One of the least-read portions of The Arbitral Tribunal ruling involves the failure of the Chinese government to prevent its nationals from exploiting the Philippines’ living resources and its interference with the country’s sovereign rights in its Exclusive Economic Zone and continental shelf as China pursues its construction of artificial islands and occupation of several maritime portions within the sovereign domain of the Philippines.
This column is the first of a multipart series focusing on the negative impact on different aspects of the marine environment as a consequence of China’s claims of historic rights over the West Philippine Sea as discussed by The Arbitral Tribunal.
We start with the fishing ban by China which, as recorded by the Philippine Government, started in May 2012 when the Fisheries Bureau of Nanhai District announced a fishing moratorium in the South China Sea. The fishing ban was also announced by Xinhua, the official press agency of China, as “part of the ongoing efforts to rehabilitate the areas’ marine resources.” Xinhua further announced that the fishing ban applies to “foreign ships” which, according to a spokesman of the Bureau, will be seen as a “blatant encroachment on China’s fishery resources.” During the same period, the Philippine government announced that it will not recognize such fishing ban in as much as portions of the ban encompass the country’s EEZ.
As a result of its unilateral pronouncements to ban fishing in its claimed portions of the South China Sea, China began interfering with the Philippine fishing activities in the area. The Director of the Philippine Bureau of Fisheries and Aquatic Resources reported that the conduct by the Chinese government “has created a deep sense of fear among Filipino fishermen that has significantly curtailed their fishing activities and severely impacted their ability to earn a livelihood.”
The first recorded interference occurred in May 2013 when China began harassing Filipino fishermen in Second Thomas Shoal, also known as Ayungin Shoal, despite representations by the Philippine government that there are no maritime features in the South China Sea claimed by China that can generate entitlements to an EEZ in the areas. Other instances of interference noted by the Philippines government include China’s prevention of fishing by Philippine vessels at Mischief Reef; the 2012 moratorium on fishing in the South China Sea; and China’s revision of the Hainan Regulation. Based on contemporaneous statements by Beijing, it made itself clear that it considers China to have sovereign rights over the disputed areas.
During the hearing, the tribunal asked clarification from the Philippine panel with respect to China’s assertion of fisheries jurisdiction “[w]hether China has sought to enforce either the May 2012 fishing ban or the Regulations for the Management of Coastal Border Security in Hainan Province against Philippines fishing vessels and the specifics of such enforcement.” In response, the Philippines answered in the affirmative, presenting a Note Verbale from China in which the latter asserted its right to impose a fishing moratorium in the South China Sea, requested the Philippines to educate its fishermen to comply with the moratorium, and cautioned the Philippines that “Chinese law-enforcing authorities will strengthen their maritime patrols and other law-enforcing actions, investigate and punish the relevant fishing vessels and fishermen who violate the fishing moratorium in accordance with the law.”
After due consideration of the evidence adduced during the hearings, the Tribunal came to the conclusion that there exists no legal basis for any entitlement by China to maritime zones in the area of the Mischief Reef and Second Thomas Shoal, among others. The Tribunal made it clear that the Convention is unequivocal on the rights on the EEZ and the continental shelf. The same clarity is evident, it adds, with respect to living resources and the provisions of the EEZ. The Tribunal further states “The rights of other States do not include restricting a coastal State from exploiting the living resources of its own exclusive economic zone. Indeed, the very notion is incompatible with the concept of sovereign rights and the exclusive jurisdiction over fisheries that was the central objective motivating the introduction of the exclusive economic zone concept.” The Tribunal also “considers that such developments (China’ actions) may have a deterring effect on Filipino fishermen and their activities. In effect, the 2012 fishing moratorium constituted an assertion by China of jurisdiction in areas in which jurisdiction over fisheries is reserved to the Philippines through the operation of the provisions of the Convention concerning the exclusive economic zone.”
Notwithstanding The Arbitral Tribunal decision, Beijing remains defiant and persists on its intransigence as the Chinese coast guard continue to interfere with fishing activities by Filipino fishermen eking out a living in Scarborough Shoal, also known as Bajo de Masinloc and other waters within the declared EEZ of the Philippines. The continuing sea dispute, based on BFAR’s data, as of April 22, 2015, continue to affect an estimated 12,237 fishermen within nine fishing municipalities which have a total combined volume of catch of 21,186.8 metric tons as of 2014.
As we move forward to reengage with China, which I support, we should not however use the words “set aside” as that would render our legal victory meaningless and many of our citizens will be upset with it, Our allies too will be upset. We would diminish not only our victory but the whole rules-based system. At the same time, we do not have to insist that China agree with us on the significance or correctness of the decision. Suggested language that night be uncontroversial include: “The discussions shall be based on a rules based approach” or even “The discussions will be based on international law, including the United Nations Convention on the Law of the Sea” can be good starting points.
I certainly think that former President Fidel V. Ramos is the right man for the job as he knows the meaning of win-win solutions. China will also treat him with respect given his stature. He knows China well and is not naïve about this country’s behavior. He will do well with former Local Government Secretary Rafael Alunan, whose hard-nosed patriotic lens on this issue complements FVR’s strengths.
For the moment, we should forget about joint development or commercial agreements with China on the resources of the West Philippine Sea. Lets start instead with something so doable and also very urgent—bilateral cooperation on the protection of the marine environment. This is non-controversial, within the Constitution, and can rebuild trust.
The arbitral tribunal ruled that China has not done well by the marine environment. Perhaps, they can rectify this by cooperating with us to rehabilitate the fisheries, reefs and other ecosystems affected by their actions. Among others, the Philippines, China and other countries can take up the suggestion of Justice Tony Carpio (which was also suggested earlier by environmental lawyer Tony Oposa) to make the whole area a marine peace park for a hundred years. Dealing with the fisheries issue, a positive resolution of which has immediate outcomes, might be a good place to start the negotiations with China.
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