Posts Tagged ‘traditional fishing ground’

South China Sea: One Year After The Philippines Win At The Permanent Court of Arbitration — Brilliant Statecraft or Treason?

July 12, 2017

By Ellen Tordesillas

Posted at Jul 12 2017 02:46 AM

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One of the good things that President Duterte has done was to rekindle relations with China which reached its lowest ebb during the administration of Benigno Aquino III.

Never mind that during the election campaign, he rode on the anti-China sentiments of most Filipinos fueled by the pro-American leanings of Aquino and his Foreign Secretary, Albert del Rosario.

Remember, a standard in Duterte’s campaign speech was his boast that he will ride on a jet ski to one of the islands in the disputed Spratlys and plant the Philippine flag. He would kiss the flag to dramatize his promise. Once in Malacanang, he was asked when he was going to jetski to Spratlys and he replied it was a joke. He said he didn’t even know how to swim.

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In the guise of independent foreign policy, Duterte didn’t just cozy up to China. He attacked the United States when then President Barack Obama reminded him to respect human rights amid reports of rampant killings in connection with his anti-illegal drugs campaign.

His foreign policy moves can be likened to a pendulum that swung from extreme right to extreme left. Today marks first year anniversary of the ruling of the Permanent Court of Arbitration in The Hague, Netherlands on the case filed by the Philippines against China on the latter’s activities in the disputed waters of the South China Sea.

China did not participate in the Arbitral Court proceedings.

It was a major victory for the Philippines. The Arbitral Court declared invalid China’s nine-dashed line map which covers some 85 percent of the whole South China which infringes on the economic exclusive zones of other countries namely the Philippines, Vietnam, Malaysia and Brunei.

The Arbitral Court also ruled that China’s  artificial islands – rocks that were turned into garrisons through reclamation – in the disputed South China Sea do not generate entitlements under the United Nations Convention on the Law of the Sea such as economic exclusive zone (220 nautical miles from the shore) and extended continental shelf (350 nautical miles).

As to Scarborough or Panatag Shoal, which is within the Philippine EEZ, the Arbitral Court said it’s a traditional fishing ground of Philippine, Chinese, Vietnamese and fishermen of other nationalities and should be maintained as such.

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Filipino fishermen had been denied access to the area since April 2012 after a two-month stand off between Chinese and Philippine Coastguards following arrest by a Philippine warship of Chinese fishermen in Scarborough shoal. Two Chinese ships remained even after the Aquino government withdrew its ships.

Duterte takes pride that because of his friendship with Chinese President Xi Jinping, Filipino fishermen are now allowed to fish in the area, which is being guarded by two Chinese ships.

It’s like a battered wife thankful that the husband has stopped beating her.

Duterte’s critics have scored his deference to China even  echoing  the position of China that historically South China Sea is theirs  as the name states.

In an ambush interview last April. Duterte said, “They really claim it as their own, noon pa iyan. Hindi lang talaga pumutok nang mainit. Ang nagpainit diyan iyong Amerikano. Noon pa iyan, kaya (It goes way back. The issue just did not erupt then. What triggered the conflict were the Americans. But it goes all the way back. That’s why it’s called) China Sea… sabi nga nila (they say) China Sea, historical na iyan. So hindi lang iyan pumuputok (It’s historical. The issue just had not erupted then) but this issue was the issue before so many generations ago.”

VERA Files fact-check about the name of South China Sea showed  that  South China Sea used to be called the Champa Sea, after the Cham people who established a great maritime kingdom in central Vietnam from the late 2nd to the 17th century.

That is contained in the book,  ‘The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea” by  Senior Associate Justice Antonio Carpio.

Carpio said it was the  Portuguese navigators who coined the name South China Sea.

“The ancient Malays also called this sea Laut Chidol or the South Sea, as recorded by Pigafetta in his account of Ferdinand Magellan’s circumnavigation of the world from 1519 to 1522. In Malay, which is likewise derived from the Austronesian language, laut means sea and kidol means south,” he further said.

“The ancient Chinese never called this sea the South China Sea. Their name for the sea was “Nan Hai” or the South Sea, he adds.

