Are you going to Scarborough Shoal?

As Arbitral Tribunal recognizes the talakitok, tanguinge & bonito 

Exclusive

By Dr. Alfredo C. Robles, Jr.

I hope the following will only be the first of several pieces summarizing different aspects of the Award in the Philippines v. China arbitration and explaining their implications.

As I was writing this, I could not help but recall the first ever lectures that I had in my life on international law and the law of the sea and that I attended (in French!) at the Institut d’Études Politiques de Paris (Paris Institute of Political Studies) in 1980-81.

The lecturer was the late Professor Daniel Bardonnet, who later became Secretary-General of The Hague Academy of International Law (1985-1999). For our first examination, he asked us to answer a question on the provisions concerning the outer limit of the continental shelf of the Draft Convention on the Law of Sea. For our final examination, we had to answer four questions on the 1959 Antarctic Treaty and a meeting of the States parties to the Antarctic Treaty. I later learned that a few years previously he had been one of France’s lawyers in the successful arbitration with the UK regarding the delimitation of their respective continental shelves (1977-78).

Prof. Bardonnet’s name is mentioned on page 4 of the Award. I then understood why he gave us the questions that he did for our two examinations.

After graduating from Sciences Po (the nickname of the Institute), I participated as a PhD student in a one-year research seminar on the Third UN Conference on the Law of the Sea at the Université Paris I (Panthéon-Sorbonne) , supervised by the late le Doyen (Dean) Claude-Albert Colliard. Dean Colliard looked like he enjoyed good food and good wine. His speaking and writing style was plain and direct, but his presentations and writings contained much more substance than those of other professors who spoke and wrote French with fireworks that left little once the dust had settled. Dean Colliard was one of the lawyers of Libya in the case before the ICJ Continental Shelf (Libyan Arab Jamahiriya/Malta), (1978-82), which Libya won. You can find his pleadings in French here (pp. 117-61 and 392-405 of the file).

A few years later Dean Colliard was chosen by Nicaragua to be its judge ad hoc in the case that it brought against the United States for supporting a guerrilla group that wished to overthrow the Sandinista Government of Nicaragua (Military and Paramilitary Activities in and against Nicaragua , 1984-91). You will see Dean Colliard’s name mentioned on page 393 (page 6 of the file) of the Judgment on Jurisdiction and Admissibility and on page 15 (page 6 of the file) of the Judgment on the Merits.

I hope this piece does justice to their teaching.

 

The Arbitral Tribunal’s decisions on the nine-dash line and the entitlements of various features in the South China Sea will probably sound abstruse, abstract and far-removed to many Filipinos.

Allow me to explain how the decision on Submission 10 (of the Philippine government) has concrete consequences for particular local fishing communities. In that Submission, the Philippines had argued that “China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal”.

The Tribunal agreed with the Philippines and said it:

[1203.B] (11) FINDS that Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities and DECLARES that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal (Award, p. 474; p. 496 of the file, paragraph 1203.B(11).

This piece summarizes the portions of the Award that discuss Submission 10 (pp. 299-318, pp. 321-40 of the file, paragraphs 758-814).

I first trace the origins of the dispute before examining the opposing Philippine and Chinese positions on fishing in Scarborough Shoal’s territorial sea, which stem from the differences between traditional fishing rights and historic rights. Finally, I explain the Tribunal’s reasoning, which is based on the notion of “vested rights”.

Two other decisions of the Tribunal are relevant to fishing in Scarborough Shoal’s waters, but since the reasoning underlying them is different, I will just summarize them here.

The Tribunal also declared that Scarborough Shoal was a rock – not a rock as geology understands it, but a rock as defined by (“within the meaning of”) Article 121(3) the United Nations Convention on the Law of the Sea (“Régime of Islands”) (all in boldface mine):

[1203.B] (6) …Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, in their natural condition, are rocks that cannot sustain human habitation or economic life of their own, within the meaning of Article 121(3) of the Convention and accordingly that Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef generate no entitlement to an exclusive economic zone or continental shelf;

Since Scarborough Shoal is a “rock”, as defined by Article 121(3) of the Convention, it is not entitled to either a 200-nautical-mile Exclusive Economic Zone (EEC) or a 200-nautical-mile continental shelf. A nautical mile, which is not defined in the Law of the Sea Convention, is equivalent to 1,852 meters or 6,076.115 feet, corresponding to 60 nautical miles per degree of latitude (George K. Walker, Definitions for the Law of the Sea: Terms Not Defined by the Convention [Leiden: Martinus Nijhoff Publishers, 2012], p. 52).

