Carpio: Duterte-Xi fishing deal can be questioned before SC

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Metro Manila (CNN Philippines, July 25) — The constitutionality of the supposed fishing deal between President Rodrigo Duterte and Chinese President Xi Jinping can be assailed before the Supreme Court (SC), Senior Associate Justice Antonio Carpio said Thursday.

“Anyone [can file the petition] because it involves a constitutional issue,” Carpio told CNN Philippines.

He said Duterte’s speech during his fourth State of the Nation Address (SONA), where he defended the fishing deal, is enough to be a cause of action before the high court.

READ: Chinese media hails Duterte's South China Sea policy

He said this can be an alternative way to look into the deal, which Duterte said he struck with Xi to allow Chinese fishermen into Recto Bank, which is within the Philippines’ 200-nautical mile exclusive economic zone (EEZ), in exchange for Filipino fishermen getting back in Scarborough Shoal.

Carpio, along with other legal experts, said Duterte violated the Constitution in letting China benefit from the Philippines’ EEZ. Section 7 of Article 12 says, "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."

READ: Duterte: If you try to impeach me, I will jail you

But Duterte said Monday during his SONA that he can enter into a fishing agreement with other states and that parts of the West Philippine Sea are considered traditional fishing grounds.

However, Carpio said the 2016 arbitral award from the tribunal created under the United Nations Convention on the Law of the Sea (UNCLOS) and backed by the Hague-based Permanent Court of Arbitration only upheld traditional fishing rights in the territorial sea and archipelagic waters.

The ruling, he added, does not uphold traditional fishing rights within the EEZ, and actually extinguishes them.

The award states that the UNCLOS, which the Philippines and China are parties to, extinguished traditional fishing rights. However, it adds that countries can consider giving nationals of other countries who have habitually fished in their EEZ access to any surplus in the allowable catch to minimize their “economic dislocation.”

However, Carpio said this is still not applicable in the Philippines’ case as the Constitution explicitly states that the EEZ is exclusively for Filipinos.

No need for document

Carpio has also called on the Senate to act on the deal between Duterte and Xi. But Senate President Vicente “Tito” Sotto has raised doubts on this as they do not have a copy of the deal.

“How can we act on something we don't have? We do not practice motu propio ratification or repudiation on something not submitted to us,” Sotto said Wednesday in a text message.

But Carpio said the upper chamber does not need a written document for it to act on an international agreement.

“The Constitution says that no treaty or international agreement shall be valid and effective without the concurrence of two-thirds of the Senate. So it does not say, ‘No written treaty or international agreement,’ it’s ‘No treaty or international agreement,’” he told CNN Philippines’ The Source.

The 1969 Vienna Convention on the Law of Treaties excludes oral agreements from its definition of treaties, but states that these are still legally binding.

“It doesn’t mean because it is verbal, the Senate should not act on it. The Senate can always summon the [Foreign Affairs] Secretary and ask him what is this verbal agreement about. Does this violate the Constitution? Is it fair, is it lopsided against the Philippines, they can investigate that,” Carpio said.

He added that the Senate is abandoning its duty if it does not act on the supposed fishing deal.

Cabinet secretaries earlier issued conflicting statements on the enforceability of the fishing deal, with Presidential Spokesperson Salvador Panelo saying it can be enforced, only for this to be countered by Cabinet Secretary Karlo Nograles and Foreign Affairs Secretary Teodoro “Teddyboy” Locsin Jr.

Panelo then said that Nograles and Locsin were incorrect in their interpretation of the fishing deal.