China claims that part of the Western Philippine Sea (WPS) bounded by the nine-dash line is a traditional fishing ground for Chinese fishermen. This would make about 80 percent of the Philippine Exclusive Economic Zone (EEZ) in the WPS a traditional fishing ground for Chinese fishermen. This Chinese request was, however, rejected in the award of the arbitral tribunal in The Hague. The arbitral tribunal expressly ruled that in the EEZ all historical rights, including traditional fishing rights, were “extinguished” upon the entry into force in 1994 of the United Nations Convention on the Law of the Sea or Unclosed. China made the same claim for traditional fishing rights in Indonesia’s and Vietnam’s EEZs, and both countries strongly rejected the Chinese claim on the same grounds that there are no traditional fishing rights. in their EEZs under Unclosed.

The traditional fishing rights, under Unclos, can only exist in the “archipelagic waters” which are the waters located beyond the archipelagic baselines. The waters of the Philippine EEZ in the WPS are not archipelagic waters. Under customary international law, traditional fishing rights may also exist in the territorial sea. This is why the prize said that the territorial waters of Scarborough Shoal are the traditional fishing ground for Chinese, Vietnamese and Filipino fishermen. In the EEZ, however, there are no fishing rights for other states without the express consent of the adjacent coastal state.

There is actually a more sinister reason why Chinese fishing vessels are roaming the WPS en masse. In July 2019, following the ramming in Reed Bank of the Philippine fishing vessel F / B Gem-Ver by a Chinese steel-hull fishing vessel, President Duterte justified the presence at Reed Bank of the fishing vessel Chinese incriminated. President Duterte revealed to the nation for the first time that he has a “verbal agreement” with Chinese President Xi Jinping allowing Chinese fishing vessels to fish in the Philippines’ EEZ in the WPS. “As far as I’m concerned, I am the owner and I just give the fishing rights. Galit sila kung bakit ko daw pinapaisda, ”Mr. Duterte told Pastor Apollo Quiboloy on his TV show. Presidential legal adviser Salvador Panelo said the president’s verbal agreement with President Xi was “legally binding.”

Senator Leila de Lima tabled a resolution calling for a Senate investigation into the “verbal agreement” between President Duterte and President Xi. The exclusive right of Filipinos to fish in their EEZ is a sovereign right that the President cannot waive or cede unless it is permitted in a treaty ratified by the Senate. The public also has the right to know how many Chinese fishing vessels are allowed to fish in the WPS, given that China has the world’s largest fishing fleet with at least 200,000 vessels. The public also has the right to know which months of the year the Chinese can fish and what is the allowed fish catch in tonnage that they can catch in the Philippine EEZ. The public also needs to know how long the fishing agreement will last. Unfortunately, the Senate never held a hearing. By neglecting to investigate the President’s “verbal agreement”, the Senate allowed the President to continue with an unconstitutional act to the detriment of the Senate’s constitutional power to ratify treaties.

The strong diplomatic protests filed by Foreign Secretary Teodoro Locsin Jr., as well as the strong warnings issued by Defense Secretary Delfin Lorenzana, are not taken seriously by the Chinese because they know they have an agreement of fishing with President Duterte. The president must be frank about the terms of his “verbal agreement” with the Chinese. The Chinese, using huge steel-hulled trawlers, catch fish in the Philippine EEZ at the expense of Filipino fishermen who only use wooden fishing boats with outriggers. Filipino fishermen complain about the drastic drop in fish catches in the WPS. The Philippines now imports galunggong from China, the same fish Chinese fishermen collect in the WPS.

After President Duterte leaves on June 30, 2022, the new administration may decide to file an arbitration case to prevent China from fishing in the WPS. The Chinese can invoke their “verbal agreement” with President Duterte and present it, along with Panelo, as their star witnesses to prove the existence of the “verbal agreement”.

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