VietNamNet Bridge – What principles of international law were broken by China with its behavior towards a Vietnamese fishing vessel in the waters of Hoang Sa (Paracel) Archipelago?

VN protests China boat shooting 

A Quang Ngai’s fishing boat shot by Chinese vessels 

 

The QNg 96382 boat after the incident.

On March 20, 2013, a fishing boat numbered QNg 96382 with fishermen from the central province of Quang Ngai, Vietnam, was chased and shot by a Chinese ship in the waters of the Hoang Sa Archipelago of Vietnam. The incident raises concerns about the behavior and attitude of China on issues of territorial boundaries as well as the attitude of this country in respect of the provisions of international law.

The behavior of using force of the Chinese navy is "wrong and inhuman," in the words of the Spokesman of the Vietnamese Ministry of Foreign Affairs and it "seriously violated the principles of international law.” That behavior was not only protested by Vietnam - the country that has indisputable sovereignty over the Hoang Sa - but also the United States, the country that is far away from the other side of the Pacific.

Two questions are posed: "What principles of international law were violated by China with its behavior?" and "Why does the United States, the country that has no territorial claims in the East Sea, is also discontent with the incident on March 20, 2013?"

Firing flares directly into the cabin where the temperature is high, with high risk of fire (as in reality) cannot be considered consistent with the requirements of "ensuring non-life-threatening."

Violation of the principle of prohibiting the use of force in international relations

After witnessing the pain and loss caused by the wars in the first half of the twentieth century, the international community came together to build a new world order in which the use of force is not within the law. The United Nations Charter, adopted in San Francisco, United States, in 1945 records the rule of prohibiting the use of force in international relations in Article 2 (4) as follows:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Looking at the wording of the terms mentioned above, there may be a question as to whether the concept of "use of force" should be understood to mean acts "against territorial integrity or political independence" of other countries or not?

The historical and simple answer is the phrase "against the territorial integrity or political independence" was only included in the Charter of the United Nations at the request of Australia to protect small nations in international relations. Actual negotiations of Article 2 (4) of the UN Charter showed that the nations had no intention to use the phrase "against the territorial integrity" to limit or explain the concept of "use of force."

The behavior of Chinese naval ships is clearly the use of force in international relations as it relates to a ship of the Chinese state and a Vietnamese fishing vessel in the waters of Vietnam, which China has turned into the sea of "dispute." The use of force of China is contrary to the rule noted in Article 2 (4) of the UN Charter.

Notably, in the field of maritime law, the principle of no use of force in international relations has been concretized into the obligation of using sea peacefully. This obligation is recognized in the UN Convention on the Law of the Sea 1982 (UNCLOS) that both Vietnam and China are members. Article 301 of the UNCLOS provides that:

Using sea peacefully

In the performance of its rights and obligations under this Convention, the Member States must avoid using or threatening to use force against the territorial integrity or political independence of any State or in other ways that are not consistent with the principles of international law as being embodied in the UN Charter.

Thus, Chinese naval ships set on fire a Vietnamese fishing boat and also violated the obligation to use the sea for peaceful purposes as provided in Article 301 of the UNCLOS.

In the specific case involved the QNg 96382 fishing vessel on March 20, 2013, the behavior of the Chinese Navy also violated international standards on law enforcement activities at sea.

Violations of international standards in maritime law enforcement operations

When being asked about the above incident, the Spokesman of Chinese Foreign Ministry, Hong Lei, blatantly stated: "The reaction of the Chinese authorities before an illegal fishing vessel of Vietnam was justified and reasonable."

Saying the operation of Vietnamese fishing boats is "illegal" is a blatant slander because the area where the Vietnamese fishing ships are operating is the waters near the island of Con Linh -- that belongs to Vietnam’s Hoang Sa archipelago, where Vietnam has sovereign right and the right to explore the sea as well as in accordance with the provisions of international law.

