COLREGs.18 Thus, in the case of incompatibility between the two, the application of Article 25(1) of UNCLOS, which authorizes Chinese law enforcement vessels in Chinese territorial seas to approach its Philippine counterparts as a necessary measure to prevent their prejudicial activities, takes precedence over the application of the COLREGs. Therefore, based on these understandings of innocent passage and sovereignty, in respect to the incidents alleged by the Philippines, the Chinese law enforcement vessels did not violate COLREGs; rather, it was the Philippine vessels that violated UNCLOS by conducting activities other than innocent passage in China’s territorial sea. Boyle and Allen put the horse before the cart by holding that COLREGs prevail over UNCLOS and apply in all circumstances. The absurdity of this logic can be illustrated with the following scenario: when foreign vessels wantonly trample on the sovereignty of a coastal State by entering its territorial sea and conducting activities prejudicial to its sovereignty, the only response the coastal State could make in order not to violate COLREGs would be to order its law enforcement vessels to keep well clear of the intruding foreign vessels and not conduct any preventative activities. Such a situation is entirely not what is intended by the regulations and is out of alignment with the spirit of international law. The two professors pointed fingers of blame at Chinese vessels for intentional, deliberate behavior that demonstrated a reckless disregard for the safety of Philippine vessels, but they chose to ignore the fact that the Chinese vessels involved are much faster than their Philippine counterparts, had those Chinese vessels intended to collide with the Philippine vessels, many collisions would have taken place. However, there was no collision. This is because the intention of the Chinese vessels was to drive the intruding Philippine vessels out of the Chinese territorial sea as authorized by Article 25(1) of UNCLOS, without any attempt to threaten the safety of the vessels and personnel on board. The report of the international navigational safety expert appointed by the Tribunal has adverse security implications for China and can be
The intention of the Chinese vessels was to drive the intruding Philippine vessels out of the Chinese territorial sea as authorized by Article 25(1) of UNCLOS, without any attempt to threaten the safety of the vessels and personnel on board.
18
Zhang Duo and Zhang Renping, “Chinese law enforcement activities in its own territorial waters legitimate and justifiable,” China Daily, May 30, 2016, <http://usa. chinadaily.com.cn/epaper/2016-05/30/content_25531538.htm>.
54 • South China Sea Think Tank • Taiwan Center for Security Studies