In passing, we should note that some sketches circulating in the press are misleading, to put it politely. They give the impression that the 200 nautical miles of both the EEZ and continental shelf are measured from the outer limit of the territorial sea at 12 nautical miles and that consequently, the 200 nautical miles are added to the 12 nautical miles. On the contrary, the 200 nautical miles are measured from the same baselines from which the 12-nautical-mile territorial sea is measured. The baseline is defined by the International Hydrographic Organization as “the line from which the outer limits of the territorial sea and certain other outer limits are measured” (International Hydrographic Organization, Hydrographic Dictionary, Part 1, Volume 1, English [Monaco: International Hydrographic Dictionary, 1994], p. 22). That this interpretation is correct is (or should be) clear to anyone who takes the trouble to read Article 57 of the Law of the Sea Convention:

Article 57
Breadth of the exclusive economic zone

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

If Scarborough Shoal had been entitled to an EEZ, the nationals of the state enjoying sovereignty over it would have had the exclusive right to fish in the EEZ, up to 200 nautical miles. China’s claim to sovereignty would have justified it in excluding Filipino fishermen from fishing in any alleged EEZ of Scarborough Shoal.

In view of the Tribunal’s declaration that Scarborough Shoal is a rock, which is entitled only to a territorial sea, the sole remaining issue is whether Filipinos and nationals of immediately adjacent coastal States enjoy the right to fish in the 12-mile territorial sea of Scarborough Shoal.

The Tribunal’s conclusion on the operation of Chinese law enforcement vessels is also important for Filipino fishermen. The Tribunal –

[1203.B] (15) FINDS, with respect to the operation of Chinese law enforcement vessels in the vicinity of Scarborough Shoal:

a. that China’s operation of its law enforcement vessels on 28 April 2012 and 26 May 2012 created serious risk of collision and danger to Philippine ships and personnel; and

b. that China’s operation of its law enforcement vessels on 28 April 2012 and 26 May 2012 violated Rules 2, 6, 7, 8, 15, and 16 of the Convention on the
International Regulations for Preventing Collisions at Sea, 1972; and

DECLARES that China has breached its obligations under Article 94 of the
Convention [.]

Chinese patrol ships protect fishing by Chinese nationals. They harass not just Filipino fishermen but even the Filipino ships that are patrolling the waters around Scarborough Shoal. The Tribunal thus declared that the way that they conduct their operations is illegal under the Convention. If, by some miracle, Chinese patrol ships were to stop their dangerous behavior, Filipino fishermen would be able to resume their fishing and Filipino patrol ships would be able to prevent Chinese fishing of endangered and threatened species…

The Origins of the Dispute

Chinese disruption of long, peaceful and uninterrupted traditional fishing by Filipinos in the waters surrounding Scarborough Shoal started in April 2012.

According to the Department of Foreign Affairs, a Philippine Navy Surveillance aircraft monitored eight Chinese fishing vessels anchored inside Scarborough Shoal on Sunday, 8 April 2012. On 10 April 2012, the vessel BRP (Barko ng Republika ng Pilipinas) Gregorio del Pilar dispatched an inspection team, which reported that large amounts of illegally collected corals, giant clams, and live sharks were found in the compartments of these fishing vessels.

Two Chinese maritime surveillance ships, identified as Zhonggou Haijian 75 and Zhonggou Haijian 84, later approached and positioned themselves between the Philippine warship and the Chinese fishing vessels, thus preventing the arrests of the Chinese fishermen.

China’s version of events was quite different. It accused the BRP Gregorio del Pilar of blocking the lagoon entrance, boarding and searching the boats, questioning the fishermen, and taking photos. Their behavior was described as “rude and rough”. On the afternoon of 10 April, Chinese Marine Surveillance Vessels No. 84 and 75 headed for the area to protect the Chinese fishermen. Next day, the Chinese fishery administration boat No.303 arrived on the site and instructed the Chinese fishing boats and fishermen to evacuate safely and “get rid of the Philippine intimidation” (sic). Afterward, an archaeological ship of the Philippines stayed in the lagoon for illegal operation for a long time, refusing to leave until 18 April.