However, this issue should be temporarily put aside. Let's analyze the use of force by China from pure standards of international law on this issue to see if it is "right and fair" or not?

The norms of international law governing the operation of executive activities at sea, including the use of force, have been confirmed and developed in the case laws of international courts. Crystallization of these standards has been shown in the case of M/V "SAIGA" (No. 2) (Saint Vincent and the Grenadines v. Guinea) - one of the first cases that the International Tribunal on the Law of the Sea handled. The Court stated that:

Should avoid the use of force as far as possible and when unavoidable, the force is not unauthorized to use beyond what is considered reasonable and necessary in the circumstances. The humane considerations must be applied in the law of the sea as they have been applied in other fields of international law.

In its ruling, the International Court of law of the sea, on the basis of the previous case-laws, also described the international practices in the conduct of law enforcement activities and the use of force at sea as follows: the pursuing vehicle needs to release an audio or image signal that has been internationally recognized prior to doing other measures, such as opening fire on the ship bow; only after all these measures are not successful, "force to be used as a last resort [but] even if it also needs to provide appropriate warnings to the ship that is being chased and need to make all efforts to ensure no life-threatening."

With what Vietnamese fishermen recalled, it is difficult to say that non-violent methods were applied to ask the Vietnamese ship stop. In other words, it is difficult to justify the use of force behavior of China as the last resort.

Furthermore, the direct firing of flares into the cabin where the temperature was high, with high risk of fire (as in reality) cannot be considered in accordance with the requirements of "ensuring non-life-threatening."

The behavior of the Chinese navy is clearly the "ignorance" of international standards in maritime law enforcement operations and a "disregard" of the humanitarian requirements in the use of force in accordance with international law.

Perhaps understanding the wrongfulness of their behavior, the Chinese Foreign Ministry’s Spokesman did not dare to straightly answer the question of whether or not the Chinese ships fired on the Vietnamese fishing boat.

Then Chinese military officials also issued a statement justifying the actions of their navy. In addition to continuing to slander Vietnamese fishing boats of illegally entering Chinese waters, Chinese military officials described the incident on March 20, 2013 as follows: Chinese patrol boats tried to warn fishing vessels by whistle, screaming and waving flags, just after these unsuccessful efforts, the Chinese navy fired two red flares and both of them were off in the air."

As the Washington Post noted, China "described itself as a model of restraint." This newspaper is also very accurate to point out that the justification was only given "after a week of silence" - an incredible delay of information from the perspective of the army of a country with the armed forces are being modernized rapidly and are increasingly involvement in international military operations.

It is more incredible with the statement that the two flares were just shot to the air and they were off in the air. Then why the flares fell into the cabin roof and caused a fire. It cannot help but conclude that Chinese military officials "distorted" the truth with lies.

However, from this sophistication, we can see that the Chinese seem to understand the standards of law enforcement activities and the use of force at sea.

If so, perhaps they should investigate and seriously handle the behavior of the naval vessel 786 on March 20, 2013, as being requested by Vietnam.

So the fact is Chinese naval vessels will be allowed to use reasonable force when necessary (if this is unavoidable) against fishing vessels of Vietnam in Hoang Sa?

The answer is clearly NO. The reason is simple: the waters where Vietnamese fishing vessels like the QNg 96382 operate is the place where Vietnam has sovereignty and individual rights in the management and exploitation of the sea with the provisions of international law. China’s occupation of Hoang Sa Archipelago by force does not give China any capacity and China is not allowed to conduct law enforcement operations against fishing vessels of Vietnam, not to mention the use of force against them.

The behavior of Chinese naval ships in the waters of Hoang Sa Archipelago is a violation of Vietnam's sovereignty and the related obligations.

