Fish in our time: Duterte and Xi's 'undocumented' deal on sea row

MANILA, Philippines — Halfway into his term, President Rodrigo Duterte announced that he has entered into an agreement with Chinese President Xi Jinping allowing China to trawl in Philippine waters.

While there is no pronouncement from the Chinese side about the supposed deal, Duterte claimed that he and Xi agreed that Beijing would no longer block Filipino fishermen from accessing Scarborough or Panatag Shoal, a traditional fishing ground off Zambales.

In turn, the Philippines will allow China to fish in Recto or Reed Bank, which is within the country's exclusive economic zone.

How Duterte, Xi supposedly came up with a fishing deal

Speaking at the 122nd founding anniversary celebration of the Presidential Security Group on June 26, Duterte recalled how he brought up the woes of Filipino fishermen to his Chinese counterpart.

"Ngayon, noong ako na ang pumunta sabi niya... Eh dinala ko na lahat problema ko. (When I went there he (Xi) said... I brought all my problems.) 'So what about my fishermen? They'll go hungry. Can you not just reconsider for reasons of humanitarian?'" Duterte said.

According to Duterte, Interior Secretary Eduardo Año and Defense Secretary Delfin Lorenzana were present at the bilateral meeting with China. After this meeting, Filipino fishermen were again allowed access to Scarborough Shoal, the president said.

"They asked, 'Will you allow the Chinese to fish?' I said, 'Of course,'" Duterte said, referring to opposition senators questioning his policy in the West Philippine Sea.

"'Yan ang pinag-usapan namin noon, kaya tayo nag-uusap eh. And that was we were allowed to fish again. It was a mutual agreement. Sige bigayan tayo. Fish ka doon, fish ako dito," he said.

(That's what we talked about then, that is why we are talking. And that was when we were allowed to fish again. It was a mutual agreement. Let us give and take. You can fish there, I can fish here.)

Duterte disclosed the existence of the supposed deal after a Filipino fishing boat was sank by a Chinese vessel near Recto Bank on June 9. Both the Philippines and China are looking into the incident that left 22 Filipino fishermen "to the mercy of the elements" until they were rescued by a Vietnamese fishing vessel, which was also in the area.

'Mutual consent holds verbal agreement binding'

Duterte earlier declared that the Chinese would continue to fish in Philippine exclusive economic zone due to the friendship between the two countries.

Malacañang admitted that the supposed fishing deal between Duterte and Xi was undocumented but insisted that it is legally binding.

Asked if there was any document signed between the two leaders, Panelo said there was none but stressed that heads of state have a word of honor.

"Kahit sa batas, kahit na verbal eh valid and binding iyon basta mayroong consent ang dalawang partido. Kaya nga agreement," presidential spokesperson Salvador Panelo said in a press briefing July 1.

(Even under the law, even if the agreement is verbal it is valid and binding as long as there is consent between both parties. That is why it is an agreement.)

'No consent given'

In the same Malacañang press briefing, Panelo contradicted himself, insisting that Duterte did not necessarily grant China consent to fish in Philippine waters.

"Hindi naman consent, 'di ba ang sinasabi ni presidente kumbaga 'wag na muna nating gambalain iyong pagpi-fish ng bawat isa sa atin. Iyon lang naman, parang iyon ang usapan nila," Panelo said.

(It was not consent, what the president said was don't interfere with each other's fishing activities there. That was what they talked about.)

Despite the lack of proper documentation in the supposed fishing deal, Panelo claimed that the verbal agreement between Duterte and Xi was legally binding.

According to Panelo, the legal basis of this agreement was the president's constitutional mandate to serve and to protect the Filipino people.

Cayetano's tentative fishing deal

Panelo also mentioned that this agreement has been sealed while Rep. Alan Peter Cayetano (Taguig) was still secretary of the Department of Foreign Affairs.

In June 2018, Cayetano disclosed in a television interview that the Philippines and China were working towards a tentative fishing agreement in the West Philippine Sea.

"The (Chinese) Ministry of Foreign Affairs and the DFA is working out the details and then now we have a formal mechanism, that bilateral consultative mechanism which has 22 different subgroups, which are fisheries, [Armed Forces of the Philippines], Coast Guard, all of it," Cayetano told CNN Philippines' "The Source."

This supposed agreement was a consensus between Duterte and Xi during their previous meeting. At the time, nothing about the deal had been set down on paper.

A year after Cayetano said there was a tentative fishing deal between Manila and Beijing, his successor Foreign Affairs Secretary Teodoro Locsin Jr. said it was time to "move on" from the fishing issue.

'No fishing' for Locsin

"Okay, no fishing then. Period. Now can we move on? The fish are bored with the subject," Locsin tweeted in response to a social media user who said it was unconstitutional for the government to allow the Chinese to fish in Philippine exclusive economic zone (EEZ).

In a separate tweet, Locsin said "traditional small-time fishing" was allowed in each other's EEZ.

"Fishing in each other's EEZ is allowed for traditional small time fishing but define traditional small time fishing. Even China has complained about massive fishing fleets," Locsin tweeted June 27.

UNCLOS and the rights of coastal states

Under the Article 58(3), Part V of United Nations Convention on the Law of the Sea (UNCLOS), other states shall have due regard for the rights of the coastal state, in this case the Philippines, in the latter's EEZ.

The UNCLOS also provides that coastal states "shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention."

While the Duterte administration stands firm on its position that China can continue to fish within Philippine EEZ  because of the verbal agreement, it is clear that Manila has sovereign rights over the area as provided by the UNCLOS.

This means that in its EEZ, the Philippines has "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds."

Meanwhile, under Section 2, Article XII of the 1987 Constitution, the state is obligated to "protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.