CASE STUDY: China’s Encroachment in Panatag Shoal (Scarborough Shoal) violates the Right to Access Natural Resources of the Filipino Fisherfolks resulting to Hunger and Starvation - Aurea G. Miclat-Teves President, Peoples Development Institute Convener, National Food Coalition Vy Peoples Development Institute 91 Madasalin Street, Teachers’ Village East (Ole coler yaa ies Ion) ke)Published by Peoples Development Institute 91 Madasalin Street, Brgy. Teachers’ Village East 1101 Quezon City, Philippines Copyright of China’s Encroachment in Panatag Shoal All rights reserved. No part of this book may be reproduced in any form or by any means with- out the permission of the copyright owner and the publisher. Lay-out: Ramon T. Ayco, Sr. of Peoples Development Institute Set in Times New Roman txt LT Std. pt. 12 Published in the PhilippinesChina’s Encroachment in Panatag Shoal (Scarborough Shoal) violates the Right to Access Natural Resources of the Filipino Fisherfolks resulting to Hunger and Starvation Aurea G, Miclat-Teves President, Peoples Development Institute President, FLAN-Philippines Convener, National Food Coalition 91 Madasalin St., Teachers’ Village East Peoples Development Institute Quezon City, Philippines November 2019I: Introduction: The Philippine Hunger Situation Despite the drop in self-rated poverty during the fourth quar- ter of 2017, there was a 4.1-point rise above 11.8% (estimat- ed 2.7 million families) quarterly hunger rate, in September 2017. This is the highest recorded value for hunger since the 17.2% reported in December 2014. This was due to the in- crease in the incidence of hunger among both the self-rated poor and self-rated non-poor. This shows that hunger is not a fixed proportion of the self-rated poor, while there are few- er self-rated poor families, the incidence of hunger among them has worsened. In fact, 15.9% or an estimated 3.6 mil- lion families experienced involuntary hunger, meaning they involuntarily suffered from a lack of food, according to the quarterly hunger report of the Social Weather Stations. (SWS, January 2018). Involuntary hunger is due to the lack of food to eat. Among the self-rated food-poor, hunger rose to 28.8% in December 2017 from 19.8% in September. It rose by 1.9% among the Not Food-Poor/Food borderline, from 8.0% to 9.9%. It must be pointed out that hunger among the self-rated food-poor is always greater than hunger among the self-rat- ed poor. (SWS, January 2018). ! The SWS report has been validated by the 2017 Global Hun- ger Index (GHI) which ranked the Philippines as the 68" country in the world and the fourth in Asia with the most number of hungry people. The Philippines, together with In- donesia, showed the poorest performance in improving the hunger condition compared to their 2000 ranking. (Inquirer. net, Global Hunger Index, 2017).? 1 https://www.sws.org.ph/downloads/media_release/pr20180122%20. %20Hunger%20in%20families%20(Media%20release).pdf 2 http://business. inquirer. net/241508/global-hunger-index-philippines BalesChina’s Encroachment All these figures and survey results show that the right to ade- quate food has been gravely undermined, if not violated, and is under serious threat in the Philippines. Hunger levels continue to be unacceptably high. A piecemeal approach to respond to the issue of hunger by the government fails to consider the many as- pects of the problem and leads an absence of durable solutions. The current dynamics of Philippine-China relations enhances harmful mining operations detrimental to the enjoyment of the right to food and diminished access by Filipino fishermen to rich fishing grounds in the West Philippine Sea. The actions of the Philippines does not reflect its commit- ment to promote, protect and fulfill the right to adequate food and nutrition of its citizens as a party to the Interna- tional Covenant on Economic, Social and Cultural Rights (ICESCR). A signatory to the ICESCR has the responsibility to take care of all its citizens and to ensure that their basic rights, including their right to food, are protected. The right to food has been guaranteed by the ICESCR under Article 11.1 (UNESCR doe. 1999). II. The National Maritime Claims of the Philippines under the United Nations Convention on the Law of the Sea (UNCLOS) National Maritime Interest The Philippines is an archipelago situated about 600 miles (966 Kilometers) off the southeastern coast of the Asia Mainland and lies arc from the southern tip of Taiwan, to the northern parts of Borneo and Indonesia approximately 1,500 miles (1,850 ki- lometers) long and about 600 miles (966 kilometers) wide. It is bounded by the South China Sea on the west and north, the Pacific Ocean on the east, and the Celebes Sea and the coastal waters of Borneo on the south. 3 http://www.ohchr.org/EN/ProfessionalInteresvPages/CESCR aspx oein Panatag Shoal The archipelago consist of 7,107 island scattered over some 500,000 square miles of oceanic water. It has a total land area of 115,850 square miles, and a coastline length of ap- proximately 10,850 statute miles. Its land, waters and people form an intrinsic geographical, economic and political entity, and historically had been rec- ognized as such. The government of the republic of the Phil- ippines has considered its unique configuration in drawing up official position on the various Law of the Sea Regimes. Table I shows in brief the Philippines Jurisdictional claims. Table 1. Jurisdictional Claims of the Philippines CLASSIFICATION | JURISDICTIONAL | YEAROF | OF OCEAN AREA CLAIM RATION Internal Waters All water around, be- | 1935 170, 200 tween, connecting the sq. n,m. island of the archipel- ago inrespective of the breadth and dimension Territorial Waters All waters within | 1955 520, 700 treaty limits of the sq. 0. m. Philippines Continental shelf Proclamation 370; 200} 20 march meter isobath or to | 1968 where the depth of the superjacent waters ad- mit of the exploitation of thenatural resources of the seabed and subsoil of the maritime area. Exclusive Economic | P. D. 200 n. m. 11 June} 652,800 Zone 1978 sq. n,m. Contiguous Zone No Philippine decla- rationChina’s Encroachment 1.) Jurisdictional Claims of the Philippines A. Internal Waters All waters around, between and connecting the different Island belong to the Philippine archipelago, irrespective of their width and dimension, are necessary appurtenances of its land territory , forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines. B. Territorial Waters The Philippine claims a territorial sea zone wherein she exercis- es absolute sovereignty. This sovereignty extends to the airspace above, and the seabed and subsoil below the territorial seas. SOURCE: ARTICLE I OF THE 1973 PHILIPPINE COSTITUTION C. Continental Shelf The Philippines claims a continental shelf till the two hun- dred (200) meters Isobath or to where the depth of the super- jacent water admits of exploitation of the natural resources of the seabed and subsoil of the submarine area. The Philippines will exercise sovereign exclusive rights but only over the mineral and non — living resources and seden- tary living organisms found in the shelf. The freedom of nav- igation and overflight, the laying of submarine cables and pipelines will be respected in the zone. D. Exclusive Economic Zone The Philippines declared an Exclusive Economic Zone on 11 June 1978 through Presidential Decree No. 1599. The -4-in Panatag Shoal zone extends for 200 nautical miles from the baselines from which the territorial sea is measured. Within this area of the zone, the Philippines will exercise (without prejudice to the country’s right over the territorial sea and the continental shelf) specific types of rights particularly. 1.1. “Sovereign rights” for the purpose of exploring and exploiting, conserving and managing the living and non - living resources of the zone which can be found in the subsoil or superjacent waters. The same rights cover associated activities for the resources exploitation on the area such as the production of energy from tides and current. 1.2. “Exclusive jurisdiction” over the establishment off artificial island offshore and other structures, the preservation of the marine environment, and scientific research. 1.3 Such other rights recognized by internal law ine Exclusive Economic Zone The rights of the other states, however, are recognized with respect to navigation and over flight, the laying of cables and pipeline, and the other international lawful uses the sea regarding navigation and communication. -5-China’s Encroachment Consequently, no state or person may explore or exploit any of the resources in the zone, conduct research or drilling, construct and operate any offshore structures and terminals, or engage in any activity which may pollute marine environ- ment, or undertake any other activity contrary to the sover- eign rights of the country within the said area without the consent of the Philippines. There are also provided specific penalties for violators of the said law in the zone, including the seizure of vessels and the equipment use in violating said laws. In other to appreciate the implication of the Exclusive Eco- nomic Zone regime, it is necessary to relate and contrast this particular regime with other jurisdictional regimes which the Philippines has established in the adjacent and internal ma- rine areas of its territory. E. Archipelagic Waters Archipelagic Principle. The Underlying basis of the Archi- pelagic Principles is the unity of land, water and people as single entity. The Necessity of maintaining and preserving this unity is important so that the archipelago may not be splintered in to its composite island with the consequent fragmentation of the nation and the state itself. Instead of arbitrary boundaries, straight baselines are drawn connecting the outermost points of the Archipelago. The wa- ters enclosed within the baselines, as in the case of continen- tal state are defined as internal waters. 1. An Archipelagic state whose component island and other natural features form an intrinsic geographical, economic and political entity and historically have or may have been regarded as such, may draw straight -6-in Panatag Shoal baselines connecting the outermost points the outermost island and drying reefs of the archipelago from which the extent of the territorial seas of the archipelagic state is or may be determined. 2. The waters within the baselines, regardless of their depth or distance from the coast, the seabed and the subsoil thereof, and the superjacent airspace, as well as their resources, belong to, and are subject to the sovereignty of the archipelagic states. 3. Innocent passage of foreign vessels through the waters of the archipelagic state shall be allowed in accordance with its national legislation, having regard to the existing rules of international law. Such passage shall be through sea-lanes as may be designated by the archipelagic state. It must be noted that the Philippines at the earliest, in 1958 had advocated the inclusion of the Archipelagic Principle as a concept of International Law. 2.) Summary of Overlapping Boundaries A. Territorial Sea The Philippines territorial sea overlaps in the north with Tai- wan’s Exclusive Economic Zone while in the south, Indone- sia’s baseline intrude into the Philippine territorial sea. The extended territorial sea claimed by the Philippines is based on historic rights and legal title. B. Continental Shelf Part of the Philippine continental shelf off the southern tip of Pal- awan in the direction of the Kalayaan Island has been enclosed in a continental shelf map published officially by Malaysia. In other parts of the archipelago, the Philippines claims seabed ar- BagsChina’s Encroachment eas up to 200 nautical miles measured from the baselines. The same problem of overlapping claims should be anticipated as in the delimitation of the Philippines EZZ. C. Exclusive Economic Zone The Philippine 200 nautical miles Exclusive Economic Zone overlaps with that of Taiwan, Indonesia, Vietnam, Malay- sia, Palau and the Paracels. The People’s Republic of China claims the Paracels. The Paracels is 345 nautical miles from the Kalayaan Island Group’s Pag-asa Island. III. The Territorial Issues in the West Philippine Sea (South China Sea) _.