Newspapers quoted sources ,who have seen the videotape of our Coastguard’s shooting of the Taiwanese vessel in Balintang channel that killed one Taiwanese fishermen, as saying that our men were “laughing” as they sprayed the unarmed fishing vessel with no les than 47 rounds of bullets from assault weapons. This should preclude the allegation of self-defense. Where was the threat when they could still afford to laugh? And if there was use of force against them by the Taiwanese fishing vessel, why were there no physical evidence of this?
This latest development should lay to rest the issue of our country’s responsibility for this shooting incident. To begin with, international law does not even allow any country to detain illegal fishermen caught fishing in their EEZ. All that they could do is impound their vessels, which must then be immediately released upon posting of bond . Moreover, while everyone has the right o self-defense, this must be clearly established as a matter of fact and must additionally be shown to be both absolutely necessary and proportionate to the perceived threat. Where, in particular was the proportionality- when the Philippine coast guard vessel was not hit even by a single bullet? Seems to me that what happened was misplaced machismo. Misplaced since such an outburst of aggression may have been borne by the fact that we have otherwise been helpless against incursions on the part the “other Chinese” in the West Philippines Sea and in Panatag Shoal that our trigger-happy coast guards may then have vented their anger at this civilian Taiwanese fisherman.
Since we have committed an internationally wrongful act, it is only proper that we apologize for the incident and pay compensation to the victim, This much is provided in the Articles of State Responsibility already adopted by the UN General Assembly. This was also the ruling of the UN International Tribunal on the Law of the Sea in the fairly recent case of the Saiga. This case illustrates the extent of legal entitlements of a coastal state in cases of violations of its EEZ.
In this case, Guinea arrested and detained the oil tanker “Saiga”, which was at the time flying the flag of Saint Vincent and the Grenadines but manned by a Ukrainian crew. At the time of the arrest, the ship was selling gas oil to fishing boats off the coast of West Africa, in an area determined to be south of the southernmost tip of the Guinean exclusive EEZ. It was attacked and boarded by a Guinean patrol boat, whose personnel thereafter disabled the ship’s engine with gunfire, injuring two crewmembers, assaulted other ship crew, discharged the cargo, and arrested the ship and crew.
The ITLOS ruled that the use of force by Guinea against an unarmed, fully loaded tanker was not reasonable and found that that Guinea had failed to issue warnings to the Saiga, and had endangered ship crew before and after boarding it.
It thus held that the conduct of Guinean maritime forces had violated the rights of Saint Vincent and the Grenadines under international law. In the end, it ruled that Saint Vincent and the Grenadines was entitled to reparations for damages suffered directly, as well as for other damages and losses by the ship and crew in the amount of US$2,123,357.
Notice that in this case, the ITLOS found that the incident happened within the EEZ of Guinea. Its maritime patrols were enforcing fisheries laws but were found to have done so utilizing excessive force. For this reason the Tribunal awarded damages to Saint Vincent and Grenadines in the form of reparations.
Note though that the apology and the payment of compensation are the full extant of our liability to Taiwan for this incident. There is no legal basis for Taiwan to now insist that we should enter into a “fishing agreement’ with it. This is because we can only enter into such an agreement with the People’s Republic of China pursuant to the One-China policy recognized by all countries of the world, including the United Nations.
Neither may Taiwan insist on exercising criminal jurisdiction over the incident. To begin with, the incident happened in an area where China and the Philippines have overlaps in their exclusive economic zones. The only entitlement of states in the EEZ is the exercise of “sovereign rights”, or the exclusive right to explore and exploit natural resources found in the zone.
Finally, the Coast Guard vessel, its captain, and its personnel may only be the subject of flag state jurisdiction. A Flag State is a state, which grants vessels using international waters, regardless of type and purpose, the right to fly its flag and, in so doing, gives the ships its nationality. Under the UNCLOS, A flag state is responsible for damage caused by “public ships” – warships and government ships for non-commercial purposes – flying its flag.
In any case, this incident should not have erupted into what it has become both here and in Taiwan if our government immediately acknowledged its responsibility and paid compensation without waiting for both to be demanded by Taiwanese officials. Let this a lesson to our policy makers: when in the wrong, act quickly as any delay may lead to foreign policy aggravations.
Ref. Prof. H. Harry L. Roque, Jr. 09175398096
Chair, Center for International Law
The recent shooting by the Philippine Coast guard of a lone Taiwanese fisherman illustrates the kind of governmental response that we Filipinos deserve when we ourselves fall victims to an internationally wrongful act. Under international law, there is state responsibility for an internationally wrongful act where there is a breach of international law and when the breach is attributable to the state. Here, it appears that because the killing was because of a shot fired by a state organ, a member of the Philippine Coast Guard, that the killing may be attributed to the Philippines government. Acts of state organs, no matter how lowly their ranks, and even if they are ultra vires, are always attributed to a state.
