Vessel Collisions in the Law of the Sea : The South China Sea Arbitration

This book focuses on the decision of the Tribunal in the South China Sea Arbitration that China had operated its law enforcement vessels in ways that created risks of collision with Philippine official vessels at Scarborough Shoal in April and May 2012. The book explains the International Regulations for Preventing Collisions at Sea (COLREGS) and the incidents in layperson's terms. It analyzes China's violations of the COLREGS on the basis of confidential Philippine documents declassified for the Arbitration, technical works by professional mariners, and the reports submitted by the navigational safety experts to the Tribunal. It pays attention to Chinese post-arbitration critiques of the Tribunal 's decision, which it characterizes as rationalizations of collisions as instruments of Chinese foreign policy. It contrasts China's conduct with the practice of the US and Western European States, which mandate compliance with collision regulations even during law enforcement operations. The book draws on sources in five languages (English, French, German, Italian, and Spanish), and helps the reader understand the pattern of China's harassment of vessels from littoral and non-littoral States in the South China Sea as well as the absence of legal foundations for China's rationalizations of its behavior. Alfredo C. Robles, Jr. is a University Fellow at De La Salle University, Philippines. He holds doctorate degrees from the Université Paris 1 (Panthéon-Sorbonne), France, and Syracuse University, USA. He is the author of French Theories of Regulation and Conceptions of the International Division of Labour (1994), The Political Economy of Interregional Relations: ASEAN and the EU (2004), The Asia-Europe Meeting: The Theory and Practice of Interregionalism (2008), The South China Sea Arbitration: Understanding the Awards and Debating with China (2018), and Endangered Species and Fragile Ecosystems in the South China Sea: The Philippines v. China Arbitration (2020) Preface 5 Acknowledgments 7 Contents 8 About the Author 11 Abbreviations, Acronyms, and Terms 12 1 Introduction 14 I. The Safety of Navigation in the South China Sea 14 II. Overview of the South China Sea Arbitration 17 III. Overview of the Book 27 References 29 2 The Uncontested Factual Background 34 I. The Philippine Account 34 A. The Incidents of 28 April 2012: The Near-Collisions of BRP Pampanga and BRP Edsa II with FLEC 310 35 B. The Incidents of 26 May 2012: The Near-Collisions of MCS 3008 with Several Chinese Vessels 38 II. China’s Failure to Deny the Facts 41 A. A Remarkable Contrast 41 B. The Risks of Denying Facts: The Impeccable Incident 44 References 50 3 The COLREGS, Mariners, and States 54 I. The COLREGS and Mariners 56 A. The COLREGS and the Practice of Mariners 56 B. The Simplicity of the COLREGS 60 II. The COLREGS and States 63 A. International Acceptance of the COLREGS 63 B. The Duty of States Parties to Give Effect to the COLREGS 71 Annex 3.1: Aids to Memory in Four Verses by Thomas Gray, 14 October 1867 80 References 81 4 The COLREGS and the Arbitral Tribunal’s Jurisdiction 89 I. The COLREGS as “Generally Accepted International Regulations” 92 A. The Scholarly Debate on the Concept of “Generally Accepted International Regulations” in the Convention 94 B. The Travaux Préparatoires of the Geneva Convention on the High Seas 1958 98 II. The COLREGS and the Limits of the Convention’s Compulsory Dispute Settlement System 107 A. The COLREGS and the Inapplicability of the “Law Enforcement Activities” Exception 108 B. The CSIL’s Post-Arbitration Critique of the Award on Jurisdiction: The Alleged Inapplicability of the COLREGS in the Territorial Sea 115 References 122 5 The Violations of the COLREGS as Violations of the United Nations Convention on the Law of the Sea 131 I. The General Rule of Responsibility 134 A. Compliance with the COLREGS, Good Seamanship, and Special Circumstances 134 B. Violations of Good Seamanship by the Chinese Vessels 137 II. The Conduct of Vessels in Any Condition of Visibility 140 A. Safe Speed, Risk of Collision, and Action to Avoid a Collision 140 B. Violations of Rules 6, 7, and 8 by the Chinese Vessels 146 III. The Conduct of Vessels in Sight of One Another 150 A. Crossing Situations and Actions by Give-Way and Stand-On Vessels 150 B. Violations of Rules 15 and 16 by the Chinese Vessels 153 Annex 5.1: International Regulations for Preventing Collisions at Sea, 1972 (Excerpts) 157 Part A: General 157 Part B: Steering and Sailing Rules 158 Section I: Conduct of Vessels in Any Condition of Visibility 158 Section II. Conduct of Vessels in Sight of One Another 161 References 162 6 Toward a Critique of the Rationalizations of Collisions as Instruments of Chinese Foreign Policy 165 I. The Incident of 10 April 2012: Absence of Special Circumstances Creating Immediate Danger and Justifying Departure from the Colregs 168 A. The Conduct of Maritime Patrol and the Absence of Immediate Danger 169 B. The Alleged Violation of Human Rights as a Pretext for the Violations of the COLREGS 171 II. The Incidents of 28 April and 26 May 2012: The Use of Force Against Warships 174 A. The Scope of Sovereign Immunity 176 B. State Practice: The Avoidance of the Use of Force and the Condemnation of Collisions 185 III. The Incidents of 28 April and 26 May 2012: The Use of Force in Maritime Law Enforcement 191 A. Warning Shots and Considerations of Humanity in Maritime Law Enforcement 193 B. Compliance of States with the COLREGS in Maritime Law Enforcement 201 References 207 7 Summary and Conclusions 215 Index 221 This book focuses on the decision of the Tribunal in the South China Sea Arbitration that China had operated its law enforcement vessels in ways that created risks of collision with Philippine official vessels at Scarborough Shoal in April and May 2012. The book explains the International Regulations for Preventing Collisions at Sea (COLREGS) and the incidents in layperson's terms. It analyzes China's violations of the COLREGS on the basis of confidential Philippine documents declassified for the Arbitration, technical works by professional mariners, and the reports submitted by the navigational safety experts to the Tribunal. It pays attention to Chinese post-arbitration critiques of the Tribunal 's decision, which it characterizes as rationalizations of collisions as instruments of Chinese foreign policy. It contrasts China's conduct with the practice of the US and Western European States, which mandate compliance with collision regulations even during law enforcement operations. The book draws on sources in five languages (English, French, German, Italian, and Spanish), and helps the reader understand the pattern of China's harassment of vessels from littoral and non-littoral States in the South China Sea as well as the absence of legal foundations for China's rationalizations of its behavior. Alfredo C. Robles, Jr. is a University Fellow at De La Salle University, Philippines. He holds doctorate degrees from the Université Paris 1 (Panthéon-Sorbonne), France, and Syracuse University, USA. He is the author of French Theories of Regulation and Conceptions of the International Division of Labour (1994), The Political Economy of Interregional Relations: ASEAN and the EU (2004), The Asia-Europe Meeting: The Theory and Practice of Interregionalism (2008), The South China Sea Arbitration: Understanding the Awards and Debating with China (2018), and Endangered Species and Fragile Ecosystems in the South China Sea: The Philippines v. China Arbitration (2020)