On Nov. 5, Taiwan and the Philippines signed the Agreement Concerning the Facilitation of Cooperation on Law Enforcement in Fisheries Matters. Before the agreement took effect, the Ministry of Foreign Affairs made a big deal of the signing, but did not publish its content, which only appeared on the ministry’s Web site 10 days after the agreement took effect. The ministry said that after the agreement was signed, it submitted the agreement to the Cabinet, as stipulated by Article 12 of the Act Governing Treaty Ratification (條約締結法). This course of action seems questionable.
First, according to articles 3 and 8 of the act, any international treaty on important national matters should be reviewed by the legislature. The agreement aims to address problems arising from the arrest of Taiwanese and Philippine fishing vessels. Manila Economic and Cultural Office Chairman Amadeo Perez said that the purpose of this agreement is to establish a peaceful mechanism to resolve conflicts in overlapping territorial waters. Hence, it is clear that the agreement is applicable to territories and exclusive economic zones, which are undoubtedly important matters relevant to Taiwan’s national security and diplomacy.
Second, the agreement allows the Philippine Coast Guard to carry out law enforcement in the two nations’ overlapping exclusive economic zones that are not clearly delineated, which conflicts with Article 5 of the Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China (中華民國專屬經濟海域與大陸礁層法), which says that: “The Republic of China shall, in its exclusive economic zone or on its continental shelf, enjoy and exercise sovereign rights for the purpose of exploring, exploiting, conserving, and managing the resources, living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil.”
According to the act, if an agreement does not agree with domestic law or causes revisions of domestic law, the agreement must be reviewed by the legislature.
Third, Article 3 of the agreement stipulates: “Taiwan and the Philippines should notify, without delay, the other party when a fishing boat of the other party is in breach of the provisions of the agreement and of the action taken by its law enforcement agencies against fishing vessels from the other party. The other party shall respect the notifying party’s notification.”
Hence both parties have a legal obligation to respect actions taken by the other party. However, as previously mentioned, the agreement applies to the overlapping territorial waters, where Philippine Coast Guard officers fired upon a Taiwanese fishing boat on May 9, 2013, killing 65-year-old Taiwanese fisherman Hung Shih-cheng (洪石成). Therefore, if the Philippines notifies Taiwan that it is going to carry out law enforcement on Taiwanese fishing vessels in the same waters in accordance with the agreement, Taiwan will be obliged to “respect” the notifications and actions of the Philippines, which once again shows that the agreement pertains to the rights and obligations of people in both nations. Hence, according to the act, the agreement must be reviewed by the legislature.
Although the Act Governing Treaty Ratification had not been enacted when a similar agreement with Japan was negotiated, the government still submitted that agreement to the legislature for review. However, as the act has been promulgated, how could the agreement with the Philippines be dealt with simply by submitting it to the legislature for reference? Those charged with national matters of great consequence must think carefully before any protocol is sanctioned.
Chiang Huang-chih is a professor of law at National Taiwan University.
Translated by Ethan Zhan
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