China claims that part of the West Philippine Sea (WPS) enclosed by the nine-dash line is a traditional fishing ground of Chinese fishermen. That would make about 80 percent of the Philippine exclusive economic zone (EEZ) in the WPS a traditional fishing ground of Chinese fishermen. This Chinese claim, however, has been rejected in the Award of the arbitral tribunal at The Hague. The arbitral tribunal expressly ruled that in the EEZ all historic rights, which include traditional fishing rights, have been “extinguished” upon the effectivity in 1994 of the United Nations Convention on the Law of the Sea or Unclos. China has made the same traditional fishing rights claim in the EEZs of Indonesia and Vietnam, and both countries have forcefully rejected the Chinese claim on the same ground that there are no traditional fishing rights in their EEZs under Unclos.
Traditional fishing rights, under Unclos, can exist only in “archipelagic waters” which are waters landward of 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 Award declared that the territorial waters of Scarborough Shoal are the traditional fishing ground of Chinese, Vietnamese, and Filipino fishermen. In the EEZ, however, there are no fishing rights by other states without the express consent of the adjacent coastal state.
There is actually a more sinister reason why Chinese fishing vessels roam en masse in the WPS. In July 2019, following the ramming in Reed Bank of the Filipino fishing vessel F/B Gem-Ver by a steel-hulled Chinese fishing vessel, President Duterte gave a justification for the presence in Reed Bank of the offending Chinese fishing vessel. President Duterte disclosed to the nation for the first time that he had a “verbal agreement” with Chinese President Xi Jinping allowing Chinese fishing vessels to fish in Philippine EEZ in the WPS. “As far as I’m concerned, I’m the owner, and I’m just giving the fishing rights. Galit sila kung bakit ko daw pinapaisda,” Mr. Duterte told Pastor Apollo Quiboloy in his TV show. Presidential legal counsel Salvador Panelo declared that the President’s verbal agreement with President Xi was “legally binding.”
Sen. Leila de Lima filed a resolution seeking a Senate investigation on the “verbal agreement” between President Duterte and President Xi. The exclusive right of Filipinos to fish in their EEZ is a sovereign right which the President cannot waive or give away unless allowed 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, considering that China has the largest fishing fleet in the world numbering at least 200,000 vessels. The public also has the right to know what months of the year the Chinese can fish, and what is the allowable fish catch in tonnage they can take from Philippine EEZ. The public must also know how long the fishing agreement will last. Unfortunately, the Senate never conducted any hearing. By neglecting to investigate the President’s “verbal agreement,” the Senate allowed the President to continue with an unconstitutional act at the expense 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 being taken seriously by the Chinese because they know they have a fishing agreement with President Duterte. The President must come clean on the terms of his “verbal agreement” with the Chinese. The Chinese, using huge steel-hulled trawlers, are taking fish from Philippine EEZ at the expense of Filipino fishermen who only use wooden fishing boats with outriggers. The Filipino fishermen are complaining of drastically declining fish catch in the WPS. The Philippines is now importing galunggong from China, the same fish that Chinese fishermen scoop in the WPS.
After President Duterte leaves office on June 30, 2022, the new administration may decide to file an arbitration case to stop China from fishing in the WPS. The Chinese may invoke their “verbal agreement” with President Duterte, and present him, together with Panelo, as their star witnesses to prove the existence of the “verbal agreement.”