Privilege Speech of Senator Francis N. Tolentino
Delivered on July 29, 2019

PROTECT OUR SEAS, PROTECT OUR FISHERMEN

I rise today humbled to offer the first privilege speech for the 18th Congress.

I rise with a deep sense of respect for this institution and to the incumbent Senate leadership.

I rise on behalf of our Filipino fishermen who are struggling to make a living.

I rise to speak on matters of national significance concerning the West Philippine Sea.

This humble Representation will be establishing three important points this afternoon.

First, that President Rodrigo Duterte has the power to enter into legally binding international verbal agreements.

Second, that there is a need to protect the rights and safety of Filipino fishermen and secure for them the benefits of peaceful utilization of available marine resources.

And last, that it is crucial for this august Body to craft legislation to uphold constitutionally and internationally accorded rights over the waters of the country and at the same time ensure that international commitments are honored and complied with.

I. Oral Agreements

Proceeding to the first point, President Duterte can validly enter into legally binding international verbal agreements with other states for and on behalf of the Philippines.

Under international law, states must honor the commitments they take upon themselves under international agreements and treaties regardless of the form used for its execution which may be written, oral, or even implied. There is no restriction on either the form or substance of inter-national agreements. The domain of permissible international agreements is simply the domain of possible agreements.

In the case of Passage Through The Great Belt (Finland v. Denmark), a 1991 case filed in the International Court of Justice concerning Denmark's construction of a bridge in the Great Belt, a strait between the Danish islands of Zealand and Funen, to which Finland argued to violate its right of free passage, the ICJ dismissed the case on account of an oral agreement between the prime ministers of Denmark and Finland resolving the conflict on their own. The negotiation and eventual oral agreement between the two leaders transpired over a mere telephone call.

The International Court of Justice honored this agreement and dismissed their case.

In a case decided in 1993 involving the Legal Status of Eastern Greenland (Den. v. Nor.) filed by Denmark against Norway, the International Court of Justice considered as binding the statements made on July 22, 1919, by Norway's Foreign Minister Mr. Ihlen, in reply to Denmark's official query.

Ihlen stated that Norway would respect Danish sovereignty over Greenland.

The Court declared this statement as binding on the part of Norway considering that a reply of this nature given by the Minister of Foreign Affairs on behalf of his government is in response to a request by the diplomatic representative of a foreign state.

Informal agreements such as oral agree-ments are valid under international law because under certain situations, they are the most effective tools to reaching an accord between states. Informal international agreements are used to meet particular needs. They are chosen because they allow governments to act quickly and quietly. States sometimes frame their agree-ments in informal terms to permit their frequent adjustment. Example is the quota arrangements of the Organization of Petroleum Exporting Countries or OPEC. The informal agreements permit rapid shifts in response to rapidly changing market conditions relative to the supply of crude oil.

Lastly, when security issues must be resolved quickly or quietly to avoid serious conflict, then less formal instruments will be chosen. If the terms are especially sensitive, perhaps because they would humiliate one party or convey unacceptable precedents, then the agreement itself may be hidden from view. For example, the deal to remove missiles from Cuba during the Cuban missile crisis, the most dangerous crisis of the nuclear era, was crafted through an exchange of letters, supplemented by oral promises initiated by then President John F. Kennedy, through his emissary, then Attorney General Robert Kennedy, in dealing with Prime Minister Khrushchev. The Cuban missile crisis ended without firing a single shot.

Hence, oral obligations are binding, as long as it is clear from the language employed that there is an intention to be bound.

News agencies have reported through several articles that President Duterte had entered into an oral agreement with China during his Excellency's bilateral conference meeting with President Xi Jin Ping in 2016. If this indeed was the case, the President was well within his powers to do so.

As the chief architect of the nation's foreign policy, the President can enter into executive agreements with other nations for the execution and implementation of the laws crafted by Congress as well as treaties entered into by the state. These executive agreements do not require Senate concurrence.

As explained in the landmark case of Saguisag vs. Ochoa decided on January 12, 2016, the case that ruled that the Enhanced Defense Cooperation Agreement with the United States is a mere executive agreement, if an international agreement is traceable to an express or implied authorization under the Constitution, statutes, or if they involve the implementation of existing policies, laws, or agreements, or if they are concluded to adjust details of a treaty, pursuant to an act of the Legislature, or if it is simply in the exercise of the President's independent powers under the Constitution, then the agreement is a mere executive agreement that does not require the Senate's concurrence.

