Deal or no deal? DFA, Palace differ on Duterte-Xi agreement

MANILA, Philippines — Amid threats to impeach President Rodrigo Duterte, Foreign Secretary Teodoro Locsin Jr. on Wednesday clarified that it was not the administration’s policy to allow the Chinese to fish in Philippine waters.

Locsin said in a television interview that he was not aware of President Duterte’s supposed “verbal agreement” with Chinese President Xi Jinping in 2016, and insisted that such a deal could not be enforced because it was not documented.

But presidential spokesperson Salvador Panelo stood by his statement on Monday that there was a verbal agreement between President Duterte and Xi, and it was already being enforced.

“Isn’t it already being enforced? We’re not being bothered, so that means it’s being implemented,” Panelo said.

He insisted that the deal was legally binding.

President’s word prevails

What the President has said prevails, Panelo said.

“Other people’s interpretation is their own interpretation. As far as the President is concerned, he and [President Xi] agreed on a certain modus vivendi and they’re doing it,” he said.

Panelo also said it was untrue that the deal was not documented.

“That’s recorded. The interpretation that there’s no document is wrong. That has been recorded officially, so there’s a record for that,” he said.

“It was officially recorded by both sides,” Panelo said, explaining that bilateral meetings of leaders are recorded.

They agreed to agree

“Of course, it’s legally binding,” he said. There are as many opinions as there are lawyers, he added.

Cabinet Secretary Karlo Nograles had a different take on the supposed deal: it was an “agreement to come to an agreement.”

Without a written document for enforcement of the deal, the “status quo” remains, meaning the Philippines will enforce its laws in its exclusive economic zone (EEZ) in the South China Sea, Nograles told reporters on Wednesday.

The deal is to enter into bilateral talks, to communicate and to clarify things, to cooperate and to coordinate, and to become “good neighbors,” he said.

The finer details of the agreement are for the Department of Foreign Affairs (DFA) to work out during the talks, he added.

Nograles said there were “seemingly conflicting” statements from administration officials about the agreement because the details of the deal were not yet final, as these were still being worked out.

“But whoever is talking or speaking, I think the bottom line here is we want to continue the communications with China,” he said.

The policy

In the meantime, Nograles said, the administration’s policy is for the Philippines to exercise its sovereign rights in the West Philippine Sea, the waters within the country’s 370-kilometer EEZ in the South China Sea.

President Duterte has drawn flak for saying that he cannot bar the Chinese from fishing in Philippine waters because he and Xi have agreed to that in exchange for Filipinos being allowed to fish again at Panatag Shoal.

China seized Panatag Shoal — internationally known as Scarborough Shoal — in 2012 and kept blockading it even after the Permanent Court for Arbitration in The Hague invalidated its claim over nearly the entire South China Sea in a ruling on a Philippine challenge in 2016.

“We cannot drive them away because they have insisted it’s theirs,” the President said as he played down the sinking of a Philippine fishing boat in the West Philippine Sea on June 9 after being hit by a Chinese trawler as just a “little maritime accident.”

Panelo’s explanation about the verbal deal for Chinese fishing in Philippine waters gave rise to warnings from lawmakers that the President could be impeached for violating the provision in the Constitution that requires the state to protect Philippine waters and reserves the use of resources in the country’s seas for Filipinos.

In his television interview on Wednesday, Locsin denied that the President’s statement is the official policy when it comes to fishing rights in the West Philippine Sea.

Verbal deal unenforceable

“The verbal agreement cannot be enforced. It cannot be enforced on us because it’s verbal. Exactly as Senator (Franklin) Drilon said, you need a document to prove an agreement. That’s the way it is,” Locsin said.

He said the President may have been misled to agree to allow China to fish in Philippine waters because he was made to believe by his legal advisers that Filipinos could share their “surplus catch” with foreigners.

“I didnt even know there’s a verbal agreement. He may have said it because he was given the impression there’s a level of beyond allowable catch that if there’s a surplus you can share it with foreign fishermen,” Locsin said.

Asked if the country was implementing the supposed verbal agreement, Locsin replied: “No, we’re not.”

He said the government was aware that the Constitution and the United Nations Convention on the Law of the Sea (Unclos) provides that only Filipinos can use the natural resources within Philippine territorial waters and its exclusive economic zone.

How to enforce the exclusive fishing rights is another matter, Locsin added.

“That’s the law. That’s what is in our Constitution. That’s what’s in Unclos, which we subscribe to but the United States refuses to subscribe to it and yet insists that we should hang on to it,” he said.

“But then the question is, what do we do about it? There’s a difference between statement of law and a statement of fact,” Locsin added.

‘Pointless’ issue

He said President Duterte’s critics were raising a “pointless” issue against him.

“The question is, is it policy? It’s not policy. He may have been led to believe we had surplus and he said sure, it’s fine,” Locsin said.

“But to make such a point about it because you lost the last election [and] try to make a capital case out of something. What have we done? Have we surrendered something? No. We enforced everything that is our right under the Unclos. We protest its violation,” he said.

Locsin said it was up to the President to decide whether the country would go “further” in asserting its territory and rights against China.

“That is a judgment call made by the President. If the President feels it may create a conflict that may hurt the country, that’s his call,” he said.