VIETNAM NATIONAL UNIVERSITY, HANOI SCHOOL OF LAW TRAN THI KIM NGUYEN THE USE OF FORCE IN BIEN DONG (SOUTH CHINA SEA) UNDER THE LIGHT OF INTERNATIONAL LAW MASTER’S THESIS Hanoi - 2020 z VIETNAM NATIONAL UNIVERSITY, HANOI SCHOOL OF LAW TRAN THI KIM NGUYEN THE USE OF FORCE IN BIEN DONG (SOUTH CHINA SEA) UNDER THE LIGHT OF INTERNATIONAL LAW Major: The Law of the Sea and Maritime Management Code: 8380101.08 MASTER’S THESIS Supervisor: Associate Professor Nguyen Hong Thao Hanoi – 2020 z UNDERTAKING This is to declare that this Thesis with the title “The use of force in Bien Dong (South China Sea) under the light of international law” is conducted by myself under the supervision of Associate Professor Nguyen Hong Thao, in fulfilment of the requirement for the Master of Law Degree at School of Law, Vietnam National University (Hanoi). The data and the research conclusions presented in this Thesis are done with the most sincere of mine. I am entirely responsible for this undertaking. Postgraduate student, Tran Thi Kim Nguyen z TABLE OF CONTENTS ABBREVIATIONS AND FIGURE INTRODUCTION.
1 CHAPTER 1: THE CONCEPTS AND LEGAL FRAMEWORK GOVERNING THE THREAT OR USE OF FORCE IN BIEN DONG. The concept of the threat or use of force at sea. The threat or use of force in international relations. The threat or use of force at sea.
The set of rules governing the threat or use of force at sea. General principles and provision of public international law. Law of the sea. International maritime law.
International law on armed conflicts at sea. Regional agreements relating to the threat or use of force in Bien Dong. The precedents and opinions concerning the use of force at sea. 45 CONCLUDING REMARKS OF CHAPTER 1.
53 CHAPTER 2: THE PRACTICE OF THE USE OF FORCE IN BIEN DONG. Typical incidents involving the use of force in Bien Dong. Coercive intent in China’s activities in Bien Dong. Grey zone conflicts.
63 z CONCLUDING REMARKS OF CHAPTER 2. 69 CHAPTER 3: PROSPECT OF PEACE AND SECURITY IN BIEN DONG. Suggested contents in the COC or equivalent documents. The possibility of using judicial organs.
81 CONCLUDING REMARKS OF CHAPTER 3. 89 z ABBREVIATIONS AND FIGURE Art. Article ASEAN Association of Southeast Asian Nations COC Code of Conduct COLREGs Convention on the International Regulations for Preventing Collisions at Sea CSIS Center for Strategic and International Studies CUES Code for Unplanned Encounters at Sea ICJ International Court of Justice ICRC International Committee of the Red Cross ILC International Law Commission UN United Nations UNCLOS United Nations Convention on the Law of the sea US United States Figure 2.1: China’s claim and selected Grey Zone incidents in Bien Dong z INTRODUCTION 1. The necessity of the research In Bien Dong, China has been threatening and using force in both direct and indirect manners.
On the one hand, a vast array of activities gradually militarising this area has been conducted in order to strengthen and expand China’s ambition or illegal claims on sovereignty, sovereign rights and jurisdiction at sea. In particular, China has been conducting land reclamation and construction on its illegally occupied seven maritime features in the Spratly Islands, establishing military bases to control the entire region progressively. On the other hand, China has well-taken advantages of grey zone conflicts to coerce or violation the non-use of force principle with the fail accompli strategy, which raises the risk of war for every state operating in Bien Dong on facing China’s ambition. In that context of Bien Dong, Vietnam is directly and deeply affected by the use or threat of force of Chinese operations.
The fundamental rights and core interests of Vietnam relating to sovereignty, sovereign rights and jurisdiction over geographical entities in Paracel and Spratly Islands and maritime zones in accordance with international law (especially United Nations Convention on the Law of the Sea 1982) were severely violated. Especially, in July 2019, the aggressive activities of China in Vanguard Bank can be considered as a new escalation in incursion the legitimate maritime zones of Vietnam. Therefore, the study about the principles and provision of international law relating to the use or threat of force at sea were extraordinarily essential to identify the legal framework as well as to limit or eliminate the risk of threatening peace and security from Chinese activities in Bien Dong. Because of those reasons above, I am dedicated to the topic "The use of force in Bien Dong (South China Sea) under the light of international law" and conduct my Master's thesis on this issue.
Literature review (i) The concepts of the threat or use of force at sea As a classical matter of international law, the concepts of the use or threat of force has been studied profoundly. However, the vast majority of previous works on this topic focus on the force occurring on land. Consequently, there remain several open and controversial questions relating to the use or threat of force at sea. In terms of the notion of the use or threat of force in international relations, the textbooks of Public International Law written by Ho Chi Minh City University of Law (Tran Thi Thuy Duong and Tran Thang Long, 2013), School of Law - Vietnam National University (Nguyen Ba Dien, 2013), Ngo Huu Phuoc (2013), … provide an overview of the notion.
