(LUẬN văn THẠC sĩ) the use of force in bien dong (south china sea) under the light of international law = việc sử dụng vũ lực trên biển đông dưới góc độ luật quốc tế

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 TIEU LUAN MOI download : skknchat@gmail.com 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 TIEU LUAN MOI download : skknchat@gmail.com 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 TIEU LUAN MOI download : skknchat@gmail.com TABLE OF CONTENTS ABBREVIATIONS AND FIGURE INTRODUCTION CHAPTER 1: THE CONCEPTS AND LEGAL FRAMEWORK GOVERNING THE THREAT OR USE OF FORCE IN BIEN DONG 13 1.1 The concept of the threat or use of force at sea 13 1.1.1 The threat or use of force in international relations 13 1.1.2 The threat or use of force at sea 17 1.2 The set of rules governing the threat or use of force at sea 22 1.2.1 General principles and provision of public international law 22 1.2.2 Law of the sea 29 1.2.3 International maritime law 33 1.2.4 International law on armed conflicts at sea 34 1.2.5 Regional agreements relating to the threat or use of force in Bien Dong 39 1.3 The precedents and opinions concerning the use of force at sea 45 CONCLUDING REMARKS OF CHAPTER 53 CHAPTER 2: THE PRACTICE OF THE USE OF FORCE IN BIEN DONG 55 2.1 Typical incidents involving the use of force in Bien Dong 55 2.2 Coercive intent in China’s activities in Bien Dong 60 2.3 Grey zone conflicts 63 TIEU LUAN MOI download : skknchat@gmail.com CONCLUDING REMARKS OF CHAPTER 69 CHAPTER 3: PROSPECT OF PEACE AND SECURITY IN BIEN DONG 70 3.1 Suggested contents in the COC or equivalent documents 70 3.2 The possibility of using judicial organs 81 CONCLUDING REMARKS OF CHAPTER 85 CONCLUSIONS 87 BIBLIOGRAPHY 89 TIEU LUAN MOI download : skknchat@gmail.com 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 TIEU LUAN MOI download : skknchat@gmail.com INTRODUCTION 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 TIEU LUAN MOI download : skknchat@gmail.com 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 Besides, David H 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 TIEU LUAN MOI download : skknchat@gmail.com 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 TIEU LUAN MOI download : skknchat@gmail.com 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 TIEU LUAN MOI download : skknchat@gmail.com reclamation at Mischief Reef in the Spratly Islands because it is China that has been affirmed its activities are not “military activities” 1027 In determining whether Chinese activities at Mischief Reef are military in nature, the Tribunal takes note of China’s repeated statements that its installations and island construction are intended to fulfil civilian purposes The Tribunal also takes note of the public statement of China’s President Xi Jinping that “[r]elevant construction activities that China are undertaking in the island of South – Nansha Islands not target or impact any country, and China does not intend to pursue militarization.” 1028 The Tribunal will not deem activities to be military in nature when China itself has consistently resisted such classifications and affirmed the opposite at the highest level Accordingly, the Tribunal accepts China’s repeatedly affirmed position that civilian use comprises the primary (if not the only) motivation underlying the dramatic alterations on Mischief Reef As a civilian activity, the Tribunal notes that China’s conduct falls outside the scope of Article 298(1)(b) and concludes that it has jurisdiction to consider the Philippines’ Submission Whereas, in 2019 the ITLOS in case concerning the detention of three Ukrainian naval vessels (Ukraine v Russian Federation) stated that the distinction between military activities and law enforcement exercises could not be distinguished solely on whether naval vessels or law enforcement vessels are used This factor may be relevant and traditional, whereas the distinction between naval vessels and law enforcement vessels to verify their roles has become considerably 84 TIEU LUAN MOI download : skknchat@gmail.com obscured Moreover, the ITLOS remarks that it is not surprising today for states to manipulate the two types of vessels collaboratively for diverse maritime tasks [30, pp 64] In other words, this Thesis would like to offer the suggestion that Vietnam should take counter-advantages of China grey zone conflicts on hiding military nature under civilian operations Some of such operations might fall within the jurisdiction of the court without China's consent because of their actual cover of activities CONCLUDING REMARKS OF CHAPTER By examining the matter of the use of force in Bien Dong in the light of international law, Chapter concludes that: Regarding minimising or eliminating the threat or use of force at sea, the fruitful COC should include four factors: (i) Establishing an interim security regime with the determination of responsibility of the violator, applying COLREGs 1972 to all coast al states of Bien Dong (ii) Reaffirming 12 