In the previously mentioned case, Justice Carpio wrote in his separate concurring opinion that the implementation of the Mutual Defense Treaty is a purely executive function since the Senate has already ratified it. And as "chief architect" of the country's relations with foreign countries, the President is constitutionally vested with ample discretion in the implementation of the Mutual Defense Treaty.

In other words, this humble Representation submits that there is no need for this honorable Body to concur to the alleged oral agreement between President Duterte and President Xi Jinping because it is merely in implementation of the provisions of UNCLOS. Secondly, it is merely an implementation of other treaties, such as the Straddling Fish Stocks and Highly Migratory Stocks Agreement and the Food and Agricultural Organization Code of Conduct of Responsible Fisheries, among others, which shall be expounded later on.

Mutual respect for the three equal branches of government must be maintained by avoiding interfering or deciding on matters involving political questions which are those that fall within the exclusive authority and competence of the President.

The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can act swiftly. It should be entrusted to some-one who possesses the most comprehensive and the most confidential information about foreign countries and who has also unlimited access to ultra-sensitive military intelligence data. In our case, the President of the Republic of the Philippines.

II. International Agreements

I rise on behalf of our Filipino fishermen who are struggling to make a living in the West Philippine Sea.

Proceeding to my second point, there is a need to protect the rights and safety of Filipino fishermen and secure for them the benefits of peaceful utilization of available marine resources.

It is a fact that a significant number of Filipinos rely on our seas as a source of livelihood. In order to protect the marine resources vital to this industry, the country has entered into various international agreements all aimed at the conservation of our seas and the management and utilization of its resources.

One of these agreements is the United Nations Convention on the Law of the Sea or UNCLOS. This Convention has granted the country numerous rights for the attainment of economic stability, as well as obligations for environmental conservation and international peace. Among these obligations is the mandate to cooperate with other states in the protection and utilization of our Exclusive Economic Zone or EEZ.

Historically, the EEZ, formerly known as the Exclusive Fishing Zone, is defined as an area beyond and adjacent to the territorial sea which shall not extend beyond 200 nautical miles from the baselines. This was first introduced by the western states in the 1940s.

In 1947, Peru and Chile unilaterally proclaimed a 200-nautical miles EEZ while in 1952, Peru and Chile entered into a treaty called the 1952 Santiago Declaration with the objective and purpose of a coordinated conservation and protection of the natural resources in the parties' extended maritime zones.

On the other hand, following what has already developed into customary international law at that time, the Philippines declared its own EEZ through Presidential Decree No. 1599 in 1978.

The 1987 Constitution also contains a provision on EEZ as part of the section on National Economy and Patrimony, as provided in Article XII, Section 2, paragraph 2 thereof, and I quote:

"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."

The term "EEZ" in our Constitution was adopted from the UNCLOS itself. This can be readily seen from the very deliberations that proclaim the provisions and the fact that it was inexistent in the 1935 and the 1973 Constitutions.

The UNCLOS, the Convention that granted us sovereign rights, not sovereignty over the sea, provides for and promotes the spirit of cooperation among states. From the provisions of sharing the surplus of allowable catch in the EEZ, to managing straddling fish stocks and highly migratory species, and to sharing with landlocked and geographically disadvantaged states under Articles 69 and 70, the UNCLOS urges, nay, compel states to cooperate with each other for the preservation and utilization of our oceans and seas.

The spirit of the Convention has been befittingly espoused by the Constitution, our Constitution, that adopted its terms.

Looking into the minds of the commissioners who crafted the Philippine Constitution, it is indisputable from the records on August 25, 1986 that, as proposed by former Chief Justice Roberto Concepcion and as adopted by the committee, it was intended that the words "exclusive economic zone" in the cited provision would refer only to the exploitation of the seabed and that the waters above that portion form part of the high seas and are subject to the general principles of international law.

General principles of international law as referred to by former Chief Justice Concepcion are universally accepted principles fundamental to all legal systems and recognized by civilized nations, one of which is pacta sunt servanda, which dictates that the international agreements which are legally binding must be performed in good faith.

Following this principle, the country is mandated to ensure that it honors its commitments in the international arena concerning treaties that it has validly entered into, regardless of form.