Reading Duterte’s blurting the Chinese line on the South China name, Ruben Carranza, former commissioner of the Presidential Commission on Good Government and now director of the Reparative Justice Program at the International Center for Transitional Justice, said “In football, that would be an ‘own goal.’

That’s when a player delivers the ball to the opponent’s goal.

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http://news.abs-cbn.com/blogs/opinions/07/11/17/opinion-ph-win-in-arbitral-court-one-year-after

Blog:www.ellentordesillas.com
E-mail:ellentordesillas@gmail.com

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Dominance of the South China Sea, the Malacca Strait and the Indian Ocean would solidify China’s One Belt One Road project
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The international arbitration court in the Hague said on July 12, 2016, that China’s “nine dash line” was not recognized under international law — making the Vietnamese and Philippine claims on South China Sea islands valid and lawful.
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China’s aircraft carrier Liaoning at Hong Kong
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South China Sea: Is China in Compliance with the 15 Rulings of The Hague Court for Arbitration on July 12 ?

November 3, 2016

By Julian Ku, Chris Mirasola

Wednesday, November 2, 2016, 12:24 PM

Earlier this week we reassessed China’s compliance with 15 rulings contained in the July 12 U.N. Convention on the Law of the Sea arbitral award. As of this past weekend, Philippine government statements and testimonials from fishermen indicated that Manila had recovered the ability to fish at Scarborough Shoal. We argued that, based on these developments, China is now compliant with the arbitral tribunal’s decision that the Philippines is entitled to “traditional fishing at Scarborough Shoal.”

Reports over the past few days, however, indicate that Philippines Defense Secretary Delfin Lorenzana was incorrect when he stated that “there are no longer Chinese ships, Coastguard or navy, in the Scarborough area.” More specifically, analysts are disputing whether Filipino fishermen have regained access to the lagoon inside Scarborough Shoal.

At least two Filipino news outlets have used language suggesting that fishermen have access to the lagoon. A report from GMA stated, “News of Filipinos resuming fishing activities in the lagoon” (emphasis added). ABS-CBN News found that “[a] group of Filipino fishermen successfully returned from a fishing trip in the disputed Scarborough Shoal on Tuesday” (emphasis added). Satellite imagery from the Asia Maritime Transparency Initiative, however, cast doubt on this account. As of October 29th, satellites showed a China Coast Guard vessel at the mouth of the lagoon and had not detected any Filipino fishing activities within Scarborough Shoal. AMTI notes that this situation, wherein Filipino fishermen are able to approach but not enter the lagoon at Scarborough, has been a recurring one since China took control of the shoal in 2012.

If these images do, in fact, mean that Filipino fishermen do not have access to the lagoon, does this change our assessment that China is compliant with the tribunal’s decision regarding Submission 10? In short, no. This is because (1) the tribunal’s decision does not require that compliance include access to the lagoon and (2) the tribunal gave both China and the Philippines broad authority to define the scope of traditional fishing rights.

First, Submission 10 found 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,” PCA decision ¶1203(b)(11).

On its own terms, this judgment does not indicate whether the Philippines is entitled to traditional fishing rights around Scarborough Shoal, within the lagoon, or both. Other portions of the tribunal’s analysis are no more availing. The tribunal, for example, was “satisfied that the complete prevention by China of fishing by Filipinos atScarborough 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” (¶812, emphasis added). In characterizing the Philippines’ evidence establishing a traditional fisheries right, the tribunal found that “at least some of the fishing carried out at Scarborough Shoal has been of a traditional, artisanal nature” (¶807, emphasis added).

Second, the tribunal found that a coastal State may “assess[] the scope of traditional fishing to determine, in good faith, the threshold of scale and technological development beyond which it would no longer accept that fishing by foreign nationals is traditional in nature” (¶809). In effect, the tribunal is arguing that concerned parties in each individual case, subject to some general limiting principles discussed elsewhere in the decision, are largely entitled to define the meaning of “traditional fishing” rights. Looking to Scarborough Shoal, China and the Philippines, both of which are entitled to traditional fishing rights in this area, would be allowed to determine whether traditional fishing must necessarily include rights to fish within the lagoon.