July 2016 South China Sea Arbitration Award in order to determine the contested waters in Bien Dong compliance with the law of the sea It is the maritime area within China’s claim under the legitimate jurisdiction of other coastal states that causes the insecurity or instability of Bien Dong because of China’s activities to implement its claim (iii) Advancing joint law enforcement: In order to avoid China’s unilateral use of force under the cover of law enforcement but actually 85 TIEU LUAN MOI download : skknchat@gmail.com impose its will to assert its illegal sovereignty claims, it is possible for all coastal states to promote a cooperation mechanism to preserve maritime security in the contested waters (iv) Regulating maritime paramilitary forces: All maritime paramilitary forces of all coastal states in Bien Dong need to agree to respect the CUES and COLREGS, inform each other of ships’ registration numbers and identification marks when carrying out government tasks Besides, the most effective manner is to treat the China coast guard or maritime militia, fishing boats that work with the military, similarly to the Chinese navy, because mariti me militia was being used to advance Beijing’s military ambitions In order to use judicial means of the disputes concerning the “military activities”, all coastal states should accept the jurisdiction of the court for not to be in the exemption of Art 298 (1) letter b UNCLOS 86 TIEU LUAN MOI download : skknchat@gmail.com CONCLUSIONS In Bien Dong, China has been conducting a vast array of aggressive activities, gradually militarising this area in order to strengthen and expand its ambition, illegal claims on sovereignty, sovereign rights and jurisdiction at sea Consequently, the study of the principles and provisions of international law governing 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 this maritime area After considering the legal framework governing the threat or use of force at sea in relation to the practice of the use of force in Bien Dong, this Thesis comes to the following conclusions: The use of force at sea has not been researched thoroughly adequate compared with its importance From the approach of the classical meaning of the threat or use of force in international law, “the threat or use of force at sea” could be understood as the use of maritime forces to conduct operations on maritime spaces against an independent sovereign State or to pressure, threaten another country to achieve certain goals The legal framework governing the threat or use of force in Bien Dong that the set of rules governing the threat or use of force is fundamental but still inadequate, fortunately, the precedents and teachings, to a certain extent, strengthen this framework However, this legal framework has still worked insufficiently in maintaining peace and security in Bien Dong The blurred distinction between the threat or use of force at sea and law enforcement has been well-taken advantages by China and becomes a great challenge to peace and security in Bien Dong 87 TIEU LUAN MOI download : skknchat@gmail.com Current security regime of Bien Dong is in need of amendment The clues for this issue is to include in the negotiation for a substantive and effective COC the state responsibility whenever occurring a violation and the willingness of asking for judgement or arbitration in some specific situations This Thesis presents the little knowledge of the author about the use of force in Bien Dong Despite personal uttermost endeavour, this research remains numerous unsolved questions, which would continue to be examined further in the author’s future study Besides, it can be drawn from this Thesis that in order to comprehensively settle the matter relating to using “force” in Bien Dong, especially, the issues of forcible or coercive measures to civil fishing vessels, the other side of “force” in legitimate law enforcement is also in need of researching 88 TIEU LUAN MOI download : skknchat@gmail.com BIBLIOGRAPHY I Vietnamese Bảo Vinh, “Toà tối cao Philippines phê chuẩn hiệp định quân với Mỹ (The Supreme Court of the Philippines ratified the military agreement with the United States)”, Thanh Niên, available at: 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War and security at sea, International Review of the Red Cross, 98(2), doi:10.1017/S181638311700039X 69 W Heintschel von Heinegg (2016), “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, 98(2), doi:10.1017/S181638311700039X 98 TIEU LUAN MOI download : skknchat@gmail.com ... of use of force from Chinese armed forces on the South China Sea in the light of international law of the sea”, presentation paper in the International Conference ? ?The recent development of International. .. 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... Chinese maritime militia under the light of international law (iii) The practice of the use of force in Bien Dong Tension in Bien Dong has been received much concern of scholars The matter of the