President Rody Duterte’s fishing agreement with Xi Jinping not only is unlawful but also lopsided against us Filipinos, Supreme Court Senior Justice Antonio Carpio said. China will let us fish in our Scarborough Shoal, 150 sq. km, while it trawls our Reed Bank, 8,866 sq. km. China can even scour our whole West Philippine Sea, larger than our land territory. The deal is verbal so far. But if Duterte defends it in his State of the Nation on July 22, he would in effect officially affirm it. That will bind the Philippines. China can then demand implementation. Its fleet of 220,000 fishing vessels easily would wipe out our seafood and other resources.
Carpio alerted Filipinos to trouble in a speech Friday at the Albert del Rosario Institute. The forum “Environmental Crisis” marked three ignored years of Philippine arbitral victory against China. A UN court in 2016 had criminalized China’s grab of Scarborough, reef destruction, poaching, and blocking of Filipino oil and gas mining in Philippine seas. Duterte has shelved the ruling, and said his SONA will “educate” critics on his pact with Xi. The two leaders have not released any communique.
“I do not see anything positive coming out of that SONA if he will do that,” Carpio told newsmen, “because that means we are finally bound by that verbal agreement.” Criticizing the raw deal, the longest serving SC member said: “We can still get out of that, but if the President will mention it in the SONA, confirm it, it becomes binding on us.” Malacañang has claimed it is legal, but Foreign Sec. Teddy Locsin said it is not official since there is no signed document. Carpio noted: “It was clarified by Secretary Locsin that’s not government policy, so there is a doubt… We have to tell him (Duterte), ‘Don’t say that’.”
In his remarks Carpio urged Filipinos to “tell their senators, congressmen, and Cabinet members that this lopsided verbal agreement is extremely prejudicial to the Filipino interest.” Excerpts:
“Since the arbitral award was issued, the Administration has done nothing to enforce it. Its two reasons for glaring inaction: First, China is a friend and the Philippines should not offend a friend; Second, enforcing the award means warring with China.
“Both reasons are specious. China is the only country that has recently seized Philippine territory, Scarborough. China is also the only country that is claiming Philippine exclusive economic zone. China is even preventing the Philippines from exploiting oil and gas in its EEZ in the West Philippine Sea. Chinese fishermen, and maritime militia under the PLA Navy, are pillaging rich fishing grounds within our EEZ. How can a country that has committed unfriendly acts and continues to do so be considered a friend?
“The claim that enforcing the arbitral award means war sure to be lost is designed to intimidate Filipinos to submit to China. The Constitution renounces war as instrument of national policy. The UN Charter outlaws war in settling territorial or maritime disputes. A war of aggression renders state leaders liable under the International Criminal Court. On referral of the aggression by the UN Security Council, the ICC can assume jurisdiction even if the aggressor state is not a member.
“The Administration has committed acts, intentionally or not, that risked waiving or diminishing the award. First, Duterte early in his Presidency unilaterally declared to set it aside. Fortunately the DFA immediately clarified that the President was not abandoning the award, four hours before China welcomed and accepted the unilateral declaration. The DFA clarification before China’s acceptance prevented it from becoming legally binding on the Philippines under the international law doctrine of unilateral declarations. We were saved by the skin of our teeth from what could have been a self-inflicted fatal blow to our sovereign rights.
“Second, the President recently declared he had a verbal agreement with President Xi Jinping that Filipinos can fish in Scarborough while Chinese can fish in Reed Bank. In other news reports the Chinese fishing covers the entire WPS. This is unconstitutional; the Constitution mandates that exploitation of natural resources in Philippine EEZ, including Reed Bank, is reserved exclusively for Filipinos.
“Three levels of law recognize this exclusivity. First, customary international law: A state need not ratify UNCLOS or claim exclusivity in its statutes to be entitled to it. Under the Constitution, customary international law is incorporated as part of Philippine domestic law. Second, this 200-nm exclusivity was created in UNCLOS as part of the grand bargain among all states, including China and the Philippines, that negotiated UNCLOS. Third, the 1987 Constitution reserves the ‘use and enjoyment’ of this 200-nm maritime area ‘exclusively’ for Filipinos. ‘Exclusively’ means only Filipinos, to the exclusion of all other nationalities, including the BFF of the Administration. Thus, the verbal agreement between Presidents Duterte and Xi violates the Constitution.
“This verbal agreement is grossly and manifestly lopsided in favor of China. Scarborough Shoal has an area of only 150 sq. km, while Reed Bank is 8,866 sq. km. Chinese can fish in an area 59 times larger.
“China has the world’s largest fishing fleet, over 220,000 motorized vessels, including 2,500 huge modern steel-hulled trawlers. The Chinese fleet can rapidly deplete the fish in Reed Bank and even the entire WPS.
“In contrast, Filipino fishers operate wooden boats with outriggers, dwarfed by the Chinese trawlers. Moreover, Filipinos may fish only outside the lagoon of Scarborough, not inside where fish abound.
“The Philippines must reject this lopsided agreement. Filipinos must voice out their sentiment. If the government confirms this verbal agreement, then China can demand implementation under international law, for as long as China allows Filipinos to fish in Scarborough. It costs China nothing to allow Filipinos to fish outside the lagoon. In the first place, under the arbitral award, Filipinos have a right to fish there.
“The verbal agreement substantially diminishes the arbitral award, a self-inflicted blow to our sovereign rights in the WPS. We must convince the Administration not to confirm or ratify it.
“Not everything is doom and gloom. There are Freedom of Navigation and Over-flight Operations by the US, UK, France, Australia, Japan, India and Canada. Under UNCLOS and customary international law, there is freedom of navigation and over-flight in the high seas and EEZs of the world, including South China Sea. The FONOPS are peaceful lawful exercises of the rights of coastal states.
“When these naval powers conduct FONOPS in the WPS, they assert the EEZ there. The only adjacent coastal state in the WPS is the Philippines, and thus the resources in the WPS could only belong to the Philippines. The FONOPS powerfully refute China’s claim that there are no high seas or EEZs within its nine-dashed line.
“In effect, the FONOPS of these naval powers enforce the arbitral award. Fortunately the FONOPS have increased in frequency in the last two years. The Philippines should welcome and encourage them. Unfortunately the Administration has distanced itself from them, stating that Manila does not take sides in disputes between China and the naval powers over FONOPS in the SCS.
“I believe the 90 percent of Filipinos in the SWS survey who want the arbitral award enforced welcome the FONOPS. Only China and those who do not want the award enforced oppose these. I hope the Philippine Navy could join the FONOPS of these naval powers to refute China’s nine-dashed line claim and enforce the arbitral award.”
(Full text of Carpio’s and other ADRi presentations at: https://adrinstitute.org/2019/07/13/three-years-after-our-nations-arbitral-victory-an-environmental-crisis/)
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