-» China's claimed territorial waters, .--» UNCLOS 200 nautical mile Exclusive Economic Zone % Disputed islands ~ guapic by Lindsey Burrows Lying south of the Paracels is a group of about 100 islands, shoals and reefs, generally known as the Kalayaan Island Group (Filipino) or Spratlys (Truong Sa to Vietnam, Nansha to the Chinese and Taiwanese, and Kalayaan to the Philip- pines). There has been conflicting or overlapping claims of -8-in Panatag Shoal ownership of the islands among Vietnam, Philippines, Chi- na, Taiwan, Malaysia and Brunei. The Chinese (both China and Taiwan) claim ownership of the entire Spratlys chain. Vietnam claims a large area. The Philippines claim is limit- ed to the area enclosed by the limits defined in Presidential Decree 1596. Malaysia and Brunei, on the other hand, claim several features in the southern region of the Spratlys. Ownership of the Spratlys has been assumed by different dynasties and governments of both China and Vietnam, but often without the awareness of the other claimants. The cur- rent dispute started in July 1933 when France, on behalf of its protectorate, Vietnam, occupied nine islets of the Spratlys and placed them under French sovereignty. China, and also Japan, protested the French move. Vietnam and China have since been the most bitter rivals in the Spratlys. Taiwan’s active claim to the islands started in December 1946 when a naval task force visited the islands. The islands were subsequently placed under the administration of the Navy in March 1947. In April 1952, Taiwan and Japan signed a peace agreement in which Japan repeated its renunciation of all right, title and claim to Taiwan and the Spratly Islands, previously articulated in the San Francisco Peace Treaty of 1951. Japan occupied the islands in 1939 but withdrew in August 1945, after its surrender to the Allied Powers. The Philippines was the first to assert title to the territory after Japan’s 1951 renunciation. In 1956, a Filipino, Tomas Cloma, issued a “Proclamation to the Whole World” assert- ing ownership of 33 islands, sand cays, bars, coral reefs and fishing grounds converting 64,976 square nautical miles. On June 11, 1978, the Philippine government officially declared sovereignty over part of the disputed territory, roughly du- plicating Cloma’s claim. But as early as 1947, the Philip- pines Secretary of Foreign Affairs demanded that the terri- -9-China’s Encroachment tory which was occupied by Japan during World War II be awarded to the Philippines*. Malaysia, in 1980, issued an official continental shelf map which showed the boundary limits enclosing some portion of the Spratlys and even some Philippine islands in the area close to Palawan province. China asserts sovereignty over almost all of the strategically vital waters in the face of opposing claims from its Southeast Asian neighbors, and has rapidly turned reefs into artificial islands capable of hosting military planes and warships. IV. National Marine Interests of the Countries Involved in the Maritime Dispute South China Sea is rich in marine life, hydrocarbons and nat- ural gas. There is also trillions of dollars in global trade that flows through these waters. The Spratlys are mostly coral reefs, which allow only sparse growth of mangroves, shrubs and stunted trees, and can hardly support human habitation. But ownership of the islands will enable a claimant state, in the light of developments in international law, to declare jurisdiction and/or sovereignty over wide areas of the ocean. The waters off the islands teem with marine life especially de- mersal fish and tuna. The Philippines’ Bureau of Fisheries and Aquatic Resources (BFAR) estimated that 1 metric ton is har- vested per day during summer in the Kalayaan Island Group (KIG) mainly by using otoshi-ami, a type of fishpen, and deep handlining. Taiwanese longline and trawlers also fish in the area. Petroleum and gas of considerable amount is believed to be trapped in the Kalayaan seabed. This belief stems from the 4 https://seasresearch.files.wordpress.com/2014/08/iop- 2014-u-008393.pdf page 27 -10-in Panatag Shoal fact that East Asia, of which the South China Sea basin is a part, is a rich diversity of tectonic processes and relatively high sedimentation rates that have resulted in a combination of geological conditions in some places which are condu- cive to petroleum formations and accumulation. Most of the petroleum-bearing formations thus far identified are in sedi- mentary basins of tertiary origin and deposition, and the KIG lies in a geological belt of the same characteristics such that petroleum speculation has been intensive. Some UN- and private company-sponsored surveys revealed structures potentially favorable for petroleum accumulation in the vicinity of the KIG. Recently published analyses of data from the Reed Bank drilling operations support the notion that it is an area that is geologically contiguous with the Nido reef complex, which yielded petroleum and gas in commercial quantity. The potential oil reserves of the Reed Bank was estimated at 5.4 bil- lion barrels plus 55.1 trillion cubic feet of natural gas, according to a report by the US Energy Information Administration. Other KIG seabed areas fall abruptly to 1,000 to 3,000 feet such that development is considered either technically unfeasible or com- mercially unprofitable at present. Technological development, however, does not preclude the possibility that petroleum pro- duction may become commercially profitable in the future. As mentioned above, the Spratlys also straddle one of the world’s busiest sea lanes, and lie within the air routes of Borneo, Indonesia, Vietnam, China and the Philippines. The strategic importance of the area for defense and security, and maritime navigation and overflight has generated interest not only from the claimants to the area but also from major powers such as US, Japan, and Russia. Ownership of the islands would undoubtedly represent gains for a claimant’s economy, defense and security. Hence, the varied attempts of the claimants to gain control of the disputed area. StittChina’s Encroachment V. The Scarborough Shoal locally known as Panatag Shoal A. Geography Scarborough Shoal is Panatag Shoal in Philippine maritime claim and is commonly called Bajo de Masinloc, forms a triangle-shaped chain of reefs and rocks with a perimeter of 46 km (29 mi). It covers an area of 150 km?