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Phil State Responsibility for the Shooting in Balintang Channel

UnknownNewspapers 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.


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