In June 2012, China deployed 28 utility vessels across the Shoal’s entrance and rigged them together by rope to establish a makeshift boom or barrier, blocking the entrance to the lagoon and making it difficult for Filipino fishermen to enter the Shoal. Since then Chinese patrol vessels threaten Filipino fishermen who attempt to fish at Scarborough Shoal, creating a deep sense of fear among them. Jowe Legaspi’s written testimony declared that he and his fellow fishermen were harassed through the use of water cannon and sound blares. However, China has continued to allow its nationals to fish at Scarborough Shoal.

Traditional Fishing Rights, not Historic Rights

The differences between Philippine and Chinese positions can be expressed in terms of the differences between traditional fishing rights and “historic rights”.

The Philippines based its claim of Chinese illegal actions on Article 2(3) of the UN Convention on the Law of the Sea, supported indirectly by reference to Articles 51(1) and 62(3) of the Convention. If we turn to Art. 2(3), we might be in for a surprise, as there is no explicit reference to fishing in the article, entitled “Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil”. Article 2(3) simply says” “The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.”

Citing the Chagos Marine Protected Area Arbitration between Mauritius and the UK (2010-15), the Philippines argued that the phrase “other rules of international law”, was not merely descriptive. On the contrary, it imposed substantive obligations. Among the rules that it encompassed was the general rule that required States to respect long and uninterrupted fishing by nationals of another State in its territorial sea.

In other words, even if China did have sovereignty over Scarborough Shoal (which the Philippines is contesting), China still had the duty to respect traditional fishing rights of nationals of adjacent states in the 12-nautical-mile territorial sea of Scarborough Shoal. It did not matter, either, whether Scarborough Shoal was an island or a rock: the latter, as a category of island, would be entitled to a 12-nautical-mile territorial sea.

The waters surrounding Scarborough Shoal have been traditional fishing grounds for fishermen from several adjacent coastal States, such as the Philippines, Vietnam and China (including Taiwan). To support its claim that Filipinos possessed traditional fishing rights in Scarborough Shoal’s territorial sea, the Philippines provided colonial-era maps that tended to show a connection between the Shoal and the Philippine mainland; direct documentation of fishing since 1982, indirect evidence of fishing since 1972, and the testimony of fishermen. The tribunal noted in the Award that among the fish species that Filipinos caught there were bonito, talakitok and tanguinge (which are thus immortalized in an international judicial document)(p. 301 of the Award, p. 323 of the file, paragraph 763).

Since 2012, the activities of fishermen have been disrupted, resulting in lower income for some, the retirement of others, and uncertainty about the future for all.

The Philippines cited several cases as precedents for the general rule that it was invoking:

♦ the Paquete Habana case, decided by the US Supreme Court in 1900;

♦ Eritrea/Yemen arbitration (second stage of the proceedings: maritime delimitation), (1998-99); and

♦ even the Abyei Arbitration (2008-09) between the Government of Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A)

The Philippines, through its lawyers, explained that the traditional fishing rights – that it was claiming for its nationals – differed from the historical rights that China was claiming for itself in the South China Sea in three ways.

♦ First, China was asserting rights of control and jurisdiction, while the Philippines merely sought “access for its fishermen to pursue their traditional livelihood.”

♦ Second, China claimed “exclusive sovereign rights”, whereas the Philippines acknowledged that its fishing rights were “non-exclusive”. The traditional fishing rights of Filipino fishermen would not prevent fishermen from China, or other adjacent states like Vietnam from fishing in the territorial sea of Scarborough Shoal.

♦ Third, the Philippine claim was limited to the territorial sea, in contrast with China’s expansive claims in the South China Sea (p. 307 of the Award, p. 329 of the file, paragraph 781).

As for Articles 51(1) and 62(3) of the Law of the Sea Convention, the Philippines admitted that they were not directly applicable to the case. The importance of these two articles lay in the fact that they constituted express recognition of the existence of traditional fishing and its importance for the nationals of immediately adjacent coastal states. Moreover, the two articles confirmed that, where the drafters of the Convention intended to “preserve traditional fishing in the context of the new legal regimes they created,” they did so “explicitly” and “made clear to what extent such prior uses were or were not protected.”

