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.............................................................................................................................. 1
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 1................................................... 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 2................................................... 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 3................................................... 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
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.

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2. 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

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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

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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.

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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 twentyfirst-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 14

th

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.
Notably, there is a Master’s thesis major in Law of the Sea from Faculty of

Law – The Arctic University of Norway of Sarah Goyette (2014) with the title

5


“Threat or Use of Force at Sea - Assessing the Adequacy of the Convention on the
Law of the Sea”. This Thesis learns from this “counterpart” the interpretation of
Article 301 UNCLOS 1982 and its approach the matter of the threat or use of force
from the law of the sea.
Besides, this Thesis also acknowledges Jonathan G. Odom (2018) with the
study “Guerrillas in the Sea Mist: China’s Maritime Militia and International Law”
in Asia-Pacific Journal of Ocean Law and Policy. This study offers a paramount
guideline to clarify the 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 threat and use of force deployed by China’s maritime forces has
become the topic or a part of the topic of a variety of scientific works.
This Thesis uses selectively the list of incidents provided by Van Pham
(2016) with the study “The Use or Threat of Force in the South China Sea Disputes
Since 1945: A Timeline”, which is a product of the South China Sea Chronicle. This
study includes a wide range of activities in its timeline from 1945-2011: Exchange
of fire between governmental agencies of two states; Opening fire by governmental
agencies of one state against governmental or civilian vessels of another state;
Activities such as blockage, ramming, sinking, water cannon firing, dousing...,
taken by governmental armed vessels of one state against governmental or civilian
vessels of another state; Other activities of confrontational nature involving armed
forces of states. Nonetheless, not all of those activities are under the scope of this
Thesis. Additionally, this Thesis also examines numerous incidents after 2011.

Significantly, Constantinos Yiallourides (2018) has two papers relevant to this

issue, namely: “Force and coercion in the South China Sea: Why does it matter in
th

International Law?” - presentation paper in the 10 South China Sea international

6


conference: Cooperation for regional security and development, November 08-09,
2018 in Da Nang City; and “Is China Using Force or Coercion in the South China
Sea? Why words matter” in The Diplomat. This Thesis can learn from the two how
to assess China’s activities in Bien Dong under international law.
Besides, there exist numerous works on examining China’s activities in Bien
Dong, such as: Demetri Sevastopulo and Kathrin Hille (2019) with the paper “US
warns China on aggressive acts by fishing boats and coast guard” in The Financial
Times, Abhijit Singh (2018) with the paper “Between War and Peace: Grey-Zone
Operations in Asia” – a product of Australian Institute of International Affairs, Đỗ
Thanh Hải (2011) with the paper “In retrospect of China’s policy toward South
China Sea disputes since 2007” in International Studies, Kenneth E. Bauzon (1980)
with the paper “China and the use of force in international relations” in Asian
Thought & Society, … Those studies raise the question of the grey zone conflict and
how China takes advantages from this.
More importantly, there are two studies on China’s maritime militia, namely
Robert McLaughlin (2019) with the paper “The Legal Status and Characterisation
of Maritime Militia Vessels” in Blog of the European Journal of International Law;
and one more time, Jonathan G. Odom (2018) with the paper “Guerrillas in the Sea
Mist: China’s Maritime Militia and International Law” in Asia-Pacific Journal of
Ocean Law and Policy. These two papers present an analysis of China’s maritime
militia under international law and suggest some initial solutions.
Recently, Andrew S. Erickson and Ryan D. Martinson (March 15, 2019) has

published the book China's Maritime Gray Zone Operations. With contributions
from some of the world's leading subject matter experts, this book aims to close that
gap by explaining the forces and doctrines driving China's paranaval expansion,
operating in the grey zone between war and peace. The book covers China's major
maritime forces beyond core grey-hulled Navy units, with particular focus on
China's second and third sea forces: the "white-hulled" Coast Guard and "blue-

