On 09 April 2021, a chartered PH vessel carrying an ABS-CBN news crew sailed into the WPS to do a story on how PH fishermen were doing amid the frictions between PH and CN over the 220-strong Chinese fishing/militia fleet found anchored at Julian Felipe/Whitsun Reef, located 175 nautical miles away. Based on news reports and radio interviews since then, it appears that as the PH vessel made its way to its next destination Ayungin/Second Thomas Shoal where the BRP Sierra Madre lies grounded and is maintained as an outpost by a small contingent of PH Marines. China Coast Guard Vessel No. 5101 was sighted on the horizon. As the PH vessel was approximately 4 or 5 nautical miles from Ayungin, CCG-5101 turned to bear on the PH vessel and hailed the PH vessel via radio, in English, requiring its identity and purpose or destination. The PH vessel captain however did not understand English and did not reply. He changed course and made haste back toward the Palawan. CCG-5101 gave chase and pursued the PH vessel for about 1 hour, maneuvering beside and behind it, before breaking off the pursuit. As CCG-5101’s pursuit ended and the PH vessel continued it voyage toward Palawan, two People’s Liberation Army Navy Type-22 Houbei class fast attack craft known to be armed with anti-ship missiles and 30mm cannon, distinct and identifiable due to a catamaran design, stealthy shape, and camouflage paint scheme, were seen coming up from the horizon behind them. The Type-22s approached at high speed, then took positions behind and on either side of the PH vessel. They followed the PH vessel’s course for at least 20-30 minutes, before leaving and speeding back in the direction away from and opposite of the PH vessel.
The incident brings up several legal issues on the interaction between civilian and military activities, and the exercise of freedom of the seas, in the PH EEZ. To clarify the legal situation, the following points should be kept in mind:
1. Ayungin Shoal is a submerged coral reef and low tide elevation located about 107 nautical miles from Rizal, Palawan. In accordance with the ruling of the UNCLOS Annex VII Arbitral Tribunal in the case of The South China Sea Arbitration (Philippines v. China, PCA Case No. 2013-19), its waters form part of the PH exclusive economic zone while its seabed forms part of the PH continental shelf. Although the Tribunal was unable to rule upon the submissions of the PH concerning CN’s activities directed against the BRP Sierra Madre, it did actually rule upon the status of the feature, and definitively found that the PH has exclusive jurisdiction over Ayungin Shoal.
2. As a general rule, all vessels, whether flying the flag of the PH or other States, are entitled to exercise the freedom of navigation in areas beyond national jurisdiction, i.e., beyond the EEZ of coastal States. This is among the high seas freedoms recognized and enumerated in UNCLOS Article 87(1). All States exercising such freedom must, however, do so “with due regard” for the interests of other States. The principal consideration in determining whether due regard is observed is the principle of flag State jurisdiction: in the high seas beyond the jurisdiction of any coastal State, regulatory and enforcement jurisdiction over a vessel, activities thereon, and actions of the crew and passengers, may only be validly exercised by the flag State, i.e., the State where the ship is registered. Unless under the conditions that warrant the exercise of universal jurisdiction under UNCLOS Articles 99-109 (slave trade, piracy, unauthorized broadcasting, drug-trafficking), no State other than the flag State can validly exercise jurisdiction over a vessel flying its flag.
3. The freedom of navigation is also available to all vessels traversing the EEZ of coastal States according to UNCLOS Article 58(1). However, since the EEZ is subject to a coastal State’s exclusive sovereign rights over natural resources and economic activities, such freedom must be carried out “with due regard” to the rights of the coastal State; furthermore, under UNCLOS Article 58(3), other States exercising any of their rights or duties must comply with the laws and regulations of the coastal State adopted in accordance with UNCLOS and other compatible rules of international law. Within the EEZ, therefore, the coastal State’s jurisdiction is superior insofar as activities that may affect or undermine such jurisdiction over natural resources and other economic activities. Any other States’ exercising the freedom of navigation or any other activity must do so in a manner compatible with (and conversely, should not undermine) the coastal State's jurisdiction over its EEZ.
4. The PH vessel was a fishing vessel, able to visit the various reefs and fishing grounds and check on fishermen operating in the area, the intended subject of the news team’s reportage. As a fishing vessel operating within the PH EEZ, it was unquestionably within its rights to navigate freely without interference from any other State. The presence of the news team on the fishing vessel does not in any way affect the legality of its journey within the PH EEZ. Whether or not the vessel is a fishing vessel, cargo vessel, passenger vessel, or any other type of vessel is actually irrelevant because they are all entitled to exercise the freedom of navigation.
5. CCG-5101 is not only a foreign-flagged vessel, but also a government ship operated for non-commercial purposes. It is also entitled to exercise freedom of navigation but is subject to the limitation that such exercise should be with due regard to the exclusive sovereign rights of the PH for as long as it is within the PH EEZ.