Justice Isagani Cruz, in his book on International Law, says that the country must always strive to perform its obligation in good faith, despite the hardships such as conflicts with the Constitution, domestic law or national interest.

This principle is emphasized in the Vienna Convention on the Law of Treaties, and I quote Articles 26 and 27 thereof which provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith" and that "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

An international arbitration case, to cite one worth noting, is the Alabama Claims arbitration case decided in 1872 wherein the British were ordered to pay the United States for breaching their agreement of neutrality by failing to stop the construction of warships in their country that were used in the US war. The arbitrator in that case rejected the United Kingdom's excuse that they only breached the treaty because of the insufficiency of legal means available to them under their domestic law.

The Philippines then must honor its commitments to the international community, especially concerning cooperation between states in the conservation and protection of our marine resources.

In the words of former Chief Justice Artemio Panganiban in the case of Tañada vs. Angara, GR No. 118295, May 2, 1997: "The Constitution did not envision a hermit-type isolation of the country from the rest of the world. x x x The Constitution did not intend to pursue an isolationist policy."

Russia and Norway, through the Barents Sea Fisheries Regime, have decided to grant mutual access to their respective EEZs in light of their shared fish stocks and fishing grounds. Through their collaboration, both countries have established an effective fisheries management system without jeopardizing the competing claims of sovereignty over the area. Their bilateral agreement has facilitated scientific research and has improved compliance control over the area to prevent illegal, unregulated and unauthorized fishing.

In the Pacific, countries such as the Federated States of Micronesia with Kiribati, the Marshall Islands, Papua New Guinea -- a classic example having granted 29 fishing rights to Filipino fishing companies -- Solomon Islands, among other states, have all realized the need and the benefits of working together. These countries have established a multilateral fisheries management agreement in order to more effectively utilize and manage their shared resources.

Other Pacific island countries such as Cook Islands, Fiji, Gilbert Islands, Nauru, New Zealand, Nieu, Tonga, Tuvalu, and Western Samoa, all share in the sentiment that the best and only way forward to a more ecological and economically feasible fisheries regime is through international cooperation.

The United States of America and Canada, in the management of the Pacific salmon, and Angola, Namibia, and South Africa, in the management of fishery resources in the Benguela Current Large Marine Ecosystem, and near us, New Zealand and Australia, in the management of the South Tasmanian Rise, and more.

The list goes on to include more countries that have made this realization. As a matter of fact, a 2016 study by the World Bank shows that around half of the world's exclusive economic zones are subject to some form of foreign fishing arrangements, be it through access agreements, joint ventures or even just chartering. The benefits of international cooperation, when properly executed, are limitless.

Another case in point is Morocco, which receives access fees from the European Union countries to fish within its EEZ. Study shows that 75% of the socio-economic impacts of their agreement is for the benefit of Moroccans. They have achieved their objective of sustainable exploitation of resources, generated sustainable employment for the fishing industry, and significantly improved the working conditions of the sector.

Another international commitment the country must honor, with due respect is the Food and Agriculture Organization (FAO). On October 16, 1945, the Philippines joined the Food and Agriculture Organization, a specialized agency of the United Nations that leads, along with other members of the international community, with the goal of achieving food security, by creating and sharing critical information about food, agriculture and natural resources and by supporting the transition to sustainable agriculture.

Towards this end, regional fishery bodies around the world were created, one of which was a neglected organization called Asia Pacific Fishery Commission that was organized in 1949 in Baguio City, Northern Luzon.

The Asia-Pacific Fishery Commission is an advisory body and coordinating mechanism composed of several states including China, Australia, Bangladesh, Cambodia, Philippines, France, India, Indonesia, New Zealand, among others. They work together. They were envisioned to work together towards the conservation and management of fisheries to promote a fully sustainable utilization of aquatic resources through policies and practices, including finding solutions to regional issues that affect the member states in agreement with the FAO Code of Conduct for Responsible Fisheries.

However, the disputes in the West Philip-pine Sea caused by overlapping claims of exclusive economic zones have been a continuing hindrance to achieving the aims of the commission. As a result, no institution concerning fisheries has been established to monitor and manage the resources of the West Philippine Sea.

The states fishing in the area, including the Philippines, continuously fail or do not accurately report their catch to the FAO or the APFIC.

