petitioning the UN to intervene in a dispute with China, alleging
harassment by its Coast Guard and other Chinese vessels in the Philippine
economic zone. The petition represents the latest
development in an ongoing dispute over maritime and economic rights between
China and its island neighbor.
sixteen fishermen, who have fished for years in what’s known as the Scarborough
Shoal (Panatag Shoal or Bajo de Masinloc), allege that, since April 2012, the
Chinese mariners have interfered with their long-standing activities in the
shoal. Recently, the Chinese ships have kept them from taking shelter in the
shoal during harsh weather. They also allege that the Chinese have shot at
them with water cannons, rammed their boats, and even chased them with machine guns. The fishermen are represented by Center for International
Law, a nonprofit law firm in Manila. The primary appeal is under human-rights law,
citing obligations under the Universal Declaration of Human Rights (UDHR), the
International Covenant on Economic, Social and Cultural Rights (ICESCR), and customary
The appeal asks that the
U.N. “urgently intervene, remind, and direct China and its state agents to
respect the human rights—including the right to livelihood, the right to
adequate food, and the right to life—of the Filipino fisherfolks over their
traditional fishing grounds and safe refuge in the Scarborough Shoal ….”
One of these claims
resonates deeply with fishermen: Barring the fishermen from taking shelter in
the shoal violates the custom of right to safe refuge and harks back to the
age-old phrase “any port in a storm”. The other claims rest on more newly developed
law: Preventing the fishermen from fishing in the shoal would violate both their
right to an adequate standard of living under Article 11 of the ICESCR and
Article 25 of the UDHR, as well as their right to food under those articles,
while barring them from taking shelter in the shoal would violate their right
to life under Article 3 of the UDHR.
The notion of “any port
in a storm” is cited in the petition itself, albeit not in those precise words.
The fishermen argue that customary international law, which is roughly
analogous to Anglo-American common law in that it derives from centuries-old
legal practice, guarantees them shelter in the shoal regardless of territorial or
political disputes. Customary international law may provide
a strong argument, in contrast to the dearth of international treaties
governing the subject. The United
Nations Convention on the Law of the Sea guarantees ships peaceful passage even
through territorial waters, and indicates that distress can be grounds for
stopping and anchoring. China and the Philippines are both parties
to the convention. However, this is not generally considered to
describe a right of entry to ports. The complainants thus cite customary
Commentators seem to
agree that there is a longstanding customary right for ships to seek shelter
during a storm, or when confronted with a “force majeure” that endangers the
lives of the crew. Further, these ships are even customarily
considered immune from the jurisdiction of the state whose port they entered. Thus, a long history of practice seems to
bolster the Filipino fishermen’s claim.
An exception is
recognized when the foreign ship would threaten the health or safety of the
port’s population. Countries can produce--and have produced--numerous other
justifications for barring foreign ships from their waters. These include self-defense and protection of
the environment from hazards. For instance, the Castor, a Cyprus-flagged tanker with Polish crew,was damaged in heavy weather in
December 2000 while carrying gasoline. It was denied shelter by Algeria, France,
Gibraltar, Greece, Italy, Malta, Morocco, Spain, and Tunisia.
Thus, an unqualified right
of access no longer seems to be universally accepted, if it ever was. However, there is scant national security
justification in barring a fishing boat from taking refuge during a storm. There are no residents to endanger, and the
vessels are not carrying hazardous substances as the Castor was. China’s best
argument may be that it—not the Philippines—has sovereignty over the Shoal, and
that the fishermen are poaching on their economic assets; still, that would not
justify denying them shelter during harsh weather.
Merits aside, the action
is likely to fail in a practical sense. China has denied the authority of international
bodies to adjudicate not only similar but more
extreme actions, and even if the United
Nations were to act, it is unlikely that China would enact any changes.
 H. Harry L. Roque, Jr. &
Gilbert T. Andres, Urgent Appeal of
Filipino Fisherfolk Against China, HARRY ROQUE'S BLOG (June 24, 2015), http://harryroque.com/2015/06/24/urgent-appeal-of-filipino-fisherfolks-vs-china-over-scarborough-shoal [http://perma.cc/8LVU-W5ZU] (not confirmed
as the version sent to UNHCHR).
 Id. at Part IV, ¶ 59–60.
 Id. at Part IV, ¶¶ 17–19, 24, 31,
34–35, 37–38, 44, 48.
 Id. at Part III.
 Id. at Part V.
 Roque & Andres, supra note 1, at Introduction.
 Id. at Part V.
 Id. at Part V, ¶ 11; see VED P. NANDA & DAVID K. PANSIUS, 2 LITIGATION OF INT'L DISPUTES IN U.S. COURTS § 9:1 (defining
and discussing customary international law).
 U.N. Convention on the Law of the
Sea arts. 17–18, Dec. 10, 1982, 1833 U.N.T.S. 397.
lists of ratifications of, accessions and successions to the Convention and the
related Agreements as of 3 October 2014, UNITED NATIONS, http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm (last updated Jan. 7, 2015).
 See Ships
in Distress, 11 ENCYCLOPEDIA PUB. INT'L L. 287–89 (1989).
 Roque & Andres, supra note 1, at Introduction.
id.; P. JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION 194 (1927); R.R. Churchill & A.V. Lowe, THE LAW OF THE SEA 63 (3d ed. 1999).
e.g., C. JOHN COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 329–30 (6th rev. ed. 1967); 1 OPPENHEIM'S INTERNATIONAL LAW § 204 (Jennings
& Waifs eds., 9th ed. 1992).
e.g., McDougal & Burke, The Public Order of the Oceans 110 (1962); Ships in Distress, 11 ENCYCLOPEDIA PUB. INT'L L. 287–89 (1989).
 Christopher F. Murray, Any Port in a Storm? The Right of Entry for
Reasons of Force Majeure or Distress in the Wake of the Erika and the Castor,
63 OHIO ST. L.J. 1465, 1467
 Id. at 1471.
Sterling, South China Sea Dispute Between
China, Philippines Heads to Court, REUTERS (July 7, 2015), http://www.reuters.com/article/2015/07/07/southchinasea-arbitration-idUSL8N0ZN2GY20150707 [http://perma.cc/376C-LUKA] (describing
China’s position that the dispute is a question of territory, not economic
rights, and that the Permanent Court of Arbitration lacks the authority to
Posted by Bethany A. Boring on Tue. October 6, 2015 12:23 AM
China, Customary International Law, Philippines, Southeast Asia, Territorial disputes