Statements from Philippine government officials and Filipino fishermen suggest that the current level of access to Scarborough Shoal accords with their understanding of traditional fishing rights at this location. National Security Adviser Hermogenes Esperon, for example, said that while there is no agreement, “our fishermen are no longer being accosted, no longer being forced out, so we can say things are now friendly.” Some fishermen reflected a similar sentiment, one of whom told reporters that “We can now recover our losses . . . . We are happy and we hope that this will continue.”

There is another reason to think that the tribunal’s award does not extend the Philippines’ traditional fishing rights to inside the lagoon.  Under the tribunal’s award, Scarborough Shoal is a high-tide feature that constitutes a “rock” entitled to a territorial sea, but no exclusive economic zone (¶554).  As a rock entitled to a territorial sea, a state sovereign over Scarborough (China or the Philippines) is allowed to set a baseline for determining its territorial sea.  All waters to the “landward side” of such a baseline are “internal waters” under UNCLOS art. 8.  Indeed, the UN Division on Ocean and Law of the Sea Affairs has published a study suggesting lagoons are typically treated as internal waters.  If correct, the lagoon at Scarborough Shoal may qualify as “internal waters” over which a state has no duty to extend traditional fishing rights.  The tribunal suggested as much when it found that traditional fishing rights are preserved only in archipelagic waters and the territorial sea (¶804(a, c)).  Put another way, if the lagoon at Scarborough Shoal constitutes “internal waters,” then the tribunal’s award probably could not require China to allow Filipino fishermen inside the lagoon. As the tribunal reaffirmed, however, this does not mean that UNCLOS precludes States from agreeing to bilateral fishing agreements in other waters, e.g., internal waters or the exclusive economic zone (¶804(b)).

In sum, we find that while the tribunal certainly was firm in reaffirming Manila’s right to traditional fishing at Scarborough Shoal, the terms of its decision provide China and the Philippines considerable room to negotiate what this right should mean in practice.

Nevertheless, we do not mean to argue that this more modest understanding of historic fishing rights is the most that the Philippines could achieve at Scarborough Shoal. There is an altogether separate policy question of whether Manila would gain more by asserting that these traditional fishing rights should include waters within the lagoon. This more expansive understanding would have a number of benefits, most obviously including greater freedom of movement and access for Philippine fishermen. And the Philippines would have a historic basis for advancing such a claim, as before 2012 it was common for its fishermen to access the lagoon.

Looking to the medium term, this more expansive conception of traditional fishing rights might also benefit the Philippines by complicating the legal basis of potential island-building activities at Scarborough Shoal. If Manila maintains that the lagoon represents traditional fishing grounds, it would presumably not be permissible for China, or any other State with sovereign claims to Scarborough Shoal, to diminish that right by turning the lagoon into an artificial island. Given that the tribunal did not take a stand on conflicting sovereign claims, this would present yet another legal obstacle to potential Chinese island-building at Scarborough Shoal.

As we stated earlier in this week, nothing about this de facto, informal, and nonbinding agreement between China and the Philippines is irreversible. Further developments may reveal that China has indeed entirely repudiated Philippine traditional fishing rights, both inside and outside of the lagoon. For the time being, however, we should remain mindful of the considerable room for negotiation, compromise, and capitulation allowed by portions of the arbitral decision.

 Source: https://www.lawfareblog.com/tracking-chinas-compliance-south-china-sea-arbitral-award-traditional-fishing-rights-inside-lagoon
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File photo provided by Renato Etac, Chinese Coast Guard members, wearing black caps and orange life vests, approach Filipino fishermen as they confront them off Scarborough Shoal at South China Sea in northwestern Philippines. Philippine President Rodrigo Duterte said Sunday, Oct. 23, 2016, Filipino fishermen may be able to return to the China-held Scarborough Shoal in a few days after he discussed the territorial rift with Chinese leaders during his trip to Beijing this past week. Renato Etac via AP, File

   (From July 12, 2016)

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Above Chinese chart shows China’s “Nine Dash Line.” China says it owns all ocean territory north of the Nine Dash Line. There is no international legal precedent for this claim.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid.