Article 51(1) provides that

“an archipelagic State . . . shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.” Article 62(3) provides that, “[i]n giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, . . . the need to minimize economic dislocation in States whose nationals have habitually fished in the zone.”

Since China was not participating in the arbitration, the Tribunal deduced the Chinese position from its statements that it had sovereignty over Scarborough Shoal and implied that its actions were lawful.

Traditional Fishing Rights as Vested Rights

At the outset, the Tribunal clarified that its discussion did not assume that either the Philippines or China enjoyed sovereignty over Scarborough Shoal.

We may recall that the Tribunal’s jurisdiction did not allow it to rule on sovereignty over any of the features in the South China Sea. The Tribunal’s reasoning would apply whoever was the sovereign. If the Philippines had sovereignty over Scarborough Shoal, then the Tribunal’s decision would also be applicable to fishing by Chinese nationals in the Shoal’s territorial sea.

This means that if the Philippines had sovereignty, Chinese fishermen would still be able to fish in Scarborough Shoal. However, they would have to abide by Philippine fisheries and environmental laws, which would include a ban on fishing of endangered species, a ban on the gathering of corals and a ban on certain fishing methods.

If China had sovereignty, Chinese fishermen would still not be free to fish endangered species, gather corals and use certain fishing methods, such as dynamite fishing. China would continue to be bound by its obligation under Articles 192 and 194(5) of the Law of the Sea Convention to preserve and protect the marine environment in the South China Sea as a whole, and not just at Scarborough Shoal. This is the direct consequence of the Tribunal’s finding that China,

“which was aware of, tolerated, protected, and failed to prevent” harvesting by Chinese fishermen of endangered species on a significant scale and harvesting of giant clams in a manner that is severely destructive of the coral reef (p. 475 of the Award, p. 497 of the file, paragraph 1203.B(12)) in the South China Sea, had breached its obligations under the two articles.

The Tribunal’s reasoning was divided into two parts. First, it discussed in general the law applicable to traditional fishing, which is part of traditional livelihoods and cultural patterns that are fragile and for this reason deserve attention. Traditional fishing had been extensively discussed in the arbitration between Yemen and Eritrea. The difficulty confronting the Tribunal in Yemen v. Eritrea as well as the Tribunal in the Philippines v. China was the lack of a common definition of traditional fishing – also known as artisanal fishing – at the international level. The latter Tribunal nevertheless identified some common elements of a definition. Artisanal fishing is simple, carried out on a small scale, and uses methods that are similar to those that have historically been used in the region. Moreover, artisanal fishing is to be contrasted with industrial fishing.

In the Tribunal’s view, the legal basis for protecting artisanal fishing was the notion of vested rights, Vested or acquired rights are well-known in domestic law and international law. Briefly, a “vested right” is defined as “a right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy (Black’s Law Dictionary, 5th ed. [St. Paul, MN: West Publishing Co., 1978], p. 1402).”

In international law, vested rights are “private rights, acquired either by nationals or by aliens, under the existing law of a given State which, according to traditional international law, do not cease on a change of sovereignty, and in the event of State succession must be respected by the successor State (John P. Grant and J. Craig Barker, Parry and Grant Encyclopedic Dictionary of International Law [Oxford: Oxford University Press, 2009], p. 5).”

Applying the notion of vested rights to fishing, the Tribunal explained that “generations of fishermen who have pursued a livelihood through artisanal fishing have acquired a right, akin to property, in the ability to continue to fish in the manner of their forebears” (p. 312 of the Award, p. 334 of the file, paragraph 798).

To avoid confusion with China’s “historic rights” claim, the Tribunal stressed that artisanal fishing rights are rights of individuals and communities that have traditionally fished in an area. They are not the historic rights of states; rather, they are private rights.

The Tribunal was aware of a possible contradiction in the Philippine position. On the one hand, the Philippines argued that China’s historic rights were extinguished by the Law of the Sea Convention; on the other hand, it asserted that traditional fishing rights had to be protected.

The Tribunal expressed the belief that no contradiction existed in these two positions (p. 313 of the Award, p. 335 of the file, paragraphs 800-01). Before the notion of Exclusive Economic Zone was widely adopted in the 1970s, any expansion of jurisdiction by coastal states over maritime areas was treated as functionally equivalent to a boundary adjustment. In which case acquired rights, particularly those relating to fisheries, were protected. With the widespread adoption of EEZs by coastal states, the Tribunal believed that the states participating in the Third UN Conference on the Law of the Sea, which drafted the Convention, did not intend traditional fishing rights to survive the introduction of the EEZ.

