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All about fish and fishing

ByFr. Joaquin G. Bernas S. J.Philippine Daily Inquirer

8:16 pm | Sunday, June 2nd, 2013

What can legally be said about the incursions of Chinese fishing and other vessels into Philippine waters? The first thing,of course, is to look into the laws that govern the seas.

The importance of the seas flows from two factors: first, they are a medium of transportation, and second, they containvast natural resources. In the 17th century the Portuguese proclaimed vast areas of seas belonging to itself. But it wasGrotius who elaborated the doctrine of the open seas which considers the high seas as a res

communis accessible to all. The doctrine, however, recognized as permissible the delineation of a maritime belt by littoralstates as an indivisible part of its domain.

In international law, specifically the United Nations Convention on the Law of the Sea (Unclos), there is such a thing asthe exclusive economic zone (EEZ) of a state or a states patrimonial sea. Both the Philippines and China are among thesignatories to the Unclos and are therefore bound to respect its provisions.

To understand the extent of the authority of states over waters, one must begin with an understanding of baselines. Thebaseline is the low-water line along the coast as marked on large scale charts officially recognized by the coastal State.It is from this line that the various areas of a states authority over the sea are measured: the territorial sea, 12 nauticalmiles from the baseline; the contiguous zone, 24 nautical miles from the baseline; and the EEZ, 200 nautical miles fromthe baseline. The Philippines recently revised its baseline law to make it conform to the requirements under Unclos.

The doctrine on the EEZ is a recent development. Prior to the acceptance of this doctrine, all waters beyond thecontiguous zone were considered high seas over which no state had control. The EEZ doctrine developed owing to thedesire of coastal states for better conservation and management of coastal fisheries.

The coastal state has rights over the economic resources of the EEZ, that is, over its seabed, subsoil and waters. But theprovisions on the EEZ are both a grant of rights to and an imposition of obligations on coastal states relative to theexploitation, management and preservation of the resources found within the zone.

Coastal states have two primary obligations. First, they must ensure through proper conservation and managementmeasures that the living resources of the EEZ are not subjected to overexploitation. This includes the duty to maintain andrestore populations of harvested fisheries at levels which produce a maximum sustainable yield. Second, they mustpromote the objective of optimum utilization of the living resources. They therefore should determine the allowable catchof living resources. If the coastal state does not have the capacity to harvest the allowable catch, it must grant access toother states.

The claim of the Philippine government is that Chinese fishing vessels continue to foray into the EEZ of the Philippineswithout the needed consent from the Philippine government and in fact against the wishes of the Philippine governmentand to the prejudice of the economic rights of the Philippines over its patrimonial sea.

Considering the width of the patrimonial sea which a state may claim and the distances between states, it is inevitable that

the areas claimed by them will overlap. China, for its part, bases its claim on what it calls the 9-dash map, thedemarcation lines used by both the governments of the Peoples Republic of China and the Republic of China (Taiwan).The demarcation lines include, among others, the Spratly Islands disputed by the Philippines, China, Brunei, Malaysia,Taiwan, and Vietnam; and the Panatag Shoal in Zambales. Believed to be at stake here are not just fishing resources butalso vast mineral resources, including oil. The Chinese date their claim under the 9-dotted line to as early as 1948.

In the face of conflicting claims and in the light of international law against resort to force, the Philippines obviously cannotenforce by force of arms what it believes to be its right. The Philippines therefore hopes that arbitration will solve theproblem. Will it?

Peaceful settlement of disputes is compulsory. Under Part XV of the 1982 Convention on the Law of the Sea, states arerequired to settle peacefully disputes concerning the convention. If a bilateral settlement fails, Article 285 requires

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submission of the dispute for compulsory settlement to one of the tribunals clothed with jurisdiction. The alternatives arethe International Tribunal for the Law of the Sea (Itlos), the International Court of Justice (ICJ), or a voluntary arbitraltribunal constituted under the convention.

Assume, however, that the Philippines wins, how will the decision be enforced? Submission to the ICJ may be declined bya state. But if a state submits to the ICJ, the decision of the ICJ may be enforced by the Security Council. But China hasveto power in the Security Council. For its part,

Itlos does not contain an enforcement mechanism. Associate Justice Antonio Carpio calls the si tuation a legal black holeand suggests that our only hope is that the bully China will yield to international public opinion.