(58 sq mi), including an inner lagoon. The shoal’s highest point, South Rock, is 1.8 m (5.9 ft) above sea-level at high tide. Located north of itis a channel, approximately 370 m (1,214 ft) wide and 9-11 m (30-36 ft) deep, leading into the lagoon. Several other coral rocks encircle the lagoon, forming a large atoll. The shoal is about 198 kilometres (123 mi) west of Subic Bay and is within the Exclusive Economic Zone of the Philippines. To the east of the shoal is the 5,000-6,000 m (16,000-20,000 ft) deep Manila Trench. The nearest land- mass is Palauig, Zambales on Luzon island in the Philip- pines, 220 km (137 mi) due east. B. History Disputed claims in the South China Sea Stliocein Panatag Shoal A number of countries have made historic claims to the use of Scarborough shoal. China has claimed that a 1279 Yuan dynasty map and subsequent surveys by the royal astrono- mer Guo Shoujing carried out during Kublai Khan’s reign established that Scarborough shoal (then called Zhongsha is- lands) was used since the 13" century by Chinese fishermen. The shoal’s current name was chosen by Captain Philip D’Auvergne, whose East India Company East Indiaman ship, Scarborough, was briefly grounded on one of the rocks on September 12, 1784, before sailing on to China. The 2012 Scarborough Shoal standoff between the Philip- pine and Chinese ships led to a situation where access to the shoal was restricted by the Chinese. However, in 2016, fol- lowing meetings between the Philippine President Rodrigo Duterte and his Chinese counterpart, China allowed Filipino fishermen to again fish in the area. C. Land reclamation and other activities in the South China Sea The Scarborough Shoal (Panatag Shoal) and its surrounding area are rich fishing grounds. Its lagoon provides some pro- tection for fishing boats during inclement weather. There are thick layers of seabird guano on the rocks in the area. Several diving excursions and amateur radio opera- tions, Expeditions (1994, 1995, 1997 and 2007), have been carried out in the area. At various times between 1951 and 1991, U.S. and Philip- pine military forces operating from Philippine bases rou- tinely employed various types of live and inert ordnance at Scarborough Shoal for bombing exercises and other military training. It is possible that much of the unexpended ordnance asic iesChina’s Encroachment remains on the ocean floor, posing a hazard to anyone at- tempting to disturb the shoal or the surrounding ocean areas. ACBS News expose revealed that fishermen here were more distressed by the pollution caused by the Masinloc thermal power plant and local barangay corruption than by any Chi- nese activities. China, in recent years, has undertaken drastic efforts to dredge and reclaim land in the South China Sea to build ar- tificial islands complete with infrastructure such as runways, support buildings, loading piers and satellite communication facilities. The island-building has prompted its neighbors and the United States to question whether they were strictly for civilian purposes, as claimed by Beijing. China’s island development has profound security implications. The poten- tial to deploy aircraft, missiles, and missile defense systems to any of the new islands vastly boosts China’s power pro- jection, extending its operational range south and east by as much as 1,000 kilometers (620 miles). China’s highest rate of island development activity has been taking place on the Paracel and Spratly Island chains. Beijing has reclaimed more than 2,900 acres since December 2013, more land than all other claimants combined in the past forty years, according to a U.S. Defense Department report. Satellite imagery has shown unprecedented Chinese activity on Subi Reef and Fiery Cross Reef in the Spratlys, including the construction of helipads, airstrips, piers, and radar and possibly surveillance structures*. In July 2015, Filipino fishermen discovered large buoys and containment booms at Scarborough Shoal and assumed them to be of Chinese origin. They were removed and towed back to the Philippine coast. In March 2016, in its Scarborough etdin Panatag Shoal Contingency Plan, the CSIS Asia Maritime Transparency Initiative reported that satellite imagery had shown no signs of any land reclamation, dredging or construction activities at the shoal. Only one small Chinese civilian ship and two small Filipino trimaran fishing boats (hangkas) were seen, which was normal for the past few year. In September 2016, during the Association of Southeast Asian Nations (ASEAN) summit, the Philippine government claimed that a number of Chinese ships capable of land rec- lamation had assembled at Scarborough Shoal. This claim was denied by Beijing. Also in September 2016, the New York Times reported that Chinese activities at the Shoal continued in the form of na- val patrols and hydrographic surveys. The Chinese navy re- stricted Filipino fishermen’s access to the shoal from 2012 until August 2016, when Chinese authorities started to allow Filipino fishermen to resume fishing in the area after talks between Duterte and Chinese officials. In January 2017, the International Business Times reported the possibility of land reclamation at Scarborough Shoal by China. However, photos of the shoal posted by CSIS have, to date, not shown any evidence of reclamation activity®. VI. The Violation of the Right to Access Natural Re- sources of Filipino Fishermen in Scarborough Shoal The territorial dispute