Furthermore, there too appears to be a breach of international law since the UN Convention of the Law of the Sea prohibits the use of unnecessary use of force in dealing with illegal fishermen. In fact, the UNCLOS provides that fishermen caught illegally fishing in a states exclusive economic zone should not even be detained or charged criminally The only leeway granted to a party state is to apprehend the vessel which, in turn, must be immediately release upon posting of bond.
The lesson learned is how our own government should espouse the claim of its national, even if there is only one solitary victim. Not only did the highest echelon of the Taiwanese government demand for an apology, it also demanded compensation and even threatened the Philippines with both military and economic reprisals, even if both are prohibited by international law. This is in stark contrast with the current practice of the Philippine government. Only recently, 200 of our nationals became sitting ducks to Malaysia’s illegal resort to excessive force. Our response was to threaten our nationals with domestic prosecution.
Because we committed an internationally wrongful act, we have the obligation under international law to apologize and provide compensation to the victim. This though is the full extent of our liability. Taiwan’s demand that in addition, we enter into a fishing agreement with it is bereft of legal merit. Taiwan is not an independent state and should not expect to be treated as such. Any fishing agreement involving overlapping areas of our exclusive economic zone should be with the People Republic of China. This is consistent with the international communities’ recognition of the so-called one-China policy; that is, Taiwan forms part of the People’s Republic of China and is not a republic on its own.
This latest experience should also teach our policy makers to act with dispatch where it is our government that incurs international responsibility. Since the shooting was at the behest of a state organ, the Philippine Coast Guard, the investigation should not have lasted as long as it did. It only entails requiring the Master of the coast guard vessel to report what transpired that led to the shooting. Absent evidence that it was in self-defense, the Philippines should have apologized with dispatch and should not have waited for any formal demand to do so. Our failure to act with dispatch consistent with our international obligation gave Taiwan the opportunity to exploit the incident to promote its own interest.
A motion for issuance of writ of execution was filed yesterday with the Supreme Court in the case of Salonga et. al. versus Executive Secretary. Recall that former Senate President Jovito Salonga attempted to declare the Visiting Forces Agreement unconstitutional in connection with the then criminal prosecution of US Serviceman Lance Corporal Daniel Smith who was accused of raping a Filipina under the name of “Nicole”. Salonga’s petition came after RTC Judge Benjamin Pozon found Smith guilty of rape and ordered him detained in the Makati City Jail pending his appeal. But literally at midnight, former President Gloria Arroyo and her Cabinet members took custody of the person of Smith and delivered him to the US Embassy, where he was beyond reach of Philippine authorities. This is because diplomatic premises are immune from the jurisdiction of host states.
Salonga’s petition sought to reopen the decision of the Supreme Court in the case of Bayan versus Zamora, which earlier upheld the constitutionality of the VFA. In this earlier case, the party list group Bayan sought to have the agreement declared invalid because it was concurred in only by the Philippine Senate and not by the US Senate. Under the 1987 Constitution, and to avoid a repeat of the notorious US-Philippine bases agreement where only the Philippine Senate gave its concurrence to the treaty, it is now expressly required that the presence of foreign troops and bases shall only be pursuant to a treaty “duly recognized by the other party as such”. In Bayan, the Court upheld the VFA’s constitutionality because the court was satisfied that the United States recognized the agreement as a valid binding international agreement. Anent the non-concurrence by the US Senate, the Court ruled that it is not its business to inquire on the requirements of a foreign law before a treaty can have the effect of binding law in that foreign jurisdiction.
Salonga reiterated that the VFA was unconstitutional since the US Senate did not concur it in. But in addition, he argued that the Kearney-Romulo agreement providing that US servicemen found guilty of the commission of non-service related offenses should remain in American custody pending appeal was illegal. This was pursuant to an express provision of the VFA itself, which provides that these servicemen should, after conviction, hence be turned over to the custody of Philippine authorities.
Salonga’s petition, unlike that of the earlier petition of Bayan, was partially granted. While the court upheld anew the constitutionality of the VFA, it nonetheless ruled that the Kearney-Romulo agreement was invalid. It then ordered that the Foreign Affairs Department “is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA.”
This was the partial victory that Salonga et al sought to enforce through a writ of execution last Tuesday.
