Explaining the General and Territorial Characteristics of Criminal Law as applied in the

present Chinese Fishermen Case

Facts of the case

May 9, 2014 11 Chinese fishermen were caught poaching and taking endangered
species near Hasa-Hasa Shoal (Half Moon Shoal), an area around 90 kilometers away from
Philippine soil. The PNP Maritime Group filed criminal charges against them in violation of
Philippine Fisheries Code of 1998.
The Chinese officials demand the release of their nationals but the Philippine government
rejected their petition. Interior Secretary Mar Roxas spoke that the exercise of the said
apprehension is just following the law. (Emphasis supplied)

The objective

The objective of this paper is to scrutinize Roxas contention of just following the law
specifically under the principles of generality and territoriality. What is the basis of Philippines
jurisdiction in this context? What are the applicable laws in order to subject and prosecute the
Chinese fishermen? These are the general questions this paper wishes to address.

What makes it a crime?

Crime is an act committed or omitted in violation of a public law forbidding or
commanding it.
1
Philippine Fisheries Code of 1998 is public law thus violating it makes the act
criminal. However, since they are aliens, is a municipal law binding to them?


Principle of Generality

Article 14 of the New Civil code states that, Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in the Philippine territory xxx
The general rule is that both citizens and aliens are bound to follow Philippine laws. In a
way, aliens are bound by our penal laws, because while they are within the Philippine territory,
such laws also protect them.
2
Indeed, as a general rule, municipal law is binding to aliens insofar
as they are within Philippine territory. With first question being settled, the second one arises, are
the Chinese nationals within Philippine territory? Or better yet, what constitute the Philippine
territory?






1
I Bauviers Law Dictionary, Rawles Third Revision, 729


2
See at http://www.lawteacher.net/international-law/essays/general-principles-international-law-essay.php

National territory

Article II of the 1987 Philippine Constitution defines our territory. The national territory
comprises the Philippine archipelago, with all the islands and waters embraced therein, and all
other territories over which the Philippines has sovereignty or jurisdiction. (emphasis supplied)
This implies that areas which may be outside the Philippine baselines but nevertheless
jurisdiction can still be exercised insofar as it is recognized by international community.


United Nations on Law of the Sea (UNCLOS)

UNCLOS, which both the Philippines and China are signatory, govern and in a way
defines the States maritime affairs. One of its provisions is on the Exclusive Economic Zone
(EEZ). EEZ extends to a distance of 200 nautical miles (370 km) out from its coastal baseline.

Under UNCLOS, Article 56, In the exclusive economic zone, the coastal State has: (a)
sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources. x x x (b) jurisdiction as provided for in the relevant provisions of this
Convention with regard x x x (to) the protection and preservation of the marine environment.
(emphasis supplied)

This clearly states that the Philippines still exercise jurisdiction outside of its baselines
for the aforementioned purposes. Thus, since jurisdiction is established the principle of
territoriality can be applied.


Principle of territoriality

The characteristic of criminal law supposes that as a rule penal laws of the Philippines are
enforceable only within its territory. (Article 2 of Revised Penal code)

UNCLOS is a generally accepted international law and since we adopt such principles as
part of the municipal law. (Art. II, Section 2 of Philippine Constitution) Hence, UNCLOS
provisions become part of municipal law. As such, the territories and jurisdiction assigned by
UNCLOS are locally binding and consequently, Philippine penal laws are enforceable.

According to the police report, the accused were just 90 kilometers away from Philippine
soil. Evidently, this is well within the Philippines EEZ which extends up to 370 km from the
baselines.

Conclusion

The entry of the accused was illegal. To add, poaching and taking of endangered species
are criminal acts. The principles of generality and territoriality proved that they can be liable and
thus prosecutable.

Submitted by:

Nubbin Paul C. Lagumbay