Writ of kalikasan presses gov't to prove it has been protecting West PH Sea - analyst

ABS-CBN News

Posted at May 07 2019 11:43 AM | Updated as of May 07 2019 12:02 PM

Chinese fishing vessels at Subi Reef on August 12, 2018. DigitalGlobe Inc. and Vulcan Technologies LLC

MANILA - The writ of kalikasan the Supreme Court issued will push the Duterte administration to prove what it has done to protect and preserve the Philippines' marine environment in its exclusive economic zone, an analyst said Tuesday.

The government would have to "substantiate" its claim that it has been doing everything it could to protect the marine environment in the West Philippine Sea ever since the Permanent Court of Arbitration ruled in favor of Manila against Beijing regarding maritime rights in the contested waters, said Jay Batongbacal, director of the Institute for Maritime Affairs and Law of the Sea at the University of the Philippines.

With the exception of the past month, Batongbacal said the government, in the years since the victory was handed to the Philippines, "has kept saying na wala tayong magagawa, there’s nothing we can do, and these things are happening and they’re ok, the fishing is ok, the destruction is ongoing."

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The writ, then, "has placed the government on the spot because now, you have to show the opposite—that in the past 3 years, you have not been inactive and you’ve actually been trying to enforce the ruling despite saying you cannot," he told ANC's Early Edition.

Apart from proving that it has not been inactive in protecting the marine environment, the writ also compels the government to prove that it "at least know what was going on in these areas, that they know what China has been doing in these areas, and they have been doing something about it," said Batongbacal.

The high tribunal issued the writ of kalikasan in response to a petition filed by the Integrated Bar of the Philippines and fishermen from Palawan and Zambales. 

Their plea cited "massive destruction" in the waters allegedly due to Chinese fishing vessels. It also accused high-ranking government officials of neglecting their duties under the law to protect the Ayungin (Second Thomas) and Panatag (Scarborough) shoals as well as the Panganiban (Mischief) Reef.

Named as respondents in the petition were the environment, agriculture and justice departments, Bureau of Fisheries and Aquatic Resources, Philippine Navy, Philippine Coast Guard, Philippine National Police, and the PNP Maritime Group.

These agencies would have to convince the Supreme Court that they at least tried to enforce the laws for environment protection and at least taken action within their competence, said Batongbacal.

"Ultimately, that will fall on the shoulders of the President because in the ultimate analysis, it is the President which decides what actions or recommended actions by the various departments should be taken," he said.

Filipino fishermen would report destructive actions by their Chinese counterparts every summertime, but the government would "downplay" these every year, said Batongbacal.

Only in the last month, when it had said it would initiate legal action against China over giant clam poaching in Philippine waters did they speak up, he said.

The government, with the writ of kalikasan out, would then have to show that it was at least monitoring the events there in the past years, and the Supreme Court then would have to assess if the response was "reasonable or sufficient," said Batongbacal.

"It’s not allowed for you to avoid giving the specifics because a general denial is not acceptable for the court. You have to really document and present the evidence," he said.

If the administration fails to satisfy the court, the Supreme Court will then order the government to do its job and may issue a writ of continuing mandamus, an order for agencies to do their job and always report to the tribunal about what they have done to implement and enforce the laws, he said.

MERE BILATERAL DISCUSSION MAY NOT BE ENOUGH

While it was possible that the government brought these matters to its bilateral consultative meetings with China, which happen every 6 months since 2016, it would have to present actual proof that this helped the Philippines' case.

"I think a mere discussion may or may not satisfy the court because what is important there is the court will ask, how does this assert our rights or enforce the law, assert our jurisdiction over the areas," he said.

Batongbacal said analysts have observed and the writ of kailkasan showed that the bilateral mechanism "doesn’t seem to be producing tangible results."

"It’s becoming a talkshop. In the meantime, the giant clam harvesting, the destructive activities, the incursions in the West Philippine Sea keep on going," he said.

In dealing with the issue of giant clam poaching, Batongbacal said the government has various options. One of its less confrontational choices is to bring the matter before the meeting of international parties tasked to monitor the implementation of the Convention on Biological Diversity. 

The Philippine can call on China to report on what it has been doing against this harvesting, which Beijing itself makes illegal in its own jurisdiction, he said.

On the other hand, one of the more aggressive steps the Philippines can take is to file another arbitration case based on the fact that there has already been a previous ruling, said Batongbacal. This could be a separate case or an extension of the previous arbitration, such as a clarification on what actions should be taken to implement parts of the ruling, he said.

In the middle of the spectrum of choices, the Philippines could bring the case to other bodies or call China a state sponsor of illegal fishing and urge other nations to impose trade sanctions against it, he said.