7


hulled" Maritime Militia. Increasingly, these paranaval forces, and the grey zone in
which they typically operate, are on the frontlines of China's seaward expansion.
However, this Thesis does not have an opportunity to access the book. Figure 2.1 of
this Thesis is taken from the online pages for introduction.
(iv) Solutions for Vietnam
There are a limited number of works on solutions for Vietnam in the context
of China’s aggressive activities in Bien Dong.
Nguyen Hong Thao with numerous eminent works provides Vietnam’s
position of the disputes in Bien Dong, for example, “Vietnam's Position on the
Sovereignty over the Paracels & the Spratlys: Its Maritime Claim”, Journal of East
Asia International Law, V JEAIL (1) 2012.
Significantly, Nguyen Viet Long (2012) with the book Lẽ phải: Luật quốc tế
và chủ quyền trên hai quần đảo Hoàng Sa và Trường Sa (International law and
sovereignty over the Hoang Sa and Truong Sa archipelagos) presents reasonable
solutions to resolve all disputes in the direction of respecting sovereignty, sovereign
rights and jurisdiction of the parties in Bien Dong, keeping peace and security for
the whole region.
Moreover, this Thesis is of the same mind with the recommendations of
Nguyen Hong Thao and Ton Nu Thanh Binh (2019) in Maritime Awareness Project
entitled “Maritime Militias in the South China Sea – 2”. Accordingly, the maritime

militias operating in Bien Dong should be regulated in COC and adhered to the
CUES.
Constantinos Yiallourides (2018) with the paper “Is China Using Force or
Coercion in the South China Sea? Why words matter” in The Diplomat offers some
ideas relating to erga omnes obligation in international law.
Besides, Đặng Duân (2019) with the paper “Đã đến lúc hình thành liên minh
tuần duyên Biển Đông (It is time to form the coast guard alliance in Bien Dong)”

8


suggests the idea of establishing the joint coast guard in Bien Dong with the
participation of other powers like the US, Japan, Australia, … to balance with China
power.
Another way, Irini Papanicolopulu with the paper “Enforcement action in
contested waters: the legal regime” supports the idea of initiating the case to the
judicial organs. However, Papanicolopulu does not refer to the context of Bien
Dong.
From diplomatic approach, Jonathan G. Odom (2018) with the paper
“Guerrillas in the Sea Mist: China’s Maritime Militia and International Law” in
Asia-Pacific Journal of Ocean Law and Policy advises that the issues should be
debated further in international conferences. Additionally, Le Hong Hiep (2019)
with the paper “Vietnam’s Position on the South China Sea Code of Conduct” ISEAS Perspective 22/2019 indicates directly the expect of Vietnam for the South
China Sea Code of Conduct.
3. The purpose, objectives 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 research
In order to fulfil the above-mentioned purpose, this Thesis sets out four

objectives:
First, clarifying the concept of the threat or use of force at sea;
Second, analyzing the legal framework governing the threat or use of force in
Bien Dong;
Third, refering to the pratice in Bien Dong;

9


Fourth, proposing solutions for Vietnam.
The scope of the research
Regarding the limit of the content: This Thesis concentrates on studying the
use or threat of force in international relations occurred in the maritime domain; the
references to other forms of force such as law enforcement is for illustration only.
Regarding the limit of space: The central concern of this Thesis is within
Bien Dong.
Regarding the limit of time: The incidents relating to use or threat of force in
Bien Dong were collected and systemized from 1945 to the time completing this
Thesis (July 2019).
4. The novelty and contribution of the research
In theory, this Thesis clarifies the concept and characteristics of the use or
threat of force at sea. Additionally, this Thesis also points out the legal framework
governing this matter.
In practice, this Thesis examines the typical incidents relating to use or threat
of force in Bien Dong from 1945 to 2019 and proposes solutions for Vietnam from
the author’s perspective.
6. The methods of the research
This Thesis uses a combination of different research methods, namely:
Methodology
The Thesis is based on the methodology of dialectical historical materialism

of Marxism-Leninism.
Social scientific research methods
(i)

Methods of analysis and synthesis: These methods appear in every part of

the Thesis, for example, the concept and characteristics of the use or threat of force

10


at sea and the legal framework governing this matter and the practice of the threat
or use of force in Bien Dong.
(ii)

Method of comparison: This method is applied in the Thesis to find

similarities or differences between legal provisions regulating the use or threat of
force at sea and to weigh the gravity of “force” happening at sea.
(iii)

Method of statistic: This method is used primarily and most clearly in

the systematisation of the incidents of using force or the threat of using the force of
China in Bien Dong.
(iv)

Method of interviewing experts: This method is used for issues related to

other fields of studies beyond personal specialisation such as military or defence

science, the law on armed conflicts, etc.
Writing methods
This Thesis incorporates the use of many methods of argument to write
clearly and to ensure the fluency and coherence such as the deductive and inductive
methods.
7. Structure of the Thesis
The Thesis is divided into three chapters:
Chapter 1 with the title “the concepts and legal framework governing the
threat or use of force in Bien Dong” presents the concept of the threat or use of
force at sea through the notion of the threat or use of force in international relations.
Then, the set of rules governing the threat or use of force at sea would be figured
out, including: 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. Next, the
precedents and opinions concerning the use of force at sea would also be examined.