6. CCG-5101 was sighted in the vicinity of Ayungin Shoal, approximately 107 nautical miles from shore, and indubitably within PH jurisdiction insofar as natural resource-related activities were concerned. The question arises whether the navigation of CCG-5101 could be considered as a lawful exercise of freedom of navigation. The answer to this question entails consideration of the nature and purpose of its presence and movement. Consideration of relevant facts point to the negative.
7. CCG-5101 was not merely traversing the South China Sea, but is known to be one of several CCG vessel regularly present in the vicinity of Ayungin Shoal. The presence and operation of Chinese government vessels, including the CCG and its predecessors (the Fisheries Law Enforcement Command and the China Maritime Surveillance) have been well-documented in The South China Sea Arbitration. Since 2013, such vessels have been conducting patrols around Ayungin Shoal, controlling access, and escorting/protecting Chinese fishermen in conducting fishing operations, including destructive clam digging operations. The Arbitral Tribunal declared these kinds of operations to be in contravention of the exclusive sovereign rights of the PH. Despite the Award, however, China refuses to recognize its validity and continues to press its illegitimate claims. The presence of CCG-5101 in the vicinity of Ayungin Shoal is not an exercise of freedom of navigation, but a continuation of China’s illegitimate assertion of rights and jurisdiction over that part of the PH EEZ.
8. Considering that CCG-5101 is a law enforcement vessel of the Chinese government, the action of the CCG-5101 demanding that the PH vessel identify itself and its purpose or destination is an attempt on the part of China to exercise jurisdiction over a PH vessel in the PH EEZ. Such action is invalid on several grounds: (a) its patrols in the PH EEZ are not a valid exercise of high seas freedoms but an unlawful assertion of China’s invalid claims to Ayungin Shoal as part of broad and excessive claim to the SCS; (b) it is an extension of China’s unlawful assertion of ownership and jurisdiction over Ayungin Shoal, through the purported exercise of governmental authority thereon able to control access to it; and (c) it is an illegitimate attempt to exercise jurisdiction over a PH vessel, i.e., a vessel not flying a Chinese flag, in contravention of the principle of flag State jurisdiction. Since the Chinese vessel has no legal competence over vessels of the PH, the PH vessel was therefore under no legal obligation to respond to such an invalid and illegitimate assertion and exercise of jurisdiction. To do otherwise could be interpreted as simply compliance with Chinese jurisdiction under duress.
9. It may be argued that when the PH vessel reversed course and departed the area, CCG-5101 could be considered to have valid reason or probable cause to engage in pursuit. However, this is not acceptable. In the first place, between the two vessels, CCG-5101 had no legitimate reason to be conducting operations at Ayungin Shoal. Second, unlike CCG-5101 the PH vessel is lawfully and entitled to exercise of the full freedom of navigation in the PH EEZ, as well as freedom of fishing and to meaningfully access the exclusive and sovereign rights to the living and non-living resources: how such navigation is conducted, including whether it involves a radical change in direction in speed, is not a concern of CCG-5101 for as long as it does not pose a threat to safety of life at sea, nor involve any unlawful or illegal activity.
From the accounts, what can be gathered is that from fear of/under duress from powerful ships of the CCG, the PH vessel reversed course and accelerated to speed away from CCG-5101 which was still far in the horizon. No other vessels were in the area, thus no situation involving any threat to safety of life at sea arose, and certainly, the PH vessel did not pose any threat at all to CCG-5101. A mere change in course and speed out in the open sea cannot in of itself give rise to any plausible reason to suspect that the PH vessel is engaged in any illegitimate or other activity sufficient to warrant pursuit by CCG-5101.
10. Freedom of navigation refers to the ability of all ships to navigate at sea without undue interference and intervention by other seafaring States as a general rule. There are, of course, exceptions where warships and government ships in non-commercial service (such as coast guard vessels) are recognized to have a right to intervene in a vessel’s voyage for purposes such as maritime security and law enforcement. However, these exceptions detract from the general principle of exclusive flag State jurisdiction, so international law recognizes only very limited circumstances under which they apply. These involve the exercise by one State of the right of approach and visit against a vessel flying the flag of another State.
The rules and circumstances giving rise to a right of approach and visit have been codified in UNCLOS Article 110, which permits minimal interference with a vessel’s exercise of navigational rights. UNCLOS Article 110(1) particularly states:
“1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
“(a) the ship is engaged in piracy;
“(b) the ship is engaged in the slave trade;
“(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
“(d) the ship is without nationality; or
“(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.”
It is obvious that none of the reasonable grounds listed above are applicable because as far as CCG-5101 is concerned, it only witnessed a PH vessel reverse course and depart after being hailed at a distance. In the middle of the open sea, with no other vessel in sight, there are no other facts that may give rise to a reasonable ground that any of the prohibited activities above were taking place. There being none, CCG-5101 was not justified in pursuing the PH vessel for a full hour before breaking off the chase.
