Duterte-Xi fishing deal in WPS defended

MANILA, Philippines — The 2016 verbal agreement between President Duterte and Chinese President Xi Jinping allowing Chinese vessels to fish in the West Philippine Sea is recognized under international law and must be honored, Sen. Francis Tolentino said yesterday.

In a privilege speech entitled “Protect our seas, protect the Filipino fishermen,” Tolentino stressed Duterte has the power to enter into legally binding international verbal agreements but the Senate must also pass legislation to protect Filipino fishermen and uphold the country’s internationally accorded rights over the West Philippine Sea.

He said the verbal pact, which Duterte said was reached during a bilateral meeting with Xi in 2016, was simply an executive agreement pursuant to existing international laws, including the United Nations Convention on the Law of the Sea (UNCLOS).

“As the chief architect of the nation’s foreign policy, the President can enter into executive agreements with other nations for the execution of implementation of the laws crafted by Congress as well as treaties entered into by the State. These executive agreements do not require Senate concurrence,” Tolentino said.

He said under international law, states must honor the commitments it takes upon itself under international agreements and treaties regardless of the form used for its execution, which may be written, oral or even implied.

There is no restriction on either the form or substance of international agreements, he said.

The senator cited several international precedents, including one 1991 case on a verbal agreement between the prime ministers of Denmark and Finland concerning right of free passage over a body of water, which was upheld by the International Court of Justice.

He said informal international agreements are often done as they allow governments to act quickly and quietly.

“When security issues must be resolved quickly or quietly to avoid serious conflict, then less formal instruments will be chosen,” Tolentino said.

He said the Supreme Court in its 2016 ruling upholding Malacañang’s position that the Phl-US Enhanced Defense Cooperation Agreement was an executive agreement.

Tolentino pushed for a formal cooperation framework with China and other claimant countries to the West Philippine Sea that, if drafted right, could be beneficial for the economy and protect the country’s marine resources.

He urged the Senate to pass legislation that would protect resources and people in relation to the dispute in the West Philippine Sea, like one law in the US which declared that its Constitution, civil and political laws, as well as criminal and federal regulatory rules extended and were applicable to their subsoil, seabed and all artificial islands and attached installations.

He also pushed for the adoption of Senate Resolution 12 in Support of the Prohibition of Fisheries Subsidies in the World Trade Organization to minimize the disadvantage of Filipino fishermen against foreign entities.

Tolentino also pressed for the passage of Senate Bill 209 or the proposed Good Samaritan at Sea Law, which seeks to implement the provisions of the International Convention for the Safety of Life at Sea.

Senate Minority Leader Franklin Drilon, however, questioned Tolentino’s contention on the verbal agreement as up to now, there are no clear details coming from Malacañang about it.

“Exactly what is the verbal agreement? Aside from media reports, I don’t think we have any record of it,” Drilon said.

“How can we say it is valid, if we don’t have a record of it, when we do not even know the parameters of the agreement? What are we being bound to? What is the basis of our judgment that it has basis in international law?” he asked Tolentino.

Drilon said given Tolentino’s access to Duterte, he may ask details of the agreement.