Japan’s Prime Minister Shinzo Abe “Strongly Encourages” China To Live Up To Its Responsibilities At Sea

July 16, 2016

By 02:00 AM July 17th, 2016

Chinese Premier Li Keqiang, right, and Japanese Prime Minister Shinzo Abe shake hands during a bilateral meeting held on the sideline of the 11th Asia-Europe Meeting (ASEM) Summit in Ulaanbaatar, Mongolia, Friday, July 15, 2016. (Kyodo News via AP)

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Japan raised pressure on China at an Asia-Europe summit yesterday to respect an international tribunal’s ruling that dismissed Beijing’s claim to almost all of the South China Sea, but the meeting ended without direct mention of the dispute, with diplomats describing intense discord over the issue between Asia and Europe.

At a retreat outside the Mongolian capital Ulaanbataar, Prime Minister Shinzo Abe told the assembled leaders that the rule of law was “a universal principle that the international community must firmly maintain,” according to Japan’s Jiji Press.

“I strongly hope the parties to the dispute comply with the award and lead to a peaceful solution of the dispute in the South China Sea,” he said.

The Permanent Court of Arbitration in The Hague on Tuesday ruled that there was no legal basis for Beijing’s claims to much of the South China Sea, which are embodied in a “nine-dash line” that dates from 1940s maps and stretches close to the coasts of other countries in the region.

The tribunal ruled that China violated the Philippines’ sovereign rights by building artificial islands in waters within Manila’s 370-kilometer exclusive economic zone and by preventing it from exploring resources and Filipino fishermen from fishing in those waters also known as West Philippine Sea.

China refused to take part in the arbitration proceedings, and said it would not abide by the ruling on the case brought by the Philippines in 2013 after Beijing seized Panatag Shoal, a traditional fishing ground off Zambales province, in 2012.

The ruling has proved a boon to Japan, which is embroiled in a separate territorial dispute of its own with China in the East China Sea and vies with it for influence across Asia.

Other claimants in the South China Sea—Brunei, Malaysia, Vietnam and Taiwan—also stand to benefit from the Philippine victory should they bring cases of their own against China in the UN-backed arbitral court.

China refused any discussion of the ruling at the Asia-Europe Meeting (Asem) in the Mongolian capital.

EU weighs in

But despite Chinese objections, the European Union weighed in on the subject, with President Donald Tusk telling reporters that the bloc “will continue to speak out in support of upholding international law,” adding that it had “full confidence” in the tribunal and its decisions.

“It’s not so easy to agree with our Chinese partners when it comes to this issue,” he said. “Our talks were difficult, tough, but also promising.”

The comments by Abe and Tusk yesterday followed a blitz of meetings between the Japanese leader and officials from around the region, including his Vietnamese counterpart Nguyen Xuan Phuc and Philippine Foreign Secretary Perfecto Yasay, on the summit sidelines as he sought to build consensus on the issue.

Manila has promised not to “taunt or flaunt” the verdict.

No illegal deals with China

But Japanese foreign ministry spokesperson Yasuhisa Kawamura told Agence France-Presse that in his meeting with Abe, Yasay agreed to “closely cooperate” at upcoming conferences of the Association of Southeast Asian Nations (Asean) to ensure that the “parties to the dispute comply with the final award of the tribunal.”

Leaders of Asean have so far failed to issue a statement on the ruling, reportedly due to objections from member states with close ties to China.

In his meeting with Abe, Yasay said the Philippines would not enter into any bilateral agreement with China that would violate Philippine laws.

“The Philippine Constitution prohibits entering into any agreement that would compromise national interests and rights of Filipinos,” Yasay said.

Abe stressed “the importance of the rule of law and the need for peaceful means to resolve disputes.”

Yasay thanked Japan for its strong support to the Philippine case, saying the Philippines was studying the ruling “very carefully” to determine how it could move forward with allies like Japan in bringing peaceful solutions to disputes in the South China Sea.

“The decision of the tribunal provides a legal basis to move forward, and the Philippine government is currently studying the ruling very carefully,” Yasay said.

Cooperation with Vietnam

In Abe’s meeting with Phuc, the two leaders agreed that the tribunal’s ruling should be observed, and Abe offered to increase cooperation on building Vietnam’s maritime law enforcement capabilities, Kawamura said.