Violating Vietnam's sovereignty in Hoang Sa

Vietnam's sovereignty over the Hoang Sa Archipelago is proven through historical evidence and based on a solid legal basis as being analyzed in scientific works of many scholars within and outside countries. [12] With its sovereignty in Hoang Sa, Vietnam has the right to exploit natural resources in the waters of the archipelago in accordance with the provisions of international law. The operation of Vietnamese fishermen in the waters near Hoang Sa for a very long time is both sufficient evidence of sovereignty and the right to exploit the sea here of Vietnam and is the enforcement of legal rights.

Therefore, when being asked about Vietnam's reaction to the incident on March 20, the Vietnamese Foreign Ministry Spokesman Luong Thanh Nghi confirmed that behavior "a serious incident that violated Vietnam's sovereignty over the Hoang Sa Archipelago, threatening and damaging the property of Vietnamese fishermen."

Indeed, international law clearly states that national sovereignty is absolute nature and distinct, in which only sovereign nations are allowed to carry out power-state management measures on their territory. The application of this principle also extends to the territorial waters and the exclusive economic zone. Other countries are obliged to respect the individual and absolute sovereignty or sovereign rights. The consequence of this is a country is not allowed to perform law enforcement measures in the territory or territorial waters of the sovereignty of another country without the consent of that country.

Chinese naval vessels chasing a fishing boat of Vietnam in Vietnam's waters is clear violation of the sovereignty and the duty to respect the sovereignty of Vietnam, because there was no evidence to suggest that this behavior of Chinese naval vessels received the consent of the State of Vietnam. In fact, Vietnam has always opposed any enforcement of state power of the Chinese government here.

However, even though the State of Vietnam has made their sovereignty to the Hoang Sa Archipelago in a peaceful, stable and continuous way since at least the 17th century, taking advantage of the difficulties in the history of Vietnam, China has gradually occupied the Hoang Sa Archipelago since the mid-twentieth century.

After the use of force in 1974, China has won complete control of the archipelago. Needless to say, the use of force to occupy territory does not bring about a nominal sovereignty by international law, along with the prohibition of the use of force in international relations to also eliminate the use of violence as a legitimate method for establishing territorial sovereignty again. Vietnam's sovereignty in the Paracels is still remained and China does not have any rights here, as well as to the relevant waters.

Even so, the Chinese leader Deng Xiaoping, in a meeting with leaders of the Communist Party of Vietnam in September 1975, said: "The two countries have sovereignty dispute over the Hoang Sa and Truong Sa, it will be discussed and solved later." If so, the behavior of the Chinese navy also violated the obligation of peaceful settlement of disputes.

Violation of the principle of peaceful settlement of international disputes

Along with setting outlaws the use of force in international relations, international law also sets out obligations for states to "settle international disputes between them by peaceful means." This obligation is recognized in Article 2 (3) of the UN Charter and further clarified by the Manila Declaration on the peaceful settlement of disputes between the countries in 1982 (the Manila Declaration). Paragraph 7 of the Manila Declaration states that "the existence of a dispute and the failure of a mechanism for the peaceful settlement of disputes will not allow any party to use or threaten to use force."

For the disputed territory, international law specially emphasizes the ban of the use of force or threat of use of force. This was confirmed in the Declaration on Principles of International Law concerning friendly and cooperation relations between countries in accordance with the Charter of the United Nations in 1970 - the document that is considered complete and accurate explanation of the principles stipulated in the UN Charter. Concerning the principle of prohibiting the use of force in international relations defined in Article 2 (4) of the UN Charter, the Declaration on friendly and cooperation relations stipulates:

Every State has the duty to avoid the use or threat of use of force to violate the existing international boundaries with other nations or as a means to settle international disputes, including territorial disputes or issues related to border of states.

Particularly in the East Sea dispute, there are also commitments between Vietnam and China at the bilateral and regional level on the obligations of peaceful settlement of disputes, non-use or threat of use of force. That is the agreement on the basic principles to direct solving maritime issues between Vietnam and China and the Declaration on the Conduct of Parties in the East Sea.

