Fishing the high seas a huge gamble

The recent Shen Fong 12 incident two weeks ago is yet another frustrating reminder that Taiwanese fishing boat captains must take matters in their own hands each time they set sail to operate near the South China Sea, an area of interests for countries competing territorial claims over the outlaying archipelagos – Natuna islands, Scarborough Shoal, Spratly islands, Paracel islands, and so forth.

In the latest disputed incident, the Liuchiu-registered fishing vessel Shen Fong 12 was seized by Filipino coast guards after the latter claimed it was poaching illegally near the 6.5 (12.35km) nautical miles off the coast of the Batanes, the Philippines. Although the vessel’s captain reiterated that they were only making an “innocent passage” through its waters, the detained Taiwanese vessel was only released after paying US$50,000 in administrative fine a week later.

There are always two sides to a story. However, Philippine authorities seemingly ignored that all vessels have the right to “innocent passage”, and their charge for “illegal poaching” even bear no evidence (they weren't operating at the time of seizure), controversies which will remain shrouded unless brought to surface.

The legality of the right of innocent passage, under the United Nations Convention on the Law of the Sea (UNCLoS), clearly states:

“Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.”

Moving forward, according to the Philippines’ Bureau of Fisheries and Aquatic Resources (BFAR), it has recently implemented the amended Philippine Fisheries Code of 1998 that cracks down on illegal, unreported and unregulated (IUU) fishing.

The revised law came into effect (beginning April) despite strong opposition from the Filipino commercial fishing industry, which is upset over what it considers to be “oppressive and confiscatory” regulations.

Besides a stiffer fine, the amended law says “the violations covered by the penalty scheme ranges from having incomplete permits to breach of the 15-kilometer distance from the mainland coastline required from commercial vessels.”

Again, although opposed by the Philippine commercial fishing industry, who argued that there are conditions—such as rough sea conditions—that may cause breach of the 15 click rule, there are no “what ifs” in the amended law.

In a nutshell, anyone lurking within the 15-kilometer line will be apprehended, no matter what. Unfortunately, the Shen Fong 12 was claimed by Filipino authorities to have been caught “sunbathing” near the 12.35km restricted area.

So in retrospect, how did Filipino authorities overrule the innocent passage rule by UNCLoS, and subsequently imposed their own laws against Shen Fong 12 without taking a second thought?

Simply put, the Philippines, a member of the United Nations, understood that the content of the right of innocent passage continues to be under discussion since the adoption of UNCLoS in 1982. And at the time, although the Taiwanese captain tried to exert his right of innocent passage, Philippine authorities flipped it around and claimed that the vessel failed to give prior notification before leaving port, which they said is a request under UNCLoS.

But the fact is, Philippine authorities seemingly chose to overrule UNCLoS on Shen Fong 12 because Taiwan is not part of the United Nations, so basically the rule does not apply.

Meanwhile, on the count of poaching, the Taiwanese vessel was in fact travelling at five to eight knots bearing north-eastern direction on a continuous path, according to navigation data retrieved from the vessel’s VMS (vessel monitoring system.) In other words, Shen Fong 12 was not anchored and operating at the time, as suggested by Filipino authorities. However, no statement was made by the Philippine authorities in response.

Under the amended rule, it would be easy for Philippine authorities to pick on anyone within the 15 click “no-fish zone”. And should other unfortunate Taiwanese fishing vessels be caught again wandering around the area, there seems to be only two viable options: one is to settle the matter by paying a fine, or second, wait for Taiwan’s foreign ministry to make a kabuki matter out of it.

But the question remains, will the ministry be willing to extend its help every time such incidences occur? It’s a gamble Taiwanese fishing vessels have to take.