Abe also brought his argument directly to Chinese Premier Li Keqiang during a heated 30-minute meeting on Friday.

Kawamura described the exchange as “frank and candid” and Chinese state media accounts described Li as telling Abe that Japan should “stop hyping up and interfering in the dispute.”

On Friday, the European Union issued a statement noting China’s legal defeat but avoided direct reference to Beijing, reflecting discord among EU governments over how strongly to respond to the court ruling.

While the European Union is neutral in China’s dispute with its Asian neighbors in the South China Sea, Britain, France and Germany want to make clear that Beijing must uphold international law as it seeks a bigger global role.

But speaking with one European voice has become difficult as some smaller countries, including Hungary and Greece, rely on Chinese investment and are unwilling to criticize Beijing.

Closing statement

The meeting ended on Saturday with the leaders issuing a statement in which they reaffirmed their commitment to promote maritime security, safety and cooperation, freedom of navigation and overflight, and to refrain from using threatening force.

They also said disputes should be resolved through international law, the United Nations charter and the UN Convention on the Law of the Sea, or Unclos, under which the Philippines brought the case against China.

There was no direct mention of the case, but the leaders’ reaffirmation of their commitment to international law made it clear that they wanted China to respect the tribunal’s ruling.

A Mongolian diplomat said negotiations over the closing statement were “intense.”

“The Europeans wanted lots on the South China Sea but the Asians didn’t,” the diplomat said. With report from AFP/TVJ

Read more:http://globalnation.inquirer.net/141343/japan-ups-pressure-on-defiant-china#ixzz4EbgiuU88
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Close to 50 Chinese Fishing Boats Await Near The Philippines for the Release of Their Comrade Arrested By Philippine Sea Police

May 9, 2014

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The chairperson of the Tanmen Fisheries Association, Ding Zhile, awaits news of the missing boat, May 7, 2014. (File photo/Xinhua)

“They rushed toward us in a boat and fired at us,” said He Junting, the Chinese captain of the fishing boat Qiongqionghai 03168, said Thursday when recalling an attack by Philippine authorities.

He’s boat was about 300 meters from the Qiongqionghai 09063, which was seized by Philippine police at about 10am Tuesday in waters off Half Moon Shoal in the South China Sea, with 11 fishermen on board currently under detention.

After fleeing the armed vessel, He encountered another armed boat but managed to evade capture.

“If we had not known the sea conditions around the Half Moon Shoal well, we would never have got away from them,” he told Xinhua.

“If we delayed a little bit, our nine fishermen aboard would have been seized,” he said.

The the captain said Half Moon Shoal is Chinese territory, along with its rich fishing resources, good anchorages and harbors. “It is a traditional fishing ground for fishermen in Qionghai, Hainan province,” He said. “We have been fishing there many times.”

The Beidou navigation system installed on Qiongqionghai 09063 was switched off by the Philippine police, meaning the 11 fishermen lost contact with China, according to a Qionghai fishing administration official on condition of anonymity.

There are still 48 Chinese fishing boats in the waters off the disputed Spratly Islands, according to the Qionghai municipal fishing administration station.

Police will make contact with the boats four times a day and make sure they know their positions. They will guide fishing boats to leave dangerous sea areas if needed, said Yu Yi, head of the Tanmen township border police station of Qionghai.

The Chinese foreign ministry on Wednesday urged the Philippines to “immediately” release the detained fishermen and the boat.

China has demanded the Philippines “make rational explanations”, said spokesperson Hua Chunying at the daily press briefing, warning the Philippine side to “take no more provocative action.”

Hua said a Chinese maritime police boat has arrived in the area. China’s foreign ministry and the Chinese Embassy in the Philippines have already lodged representations with the Philippine authorities.

Hua reiterated China’s claim to undisputable sovereign rights over the sea area, including the Half Moon Shoal, where the incident occurred.

The Spratly Islands are the most hotly contended group of islands and reefs in the South China Sea as they are claimed in whole or in part by China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei.

References:

He Junting 何君挺

Yu Yi 余毅

Hua Chunying 華春瑩

http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20140509000102&cid=1103