While it is true that the Court ordered the renegotiation for a specific purpose, Petitioners further argued that the recent grounding of the USS Guardian in the UNESCO heritage site Tubbataha reef now justifies a renegotiation of the agreement towards abrogating the same. Under the VFA, the same can only be terminated upon the giving of 180 days notice. The petitioners argued that the grounding clearly demonstrates that the VFA has not and will not uphold Philippine interest. The motion states that while the occasion that gave rise to Salonga’s petition was the rape of our women, the Tubbataha grounding is yet another form of rape- this time, against the national patrimony. Petitioners asked: “what was the USS Guardian doing in the protected area? Why did they ignore park rangers repeated demands for the vessel not to enter the protected area?” The petitioners then speculated that the obvious reason for the incursion of the minesweeper onto the park was to enable its crew to engage in recreational diving in the area. This they said, made the grounding “non-service related” for which reason its captain and crew should have been arrested and prosecuted before Philippine courts under the VFA. If found guilty for incursion into the Tubbataha protected area, they should then be turned over to Philippine authorities pending their appeal. This was the ruling of the Court in Salonga.
The Tubbataha grounding presents difficult issues of state immunity under international law. While the ICJ has only last year reiterated that the presence and acts of foreign troops in an armed conflict are undeniably covered by sovereign immunity, the court, in a previous case involving a Congolese foreign minister charged with incitement to genocide, nonetheless emphasized that “immunity was a mere procedural bar” and not intended to defeat substantive law.
If immunity from suit is a procedural bar merely to refer the controversy to another tribunal, the search should then continue on how to hold the Captain and crew of the USS Guardian, and all American authorities responsible for the destruction of one of our greatest natural wealth, responsible for their acts. In this regard, Salonga’s motion for issuance of a writ of execution for its partial victory against the VFA is only the first step.
A MOOT WITH REAL VICTIMS
It was a case of make believe mimicking reality. From February 27 to 28, students from five law schools competed in the Philippine rounds of the most prestigious moot competition in the world, the Philip Jessup moot court competition. Simulating oral arguments before the International Court of Justice, students argued both sides of a problem involving the most contentious issues facing international law today.
For instance, given the general prohibition on the use of force which recognizes only two exceptions, those of self- defense and when authorized by the United Nations security Council; should a third exception, based on contemporary state practice, that of intervention on humanitarian grounds- now be recognized? There too was the issue of which government should be recognized by the United Nations and its organs: the regime that exercises effective control overt the territory and the inhabitants of a state, or the government that was democratically elected albeit deposed through a coup de etat but continues to be recognized as being legitimate by an overwhelming number of states. This was the dilemma faced by the international community in dealing with rebel forces in Libya.
But perhaps, what was most relevant to the Philippines was the third issue. Under the problem, several civilians were forcibly made to work in munitions factory during an armed conflict. Long after the war, these individuals attempted to seek reparations from the state that subjected them to forced labor. They initially filed suit against the state in the latter’s court but the same was dismissed on the basis of prescription. They then filed suit in the court of their own states, but their claims too were dismissed on the basis of sovereign immunity from suits. Intervening meanwhile was a decision of a regional human rights court that declared that the state of nationality of the victims must give them recourse under their domestic law and in their domestic courts. This prompted the domestic court of claimant’s nationality to exercise jurisdiction leading to a money judgement against the other state that resorted to forced labor and levying on execution on assets that were non-diplomatic in character.
I was most impressed by the law schools from the provinces that joined the moot court competition for the first time, to wit: Silliman and the University of the Cordillera. These two law schools proved once and for all that international law is no longer the monopoly of Manila law schools. Their students proved to be even more articulate than those coming from the capital. With a little more experience in mooting, I am sure that they will soon represent the country in the world competition held annually in Washington, DC, USA.
Congratulations to my students from UP who were adjudged the winner in the competition. Ironically, the UP team argued the side that maintained that victims of war crimes could no longer recover reparations when their home states had signed a peace treaty that renounced any and all further claims for reparations. This is the position of our government in the real case of Vinuya, the comfort women’s case. Even more ironical is the fact that the Ateneo team, whose alumni include both the Chief Justice and Associate Justice Mariano Del Castillo , argued the side in favor of the comfort women: that the peace pact could not prevail as against the jus cogens norms that forced labor is a war crime and that the state responsible for it should pay reparations. One of the Ateneo coaches told me that the plight of the comfort women, and the fact that the government should espouse their claims was the subject of his thesis. At the back of my mind, I was hoping he will say this to Justice del Castillo or his researcher responsible for the court decision in Vinuya.
I also commend the Philippine Association of Law Schools Deans under the able leadership of its President, Dean,Amado Valdez and its Chairman, Dean Perry Pe, for the impressive manner by which they conducted the national rounds. Special credit should go to Dean Sol Mawis of the Lyceum University Law School who acted as this year’s administrator for the competition. This year’s national rounds was clearly one of the best in the history of Jessup in the Philippines.
Meanwhile, the real life victims of war crimes -deprived of a legal remedy, continue to pray and hope for justice. They have said that the impeachment of Justice del Castillo would be a step towards the right direction