The death of Taiwanese fisherman Huang Shih-Cheng on account of Philippine law enforcement activities is yet another test of Philippine foreign policy, particularly its resolve to protect the nation's territory and marine wealth.
It should be clear that the loss of a human life under any such circumstance is regrettable and a valid cause for reflection and concern. But a singular misfortune should not be unscrupulously used as a political hammer with which to bludgeon Philippine dignity and demand a surrender of legitimate Philippine interests.
The context of the incident must be clarified. Information from Taiwanese media reports on the incident, biased as they are, reveal that the Taiwanese fishing boat Guang Da Xing 28 was illegally fishing well within Philippine waters.
The assertion that the vessel was in Taiwanese waters at the time is an assertion made in bad faith, shown indisputably by the geographic coordinates and vessel track publicly released by Taiwan's Coast Guard Administration (TCGA).
First, the vessel's track shows that it intentionally ventured beyond even Taiwan's own “provisional boundary,” which it unilaterally established without the consent of the Philippines for purposes of maritime regulation of its own vessels. In other words, the vessel was fishing outside Taiwan's own claimed maritime areas.
Second, the vessel was fishing approximately 43 nautical miles east of Balintang Island, far beyond any Taiwanese territory and undeniably closer to Philippine territory.
Third, the vessel deliberately sailed into and intentionally fished beyond the median line created by the overlapping EEZs of the Philippines and Taiwan. In international law, while all coastal states are entitled to claim EEZs of up to a maximum of 200 nautical miles, in case of overlapping zones, they may legitimately claim only up to the median line which is equidistant at all points from their respective baselines. The only exception is if they agree upon a different boundary by treaty.
Even if Taiwan were a full-pledged coastal state, it is not entitled to claim Philippine waters as being within its EEZ as if the Philippines does not exist. If that was a valid argument, then Taiwan should consider most of its waters open to Philippine and Japanese fishing vessels up to the mainland coasts which are all within 200 nautical miles of either Philippine or Japanese territories.
Furthermore, Article 4 of Taiwan's own EEZ law requires Taiwan to seek an agreement on the basis of equity to resolve overlapping EEZ boundaries. In international law, a median line based on equidistance is presumed prima facie to be an equitable line, unless special circumstances show it to be otherwise.
Caught in the act
Instead of establishing the boundary by agreement and on the basis of equity, Taiwan violates its own law by unilaterally and illegally appropriating for itself the Philippine EEZ around the Batanes Islands through the provisional boundary.
A map of the area of the incident, showing the Philippine treaty limits, Taiwanese provisional boundary, and median line of the overlapping EEZs from the two countries' respective baselines, and the vessel's track, all prove (based on Taiwanese accounts) that the vessel was committing a violation of Section 87 of the Philippine Fisheries Code, or the offense of poaching in Philippine waters.
The Guang Da Xing 28 deliberately fished about 130 nautical miles inside the Philippine EEZ. For this reason alone, the Philippine Coast Guard (PCG) was justified in attempting to intercept, board, inspect, and if necessary, arrest the Taiwanese vessel since it was in flagrante delicto with absolutely no right to fish in Philippine waters.
Until the offending vessel is actually boarded and inspected, the PCG cannot afford to let its guard down; the limited naval and coast guard assets in that area are faced with multiple possible threats.
The area of the incident in particular has long been a problem for maritime law enforcement not only on account of illegal fishing, but also smuggling, drug trafficking, illegal logging, and illegal migration activities. Whether any other violations were also being committed, unfortunately, may no longer be determined since the PCG was unable to carry out the arrest.
The incident having arisen on account of the commission by the Taiwanese vessel of an offense, Taiwan has absolutely no right to demand that the Philippines enter into a fisheries agreement with it, in order to give Taiwan access to the Philippine EEZ. Neither does it justify Taiwan's imposition of economic sanctions against the Philippines. Such an agreement would be morally unacceptable because in effect, it allows Taiwan to profit disproportionately from an illegal act.
More sanguine Taiwanese observers and scholars admit that the Taiwan government is merely over-reacting to the situation. But this is an understatement; taken as a whole, the Taiwanese government's reactions smack of duplicity and opportunism.
What Taiwan is legitimately entitled to is only an honest and impartial investigation of the incident, just as in any other case where a person suffers injury or death on account of law enforcement. The use of force is generally authorized in all law enforcement operations (otherwise it would not be credible or effective).
In international practice, such use of force is generally disfavored but not absolutely prohibited. Even the FAO Code of Conduct for Responsible Fisheries (CCRF), a generally-accepted international instrument that includes guidelines for fisheries law enforcement by coastal states, recognizes that it may be necessary to use force to physically stop a suspect vessel. This is in cases where a vessel does not respond to standard instructions to stop and permit boarding and despite repeated warnings by radio or loud hailer.