As a result, the Convention treats traditional fishing rights differently, depending on the maritime area:

♦ In archipelagic waters, they are protected;

♦ in the EEZ, they are extinguished, with a possible minor exception specified in Article 62(3);

♦ in the territorial sea, the existing legal regime continued largely without change (p. 314 of the Award, p 336 of the file, paragraph 804).

The importance of the last cannot be underestimated, given that most traditional fishing takes place close to the coast, and can be expected to take place within the 12-nautical-mile territorial sea.

In the second part of the Tribunal’s reasoning, the protection of traditional fishing at Scarborough Shoal was examined.

The Tribunal agreed with the Philippines, and for that matter, with China, that the waters surrounding Scarborough Shoal had been traditional fishing grounds for nationals of many countries, including the Philippines, China (and Taiwan), and Vietnam. Although the Tribunal did not have extensive details of Filipino or Chinese fishing methods or of the fishing communities concerned, the available evidence was sufficient to convince it that at least some of the fishing carried out at Scarborough Shoal was traditional (artisanal) in nature.

The way the Tribunal dealt with the paucity of evidence evinces its great understanding of and sympathy for the plight of traditional fishermen. It noted:

“The stories of most of those who have fished at Scarborough Shoal in generations past have not been the subject of written records, and the Tribunal considers that traditional fishing rights constitute an area where matters of evidence should be approached with sensitivity. That certain livelihoods have not been considered of interest to official record keepers or the writers of history does not make them less important to those who practice them” (p. 315 of the Award, p. 337 of the file, paragraph 805).

Adopting this perspective, the Tribunal had no trouble accepting that Philippine and Chinese claims to have traditionally fished at the shoal are “accurate and advanced in good faith”.

The Tribunal agreed with the Award in the Chagos Marine Protected Area Arbitration that Article 2(3) of the Convention imposed on the coastal State the obligation to exercise its sovereignty subject to other rules of international law. Among these were the rules on the treatment of the vested rights of foreign nationals, which also encompassed traditional fishing rights. The respect for traditional fishing rights does not prevent a coastal State from adopting reasonable regulation, for example, for purposes of conservation and restricting environmentally harmful practices.

The Tribunal found that Chinese government vessels have acted to prevent entirely fishing by Filipino fishermen at Scarborough Shoal for significant, although not continuous, periods of time. Based on the evidence provided by the Philippines, the Tribunal concluded that Chinese government vessels have physically blockaded the entrance to the Shoal and used water cannon to drive away Filipino fishermen.

In contrast, Chinese nationals have continued to fish at Scarborough Shoal. The fact that the vessels that resorted to such tactics were official Chinese government vessels meant that under the rules for international responsibility, these vessels constitute official acts of the state itself, and that the consequences of these acts are attributable to the Chinese state.

The Tribunal could not have been more clear when it declared that

“the complete prevention by China of fishing by Filipinos at Scarborough Shoal over significant periods of time after May 2012 is not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen. This is particularly the case given that China appears to have acted to prevent fishing by Filipinos, specifically while permitting its own nationals to continue” (p. 317 of the Award, p. 339 of the file, paragraph 812).

The Tribunal also pointed out, just in case anyone in the corridors of power in Beijing was listening, that China’s dispute with the Philippines over sovereignty and law enforcement was with the Philippine Government. The existence of the inter-state dispute could not justify action against Filipino fishermen, who were simply engaging in their traditional livelihood, or continued exclusion of Filipino fishermen from Scarborough Shoal for months, even after the Philippines had withdrawn its vessels.

Conclusion

The Award’s conclusion on fishing at Scarborough Shoal should be welcome news for Filipino fishermen as well as for Vietnamese fishermen and nationals of other states who have traditionally fished there.

Yet China continues to drive away Filipino fishermen from the Shoal. Perhaps, if Vietnamese fishermen were to join Filipino fishermen in resuming fishing at Scarborough Shoal, the Chinese government would have to weigh the consequences of its heavy-handed attempts to restrict access to the Shoal and of further antagonizing yet another neighboring state.