Filipino fisherman file claim against China for denying "any port in a storm"

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Sixteen Filipino fisherman are 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.[1] The petition represents the latest development in an ongoing dispute over maritime and economic rights between China and its island neighbor.

The 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.[2] They also allege that the Chinese have shot at them with water cannons, rammed their boats, and even chased them with machine guns.[3] The fishermen are represented by Center for International Law, a nonprofit law firm in Manila.[4] 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 international law.[5]

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 ….”[6]

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.[7]

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.[8] 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.[9] China and the Philippines are both parties to the convention.[10] However, this is not generally considered to describe a right of entry to ports.[11] The complainants thus cite customary international law.[12]

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.[13] Further, these ships are even customarily considered immune from the jurisdiction of the state whose port they entered.[14] 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.[15] 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.[16] For instance, the Castor, a Cyprus-flagged tanker with Polish crew,was damaged in heavy weather in December 2000 while carrying gasoline.[17] It was denied shelter by Algeria, France, Gibraltar, Greece, Italy, Malta, Morocco, Spain, and Tunisia.[18]

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,[19] and even if the United Nations were to act, it is unlikely that China would enact any changes.


[1] 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).

[2] Id. at Part IV, ¶ 59–60.

[3] Id. at Part IV, ¶¶ 17–19, 24, 31, 34–35, 37–38, 44, 48.

[4] Id. at Part III.

[5] Id. at Part V.

[6] Roque & Andres, supra note 1, at Introduction.

[7] Id. at Part V.

[8] 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).

[9] U.N. Convention on the Law of the Sea arts. 17–18, Dec. 10, 1982, 1833 U.N.T.S. 397.

[10] Chronological 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).

[11] See Ships in Distress, 11 ENCYCLOPEDIA PUB. INT'L L. 287–89 (1989).

[12] Roque & Andres, supra note 1, at Introduction.

[13] See id.; P. JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION 194 (1927); R.R. Churchill & A.V. LoweTHE LAW OF THE SEA 63 (3d ed. 1999).

[14] See, 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).

[15] See, e.g., McDougal & Burke, The Public Order of the Oceans 110 (1962); Ships in Distress, 11 ENCYCLOPEDIA PUB. INT'L L. 287–89 (1989).

[16] 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 (2002).

[17] Id. at 1471.

[18] Id.

[19] See, e.g., Toby 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 decide it).


Posted by Bethany A. Boring on Tue. October 6, 2015 12:23 AM
Categories: China, Customary International Law, Philippines, Southeast Asia, Territorial disputes

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