Along with the obligations of peaceful settlement of disputes, international law also sets out obligations of refrain for the parties to dispute when the dispute has not been resolved. This obligation is stipulated in the Declaration on friendly and cooperation relations in 1970 and paragraph 8 of the 1982 Manila Declaration. Accordingly, states international disputes "must avoid actions that could escalate the situation in the way of threatening to the maintenance of peace and international security and must act in accordance with the purposes and principles of the United Nations." Similarly, the Declaration on the Conduct of Parties in the East Sea also stated: "the parties commit to refrain from implementation of activities that would make complication or increase disputes and affect peace and stability ..." 

Thus, the Chinese navy’s use of force violated the obligation of peaceful settlement of disputes relating to the Hoang Sa Archipelago and its waters and also violated the obligation of refrain during the dispute resolution process.

China took advantage of its military to maintain illegal control in the Hoang Sa Archipelago and the surrounding waters in the way of threatening the peace and security of the region. Looking at the issue from this angle, there will be no surprise to learn that Deputy Spokesman of the U.S. State Department, Patrick Ventrell, at a press conference on March 26, 2013, said that the United States “strongly opposes the threat of or use of force or coercion by any party to push its claims in the South China Sea (East Sea)."

The spokesman of the Vietnamese Ministry of Foreign Affairs also specified the actions of the Chinese navy ships as "seriously violated the principles of international law, the Agreement on the basic principles for resolving sea-related issues between Vietnam and China, contrary to the spirit of the Declaration on the Conduct of Parties in the East Sea."

Conclusion

With the above analysis, it is possible to understand why the incident on March 30, 2013 was not only strongly opposed by Vietnam and also faced the objections of the United States. China’s violation set out of obligations for China in international law. First, China must immediately terminate violations and make sure that such acts do not recur. In the specific case of the ship QNg 96382 - a case which China’s violation caused damage - China is obliged to pay compensation as Vietnam has requested.

The incidents like the one on March 30, 2013 are largely derived from China’s taking advantage of its illegal occupation to refuse to address sovereignty issue over Hoang Sa. It's time that China should respect the words of the leader who has made great contributions to the development of China and together with Vietnam to resolve the issue of sovereignty over the Hoang Sa Archipelago, either through negotiation or international tribunals.

China’s evasive attitude cannot make the disputes “disappear” as the International Court pointed out: "Whether or not there exists an international dispute is defined as an objective. Rejecting the existence of a dispute does not prove that it does not exist." The international community also has its own verdict: no country, except China, dismisses the fact that Hoang Sa is the territory of dispute.

While the conflict in Hoang Sa is unresolved, China is not allowed to have law enforcement activities against fishing vessels from Vietnam, as not allowed to use force. International law specifies that law enforcement activities are only conducted within the territory of the country. Notably, China itself acknowledges that the law enforcement force of a country is not allowed to practice law in the disputed waters. This view was used by the Chinese Foreign Ministry when the Korean court trialed the captain of a Chinese fishing boat. China's Foreign Ministry declared that the Korean court's verdict is "unacceptable" because the exclusive economic zone of China and South Korea has not been assigned and therefore South Korea could not apply its law in the case.

Before the end of the article, the author wanted to add a few words about the attitude of "turning away" of the Chinese naval ships when they saw the Vietnamese fishing vessel in fire. International law sets obligations for the relief of ships when seeing another ship in distress regardless of the relationship between them. In this case, the Chinese navy ships are the "culprit" causing the accident but they stood far away to see and then leave. With that attitude but some Chinese officials had suggested that China should strengthen the obligations of search and rescue in the East Sea in accordance with international conventions as well as to be appropriate with the so-called nine-dotted line of China. It is hard to not be skeptical about the intentions behind this call: Is this a new "guise" of China to promote its illegal claims in the East Sea based on its superior power to other nations not because of China’s respect of international obligations?

Anh Tri