Amid the significant media buzz and scrutiny over the arbitral tribunal’s July ruling before the Permanent Court of Arbitration (PCA) regarding disputed maritime rights in the South China Sea, which sided with the Philippines on most counts and resulted in a major legal and diplomatic defeat for China, an important but less conspicuous ruling within the PCA award document on Chinese coast guard behavior was largely overlooked by the press. The ruling, entitled “Operation of Law Enforcement Vessels in a Dangerous Manner,” sought to assess whether or not China, by the actions of its maritime law enforcement (MLE) vessels, had breached its obligations under the United Nations Law of the Sea Convention (UNCLOS) by operating “in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Scarborough Shoal,” otherwise known as the Philippines’ Submission No. 13.

In one of the most sweeping rulings on the actions of maritime law enforcement in disputed waters on legal record, the tribunal found that China’s coast guard had breached several UNCLOS articles governing safety and navigation at sea.

The Context

The court examined two incidents reported by Philippines officials as dangerous actions conducted by Chinese law enforcement vessels near Scarborough Shoal. The first incident occurred between a Chinese Fisheries Law Enforcement Command (FLEC) vessel and a Philippines Coast Guard (PCG) ship on April 28, 2012; the second between Philippines Bureau of Fisheries and Aquatic Resources and PCG vessels and Chinese FLEC and China Marine Surveillance (CMS) vessels on May 26, 2012. In both cases, the Philippines side claimed that near collisions occurred with Philippines MLE vessels due to intentionally dangerous or unprofessional maneuvers performed by Chinese MLE vessels that put Philippine lives and property at risk.

The first threshold the court sought to overcome was whether it had jurisdiction to rule on the Philippines’ Submission No. 13. In its October 29, 2015 Award on Jurisdiction and Admissibility, the court ruled that Submission No. 13 fell under Articles 21, 24, and 94 of UNCLOS, and therefore it had jurisdiction to rule on the merits of the submission. In particular, there were three thresholds the court had to consider in order to decide whether it had jurisdiction over the submission. First, the tribunal found that the submission “did not concern sovereignty or maritime delimitation.” Second, the court determined that Article 298(1)(b) of the Convention, which excludes “certain disputes concerning law enforcement activities from the procedures, was inapplicable because that exception applies only in the context of the exclusive economic zone.” The present dispute, the court found, “relates principally to events that occurred in the territorial sea of Scarborough Shoal.” Finally, the court considered its jurisdiction was “not dependent on a prior determination of sovereignty over Scarborough Shoal.”

In rendering its judgment on whether Chinese actions broke international conventions regulating safe maneuvers at sea, the court relied upon the guidelines under the Convention on International Regulations for Preventing Collisions at Sea, 1972, or COLREGS, of which both China and the Philippines are members, as one of the “generally accepted international regulations”  to which flag States are required to conform regarding rules of navigation, avoidance of accidents at sea, and good seamanship. The court found that COLREGS represented the most appropriate convention for application of Article 94 of UNCLOS. The court also relied upon two independent expert examinations of the merits of the Philippine claims – one conducted by retired United States Coast Guard officer and current Professor of Law at the University of Washington, Craig H. Allen (known as the Allen Report); and another by Captain Gurpreet S. Singhota, an official of the International Maritime Organization’s Maritime Safety Division, who was appointed by the court in accordance with the “Rules of Procedure” section of Article 24 in order to obtain an independent expert assessment of the Philippines claims – to guide and inform the court’s judgment on the case.

The Findings

In unambiguous terms, the tribunal found that Chinese actions had violated rules 2, 6, 7, 8, 15, and 16 of the COLREGS, thus breaching Article 94 of UNCLOS. The tribunal concluded that Chinese vessels in both instances failed to respect fundamental rules of COLREGS; namely, that vessels have a responsibility to operate at speeds and undertake maneuvers in such a manner as to avoid risk of collision, accidents at sea, and not imperil the life or property of other seafarers when operating in close proximity.

First, the court found that Chinese MLE vessels violated Rule 2 of COLREGS, concluding that Chinese conduct was “irreconcilable with an obligation of responsible navigation.” In this regard, the court accepted Captain Singhota’s characterization of the Chinese vessels’ conduct being in “total disregard of good seamanship and neglect of any precaution.” Further, when considering an exception within Rule 2(b) in COLREGS that permits departure from the COLREGS “where necessary to avoid immediate danger,” the court finds no evidence for such an exemption. In fact, the court found,

If anything, the record suggests that the Chinese maneuvers themselves created an immediate danger, rather than having been undertaken in response to a pre-existing threat. Additionally, while the Tribunal is aware that China’s statements suggest that its actions were justified as part of general law enforcement activities in the vicinity of a feature which China considers to comprise part of its sovereign territory, the Tribunal also recognizes that, where the operational requirements of law enforcement ships stand in tension with the COLREGS, the latter must prevail.

The court also sided with the Philippines’ claim that China violated Rule 6 of COLREGS, which requires vessels to undertake measures to avoid collision where possible by operating at safe speeds at sea. While noting that COLREGS does not define what constitutes “safe speed,” the court issued the following ruling: Read more…

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