Carpio said the so-called “fishing deal,” as confirmed by the President in his 4th State of the Nation Address (SONA) last Monday, should be treated as an international agreement or a treaty that requires concurrence by the Senate under the 1987 Constitution.
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Carpio to Senate: Act now on fish deal
Edu Punay (The Philippine Star) - July 24, 2019 - 12:00am

MANILA, Philippines — Senior Associate Justice Antonio Carpio is calling on the Senate to review the agreement forged by President Duterte with Chinese President Xi Jinping that allows Chinese fishermen to trawl inside the country’s exclusive economic zone (EEZ).

Carpio said the so-called “fishing deal,” as confirmed by the President in his 4th State of the Nation Address (SONA) last Monday, should be treated as an international agreement or a treaty that requires concurrence by the Senate under the 1987 Constitution.

“The Senate has to act now and either ratify or repudiate that fishing agreement. If you allow China to fish, that is a treaty or international agreement and that requires concurrence of the Senate,” he stressed in an interview yesterday.

The Supreme Court (SC) magistrate said it is the duty of the Senate to review such agreement to determine if it is fair and advantageous to Filipinos.

“The Filipino people should know if that is a fair arrangement. Does it allow the Chinese to fish with their huge fishing fleet without any limitation on how many tons of fish they can get in the Reed (Recto) Bank in the West Philippine Sea while our small bancas are there fishing outside the lagoon of Scarborough (Panatag) Shoal?” Carpio pointed out.

“The decision of the President must go through the Senate... The Senate must act now,” he said.

He explained that an international agreement may allow foreign nations to fish inside another state’s EEZ but only in case of a “surplus,” which he said does not exist in the Philippines.

“We are 105 million people. There is not enough fish for us in the West Philippine Sea. Why will we allow the Chinese to fish when they can scoop all the fish and they don’t allow us to fish in their own waters? Of course there’s no fish there anymore,” he added.   

Carpio again warned that allowing the Chinese to fish in the Philippines’ EEZ is a violation of the 1987 Constitution, which reserves the exclusive right to exploit resources in the EEZ to Filipinos.  

The SC justice specifically cited Article 12, Section 2 of the Constitution, which provides that: “The State shall 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.”

In a statement, Carpio also rebutted the President’s pronouncement in his SONA that he was only giving Chinese fishermen traditional fishing rights in the Recto Bank in his verbal fishing deal with Xi.

“Traditional fishing applies only in the territorial sea and archipelagic waters. There is no traditional fishing in the EEZ. This is very clear in the arbitral award of July 12, 2016,” Carpio said, referring to the ruling of the Netherlands-based Permanent Court of Arbitration that junked China’s sweeping claim in the South China Sea, including the West Philippine Sea, under its so-called nine-dash line position.

“The Reed (Recto) Bank is part of the Philippine EEZ. There can be no traditional fishing in Reed Bank,” he said.

Recto Bank came under the spotlight last month after a Chinese vessel suspected of poaching in the area rammed and sank a Filipino fishing boat. The Chinese left hurriedly without rescuing any of the 22 Filipinos who floundered in the dark for hours before being picked up by Vietnamese fishermen.

Carpio defined traditional fishing as artisanal fishing using small, simple wooden fishing boats with outriggers.

“The Chinese steel-hulled trawlers cannot qualify for traditional fishing,” he added in his statement.

In the same statement, Carpio likewise contested the claim of the President that China is in possession of the West Philippine Sea.

The SC magistrate said China possesses only less than seven percent of the West Philippine Sea, challenging the administration’s justification for its policy of appeasement on the territorial dispute.

“China is not in possession of the West Philippine Sea. China is in possession of seven features in the Spratlys plus Scarborough Shoal. In addition, during the Duterte administration, China seized Sandy Cay from the Philippines,” Carpio stressed.

“The total area of these geologic features, including their territorial seas if any, is less than seven percent of the West Philippine Sea,” he pointed out.

Carpio also cited various naval drills conducted by the United States and allied countries in the West Philippine Sea as proof that Beijing is not in control of the area.

“Foreign naval powers such as the US, United Kingdom, France, Australia, Japan and Canada continuously sail and conduct naval drills in the South China Sea, including the West Philippine Sea, demonstrating that China is not in possession of the West Philippine Sea,” he added.

In his SONA last Monday, Duterte said he needs to perform a delicate balancing act to avoid armed conflict with China.

“China also claims the property and is in possession [of it]. ‘Yan ang problema (That’s the problem),” the President said.   

Unique to Duterte

Another critic of President Duterte’s stand on the West Philippine Sea issue said war with China is a scenario being peddled only by the Philippine leader.

“The fundamental flaw in President Duterte’s policy on the West Philippine Sea and China is his belief that ANY diplomatic/legal move to preserve our rights leads to war. Thus, his inaction & submissiveness,” former solicitor general Florin Hilbay said in a post on Twitter on Monday.

“This is a policy unique to his administration and is not shared by any other nation,” he added.

Hilbay was part of the legal team that won for the Philippines its arbitral case against China.

Meanwhile, Foreign Affairs Secretary Teodoro Locsin Jr. said that while it was a “relief” to hear from Carpio that China is in control of only seven percent of the West Philippine Sea, the Philippines remains incapable of driving the Chinese away from the land features they have seized.

“What a relief to know that. We don’t yet have the power to dislodge China from 7% nor have we assessed the advantage of doing so as opposed to the loss from trying; but we can draw a red line around the 7%. We won’t have to heed a pro-China Obama to yield,” Locsin tweeted.

Defense Secretary Delfin Lorenzana earlier said the Philippines is not “afraid” of China but admitted the country cannot stop the Chinese from fishing in the West Philippine Sea. With Helen Flores, Pia Lee-Brago

ANTONIO CARPIO XI JINPING
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