecson (JD'10)

ABSTRACT

Jura Regalia is a concept adhered to by the 1935, 1973, and 1987 Constitutions of the Philippines. This doctrine not only dictates that all natural resources are owned by the State, but also recognizes the importance of the same for national economic development, security, and national defense. Thus, Article XII of the 1987 Constitution espouses the policy of "full control and supervision by the State" in the exploration, development, and utilization (EDU) of the country's natural resources, and provides for four methods through which private citizens can participate in such activities — joint venture, co-production, profit sharing, and financial and technical assistance agreement (FTAA). The legal framework for the EDU of the natural resources of the Philippines is made up of two laws: The Philippine Mining Act of 1995 (R.A. No. 7942), governing the EDU of mineral resources and enacted under the 1987 Constitution, and The Oil Exploration and Development Act of 1972 (P.D. No. 87), governing the EDU of petroleum resources, promulgated under the 1973 Constitution. While the validity of R.A. No. 7942 has been upheld by the Supreme Court in the landmark case of La Bugal B 'laan Tribal Association v. Ramos, the legitimacy of P.D. No. 87 has not yet been tested under the current organic document. This is crucial because P.D. No. 87 espouses the old regime of service contracts of the 1970's - a regime which lacks the safeguards installed by the 1987 Constitution as interpreted by the Supreme Court in the La Bugal B 'Iaan case. Despite the comprehensive guidelines established for the EDU of the Philippines' natural resources, however, one contract seems to have escaped the reaches of the law. The Joint Marine Seismic Undertaking (JMSU) between the national oil companies of China, the Philippines, and Vietnam involving the Spratlys Area stirred up a political storm with its unfamiliar terms, unconventional parties, and controversial agreement area. It seems to be a contract that has fallen between the cracks, an international commercial agreement that just does not fit perfectly in the mold of the current legal and jurisprudential framework for the EDU of natural resources, making its true nature cloudy and mysterious.