Standing up to China (5)

By MARITES DAÑGUILAN VITUG .

Last of five parts

HERE’S a little known fact: six fishermen helped the Philippines win its case. Four of them came from Masinloc, a coastal town in Zambales that was on the frontlines of the struggle against China’s aggression. (The two were from Infanta, Pangasinan.) These six men, who lived by the sea, may not have stepped into the august halls of the Peace Palace in The Hague but they made their voices heard through their written testimonies.

From Masinloc, one can see the craggy outlines of Scarborough Shoal (Bajo de Masinloc). It takes anywhere from nine to thirteen hours by motorized boat to reach the shoal which the Chinese grabbed in 2012. The Chinese coast guard stopped the Filipinos from fishing there, at one point spraying them with water cannons.

Some of the fishermen in the seaside town of Masinloc thought of Scarborough as their secret, the source of their bountiful harvests during the calm months, except when the storms batter the area. Financiers from distant places like Cebu hired them and they would live in their boats off the shoal for a few months, casting their nets until they filled up the small boats that would then take their catch to the shore. These included expensive fish like maya-maya (snapper), lapu-lapu (grouper), and talakitok (jack fish).

These sturdy men came back sunburned, with lines in their weather-beaten faces, but they earned enough to send their children to school. Geopolitics, however, came in the way and Scarborough was revealed to the world and, as they said, it suddenly became famous.

Tolomeo Forones, Miguel Lanog, Cecilio Teneo, Richard Comandante, all from Masinloc, had been fishing for years in Scarborough Shoal, some of them following in their fathers’ footsteps. Through their words and those of Crispen Talatagod and Jowe Legaspi from Infanta, the judges learned about the shoal as traditional fishing ground, not only of Filipinos, but also of the Vietnamese and Chinese, and how they were expelled from these rich fishing grounds by China in 2012. They gave their testimonies in Filipino which were translated into English.

The effect on the fishermen’s income and their sustenance had been profound.

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Through the years, as the Philippine memorial and supporting records showed, Chinese fishermen routinely used destructive methods like dynamite and cyanide fishing in Scarborough Shoal and Second Thomas Shoal (Ayungin).

They blasted rare corals with dynamite to make them easier to extract and harvested endangered or threatened marine species, including giant clams and sea turtles. This was driven by the demand for live fish from the aquarium trade and from restaurants. Chinese fishing vessels were not on their own; they were protected by the government. China also dredged coral reefs to build artificial islands leaving irreparable harm to the environment.

As part of its case, the Philippines thus included China’s willful damage of the marine ecosystem. Its main argument was that China breached its international obligations not to destroy the marine environment.

In the memorial, the Philippines pointed out that despite repeated protests from the Philippines, China had not stopped its fishermen from engaging in environmentally harmful practices. It backed up its assertions with several photographs.

Conclusion

There are lessons to learn from other international cases wherein one of the states did not participate. Primarily, offending states, those that ignored the cases brought against them, eventually partly comply with the international court’s ruling—in various forms.

What Nicaragua did when the US failed to comply with the ruling of the International Court of Justice (ICJ) shows options available to countries.  The US, at the time, was funding the contra rebels who wanted to topple the Sandinista-led government. When the case filed by Nicaragua reached the merits phase, the US declined to participate. The ICJ ruled against the US and ordered it to pay reparations.  The US ignored Nicaragua’s request for negotiations on compensation and continued to support the contras.

Nicaragua went to the UN Security Council seeking a resolution to urge the US to heed the World Court’s decision. The UN Charter says that if any party to a case fails to perform its obligations under a judgment rendered by the Court, the other party may have recourse to the Security Council. Nicaragua failed because the US, as permanent member of the Council, vetoed it.

Undeterred, it went to the UN General Assembly. Here, it succeeded. The General Assembly adopted four resolutions calling for “full and immediate compliance with the judgment of the ICJ.”

Overall, Nicaragua did not succeed in getting the US to fully comply with the judgment. But the litigation was not useless. “Its strategy to resort to the Security Council and the General Assembly had the effect of securing publicity for the issue, which helped convince the US Congress to cut off aid to the contras in 1988,” wrote two international law academics.

The US eventually provided aid to the new government in Nicaragua.

These same academics tracked compliance in the Arctic Sunrise case, wherein Russia refused to participate in a suit filed by the Netherlands. Russia, in the end, partially fulfilled the ruling by the International Tribunal on the Law of the Sea (ITLOS).

In 2013, Russia seized the Arctic Sunrise, the ship which was flying the Dutch flag, and its crew of Greenpeace activists. The ITLOS asked Russia to immediately release the ship and allow the non-Russian crew members to leave the country.

At first, it stalled but eventually implemented most of the measures required by ITLOS, “saying they did this because they were following domestic legislation, not the ITLOS ruling.” The Arctic Sunrise and the crew were released but Russia had not yet paid compensation to the Netherlands.

Making the tribunal ruling work and seeing it come to fruition, partly or fully, will take a long time, way beyond a single president’s term.

It will require strategic thinking anchored on a strong sense of justice, equity and sovereign rights.

(Excerpts from a speech delivered by multi-awarded journalist Marites Dañguilan Vitug at Davao launch of her latest book, “Rock Solid: How the Philippines Won its Maritime Case against China” at the Media Center of the Ateneo de Davao University this Aug. 3.)