in the South China Sea has had a det- rimental impact on thousands of small Filipino fishermen — those who venture out at sea on their own and those who work for fishing fleets. The government has not released any figures for the total number of fishermen affected by the 6 hups://en.wikipedia.org/wiki/Scarborough_Shoal -15-China’s Encroachment Chinese blockade of their traditional fishing grounds. The dispute is rooted in China’s claims over all of the Spratly Islands and almost the entire South China Sea, including wa- ters close to the western Philippines. It was in June 2012, that the Chinese coast guard first forced a group of Filipino fishermen to leave one of the Philippines’ traditional and richest fishing grounds — the Scarborough Shoal — off Zambales province. Filipino fishermen report- ed that Chinese coast guard vessels fired water cannons at them as they tried to venture close to the shoal. In 2013, the Philippines filed a case challenging China’s nine-dash-line claims over nearly all of the South China Sea, before the Permanent Court of Arbitration in The Hague. In July 2016, the Arbitral Tribunal that was established to hear the case decided in favor of the Philippines, junking China’s claims’. According to Leonardo N. Cuaresma, President of the Nag- kakaisang Mangingisda ng Panatag/Bajo de Masinloc (Unit- ed Fishermen of Bajo de Masinloc known as Scarborough Shoal) and member of the Pambansang Koalisyon ng Kara- patan sa Lupa (PKKL), they freely fished in the rich fishing grounds of Scarborough Shoal, which is located within the Philippines’ EEZ. Actually, fishermen of neighboring coun- tries also go there to fish and the Philippine government has allowed them to do so. During those times, all fishermen could fish in the area peacefully. The rich fishing ground brought stability to the lives of the fishers. They had a stable income, their families had enough food to eat, they could send their children to school. They had healthy and happy lives. The sea provided enough livelihood for them to have a stable income. The fishers of Masinloc also provided abun- dant fish for the neighboring communities in the whole of 7 http://globalnation. inquirer.net/140358/philippines-arbitration-deci- sion-maritime-dispute-south-china-sea-arbitral-tribunal-unclos-itlos -16-in Panatag Shoal Zambales. However, their lives started to become miserable after the Chinese government prohibited them from fishing in Panatag, the Filipino name for the shoal. Elsa Novo, president of PASAMAKA-L in Zambales, one of the people’s organizations (POs) of the Peoples Development Institute (PDI) that is working closely with the fisherfolks of Masinloc town, said that just after the favorable decision of the Arbitral Tribunal, Chinese coast guard ships patrolling the shoal fired at Filipino fishermen who attempted to fish in waters near Scarborough. The Chinese showed complete disregard for the Tribunal’s decision. This Chinese blockade led to hunger and impoverishment of the families of the fishers of Masinloc. China’s actions have undermined the livelihood and the food needs of poor fishermen from Zambales and other western Philippine provinces. “They did not overturn just one pot, but many pots. So many families will go hungry because of what they are doing,” one fisherman said in describing the outcome of China’s blockade.* In Masinloc town alone, about 5,000 fishermen were unable to fish at Scarborough Shoal for four years. From tons of catch from Scarborough, now the fishermen were lucky if they were able to bring home a few kilos from the waters close to their town. Other fishermen caught or grew aquarium fish to sell to pet shops in Manila as an alternative source of income.’ Meanwhile, the Chinese were building islands by reclaiming land from reefs in the Spratlys to bolster its claims over the ter- ritory. They have raised up from the sea at least seven islands where none existed before. One of the biggest reclamation works included a 3-km runway that could handle all kinds of Chinese military and civilian aircraft. Chinese officials say the islands 8 http://cnnphilippines.com/news/2016/07/15/scarborough-shoal-fili- pino-fishermen-chinese-coast-guard.html1 9 http://cnnphilippines.com/news/2016/07/26/CNN-Philippines-Pres- ents-Peskador.html StlgretChina’s Encroachment are for scientific or peaceful uses such as refuge for fishermen during bad weather, but their potential military use exists. Re- cent satellite pictures show dozens of Chinese fighter jets parked on these artificial islands. With their air and naval assets already in position, the Chinese could impose restrictions over maritime and air travel around or over these new islands, effectively ex- tending its territorial reach hundreds of kilometers from their homeland. Aside from being a rich fishing ground, the Spratlys are believed to sit atop gas and oil deposits. The area is also one of the world’s busiest sea lanes. The Permanent Court of Arbitration Ruling In January 2013 the Philippines formally initiated arbitration proceedings against the China’s claims, also known as the “nine-dash-line,” including the Scarborough Shoal, which the Philippines argued was unlawful under the UNCLOS. An arbitration tribunal was constituted under Annex VII of UNCLOS and it was decided in July 2013 that the Perma- nent Court of Arbitration (PCA) would function as registry and provide administrative duties in the proceedings. On July 12, 2016 the tribunal agreed unanimously with the Philippines. In its award, it concluded that there is no evidence that China had historically exercised exclusive control over the waters or resources, hence there was “no legal basis for China to claim historic rights” over the area within its nine- dash line. The tribunal also judged that the China had caused “severe harm to the coral reef environment” and that it had violated the Philippines’ sovereign rights in its Exclusive Eco- nomic Zone by interfering with Philippine fishing and petro- leum exploration by, for example, restricting the