The CCRF does admonish, though, that particular care be taken when using force, and that states should employ only the minimum amount necessary to ensure compliance with lawful instructions.
What is not permitted is the use of “excessive” force. In accord with standard international practice, whether a degree of force applied is still permissible or already excessive depends on the circumstances.
For maritime law enforcement by the Philippine Navy or the PCG, this depends on the so-called “rules of engagement” that govern their operations at sea. Such rules prescribe, in a clear and calibrated manner, the actions that a vessel may take in order to carry out its functions. They describe the conditions under which a ship captain may or may not use force, and to what degree.
This makes it even more important to determine, through proper, calm, and impartial investigation, whether the PCG was justified in shooting at the Guang Da Xing 28 in the manner that it did.
Three questions are key to this issue.
First, whether the PCG vessel followed proper procedures in intercepting and attempting to board and inspect a foreign vessel caught fishing in Philippine waters. Second, whether the Guang Da Xing 28 attempted to resist or elude the PCG in carrying out its law enforcement mandate. And lastly, whether the act of firing upon the Guang Da Xing 28 was a reasonable course of action under the circumstances in order for the PCG to carry out its duty to enforce the law at sea.
If the investigation results in a finding that there was indeed an “excessive” use of force, then the chips must fall where they must and the officers responsible must be held accountable in accordance with our law. This is the appropriate, principled, and dignified response.
Beyond that, the Taiwanese government has absolutely no moral or legal right to enact sanctions against the Philippines, nor to demand that the Philippines surrender its fisheries resources through a fisheries agreement, nor to allow or encourage personal reprisals against Filipino citizens in Taiwan.
The Taiwanese President's highly inflammatory remarks calling the death “cold blooded murder,” his government's outright denial of working visas to Filipino workers, his rejection of the President's personal apology (despite the absence of solid basis), and use of the fisherman's demise as an excuse to threaten the Philippines with economic sanctions in order to coerce the Philippines to grant its unjustified demands, all smack of opportunistic politics.
The reprisals taken against innocent OFWs in Taiwan and Filipinos in general are racist responses and not acts of civilized nations nor of responsible members of the international community.
Acts of bad faith
The Taiwan government's actions expose a patently illegal agenda of forcing its modern industrialized fishing fleet upon Philippine waters to the detriment of our artisanal fishing communities, and is rooted in Taiwan's own official condonation and encouragement of illegal fishing.
The location and configuration of the TCGA's provisional boundary, the assertion of a full 200 nautical mile EEZ that disregards the presence of Philippine land territory, and the disproportionate sanctions in response to an unfortunate outcome of Philippine law enforcement operations, are all acts of bad faith. They should be considered as an affront to the rights and dignity of the Philippines as a full-pledged and independent coastal State.
By encouraging their fishermen to ignore the fact that they are fishing in Philippine waters, and taking advantage of the weakness of Philippine naval and law enforcement assets, the Taiwanese government is officially sponsoring and condoning illegal, unreported, and unregulated (IUU) fishing in Philippine waters.
A number of international instruments condemn IUU fishing, and the Philippines should consider having Taiwan declared an IUU-sponsoring entity in bodies such as the Western and Central Pacific Fisheries Commission, so that the international community can take action against its entire fishing fleet everywhere in the world.
Furthermore, the recent conduct of military exercises in the north, and the threat that Taiwanese government is ready to send its navy into Philippine waters to protect its fishermen who fish illegally, may be considered as a threat of the use of force and tantamount to an act of aggression prohibited by international law. It is an open declaration that it will use force to take the country's marine fisheries in its EEZ.
By taking this course of action, the Taiwanese government transforms Taiwan into a rogue maritime nation, flaunting its military and economic assets against smaller, weaker coastal nations in order to appropriate their natural resources. It amounts to nothing less than official blackmail and extortion.
While Taiwan is not recognized as an independent state and is not a member of the United Nations, as an international actor it is still subject to the same basic rules of international relations. If Taiwan persists in these aggressive activities, the Philippines has sufficient reason to bring the matter to the attention of the UN Security Council as an act of aggression and a threat to regional peace and security instigated by a non-State actor.
Even if it later turns out that Philippine law enforcement authorities committed a serious mistake in law enforcement that caused the unfortunate death of a Taiwanese citizen, the country should not succumb to the completely unjustifiable and disproportionate reactions of the Taiwanese government.
The country's relative weakness in terms of economic and military might, and our OFWs' employment and the dependence of their families on their remittances, do not justify the strong-arm tactics that the Taiwanese government.
The Philippines should not act so timid and ashamed of enforcing its own laws and protecting its own natural resources, even if law enforcement leads to incidents such as this.
We may acknowledge our mistakes, but we should never bow to shameless bullying. - Rappler.com
The author is Assistant Professor, UP College of Law and Director, UP Institute for Maritime Affairs and Law of the Sea.