"A little bit of circumspection would be better."
"A little bit of circumspection would be better."
Considering the fact that I am assigned to represent the country in a state which also has claims on portions of the West Philippine or South China Sea, I have avoided writing on this issue. Besides, I claim no expertise on international or maritime law, and now write only after reading and listening to the various comments on the issue.
I have also talked to a few retired diplomat friends to enlighten me on the subject, which can really be confusing to the layman given the welter of interpretations advanced by so many sectors who wave the flag around the issue far too often to incite nationalist fervor, where perhaps a little bit of circumspection would be better.
First off, the UN Convention on the Law of the Seas (UNCLOS) was passed in 1982.
Among its salient pronouncements are the following:
1) The territorial sea, which is defined as 12 miles from the coastline is where coastal states like the Philippines have sovereignty;
2) Administrative control (for customs, quarantine, immigration, environmental and health control measures) are in the contiguous zone, limited to 24 miles from the baselines, thereby an additional 12 miles;
3) After the contiguous zone comes the much-debated EEZ or continental shelf, where we have rights over the living and non-living resources as well as jurisdiction over the establishment of artificial islands and the protection of the marine environment.
UNCLOS also seeks to “decriminalize” fishing activities, providing only administrative penalties for poachers. Arrested crew members of vessels are to be promptly released upon the posting of reasonable bond or other security. Penalties for violation of fisheries laws “may not include imprisonment, in the absence of agreements to the contrary by the states concerned, or any form of corporal punishment (Art. 73, UNCLOS).
Parenthetically, the Philippines and Taiwan are still currently negotiating for a new fisheries agreement after the Balintang Channel incident in 2013 where some of our Coast Guard personnel are being tried in Philippine courts for the death of a Taiwanese fisherman. The issue of administrative penalties in the maritime territory or zones has till now been un-resolved.
UNCLOS in fine has put in place a regime of rules and regulations to put order and avoid conflicts at sea especially in the exploitation of marine resources. There is a spirit of fairness in these UNCLOS provisions.
It even allows “disadvantaged states,” such as landlocked or saddled with the inability to fully exploit their marine resources, to share in the bounty of the seas through bilateral or multilateral agreements with coastal states. UNCLOS has gained universal acceptance and states have learned to peacefully settle their differences in the context of its provisions even if many disputes remain unresolved.
Thus, UNCLOS is not only an ordinary agreement with local or regional ramifications, but is an agreement of global significance. Worth noting here is that while the Philippines and China have both ratified it, among 160 states, the United States of America has not, and to date refuses to ratify UNCLOS.
This writer is hence quite perplexed at suggestions made that the Philippines should ask the US of A, under our Mutual Defense Treaty (which is replete with conditions favorable to the US and not necessarily all-protective of Philippine territory, let alone the EEZ) to intervene in our behalf on the collision or allision of a Chinese vessel with our Mindoro fishermen.
The arguments now swirl around whether the Philippines can allow access of other states into our EEZ.
Our Constitution states that “the State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea and exclusive economic zone, and reserves its use and enjoyment exclusively to Filipino citizens (Sec. 2, Article XII).
On the other hand, the 1982 UNCLOS (from which the concept of an EEZ derives), allows the possibility of fishermen of other states to have access to the EEZ of coastal states, on the basis of agreements between them, under certain conditions, and in keeping with the spirit of fairness in the allocation of marine resources.
In the seeming conflict between UNCLOS and our Constitution, some legal experts espouse the view that our Constitution should prevail over international treaties or agreements where there is a conflict between the two. This does “sound” patriotic.
But let us take note of the dates. UNCLOS (1982) predates our Constitution (1987).
The concept of the EEZ was given birth by UNCLOS. Until UNCLOS, the Philippines had no right to any EEZ.
In fact, the concept of a coastal state having rights to living and non-living resources in the EEZ and continental shelf was only an abstract idea until the advent of UNCLOS. When our Constitution reflects the concept of an exclusive economic zone, there is no escaping the fact that it refers to the concept of EEZ in UNCLOS.
And needless to repeat: UNCLOS does allow coastal states to grant access to other states into their EEZ under certain conditions, such as when the coastal state is unable to fully utilize the marine resources in its EEZ.
We cannot use the concept of the EEZ without accepting all its parameters, as defined by UNCLOS. To hold that our Constitution mandates exclusivity for Filipinos and for Filipinos only, over the resources of the EEZ, on the ground that our Constitution must prevail over our treaty obligations under international law, is “cherry picking” in an egregious way.
Two international principles are also at play here:
1.) A state cannot pass a domestic law to avoid an obligation under an international treaty (specially a treaty of global significance) to which it has acceded; and,
2.) Our Constitution itself states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land”. UNCLOS is now a part of international law.
Now therefore, whether the pronouncement of President Duterte on allowing Chinese fishermen to fish in our EEZ can be a ground for impeachment, as some quarters warn, must be viewed in the context of our obligations under UNCLOS specifically its provision on the utilization of marine resources.
The presidential pronouncement needs fleshing out and should be formalized, but the concept is not an outright violation of our laws. It is not and cannot be a culpable violation of the Constitution.
I recall that then DA Usec Cesar Drilon, as head of a delegation of the Bureau of Fisheries and Aquatic Resources (BFAR), was able to negotiate a “sharing agreement” with Indonesia way back in 2002. Under this arrangement, our fishermen were allowed access into the EEZ of Indonesia subject to catch limits and the condition that the catch should be unloaded in an Indonesian port.
That arrangement was entitled “Arrangement between the Department of Agriculture of the Republic of the Philippines and the Ministry of Marine Affairs and Fisheries of the Republic of Indonesia on the Utilization of Part of the Total Allowable Catch in the Indonesian Exclusive Economic Zone” signed on 10 January 2002. This could serve as a precedent in forging bilateral arrangements with other claimants of the WPS/SCS.
Given the correct interpretation, the provisions of UNCLOS and our Constitution can be reconciled to enable us to be compliant with our treaty obligations while upholding our Constitution.