traditional fishing rights of Filipino fishermen at Scarborough Shoal. China rejected the ruling, calling it “ill-founded.” Chinese President Xi Jinping insisted that “China’s territorial sover- eignty and marine rights in the South China Sea will not be -18-in Panatag Shoal affected by the so-called Philippines South China Sea ruling in any way.” Nevertheless China would still be “committed to resolving disputes” with its neighbors, he said. VII. Demands of the Fisherfolks (PKKL) The fisherfolks demand the following: First, Implement the United Nations Convention on the Law of the Sea UNCLOS) whereby the Philippines is a signatory and a party to the convention concluding that the Filipino fishermen should be able to fish freely within the Shoal without the interference from the Chinese in order to bring back the usual fishing activities before the aggression started by enforcing the ruling of the Tribunal; Second, the fisherfolks should be protected by the Philippine Coast Guard and the Bureau of Fisheries and Aquatic Resources (BFAR) when at sea and they should be updated on the concrete program of the National Government based on the portrayal of President Rodrigo Duterte that he will protect our land, our fish and our fishermen. The Philippine government should respect, protect and fulfill the right of all Filipinos; Third, demand for China government to apologize and provide reparation for the commission of crimes against the Filipino fisherfolks. China, under the united Nations-ESCR, has an extra territorial obligation to the Philippines to repay all the accumulated damages to the environment like the destruction of the coral reefs in the Panatag (Scarborough Shoal). Fourth, International Arbitration. Bringing territorial disputes to an international legal body presents another means of con- flict mitigation. The International Court of Justice and the In- ternational Tribunal for the Law of the Sea are two forums where claimants can file submissions for settlement. The UN tribunal that was convened at The Hague to discuss an arbi- tration case filed by the Philippine government contesting -19-China’s Encroachment the legality of China’s territorial claims in the South China Sea serves as an example of international conflict mitigation. The court ruled in favor of the Philippines, finding no legal basis for China’s “nine-dash line” claims to historic rights to resources in the South China Sea and that none of the land features met the requirements of an exclusive economic zone for China. The Chinese foreign ministry dismissed the deci- sion, saying it had no binding force. Alternatively, an outside organization or mediator could also be called upon to resolve the disagreement, yet the prospect for success in these cases is slim given China’s likely continued opposition. Chinese mining operations and other Chinese business ventures in the Philippines also present a range of issues with regards the right to adequate food. These mining and other operations pose risks to food safety, availability, affordability and cultural acceptability. The increased environmental risk and damage are often irreversible. In this connection, the present Philippine gov- ernment, consider the closeness of President Duterte to the Chi- nese leadership, is uniquely placed to shape Philippine-Chinese relations in a manner that would promote greater compatibility to the right of the people of the Philippines. The Philippine government, in fulfillment of its duty to pro- mote and protect the right to adequate food, must take all steps to ensure access of Philippine fisher folks to these rich fishing ground. Its duty extends to exhausting diplomatic channels to facilitate access to these disputed waters. VIII. Policy Options to Resolve the Territorial Dispute Thousands of vessels, from fishing boats to coastal patrol and naval ships, ply the East and South China Sea waters. Increased use of the contested waters by China and its neighbors heighten the risk that miscalculations by ship cap- tains, pilots or military and political leaders could trigger an - 20 -in Panatag Shoal armed conflict, which the United States could be drawn into through its military commitments to its allies — Japan and the Philippines. Policy experts believe that a crisis management system for the region is crucial. Resource Sharing. Claimants in both the South China Sea and East China Sea could cooperate on the development of resources, including fisheries, petroleum, and gas. A re- source-sharing agreement could include bilateral patrolling mechanisms, which would deter potential sources of conflict like illegal fishing and skirmishes arising from oil and gas exploration. More collaborations in the form of joint fishery deals like those between China and Vietnam and Japan and Taiwan could mitigate risks by sharing economic benefits. Military-to-Military Communication. Increased dialogue be- tween military forces has the potential to reduce the risk of conflict escalation. Communication mechanisms like military hotlines to manage maritime emergencies, similar to the ones set up by China and Japan, China and Vietnam, and China and ASEAN, could be established among all claimants. These ho- tline systems would connect leaders in the event of a crisis that could arise from accidents, such as naval maneuvers misinter- preted by captains of merchant vessels or fishermen. Lastly, joint naval exercises, such as those proposed by Beijing in October 2015, could support greater military transparency and help de- velop shared rules of the road. Building a Multilateral Framework. The development of a multilateral, binding code of conduct between China and ASEAN countries is often cited as a way of easing territori- al disputes in the South China Sea. The parties have already agreed upon multilateral risk reduction and confidence-build- ing measures in the 2002 Declaration on the Conduct of Parties in the South China Sea, but none has adhered to its provisions or implemented its trust-building proposals. While China has AteChina’s