The fatal shooting of Taiwanese fisherman Hung Shih-cheng (洪石成) by Philippine Coast Guard personnel aboard a Philippine Bureau of Fisheries and Aquatic Resources vessel has caused widespread anger in Taiwan. In addition to implementing certain measures, the government has invited the Philippines to negotiate a fisheries agreement. However, it should have known that such a pact is unlikely to work for practical and legal reasons.
The Philippines is an archipelagic nation and although it does have substantial fisheries stocks, it uses out-of-date fishing techniques. Its fishing fleet consists predominantly of small vessels more suited to coastal or near-shore fishing and the failure to modernize means that the catch is invariably limited to certain types of fish. Now that fishing stocks are depleting, the Philippine government has become more protective of them and takes a dim view of fishing vessels from neighboring countries entering its waters to catch fish.
According to Section 2 of Article 12 of the Philippine constitution, all natural resources are owned by the state, which may enter into “co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens.”
Section 2 goes on to say that such agreements “may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years.”
Therefore, according to Philippine law, Filipinos must have a controlling stake in any joint fishery ventures with the state. This is why so few joint fishery initiatives between Filipinos and foreign nationals exist.
Further, the 1998 Fisheries Code of the Philippines makes no mention of joint ventures between Filipinos and foreign nationals in Philippine waters.
However, Section 65d states that the Bureau of Fisheries and Aquatic Resources is to “monitor and review joint fishing agreements between Filipino citizens and foreigners who conduct fishing activities in international waters, and ensure that such agreements do not run contrary to Philippine commitment under international treaties and convention on fishing in high seas.”
This is what the Philippine government refers to as its policy of keeping its fisheries strictly national. Essentially, the government does not allow international fishery agreements to involve its national waters.
Section 87 of the same law, titled “Poaching in Philippine Waters,” states that it is unlawful for any foreign person, corporation or entity to fish or operate any fishing vessel in Philippine waters, and that any violation of this may be sanctioned by a fine of US$100,000.
In addition, the violator’s catch, fishing vessel and equipment will be confiscated and the government has the right to impose an administrative fine of no less than US$50,000, but no more than US$200,000. The severity of the fines and punishments for foreign nationals fishing in Philippine waters are certainly prohibitive.
In 1991, Taiwan signed a memorandum of understanding (MOU) with the Philippines on agriculture and fishery cooperation and on maritime navigation routes. As part of this memorandum, Manila specified two navigation routes along which Taiwanese fishing boats were allowed passage. It also paved the way for fishery cooperation between the two nations. However, the Philippine government unilaterally abolished this agreement in 1998, as it contravened sections of the Fisheries Code.
The Philippines has signed very few fisheries agreements allowing foreign nationals to fish in its national waters. Looking at agreements signed between China and the Philippines to relieve tensions between the two countries over the Spratly Islands (Nansha Islands, 南沙群島), I discovered that China and the Philippines signed a MOU on fisheries cooperation in 2004, with a follow-up in January 2007 aimed at extending the terms of the memorandum.
Nevertheless, these are only MOUs, not official agreements, and have yet to be implemented, stuck in limbo due to the Fisheries Code.
Manila Economic and Cultural Office Director Antonio Basilio has said that the fisheries agreement Taiwan recently signed with Japan could be taken as a blueprint for negotiations of a similar agreement between our countries. I do not hold any high hopes for this.
One view is that China is the main obstacle to the signing of an agreement between Taiwan and the Philippines.
However, where does this talk of China’s obstruction come from, when even Beijing has had problems signing an official fisheries agreement with the Philippines? One must look at the Philippines’ wish to keep its fisheries strictly national to understand what the problem is.
If the Philippines enters into negotiations with Taiwan on a fisheries agreement in an attempt to resolve the current tensions, it will not be able to overstep the conditions of the MOU it has with China. If it does, Beijing will exert pressure on the Philippines to sign an agreement and this is not something the Philippine government wants to happen.
It is extremely unlikely that the Philippines would be able to use negotiations with Taiwan to confront China, for this would be a poor bargaining chip.
Given these factors, Taiwan’s government should consider first establishing codes of conduct by negotiating for maritime safety mutual trust measures to make sure it is safe for Taiwanese fishermen to operate in the overlapping territorial waters, before trying to resolve the issue of the overlapping waters itself.
Chen Hurng-yu is a professor at Tamkang University’s Graduate Institute of Asian Studies.
Translated by Paul Cooper
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