Joaquin G. Bernas, S.J.
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 communication, and second, they contain vast natural resources. In the seventeenth century the Portuguese proclaimed vast areas of sea as belonging to itself. But it was Grotius who elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all. The doctrine, however, recognized as permissible the delineation of a maritime belt by littoral states 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 as the exclusive economic zone of a state or a state’s “patrimonial sea.”. Both the Philippines and China are among the signatories 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. The baseline 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 state’s authority over the sea are measured: the territorial sea, twelve nautical miles from the baseline; the contiguous zone, 24 miles from the baseline; and exclusive economic zone, 200 nautical miles. The Philippines recently revised its Baseline Law to make it conform to the requirements under UNCLOS.
The doctrine on the exclusive economic zone is a recent development. Prior to the acceptance of this doctrine, all waters beyond the contiguous zone were considered as high seas over which no state had control. The exclusive economic zone doctrine developed owing to the desire of coastal states for better conservation and management of coastal fisheries.
The coastal state has rights over the economic resources of the exclusive economic zone, that is, over its seabed, subsoil and waters. But the provisions on the exclusive economic zone are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation, management and preservation of the resources found within the zone.
Coastal states have two primary obligations. First, they must ensure through proper conservation and management measures that the living resources of the EEZ are not subjected to over-exploitation. This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a "maximum sustainable yield." Second, they must promote the objective of "optimum utilization" of the living resources. They therefore should determine the allowable catch of living resources. If the coastal state does not have the capacity to harvest the allowable catch, it must grant access to other states.
The claim of the Philippine government is that Chinese fishing vessels continue to foray into the excusive economic zone of the Philippines without the needed consent from the Philippine government and in fact against the wishes of the Philippine government and to the prejudice of the economic rights of the Philippines over the patrimonial sea.
Considering the width of the patrimonial sea which a state may claim and the distances between states, it is inevitable that the different claimed areas will overlap. China, for its part, bases its claim on what it calls the “nine-dash map,” the demarcation lines used by both the governments of the People's 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. At stake here are believed to be not just fishing resources but also 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 cannot enforce by force of arms what it believes to be its right. The Philippines therefore hopes that arbitration will solve the problem. Will it?
Peaceful settlement of disputes is compulsory. Under Part XV of the 1982 Convention on the Law of the seas states are required to settle peacefully disputes concerning the Convention. If a bilateral settlement fails, Article 285 requires submission of the dispute for compulsory settlement to one of the tribunals clothed with jurisdiction. The alternatives are the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), or a voluntary arbitral tribunal constituted under the Convention.
Assume, however, that the Philippines wins, how will the decision be enforced? Submission to the ICJ may be declined by a state. But if a state submits to the ICJ, decision of the ICJ maybe enforced by the Security Council. But China has veto power in the Security Council. For its part, ITLOS does not contain an enforcement mechanism. Associate Justice Antonio Carpio calls the situation a “legal black hole” and suggests that our only hope is that the bully China will yield to international public opinion.
3 June 2013