While the Bureau of Fisheries and Aquatic Resources (BFAR) of the Department of Agriculture has set a catch ceiling limitation for tuna, the Philippines has not set allowable catch ceilings and has no data regarding the optimal catch in its EEZ. The last data reported, as per my research, was 2012. The failure to set the standards and to report information regarding the resources in the West Philippine Sea is detrimental to the conservation and management of the area.

The conservation of the reefs in the West Philippine Sea is critical to the supply of marine resources not just to the Philippines but to the whole world. In order to achieve this goal of conservation, management and full sustain-ability, cooperation and coordination with our ASEAN neighbors is imperative.

As a signatory to international agreements, including the 1995 Agreement for the Implementation of the Provision of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, which the country ratified on September 24, 2014, the Philippines is bound to pursue cooperation through bilateral, sub-regional and regional fisheries arrangements to avoid over-fishing, promote responsible fishing, conserve the biodiversity of aquatic habitats and ecosystems and protect endangered species, and restore depleted stocks. Though running late, the Philip-pines has made the initial steps for these endeavor.

Last June 3, 2019, this august Chamber gave its concurrence to the Philippines - Indonesia EEZ Delimitation Agreement that the country ratified on February 15, 2017. This is a major step as the resolution of this dispute through peaceful means will be the start of a possible future joint cooperative endeavors with Indonesia in managing our very close and adjacent waters.

As we strengthen ties with other ASEAN nations which share in the abundant resources of the West Philippine Sea, we take advantage of cooperation through access to scientific eco-marine data, as well as the protection of resources from illegal, unregulated and unauthorized fishing.

The journey towards sustainable development is still long and winding. The seas to be traversed are rough. But what is important is that the country keeps on sailing forward.

III. Challenge for the Senate

Having emphasized the need to honor our commitments to the international community, it behooves upon us to rise up to the challenge of navigating through the unchartered realm of international law in order to protect our resources and uphold the rights of every Filipino.

While cooperation with the international community is important, the welfare and benefit of the Filipino people should always be a priority. Of all the country's resources, it is the people that are most treasured, protected and must be served.

Hence, may the 18th Congress endeavor to enact more meaningful legislation to fortify, defend and uphold the rights and satisfy our obligations for the benefit of our countrymen as well as our dignity.

Taking cue from other nations that have found it essential to protect their resources and uphold their people's rights, may the 18th Congress enact similar legislation such as the United States Outer Continental Shelf Lands Act, among others, wherein the United States has declared that their Constitution, civil and political laws, as well as criminal and federal regulatory laws, are extended and applicable to their subsoil, seabed, and all artificial islands and all other installations attached thereon.

The protection and safety of our people require our foresight in drafting laws as we tread towards further utilization of both living and non-living resources in our seas.

This humble Representation calls on this Chamber's support in the passage of this Representation's proposed Senate Bill No. 209, the Good Samaritan at Sea Law, that aims to implement the provisions of the International Convention for the Safety of Life at Sea. With this law, Filipino fishermen will be afforded additional safety as they pursue their way of life.

This Representation has likewise filed Proposed Senate Resolution No. 12 or the resolution in support of the prohibition of fisheries subsidies in the World Trade Organization. To lessen the perceived disadvantage of Filipino fishermen against foreign entities and to protect the resources in the sea against illegal, unreported, unregulated or IUU fishing, over-capacity and overfishing, fisheries subsidies that contribute to these problems must be eradicated internationally.

The United Nations Conference on Trade and Development's Sustainable Development Goal Target 14.6 targets that by 2020, the United Nations member-states should prohibit certain forms of fisheries subsidies that contribute to the aforementioned problems and refrain from introducing new subsidies by 2020. The realization of this goal would level the playing field for the Filipino fishermen as they will be able to perform at the same level as their foreign counterparts. Resources will be more equitably exploited and protected from over-utilization while enhancing the lives of the Filipinos.

The need to stay true to our international commitments is not just to maintain our international standing but, most importantly, in order to uphold the rights and dignity of our people and protect the nations' honor.

This humble Representation wishes to end this speech with the words of Gat Andres Bonifacio in his work, "Ang Dapat Mabatid ng mga Tagalog," circa 1896, and I quote:

"Kaya O mga kababayan! Ating idilat ang bulag na kaisipan at kusang igugol sa kagalingan ang ating lakas, sa tunay at lubos na pag-asa na mag-tatagumpay sa nilalayong kaginhawa-han ng ating bayang tinubuan."