Territorial Conflicts in the East Sea (South China Sea)

The East Sea (also known as the South China Sea) disputes involve both island and maritime claims among several States within the region. These disputes include the islands, reefs, banks, and other features of the East Sea, including the Paracel (Hoang Sa) Islands, Spratly (Truong Sa) Islands, Scarborough Shoal, and various boundaries in the Gulf of Tonkin.  This maritime area accounts for approximately a third of the global maritime trade, which is being one of the main reasons for these disputes.  Since 2013, China has resorted to military island building in the East Sea to increase its regional power and secure the waterway.  Their actions have been criticized by international community, and since 2015 the U.S., the U.K., and /France have conducted freedom of navigation operation in this maritime zone.

Very recently a Chinese coast guard vessel rammed and sank a Vietnamese fishing boat with eight fishermen onboard as they were fishing off the Phu Lam Island in Vietnam’s Hoang Sa Archipelago (Paracel Islands).  The eight fishermen were rescued and taken to the Phu Lam Island.  Three other Vietnamese fishing boats that tried to rescue the Vietnamese fishermen were chased, captured and towed by the Chinese vessel to Phu Lam Island and released the same day. Subsequently, the eight fishermen were safely returned to Vietnam.

The Vietnamese government immediately expressed its concerns over this incident and asked China to investigate, clarify and strictly handle the relevant parties in this case. Vietnam also demands China to compensate for the damages caused by its violations.  Other countries have also expressed their concerns on this event.  The U.S. State Department and Defense Department have issued statements expressing concern over the incident and called China’s action as assertion of “unlawful” claims. The Philippines has also expressed its concerns and emphasized the need to avoid such incidents because they “undermines the potential of a genuinely deep and trusting regional relationship” between the Association of Southeast Asian Nations (ASEAN) and China.

Relevant Legal Instruments

In order to determine China’s liability for the damages to the fishing boat and fishermen, it is essential to clarify relevant legal instruments applicable to this incident.  It seems that China has breached several international covenants and Vietnamese laws.

Declaration on the Conduct of Parties in the South China Sea

Under the Declaration on the Conduct of Parties in the South China Sea (“Declaration”) is a declaration between the ASEAN Member States and China that pursues a peaceful, friendly and harmonious environment in the South China Sea in order to enhance peace, stability, economic growth and prosperity in the region.  The following are the relevant principles to this incident which the parties to the Declaration have declared:

  1. To reaffirm their commitment to the UN Charter, the 1982 UN Convention on the Law of the Sea, and other universally recognised principles of international law;
  2. To undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations; and
  3. To undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.

Although it seems that none of the above principles have been observed by the Chinese government in this incident, this Declaration does not carry any binding force on the party States, nor it provides any dispute resolution provision for any breaches of these principles.

Vietnam – China Agreement on Basic Principles to Resolve Maritime Issues

Under the Vietnam China Agreement on Basic Principles to Resolve Maritime Issues (“Agreement”), both countries must seek to resolve their maritime issue through friendly talks and negotiations in the spirit of “good neighbors, good friends, good comrades and good partners”. In addition, both parties must make efforts to seek basic and long-term solutions acceptable to both sides for sea-related disputes. The action of China’s police vessel seems to violate the above commitments, especially against the spirit of creating “Good neighbors, good friends, good comrades and good partners”.  Despite its title, this Agreement does not carry any binding force.

1982 United Nations Convention on the Law of the Sea

Under the 1982 UN Convention on the Law of the Sea (“Convention”), States Parties must refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in UN Charter.   Jurisdictional measures can only be taken if the parties are unable to resolve their disputes through peaceful measures.  In particular, when a dispute arises, the parties must proceed expeditiously an exchange of views regarding its settlement by negotiation or other peaceful measures.

Vietnamese Civil Code

Since the victims are Vietnamese fishermen and the location of the incident was Vietnamese territory, the Vietnamese Civil Code might be one of the relevant legal instruments. Pursuant to Article 584 of the Vietnamese Civil Code, any party intentionally or unintentionally harming lift, health, honor, dignity, reputation, property or other legal rights or interests of a person must be responsible to compensate for such damage.

It goes without saying that none of these legal instruments allow China to use forces or threat in order to resolve the alleged territorial dispute.  The issue is whether China can be held liable for the loss incurred to the fishermen.

Dispute Resolution Forum

In this case, recourse can be made to the following dispute resolution forum to seek compensation for these fishermen:

Vietnamese Court

Fishermen may bring a civil litigation seeking damage recovery against China to the Vietnamese court pursuant to the Vietnamese Civil Code.  The most contentious issue would be whether China enjoys state immunity before Vietnamese courts.

State immunity, or sovereign immunity, is a principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent.  However, Vietnamese law does not define the limits of state immunity.  There is no express provisions under Vietnamese law which establish a principle of state immunity.  Thus, although this principle is recognised as customary international law, it is uncertain whether China would successfully claim their state immunity before Vietnamese courts.

International Court/Arbitration

In the spirit of the Convention, Agreement and the Declaration, Vietnam and China mutually agreed to resolve disputes through peaceful measures. However, this principle does not mean that Vietnam cannot choose other measures, including bringing a lawsuit against China. This interpretation had been previously expressed in the case Philippines v. China regarding the China’s unilaterally declaration about the sovereignty of the East Sea under the Nine-dash line. Furthermore, Vietnam has affirmed that Vietnam does not exclude the use of judicial measures to resolve disputes in the East Sea. Consequently, juridical measures prescribed under the Convention can be a good choice for Vietnam in this dispute.

There is no legal basis addressing Vietnam’s ability to act on behalf of or receive authorization from the Vietnamese fishermen to sue China for compensation caused by China’s violations. However, Vietnam will be entitled to sue China due to the fact that the Chinese coast guard vessel violated Vietnam’s sovereignty over the Hoang Sa Islands, used of force against the sovereignty, territorial integrity and political independence of Vietnam.

Under the Convention, Vietnam may request China to participate in a conciliation proceeding in accordance with Article 284 of the Convention. If the invitation is accepted, a conciliation will take place. However, if such invitation is not accepted or Vietnam and China cannot reach any agreement during the conciliation procedure, such conciliation will be deemed to be completed. After having attempted to resolve a dispute by conciliating, Vietnam will be entitled to take action against China through the dispute settlement authorities prescribed in Article 287 of the Convention. The Arbitral Tribunal established in Annex VII of the Convention may be the most likely and relevant agency to be applied in this case, which was previously used in the case between Philippines v. China.

Pursuant to the Convention, Vietnam may choose the following judicial bodies to resolve the case: (1) the International Tribunal for the Law of Sea established in Annex VI; (2) the International Court of Justice; (3) an Arbitral Tribunal established in Annex VII; and (4) a Special Arbitral Tribunal established in Annex VIII. The Arbitral Tribunal is the only agency that does not need the consent of both parties for proceedings before arbitration.


DISCLAIMER

This LBN newsletter are NOT legal advice. Readers are advised to retain a qualified lawyer, should they wish to seek legal advice. VCI Legal are certainly among those and happy to be retained, yet VCI Legal is not to be hold responsible should any reader choose to interpret/apply the regulations after reading this LBN without engaging a qualified lawyer.