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.
Author(s): Alfredo C. Robles Jr.
Publisher: Palgrave Macmillan
Year: 2022
Language: English
Pages: 233
City: Singapore
Preface
Acknowledgments
Contents
About the Author
Abbreviations, Acronyms, and Terms
1 Introduction
I. The Safety of Navigation in the South China Sea
II. Overview of the South China Sea Arbitration
III. Overview of the Book
References
2 The Uncontested Factual Background
I. The Philippine Account
A. The Incidents of 28 April 2012: The Near-Collisions of BRP Pampanga and BRP Edsa II with FLEC 310
B. The Incidents of 26 May 2012: The Near-Collisions of MCS 3008 with Several Chinese Vessels
II. China’s Failure to Deny the Facts
A. A Remarkable Contrast
B. The Risks of Denying Facts: The Impeccable Incident
References
3 The COLREGS, Mariners, and States
I. The COLREGS and Mariners
A. The COLREGS and the Practice of Mariners
B. The Simplicity of the COLREGS
II. The COLREGS and States
A. International Acceptance of the COLREGS
B. The Duty of States Parties to Give Effect to the COLREGS
Annex 3.1: Aids to Memory in Four Verses by Thomas Gray, 14 October 1867
References
4 The COLREGS and the Arbitral Tribunal’s Jurisdiction
I. The COLREGS as “Generally Accepted International Regulations”
A. The Scholarly Debate on the Concept of “Generally Accepted International Regulations” in the Convention
B. The Travaux Préparatoires of the Geneva Convention on the High Seas 1958
II. The COLREGS and the Limits of the Convention’s Compulsory Dispute Settlement System
A. The COLREGS and the Inapplicability of the “Law Enforcement Activities” Exception
B. The CSIL’s Post-Arbitration Critique of the Award on Jurisdiction: The Alleged Inapplicability of the COLREGS in the Territorial Sea
References
5 The Violations of the COLREGS as Violations of the United Nations Convention on the Law of the Sea
I. The General Rule of Responsibility
A. Compliance with the COLREGS, Good Seamanship, and Special Circumstances
B. Violations of Good Seamanship by the Chinese Vessels
II. The Conduct of Vessels in Any Condition of Visibility
A. Safe Speed, Risk of Collision, and Action to Avoid a Collision
B. Violations of Rules 6, 7, and 8 by the Chinese Vessels
III. The Conduct of Vessels in Sight of One Another
A. Crossing Situations and Actions by Give-Way and Stand-On Vessels
B. Violations of Rules 15 and 16 by the Chinese Vessels
Annex 5.1: International Regulations for Preventing Collisions at Sea, 1972 (Excerpts)
Part A: General
Part B: Steering and Sailing Rules
Section I: Conduct of Vessels in Any Condition of Visibility
Section II. Conduct of Vessels in Sight of One Another
References
6 Toward a Critique of the Rationalizations of Collisions as Instruments of Chinese Foreign Policy
I. The Incident of 10 April 2012: Absence of Special Circumstances Creating Immediate Danger and Justifying Departure from the Colregs
A. The Conduct of Maritime Patrol and the Absence of Immediate Danger
B. The Alleged Violation of Human Rights as a Pretext for the Violations of the COLREGS
II. The Incidents of 28 April and 26 May 2012: The Use of Force Against Warships
A. The Scope of Sovereign Immunity
B. State Practice: The Avoidance of the Use of Force and the Condemnation of Collisions
III. The Incidents of 28 April and 26 May 2012: The Use of Force in Maritime Law Enforcement
A. Warning Shots and Considerations of Humanity in Maritime Law Enforcement
B. Compliance of States with the COLREGS in Maritime Law Enforcement
References
7 Summary and Conclusions
Index