11


Chapter 2 with the title “the practice of the use of force in Bien Dong” would
systemise the typical incidents involving the use of force in Bien Dong and then
analyses “Fait accompli” strategy and grey zone conflict.
From the results of the two previous chapters, chapter 3 suggests potential
solutions for Vietnam, including: (1) potential content of COC concerning
minimising or eliminating the threat or use of force in Bien Dong and (2) the
possibility of using the judicial settlements of disputes concerning the threat or use
of force in Bien Dong.
8. The publications of the author relating to this Thesis
Tran Thi Kim Nguyen, Vo Thi Thanh Nguyen and Le Thi Xuan Phuong
(2016), “International law on military operations at sea and reality in the South

China Sea”, scientific works at “Student Research Award” in 2016 (in Vietnamese);
Tran Thi Kim Nguyen (2018), “The issue 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 law of the sea – from the viewpoint of the international and Vietnam”,
th

Da Nang City 7 November 2018 (in Vietnamese).
Besides inheriting the results of research works as mentioned in Literature
Review, the contents done in the personal previous research about military
activities, maritime security and the legal basis of China's maritime operations in
Bien Dong will also be developed in this Thesis.

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CHAPTER

1:

THE

CONCEPTS AND

LEGAL FRAMEWORK

GOVERNING THE THREAT OR USE OF FORCE IN BIEN DONG
1.1. The concept of the threat or use of force at sea
1.1.1. The threat or use of force in international relations
a. The term “use of force”

Use of force is considered as a traditional but controversial aspect in public
international law. However, the term “use of force” has not been officially defined yet
but comprehended flexibly in each practical situation. The word “force” is properly
the central question of this term.
The noun “force” appears in many dictionaries with definitions as follow:
The Oxford Dictionary [48, p. 337-338] indicates that “force” embodies (1) a
person or thing that has a lot of power or influence; (2) power or influence that
somebody/ something has; (3) an effect that causes things to move, change direction
or change shape; (4) violent physical action used to obtain or achieve something; (5)
soldiers or others whose job is to fight or to protect people; (6) a group of people who
have been organized for a particular purpose; (7) the physical strength of something as
it hits something else; (8) a unit for measuring the strength of wind.
The website Dictionary.com [24] shows that “force” means (1) physical power
or strength possessed by a living being; (2) strength or power exerted upon an object,
physical coercion, violence; (3) strength, energy, power, intensity.
The website Dictionary.cambridge.org [25] provides a vast array of meanings
of the word “force”. The definitions that are most relevant to this matter include (1)
action of making something happen or making someone do something difficult,
unpleasant, or unusual, especially by threatening or not offering the possibility of
choice; (2) action to make certain that an urgent problem or matter is dealt with now;
(3) strong influence and energy, or a person with strong influence and energy; (4)

13


power to make someone do something, or to make something happen, especially
without offering the possibility of choice; (5) an organized and trained military group;
(6) force is also military strength.
In the most general understanding perspective, in the relationship among states,
the term “use of force” is determined as to use the armed forces aiming against

another independent sovereign State [8, p.81]; or to put pressure, to threaten other
States in order to obtain political and other purposes [5, p.82]. Notably, the use of
economic or politic means is considered as the use of force only when the implication
of such means leads to the use of force (use of force indirectly). [8, p.81]
Constantinos Yiallourides states that Art. 2(4) UN Charter makes it clear that
the use of force by States is prohibited only in their international relations. Therefore,
to come under the prohibition, the use of armed force by a State must be directed
against the territory of another State. The prohibition, hence, does not cover the use of
force purely internal to one State, such as clashes between government armed forces
and rebel groups within the same State or forcible law enforcement actions against
private individuals. [20, p.34]
It is noted that Art. 2(4) UN Charter seeks to prohibit the use of force by one
State against another as opposed to forcible measures which hold some foreign
elements. Not every forcible act within a State that has a foreign element will affect
the international relations of the two States. The arrest of a foreign national by the
police within a given State, for example, will typically constitute a law enforcement
exercise, not engaging Art. 2(4) UN Charter. Nevertheless, where force is used in an
inter-state relationship between the agents of two States, whether military or police
units, will affect the States’ international relations and trigger the application of Art.
2(4) UN Charter. [20, p.34]
Additionally, the concept of force also includes armed powers and other nonarmed powers, even economic and political powers [6, p.358]; coercive intent reflects

