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 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 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 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 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 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 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 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 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 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 90 Humanitarian Law, Hanoi, Vietnam, 24-28 June 2019 co-organised by the Diplomatic Academy of Vietnam and the ICRC 15 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", War and security at sea, International Review of the Red Cross, 98(2), doi:10.1017/S181638311700039X 16 Christine Gray (2008), International law and the use of force, Oxford University Press, USA; 3rd edition, ISBN-10: 0199239150 17.Claudio Grossman Guiloff (2019), Peremptory norms of general international law (jus cogens) Statement of the Chair of the Drafting Committee, ILC, Seventy-first session, available at: http://legal.un.org/ilc/documentation/english/statements/2019_dc_chairman_st atement_jc.pdf, accessed on 08/7/2019 18 Code for Unplanned Encounters at Sea (CUES), The 14 th Pacific Western Navy Conference, available at http://www.ions.global/sites/default/files/CUES-10-Approvedat-the-14thWPNS-2014422.pdf 19 Constantinos Yiallourides (2018), “Is China Using Force or Coercion in the South China Sea? 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War and security at sea, International Review of the Red Cross, 98(2), doi:10.1017/S181638311700039X 98 ... China Sea in the light of international law of the sea”, presentation paper in the International Conference ? ?The recent development of International law of the sea – from the viewpoint of the international. .. and the scope of the research The purpose of the research This Thesis is aiming for assessing the matter of the threat or use of force in Bien Dong under international law The objectives of the. .. 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