Duterte after Reed Bank incident: Checking his views on Philippines’ rights, duties

June 28, 2019 - 12:13 PM
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Duterte with Delfin Lorenzana
President Rodrigo Duterte joins the Presidential Security Group to celebrate its 122nd anniversary at the PSG Compound on June 26, 2019. Next to him is Defense Secretary Delfin Lorenzana. (Presidential photo/Karl Norman Alonzo)
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(Updated at 1:42 p.m. on July 2) President Rodrigo Duterte’s recent pronouncements in connection to the incident involving a Chinese boat ramming a Filipino trawler touch on the country’s rights over the West Philippine Sea, the part of the strategic South China Sea the Philippines has jurisdiction over.

Duterte recalled the landmark arbitration decision in 2016 but made an error in saying that the sovereign rights granted to the country is 12 miles rather than 200 nautical miles.

“No country in the world has a sovereignty sa kaniyang economic zone. It is not a question of sovereignty. Ang recognized lang ‘yung 12 [miles],” he said.

“We cannot drive them away because they have insisted na kanila,” he added.

The president also previously downplayed the incident as a commonplace “maritime accident” even if the fishermen nearly drowned after the Chinese vessel fled the scene.

A Vietnamese ship happened to be in the area that night and was able to rescue them.

“What happened in the collision is a maritime incident. Do not believe the dumb politicians who want to send the Philippine Navy. You do not send gray ships there. That is only a collision of ships,” Duterte said after a week-long silence on the matter.

What the laws state

International tribunal ruling in 2016

In 2016, the Permanent Court of Arbitration at The Hague invalidated China’s claims over the West Philippine Sea.

It also acknowledges the Philippines’ sovereign rights or entitlement to an exclusive economic zone of 200 nautical miles from land.

Recto or Reed Bank is located only 82 miles from terrestrial territory; hence, it is within the EEZ and China cannot assert rights over it.

Florin Hilbay, a former solicitor general who was part of the successful legal team against China, cited this in his statement on Twitter.

“Reed Bank, its living and non-living resources, is within our exclusive economic zone, allowing us to exercise rights to the exclusion of others, including China,” he said.

Section 2 of Article 12 of the 1987 Constitution also reinforces that the EEZ is part of the national territory that the State should protect.

“The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”

Hilbay noted that it is considered a violation of the Constitution if Duterte chooses not to conform to these obligations.

“Acts of the president inconsistent with these obligations are a culpable violation of the Constitution and a betrayal of public trust,” Hilbay, a losing senatorial candidate, said.

Sovereignty vs sovereign rights under UNCLOS

While the Philippines does not have sovereignty, as Duterte mentioned, it does have sovereign rights. The assertion that the country does not have sovereignty around Recto Bank, while accurate, beffudles a larger context of its entitlements over China.

Sovereignty, under the United Nations Convention of the Law of the Sea, implies exclusive legal authority of a state over its waters, particularly its internal waters and territorial seas. Territorial waters where has sovereignty over are drawn 12 nautical miles from the baseline or shoreline.

Sovereign rights, meanwhile, refer to a state’s privilege to an exclusive economic zone that is 200 nautical miles from the baseline.

Philippines' rights under UNCLOS
An illustration of how the United Nations Convention on the Law of the Sea defines a state’s entitlements. (Artwork and research by Uela Altar-Badayos)

Article 56 of the UNCLOS explains that a state has sovereign rights within the EEZ for:

“Exploring and exploiting, conserving and managing the natural resources… of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.”

China, therefore, is not entitled to resources within the Philippines’ EEZ.

The state can also take measures to protect it such as “boarding, inspection, arrest and judicial proceedings.”

Philippine Fisheries Code of 1998

Republic Act 8550 or the Philippine Fisheries Code of 1998 also reinforces that the country has sovereign rights and jurisdiction in all Philippine waters.

Municipal fisherfolk or fishermen who acquire marine and fishery resources from these areas should then be protected from foreign intrusion.

“The protection of municipal fisherfolk against foreign intrusion shall extend to offshore fishing grounds. Fishworkers shall receive a just share for their labor in the utilization of marine and fishery resources,” a part of Section 2 read.

Section 87 further specifies that “it is unlawful for any foreign person, corporation or entity to fish or operate any fishing vessel in Philippine waters.”

“The entry of any foreign fishing vessel in Philippine waters shall constitute a prima facie evidence that the vessel is engaged in fishing in Philippine waters.”

Lawyer Mel Sta. Maria stressed on these provisions in a tweet.

“The executive has no discretion to change this mandatory, narrow, and confining nature of the law. To do so is betrayal of the public trust,” he said.

These international and local laws indicate that the government has the duty to enforce these rights to protect the national territory and the Filipinos who live in it.

“Whether it’s in an area where we have sovereignty (territorial sea) or sovereign rights (EEZ), it is a fact that we have enforceable rights under both domestic and international law, and the President has the constitutional duty to enforce these rights,” he said. — Infographic by Uela Altar-Badayos

 

Editor’s Note: An infographic illustrating some provisions of UNCLOS is added in the latest update.