Encroachment historically preferred to handle all disputes bilaterally, ongo- ing consultations between Beijing and ASEAN still hold some promise for reinvigorating a multilateral framework toward greater cooperation and conflict resolution. However, given differences among ASEAN members vis-a-vis China and China’s preference to settle matters bilaterally, it is uncertain whether progress can be made. International Arbitration. Bringing territorial disputes to an international legal body presents another means of conflict mitigation. The International Court of Justice and the In- ternational Tribunal for the Law of the Sea are two forums where claimants can file submissions for settlement. The UN tribunal that was convened at The Hague to discuss an arbi- tration case filed by the Philippine government contesting the legality of China’s territorial claims in the South China Sea serves as an example of international conflict mitigation. The court ruled in favor of the Philippines, finding no legal basis for China’s “nine-dash line” claims to historic rights to resources in the South China Sea and that none of the land features met the requirements of an exclusive economic zone for China. The Chinese foreign ministry dismissed the deci- sion, saying it had no binding force. Alternatively, an outside organization or mediator could also be called upon to resolve the disagreement, yet the prospect for success in these cases is slim given China’s likely continued opposition. Diplomatic. The United States could initially serve in a me- diation role in the event of crisis erupting in either sea. Medi- ation could also come from ASEAN or a trusted, neutral actor within the region like Singapore. Parties could also call for an emergency session of the UN Security Council to negotiate a ceasefire, although China’s permanent seat on the Council could limit the effectiveness of this option. In the East China Sea, bilateral management of the dispute is the likely first op- tion, with Beijing and Tokyo sitting down to negotiate a com- oein Panatag Shoal mon guideline for handling the conflict and preventing its es- calation. Chinese and Japanese officials made a breakthrough to ease tension in November 2014, issuing a joint four-point outline to improve Beijing-Tokyo relations. Economic. Despite extensive trade ties, the parties to the dis- pute could respond to a rise in tensions by imposing econom- ic sanctions. In response to a Chinese action, for instance, the United States could sanction financial transactions, the movement of some goods and services, and even travel be- tween the two countries. In retaliation, Beijing could bar U.S. exports and cut back on its extensive holdings of U.S. Treasuries. Claimants could also manipulate exports and re- launch boycotts of goods. Signals of such a response have already been seen: in 2012 Chinese protesters launched a wave of boycotts of Japanese-made products. Japan also ac- cused China of halting exports of rare earth minerals after a territorial spat in 2010—a charge Beijing denied—causing a commodities crisis for resource-dependent Japan. Military. If confrontation were to involve Japan in the East China Sea or the Philippines in the South China Sea, the Unit- ed States would be obligated to consider military action un- der defense treaties. Experts note that Washington’s defense commitments to Tokyo are stronger than those to Manila. Under its treaty obligations, the United States would have to defend Japan in the case of an armed attack; the U.S.-Phil- ippine treaty holds both nations accountable for mutual sup- port in the event of an “armed attack in the Pacific Area on either of the Parties.” Military action would represent a last resort, and would depend on the scale and circumstances of the escalation. In the event of armed conflict breaking out between China and Japan, the United States could also use crisis communication mechanisms outlined in the U.S.-Chi- na Military Maritime Consultative Agreement to encourage a stand-down of forces and facilitate communication be- O34China’s Encroachment tween Tokyo and Beijing. Verbal declarations that communi- cate the seriousness of the dispute and convey support for an ally, as well as offers of military assistance, can also serve as essential “coercive de-escalation” measures during a crisis. In the South China Sea, Washington has protested against Beijing’s extensive land reclamation efforts, warning that island development and a military buildup could lead to re- gional conflict. The U.S. military deployed surveillance air- craft over the Chinese-built artificial islands in 2015 and sent warships to sail within 12 nautical miles of disputed features in the Paracel and Spratly island chains to emphasize the importance of freedom of navigation in the contested waters. These operations, intended to challenge China’s maritime claims, are expected to expand in scope and have received support from U.S. regional allies. IX. The Legal Gap: The RTFN Framework Law in the Philippines There is a pressing need for a comprehensive approach to the problem of hunger and poverty in the Philippines that does not directly involve diplomacy. There is no law in the Philip- pines that provides for such an approach. There is still no right to adequate framework law in the Philippines. In its General Comment No. 12, the United Nations Committee on Econom- ic, Social and Cultural Rights has called for the adoption by States of such a bill. The United Nations Special Rapporteur on the Right to Food, Turkish Professor Hilal Elver, during an official country mission to the Philippines upon the invitation of the Philippine Government, made the adoption of right to adequate framework bill as her principal recommendation. There is presently a right to adequate food framework bill (also known as the zero hunger bill) pending in the Philip- pine Senate as Senate Bill 111 and in the Philippine House of aein Panatag Shoal Representatives as House Bill No. 61. This bill would pro- vide for the first time