Traditional fishing rights (TFR) is one of the notable mentions of the President in his recent State of the Nation Address. With the recent incident involving Filipino fisherman in the West Philippine Sea, it is imperative that this is given attention. For an archipelagic state, this is an important economic activity. For the fishermen, this may even involve the future of their family.
Beyond this economic activity is an important sector that must be protected and nurtured. The 1987 Constitution guarantees and promotes the rights of fisherfolk. Likewise, it is the state’s responsibility to protect the rights of subsistence fishermen. The clear intendment of the Fisheries Code of 1988 echoes the constitutional tenets. Sadly, however, the Fisheries Code does not ipso facto recognize traditional fishing’s existence as a matter of legal right.
The realm of international law has recognized TFR and has, through the years, have developed this concept. TFR, however, is not the same as historic rights as China claims, and as brushed aside by the international arbitral tribunal that favored the Philippines in 2016. TFR as compared with historic claims only recognizes a state’s fishing activities over a territorial sea of another state.
A survey of cases involving TFR would reveal a clear attempt in the international tribunals to recognize this right, particularly in the International Court of Justice and now, under the auspices of the United Nations Convention on the Law of the Seas (Unclos). The following rules or requisites have been noted, namely: a. TFR does not cover a claim of sovereignty over a fishing area but only gives a right to conduct fishing activities; b. there is no exclusivity in the claim of the state as there may be other states conducting similar activities; 3. There must be a specific claim in the area of activity, not general fishing activities; and 4. The other state so affected must recognize the TFR of another state in its territorial sea. This right is thus recognized provided that there must be a conduct of a specific activity in the area for a long time and other states so affected have recognized the claimant’s right to engage in such activity.
Simply put, TFR is the right of fishermen to continuously engage in fishing activities in municipal waters where they had done so traditionally for a long time. It should be clear that it has basis in customary international law.
Other than the constitutional provisions expressing policies to protect the fishermen, and the Fisheries Code, the Indigenous People’s Rights Act provides that indigenous peoples (IP) have the exclusive right to exploit, utilize and develop the ancestral domain. Remember, though, that TFR does not claim ownership and it does not exclude others, is open to whether a fisherman is IP or not, and only relates to marine and aquatic resources.
TFR, as the term implies, is a right duly recognized, and an economic and social right guaranteed by the Universal Declaration of Human Rights, the Convention on the Economic Social and Cultural rights and other customary international laws. Apparently, this can be demanded as a matter of right in our jurisdiction and even under international law.
As our laws do not clearly and distinctively provide for mechanisms for TFR, it is high time that this is attended to. A clearer legal and institutional framework must be set up. The concern and urgency for TFR do not need to be overemphasized. The vulnerability of the fisherfolk (who may be unaware of their rights) to abuse needs to be addressed, lest we leave our fishermen to be used in political squabbles, such as by making them change their statements to suit power and consequently dispense with these rights.
In the eyes of the law, municipal and international, TFR is a set of rights and responsibilities imposed, yet, for the fishermen, this means food for the hungry family. For them, this means a life that must be protected.