11. The unusual element in the incident is the appearance and resumption or continuation of the pursuit by the two Type 22 missile boats of the PLA-N. According to the reports, the missile boats approached the PH vessel from behind at high speed, trailed it, and split up to position themselves on either side and behind. This describes a classic naval tactic, the flanking maneuver, by which the two vessels can attack both sides of the target vessel. The missile boats pursued the PH vessel for 20-30 minutes under these conditions before turning back toward the horizon. Throughout all this time, the PH vessel was moving in a straight line toward Palawan.
12. Since the missile boats appear to have taken over the pursuit from CCG-5101, their approach toward the PH vessel was likewise unjustified. Moreover, the PLA-N missile boats took over the chase after an hour, by which time it was already clear that the PH vessel was heading straight to Palawan. They took up flanking positions behind the PH vessel, which may be considered an unwarranted, if not threatening, maneuver. The Type 22 missile boats are among the fastest craft in service, and thus to pace the PH vessel from positions behind and flanking it may be considered a potentially hostile act because it places the latter in direct line of sight of the missile boats’ bow-mounted 30mm cannon, as well as the side-mounted missile launchers.
It is difficult to think of any possible reason why there was any need for fast missile boats to continue the pursuit other than to intimidate the PH vessel. Such intimidation is unjustifiable given that (a) the PH vessel represented no threat, nor was it involved in any incident that threatened the safety of life at sea, security, or environment; (b) it was already well on its way back to Palawan; (c) the missile boats also had no valid ground for the exercise of the right of approach and visit. The action is also a borderline threat of the use of force, in violation of Article 2(4) of the UN Charter. This escalatory action by the CCG and PLA-N risks a wider outbreak that endangers international peace and security.
13. Thus, the CCG’s actions against the PH vessel constitute an unjustifiable and baseless attempt to exercise jurisdiction over a PH flag vessel as part and parcel of China’s broader activities to assert its illegitimate and excessive claims to the SCS, within the PH EEZ in general and over Ayungin (Second Thomas) Shoal in particular. The PLA-N’s actions are a continuation of that, and thus likewise unjustified and illegitimate. Furthermore, the deployment and actions of the two Type 22 missile boats against an unarmed civilian vessel that clearly represented no threat or danger, and peacefully and directly sailing toward the Philippine mainland, were clearly unwarranted and unreasonable in light of the circumstances, and could arguably have constituted a threat of the use of force given the nature of the maneuvers they carried out behind and beside the PH vessel.
14. China’s SCS Probing Initiative, a Beijing-based institution established to counter the Washington DC-based CSIS Asian Maritime Transparency Initiative, initially declared on Twitter that the incident “100% fake news” and flat out denied the presence of Type 22 missile boats in the WPS. When answered with a hyperlink to the news report containing video and pictures of the vessels, it then claimed that “there was no chase.” This kind of gaslighting is utterly preposterous, as the missile boats clearly followed behind and to the sides of the PH vessel for at least 20 minutes, long enough to get clear pictures and videos. According to the news report, there were no other vessels in the area, and the missile boats very clearly came up from behind the PH vessel and then sped back after, while the PH vessel maintained a straight course for Palawan.
15. It has also been argued in various social media posts that the Chinese vessels were merely observing the movements of the PH vessel, they kept their distance, they did not approach closely or forcefully, or that the report exaggerates an otherwise normal encounter. This is likewise absurd: only the mentally deficient could think that one is not being chased after an hour and a half of being followed from behind and at sea where no other vessels are present. This is like saying that someone was only stalking, not chasing.
16. It is notable that in issuing a statement announcing an investigation, the AFP clapped back at the reporter for an “insatiable desire to be ahead” and implying that the actions of the PH vessel could somehow have provoked the incident. This is uncalled for and undermines the trust and confidence of the people in the AFP’s role as protector of the Filipino people.
In the first place, the incident was preceded by the AFP’s sudden re-opening of nearly unrestricted access to the WPS on account of events at Julian Felipe (Whitsun) Reef. In a very real sense, it was the AFP that encouraged transparency by inviting reporters to engage in journalistic investigations of the disputes, thus it is irresponsible for it to now allude to reporters undertaking the journey just to get the next scoop.
Second, the pursuit by the Type 22 missile boats was entirely unexpected and beyond the control of the PH vessel. This is the very first time that PLA-N ships have been deployed to accost a PH civilian ship, that was already heading straight toward Palawan after being chased by a CCG vessel. There was no way that anyone could have predicted their appearance.
Finally, this kind of statement seems to indicate an inclination toward victim-blaming instead of protection and is actually consistent with a historical pattern of government neglect and complicity in the loss of PH maritime jurisdictions since the 1970s. But this is another issue better dealt with in another post.
This post first appeared in Dr. Jay Batongbacal's Facebook post. He is a Professor at the University of the Philippines College of Law, and the Director of the Institute for Maritime Affairs & Law of the Sea.
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