The Philippines should consider looking into filing a case, as soon as conditions warrant, under the United Nations Convention on the Law of the Sea (Unclos) with respect to the incursion of Chinese vessels (which at one point, reached more than two hundred) in the Julian Felipe Reef. The Chinese foreign ministry tried to justify this incursion on China’s purported “traditional fishing rights” under international law.
The Arbitral Tribunal in the Philippine-China arbitration traversed the issue of “traditional fishing rights” in its July 2016 ruling. After declaring that Scarborough Shoal has been a traditional fishing ground for artisan fishermen of many nationalities, it defined artisanal fishing to involve vessels which are usually “canoes fitted with small outboard engines, slightly larger vessels (9-12m) fitted with 40-75 hp engines, fishing sambuks with inboard engines,” and dugout canoes or small rafts (ramas). This definition was left open to accommodate possible “improvements” in the powering of small boats, navigation techniques, communication, or fishing technologies; the Tribunal, however, made sure to explicitly exclude large-scale commercial or industrial fishing.
I find this instructive of how the latest controversy over Julian Felipe Reef can be resolved. A unilateral assertion, without more, is not enough. The only way China can validly claim “traditional fishing rights” over the area is to prove the existence of said rights by evidence and, even so, only in favor of small artisanal fishing vessels.
I also submit that the filing of a case against China can now be an entirely Filipino endeavor, skipping the expense attendant to hiring international counsel and experts. Unbeknown to many, the Philippines has been working to build legal competence and institutional memory to file an arbitration of this nature.
To start, no less than 41 Filipinos have graduated from the Rhodes Academy of Oceans Law and Policy, one of the most intensive and prestigious courses on the Unclos. The Academy counts among its Directors H.E. Rüdiger Wolfrum, a former President of the International Tribunal for the Law of the Sea and one of the arbitrators in the Philippine-China arbitration.
It also lists Lawrence Martin, one of our foreign counsels, and Professor Clive Schofield, one of our expert witnesses, among its faculty roster. Unfortunately, Paul Reichler, our lead arbitration lawyer who has taught in the Academy for the longest time, would not be joining this year’s class.
One can find Filipino Rhodes Academy alumni in all branches of government. We have former Assistant Solicitor General (now Sandiganbayan Associate Justice) Sarah Jane Fernandez, Ambassador Generoso Calonge, former Consul General Henry Bensurto, Assistant Solicitor General Hazel Acantilado, Presidential Assistant on Foreign Affairs Robert Borje, Cagayan de Oro Representative Rufus Rodriguez, and Supreme Court attorneys Denise Dy-Flores and Cristina Navarro.
We also have Ambassador Gilbert Asuque and Atty. Fretti Ganchoon of the Department of Justice, both of whom graduated from the Maritime Law Institute in Malta which also prides itself on its renowned LLM program on the law of the sea.
Indeed, the idea of filing a second case against China (and maybe a third case to enforce China’s responsibility for damages to the marine environment) brings to mind another David versus Goliath scenario.
As we speak, China continues to assert its claims over maritime areas already adjudged by the Arbitral Tribunal to be within Philippine responsibility. How China will respond to another Unclos case filed against it, I cannot say. One thing I do not doubt, however, is that the Philippines will never run short of patriots who are willing and able to bring our country’s rights before the international community.
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Francis H. Jardeleza recently retired as an associate justice of the Supreme Court.