By approaching these concepts with the distinctive purposes of this Thesis, these contents are the very starting point for further research about the concepts of the use or threat of force. This Thesis pays much attention to the studies of Constantinos Yiallourides (2018), especially “Is China Using Force or Coercion in the South China Sea? Why words matter” - an article on The Diplomat, and The Use of Force in relation to Sovereignty Disputes over Land Territory – a product of the British Institute of International and Comparative Law (BIICL). These two works contribute more details about the concept of the use or threat of force in international relations and notes for the maritime domain. Furthermore, René Värk (2013) with the paper “The Legal Framework of the Use of Armed Force Revisited” in Baltic Security & Defence Review analyses more thoroughly about the threat of force, which becomes the foundation for referring the threat of force at sea.
Anderson (2013) in “Some Aspects of the Use of Force in Maritime Law Enforcement” from book International courts and the development of international law: Essays in honour of Tullio Treves also addresses more specific 2 z characteristics when using force at sea. Nonetheless, the use of force analysed in this work is the force in maritime law enforcement, which falls outside the scope of this Thesis. Notably, Jinxing Ma and Shiyan Sun (2016) with the paper “Restrictions on the use of force at sea: An environmental protection perspective” in War and security at sea - International Review of the Red Cross shows the thinking of Chinese scholars about the use of force at sea. However, this research is aiming for the environmental protection perspective and little has been said about the legal basis of the use of force.
This Thesis learns a lot from Patricia Jimenez Kwast (2008) with the paper “Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/ Suriname Award” in Journal of Conflict and Security Law. Regarding the term of the threat or use of force at sea, this paper presents a practical approach from the Guyana/ Suriname Award. Moreover, Kwast analyses explicitly the distinction between maritime law enforcement and the use of force in international relations in theory. Concerning distinction between maritime law enforcement and the use of force that violates the international principles, it is indispensable to credit Wolff Heintschel von Heinegg (2016) with the article “The difficulties of conflict classification at sea: Distinguishing incidents at sea from hostilities” in War and security at sea - International Review of the Red Cross (2016).
Heinegg gives a profound analysis of distinguishing incidents at sea from armed conflicts at sea. (ii) Set of rules governing the threat or use of force at sea This Thesis has not approached any works on this field with an adequate legal basis. The materials are collected by three criteria: (1) Legal framework regulating the threat or use of force in international law, (2) The applicable law to 3 z the maritime domain and (3) regional treaties concerning the threat or use of force in Bien Dong. The very first stone of this legal framework governing the threat or use of force at sea has been collected from Christine Gray (2008) with the book International law and the use of force, Malcolm N.
Shaw (2008) with the book International Law, Constantinos Yiallourides (2018) with the study The Use of Force in relation to Sovereignty Disputes over Land Territory, René Värk (2013) with the article “The Legal Framework of the Use of Armed Force Revisited” in Baltic Security & Defence Review, Katie Peters (2004) with the article “International Law and the Use of Force” in Queensland University of Technology Law and Justice Journal, … Those research works provide fundamental knowledge of the threat or use of force in international law. Nonetheless, they primarily focus on the force exercising on land but not at sea. This Thesis develops the contents that are in common between the two domains (land and sea) with the distinctive characteristics of the maritime domain. It is generally agreed that the ILC’s document has significantly contributed to the development of international law.
Some reports address further analysis of the legal framework governing the threat or use of force in international law such as Commentaries on Draft articles on Responsibility of States for Internationally Wrongful Acts, Dire Tladi (2019) with the draft conclusions and draft annex provisionally adopted by the Drafting Committee on first reading “Peremptory norms of general international law (jus cogens)”; Claudio Grossman Guiloff (2019) with the Statement of the Chair of the Drafting Committee on “Peremptory norms of general international law (jus cogens)”. These ILC’s documents enhance understanding of the author of this Thesis about the non-use of force principle in international law in order to distinguish the prohibition of aggression and the lawful use of force properly. 4 z Remarkably, the ICRC Commentaries and the International Review about War and security at sea with a series of articles on the armed conflicts at sea are essential, most relevantly: Bruno Demeyere, Jean-Marie Henckaerts, Heleen Hiemstra and Ellen Nohle (2016), "The updated ICRC Commentary on the Second Geneva Convention: Demystifying the law of armed conflict at sea"; W. Heintschel von Heinegg (2016), “The difficulties of conflict classification at sea: Distinguishing incidents at sea from hostilities”; Vincent Bernard (2016), “War and security at sea: warning shots”; Steven Haines (2016), “War at sea: Nineteenth-century laws for twenty- first-century wars?”.
In addition, this Thesis also learns from the presentations of Trang Ngo and Bruno Demeyere about “use of force at sea” at the 14th Southeast and Northeast Asian Session on International Humanitarian Law, Hanoi, Vietnam, 24-28 June 2019 co-organised by the Diplomatic Academy of Vietnam and the ICRC. Those articles and presentations provide a variety of specific and practical aspects about naval warfare, which supports this Thesis to analyse precisely what happens at sea in each situation of violence and the risk of hostilities of aggressive maritime activities. Once again, Patricia Jimenez Kwast (2008) with the article “Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/ Suriname Award” in Journal of Conflict and Security Law is important for this Thesis to indicate the blurred a line between maritime law enforcement and the use of force.