14


the objectively discernible aim or effect of “forcing the will of another state” to accept
a new status quo, according to Olivier Corten. [19]
b. The term “threat of force”
Regarding the term “threat of force”, Ngo Huu Phuoc argued that the concept
of the threat of force “are the actions which are used by the subject of international

law containing the risk of use of force”.[4, p. 139]
As René Värk opined [52], the prohibition of threatening with armed force has
received much less attention than other elements of Art. 2(4) UN Charter. It is not
easy to answer what the term “threatening” covers. Threats are usually followed by
actual military operations, and therefore, the situations are discussed as violations of
the prohibition of using armed force. The threat and use of armed force are in fact two
distinct violations, but states pay more attention to uses, and judicial organs seem to
have a practical approach that “more serious” conduct (use of armed force) covers
“less serious” conduct (threat of armed force).
The action of arming, forming alliances, and building self-defence capability is
not a violation of Article 2(4). It is undoubtedly difficult, if not impossible, to
distinguish between the arming for defensive or offensive purposes. In the Legality of
the Threat and Use of Nuclear Weapons case, the ICJ found that the possession of
nuclear weapons in itself does not amount to the violation of Article 2(4), unless the
particular state intends to direct them directly against the territorial integrity or
political independence of a state, or against the purposes of the United Nations or
whether it would necessarily violate the principles of necessity and proportionality.
[52]
The ICJ indicated that there is a close connection between a “threat” and a
“use”; in other words, the legality of the threat depends directly on the legality of the
intended use. If a state or an alliance sends the potential aggressor a message that
armed force will be used repel its armed attack, this is legal because the state or the

15


alliance is “threatening” with legitimate self-defence. However, if a state demands
that another state handed over a part of its territory and adds that it is prepared to use
armed force if the other state is not willing to comply, the state is threatening with an
illegal form of armed force and is violating Article 2(4). [52]

Thus, the threat to use force is conceptually similar to the actual use of force.
In the viewpoint of Brownlie, a threat of force consists of “an express or implied
promise by a government of a resort to force conditional on non-acceptance of certain
demands of that government. If the promise is to resort to force in conditions in which
no justification for the use of force exists, the threat itself is illegal”.[20, p.46]
It is, therefore, illegal for a State to threaten to resort to force to secure
territory from or settle a territorial dispute with, another State. Nevertheless, the
declared readiness of a State to use armed force to defend its territory against the
belligerent occupation, in principle, does not constitute a prohibited threat of force. It
is, moreover, generally agreed that the type of threat of force prohibited by Article
2(4) UN Charter should necessarily have a coercive intent directed towards specific
behaviour on the part of another State. The piling-up of military arms or the conduct
of military exercises, though implying a potential threat of force against a given State,
would not in itself constitute a prohibited threat of force”.[20, p.46]
According to the ICJ, in order to be lawful, the declared readiness of a State to
use force ‘must be a use of force that is in conformity with the Charter’. As a result,
the signalled readiness of a forcible defensive reaction by the victim of an armed
attack would not violate Article 2(4) of the UN Charter. ”.[20, p.46] In reality, it is
complicated to draw a line between threats and uses. In the Military and Paramilitary
Activities in and against Nicaragua case, the ICJ was not convinced that the military
manoeuvres held by the United States near the Nicaraguan borders were threats of
armed force. [52]
In fact, it is not entirely necessary for differentiating the concept of the use of
force and threat of force. First and foremost, the two norms share the same legal

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framework. Moreover, in the vast majority of cases, the two forms of actitivities
combine with each other to constitute the international resposibiltity of one state.

