Re: Use Of Force Against Unarmed Vessels

Terrible news story about a Taiwanese fisherman who was killed by the Philippines' Coast Guard. Some of the details are sketchy at this point:

1. Was the Taiwanese fishing vessel illegally poaching fish from a Filipino naval zone or was it fishing in a disputed naval zone?
2. Did the fishing boat really try to ram the Coast Guard ship?
3. Why did the Filipino ship not fire warning shots?
4. Why did the Taiwanese boat attempt to flee?
5. Why did the Taiwanese vessel continue to flee even after the Coast Guard ship began raking its engines with gunfire?

With luck, these questions will be answered in subsequent investigations. But here's a few puzzling statements regarding the matter by Taiwanese president Ma Ying-jeou and Taiwan's Taipei Times.

First, President Ma Ying-jeou:

"A country [such as the Philippines] has the authority to enforce laws in its exclusive economic zone, but it can only send officials to board a fishing ship for inspection. No countries should use force against civilian boats."

And second, the Taipei Times:

"By opening fire on the Taiwanese fishing boat and killing the fisherman, the Philippines has violated the UN Convention on the Law of the Sea, which bans use of force against any unarmed fishing boat."

I've skimmed the UN Convention on the Law of the Sea (UNCLOS), and I cannot find any such prohibition whatsoever against the use of force against unarmed fishing boats. I've also tried to drill down further in the 9,314 line document by searching for the terms, "unarmed", "civilian" and "use of force" -- again, coming up empty.

So what am I missing?

The only precedent to the contrary that I can cite off the top of my head is last year's case of a Chinese fisherman who was killed by the Palau Coast Guard. I don't believe Beijing raised UNCLOS as an objection...and the case ended when the remaining Chinese fishermen were each fined $1,000 USD and sent packing for violating Palau's Exclusive Economic Zone.

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UPDATE (May 12/2013): A commenter was kind enough to direct me to Section 7 of UNCLOS. Article 225 (page 113 of the UN Convention on the Law of the Sea) looks like it pertains to the issue at hand:

Article 225:
Duty to avoid adverse consequences in the exercise of the powers of enforcement

In the exercise under this Convention of their powers of enforcement against foreign vessels, States shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk.

To a non-lawyer type such as myself, this looks pretty convincing at a first glance. "States shall not endanger...a vessel" -- that would seem to categorically prohibit the hazardous firing of dozens of live rounds into a ship's engine area.

But I have at least 3 problems with this reading:

1

If this is true, then management and enforcement of fishery resources is rendered completely impotent. All law depends upon the State's monopoly on the use of violence. Take away the credible threat of force and no law remains - only social convention and etiquette. The whole raison d'etre of UNCLOS was not to create an economic free-for-all, but to create a system of marine property rights via Exclusive Economic Zones.

2

Other signatories to UNCLOS have determined that they MAY use violence in apprehending fish poachers.

To take but a single example, Australian law states that a Coast Guard officer may "use any reasonable means consistent with international law to stop the boat [of fleeing fish poachers] (including firing at or into the boat after firing a warning shot, and using a device to prevent or impede use of the system for propelling the boat)" if the master of the fishing boat "does not stop the boat as required and the boat is not an Australian-flagged boat".

Australian attorneys (who are somewhat more conversant in the Law of the Sea than myself!) believe such conduct conforms with the requirements of UNCLOS.

(Interestingly enough, the Australian government quotes Section 7 Article 225 of UNCLOS in the context of escorting an apprehended ship back to port. The Aussies appear to narrowly interpret this article as meaning that once a fishing boat is detained, it cannot be maliciously led over reefs or rocky shoals or what-have-you.)

3

Other evidence is circumstancial, but telling nonetheless. Back in 2011, Sri Lanka and India signed a bilateral agreement to forego the use of force against fish poachers within their EEZs.

As signatories to UNCLOS, such an agreement would have been superflous - if the two countries were already bound by UNCLOS to renounce the use of force against fish poachers.

Comments

[blobOfNeurons]

Read Section 7. SafeGuards and see what you make of it.

[The Foreigner]

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Thanks for directing me to that part of the Convention. Section 7 Article 225 seems to be the strongest argument I've seen so far in favor of Ma Ying-jeou's (and the Taipei Times') position.

I discuss my reservations in an update to this post.

[blobOfNeurons]

I DON'T think that section is an explicit ban against force but I do think it helps set the tone of UNCLOS. (And note that it's Section 7 of Part XII not Part V)