an express guarantee of the right to ad- equate food to Filipinos. There is no such express guarantee in the 1987 Constitution or in statutory law. The right to life is categorically stated in the Constitution and from which the right to adequate food is inferred. The Magna Carta of Women expressly guarantees the right to adequate food, but only for women. There is thus a need for a Republic Act that expressly guarantees the right to adequate food for all Filipi- nos no matter their age, gender, religion, regional origin, etc. The bill creates a framework to realize the right to adequate food. It fleshes out the normative content of the right to ad- equate food. This includes affordability, accessibility, safety and consumer and cultural acceptability. It also enumerates the human rights principles that serve as the cornerstone for the progressive realization of the right to adequate food, namely: participation, accessibility, non-discrimination, transparency, human dignity, empowerment and rule of law. The bill prompts the government to move quickly to end hun- ger. It sets a 10-year period for the government to achieve zero hunger. The bill also lists indicators to help the government determine if it is on the right track. These indicators include: a) percentage of development of ancestral lands; b) percentage of rural population with access to pro- ductive resources; c) share of budget spent on programs aimed at creating access to productive resources; d) percentage of budget spent on agricultural research, extension services, irrigation, training, technology, credits and rural development; e) percentage of rural female-headed households, or rural women, with legal title to agriculture land; f) percentage of public budget allocation for social HOSChina’s Encroachment transfer programs to those unable to feed them- selves; g) coverage of marginalized and disadvantaged popu- lation taking part in social transfer programs; h) percentage of marginalized and disadvantaged pop- ulation covered by a public nutrition supplement program; i) percentage of population aware of available food and nutrition programs; and j) coverage of school feeding programs. The proposed law will establish a government body called the Commission on the Right to Adequate Food to supervise its im- plementation. A whole-of-government approach will be taken. Civil participation will be central to the implementation of the law. Among the responsibilities of the commission will be to harmonize laws, policies and programs that relate to the right to adequate food, and to adopt implementing rules and regulations. Through a harmonization of laws, policies and programs and adoption of implementing rules and regulations, concrete action can be achieved on the ground through a comprehensive pack- age that includes those similar to what was used by Brazil. No- tably, some of what Brazil is doing the Philippines has adopted already in some form. There is a need to put into place an ex- haustive strategy to address hunger and to ensure harmonization and continuity. A law must be passed making food a sustained priority and a matter of legal right and not just of charity. Unfortunately, Congress is yet to pass this bill, in spite of potential to lower hunger and poverty levels in the Phil- ippines. The House Committees on Human Rights and on Finance have already approved the bill, and is due for ple- nary consideration soon. The Senate Committees on Justice and Human Rights and on Finance, however, have not even scheduled the bill for initial hearing. Congressional leaders Gein Panatag Shoal must take appropriate steps to pass the bill immediately. The Philippine President ought to certify the bill as urgent. X. Conclusion Systemic hunger and poverty prevails in the Philippines. The in- adequacy of the Philippine response has led to the high levels of hunger and poverty. A comprehensive, action-oriented approach that offers durable solutions is absolutely essential. Philippine policies and Philippine-China relations must be assessed through a right to adequate food lens. The rhetoric around hunger and poverty must translate into concrete action that can be felt on the ground. The conversation must cover an honest assessment of the human rights and humanitarian needs of the people. The right to adequate framework bill is an essential first step if the government has a sincere desire to make hunger and poverty in the Philippines a thing of the past. While the bigger part of the responsibility falls on the Philip- pine government, civil society has its share of the responsibility. Civil society must be vigilant and must engage the government. There is the pressure that civil society must bring to bear upon the government so that it will do what is required. Conversely, the government has a good faith duty to collaborate with civil society in the effort to end hunger and poverty. FIAN Philippines calls on both the government and civil soci- ety to perform their roles to promote and protect the right to ad- equate food for all. FIAN Philippines invites all concerned to pause and reflect on the depths of the problems of hunger and poverty in the Philippines, to reverse past decisions harmful to the right to food, and make new ones that step up rather than re- duce protection for the right to adequate food. Today’s period of hunger in the Philippines is a dark one. There is a need promptly to craft a law in the nature of the zero hunger bill being offered and to follow through immediately with its implementation. DeiatChina’s Encroachment BIBLIOGRAPHY Areglado, Juan. Kalayaan: Historical, Legal, Political Back- ground. Manila: Foreign Service Institute, 1982. BALAL Asian Journal, II No. 2. Bulletin Today. June 15-July 25, December 1-15, 1982. Bureau of Energy Development, Ministry of Energy (RP). Nido Oilfield: First in the Philippines. Manila: BED, 1977. Cabinet Committee on the Law of the Sea (RP). Case Study: Kalayaan Island Group Dispute (Unpublished). . 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