It seems the fisheries agreement between Taiwan and the Philippines cannot be finalized. There have been reports that the main reason is that Manila says its so-called “contiguous zone” is not an area of overlapping jurisdiction between the two nations.
It does not recognize that Taiwan has any rights in the area, giving it exclusive rights to law enforcement there. Philippine coast guard authorities are unwilling to give other nations’ boats in the area one hour notice before detaining them. In addition, the Philippines claims that five Taiwanese fishing vessels have entered the Philippines’ zone of enforcement recently, putting each sides’ coast guards into a standoff, which raises concern.
Manila’s accusation that Taiwanese ships have trespassed its waters is an outrage.
These events can be divided into two types. The first is fishing vessels exercising the right of passage. The Philippines does not distinguish one type of passage from another; without exception the Philippines Fisheries Code defines that every kind of passage involves illegal fishing, and does not offer sailors the opportunity to defend themselves.
The second type is even more appalling: In the area where the two sides’ territorial waters overlap — near the area where the Guang Da Xing No. 28 was attacked on May 9 last year, fatally injuring a Taiwanese fisherman — Philippine coast guard personnel try to seize Taiwanese fishing boats, then they accuse vessels of the Coast Guard Administration of disrupting the harmony between the two nations.
The first type of event deprives Taiwanese boats of their right to passage, while the latter violates the nation’s right to protect its own vessels.
Taiwan has not lost its temper, but the Philippines is angry.
There is no room for brash decision making in firm diplomacy, but the question is: What can Taiwan gain from a fisheries agreement with the Philippines?
An analysis of the information that has been revealed primarily shows that during the enforcement process, the Philippines will avoid the use of force, while boats that are apprehended in undisputed waters will be notified “as early as possible” and released after paying a security deposit.
Infuriatingly, these guarantees are fundamental rights that fishing boats already have under international law.
The UN Convention on the Law of the Seas (UNCLOS), Article 73, sections 2 and 4 respectively say: “Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security” and, “in cases of arrest or detention of foreign vessels, the coastal state shall promptly notify the flag state, through appropriate channels, of the action taken and of any penalties subsequently imposed.”
These sections are a compromise between the rights of the nation that controls the waters and the nationality of the intruding vessel. More importantly, they are fundamental humanitarian concerns.
With decades of practice and court rulings, even Taiwan, a non-signatory of the UNCLOS, can be guaranteed treatment according to these regulations.
The rule that legal enforcement procedures cannot include the use of force, this has been made equally clear in other international conventions and court decisions: Unless based on principles of self-defense and the need to comply with the principle of proportionality, law enforcement vessels are banned from using lethal force against unarmed fishing boats.
The Philippines is required to notify Taiwan one hour in advance of seizing Taiwanese boats in disputed waters.
According to Philippine law, Taiwanese boats wishing to pass through Philippine waters are required to apply in advance and must receive approval from Manila.
In the waters of overlapping jurisdiction, Taiwanese boats previously had permission to conduct fishing operations, and based on the fact that fisheries is a renewable resource, there is no reason there should be a fishing ban in disputed waters until the two parties work out a clear delineation.
Why does Taiwan make such concessions, and why does it give up its right and responsibility to protect its vessels?
The requirement that passage through Philippine waters requires permission does not comply with international law. If the area were part of the Philippines territorial waters, Taiwanese ships have the right of passage through these waters and they should not be required to inform Manila.
If the waters are part of the Philippines’ archipelagic waters, given that the Philippines has not designated archipelagic sea lanes, boats have the rights proscribed in UNCLOS Article 53, Section 12, which says: “If an archipelagic state does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.”
This implies that it is not necessary to notify the Philippines nor to apply for approval.
It is clear that Taiwan is legally entitled to pass through these waters, but now it has to ask the Philippines to agree to give vessels one hour’s notice prior to seizing or inspecting a fishing boat in overlapping territorial waters.
If Taiwan agrees to such an arrangement, would that in effect mean recognizing the Philippines’ law enforcement rights?
If Taiwan accepts the requirement that boats must submit an application to Manila to pass through its waters, this would abdicate the rights of passage, including in archipelagic sea lanes.
Taiwan is willing to give up its rights under international law in exchange for a promise from the Philippines not to violate international law.
This is likely to make people wonder how the Ministry of Foreign Affairs is to do its job.
In terms of confronting nations like China and Japan on such issues, Taiwan’s strength is considerably limited, leaving the nation often feeling helpless and compromised.
However, is Taiwan really too weak to face the Philippines?
In this case, it is not a matter of Taiwan being unable, but rather about it being unwilling.
Moreover, experience shows that the Philippines is not like Japan. Even if Taiwan continues to defer to Manila to obtain a promise from it to abide by international law, the question is whether Philippine law enforcement bodies will keep the promises.
How much longer will the Philippines be able to plead innocence?
Chiang Huang-chih is a professor of law at National Taiwan University.
Translated by Zane Kheir
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