c. Direct and indirect use of force
Constantinos Yiallourides argued that direct forms of the use of force include
an open invasion or attack by regular military forces directed at the territory of
another State. It also applies to the given territory is subject to a dispute but remains
under the administration of the other party. Direct use of force also includes crossborder shooting, outside or within the disputed area, as well as the laying of mines in
the disputed area.[20, p.32]
Regarding indirect forms of the use of force, this forms encompass the
participation of a State in the use of force, either through another State, or by arming
and training private individuals (for example, unofficial bands of irregulars,
mercenaries, or rebels organised in military fashion), who then carry out armed
operations and other acts of violence against another State. Nevertheless, the mere
supply of funds to such groups does not in itself constitute a violation of the
prohibition on the threat or use of force. A violation of the prohibition on the threat or
use of force could be established in the context of a territorial dispute where, for
instance, first, one of the parties has supported private violence through military
training and/ or provision of arms and, second, the units receiving the support then
engaged in the threat or use of force against the claimant party to gain control over a
disputed territory. [20, p.32]
1.1.2. The threat or use of force at sea
a. The notion of the threat or use of force at sea
It can be learned from the norm “threat or use of force” in international
relations, 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. Accordingly,

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the threat or use of force at sea at present is not only manifested as aggressive acts in
reality but also an imposition of unreasonable will preventing other countries from

exercising their legitimate rights and interests in their jurisdiction maritime zones.
There remain some differences the threat or use of force at sea and that on the
land domain as what differentiates the sea and the land. The sea is a unique
environment formed by liquid water which is always moving. People cannot operate
directly on the maritime spaces like on the land domain but depend on technical
means. Therefore, the maritime armed forces have the following basic characteristics:
(i) being always associated with vehicles such as vessels, aircraft, submarines, ...; (ii)
being equipped with specific weapons on the maritime spaces; (iii) being very highly
synergistic with other forces on land and in the air, ...
Besides, under the law of the sea, all ships of every state enjoy the freedom of
navigation and other legitimate rights. Additionally, the coastal States also enjoy
sovereignty and sovereign rights and jurisdiction in the sea areas in the vicinity of
their coasts, which causes law enforcement against foreign vessels. Furthermore, in
contested waters, the claimants are prepared to assert their claims by the use of their
navies, coast guards or other State-owned vessels. As a result of this, such assertions
may include aggressive actions sometimes akin to a use of force against the flag State
of the vessels affected, which increases the potential for tension and conflict and
violates the principle of prohibiting the use of force in international relations.[69,
p.450]
b. The characteristics of the threat or use of force at sea
From theoretical approach in section 1.1.1, the threat or use of force at sea
must include all characteristics of the threat or use of force in general meaning and
some special aspects as happened in the maritime zone.
First, in any circumstances, the threat or use of force must contain the fact that
one state puts pressure to another state by forcible measures. This coercion is

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embodied in a variety of forms of operations in reality, for instance, using armed

forces to occupy maritime insulars or to control maritime zones beyond its
entitlement, forcing another state not to exercise its legitimate rights in its waters, etc.
This criterion plays a paramount importance in the identification of the threat or use
of force in such sophisticated international relation. Therefore, the common
denominator of the forcible actions is the use of power, which force the others do
adhere to one’s will.
Second, the threat or use of force intentionally goes against an independent and
sovereign state or others’ interests or in some specific situations it goes without
consent of one involved party. Back to the history of the law of nations, threat or use
of force was classically used to settle disputes. In other words, the force was a
primary mean of solving the conflicts between states. It is the interests that are in
demand for numerous countries, which causes the threat or use of force. Accordingly,
whenever there exist such interests, the aggressive state stands in front of an option to
threaten or use force to achieve those interests. In some particular disputes that are
managed by consensus provisions in advance, the unilateral activities lacking the
consent of remain parties are likely considered as one characteristic of the threat or
use of force.
Third, the actions of threatening or using force possibly violate the status quo
or have the intention of altering the status quo. Status quo is a Latin phrase meaning
the existing state of affairs, particularly with regard to social or political issues. This
criterion stems from the previous in the aspect that the aggressive state would resort to
force to gain the interests.
Fourth, the actors of the threat or use of force at sea must be the maritime
armed forces or official maritime forces. This criterion distinguishes the threat or use
of force at sea in international law with piracy or other acts of violence at sea.
However, China has been sufficiently taken advantages of paramilitary forces. The

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