Thayer Consultancy Background Brief:

ABN # 65 648 097 123

China Enforces Illegal Ban by
Ramming Vietnamese Fishing
Boat
Carlyle A. Thayer
June 13, 2020
Tuoi Tre newspaper on Friday [12 June]
reported that a Chinese ship rammed a Vietnamese fishing boat operating in the
Paracel Islands, in what may be the first case of Beijing enforcing a unilateral fishing
ban in parts of the South China Sea against vessels from another nation.
China announced its annual summer fishing ban on 1 May. It forbids fishing activity
in the South China Sea north of the 12th parallel, which encompasses the disputed
Paracels.
Both Vietnam and the Philippines have rejected the ban that China claims is for
conservation purposes. On 20 May, Vietnam said it would not comply with it.
Wednesday’s [10 June] incident happened near Lincoln Island, a rock in the Paracels
that is occupied by China but claimed by both China and Vietnam.
We seek your assessment on the following issues:
Q1: What do you say about the fishing ban. Which way is it illegal?
ANSWER: The original motivation behind China’s fishing ban was to preserve the fish
stock during the breeding season. Chinese fishermen are prevented from going to
sea at this time. China has used this fishing ban to exert sovereign jurisdiction over
waters that belong to other states. China could have easily negotiated with other
states to jointly ban fishing in certain areas of the South China Sea to preserve the
fish stock. This would have been in the interests of all parties. Such cooperation
could have been undertaken with the standard legal clause “without prejudice” to a
state’s claim. In other words, the fact of cooperation could not be used by one state
to undermine another state’s claim.
Under the United Nations Convention on the Law of the Sea (UNCLOS), littoral states
have sovereign jurisdiction over the resources in their 200 nm Exclusive Economic
Zone (EEZ) drawn from baselines on their coast at low tide. Sovereign jurisdiction
includes marine life in the water column and other resources on the floor of the sea.
Both Vietnam and the Philippines have promulgated legal base lines to determine
their EEZs. China’s annual unilateral fishing ban in waters 12 degrees north latitude
overlaps with these EEZs. China cannot exercise sovereign jurisdiction over a
maritime zone that belongs to another country. In this sense the unilateral ban is
illegal.
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The fishing ban is also illegal because China is claiming a maritime zone (the waters
above 12 degrees north latitude) that are in excess to what UNCLOS permits. China’s
claim is based on historic rights that the Arbitral Tribunal ruled illegal in 2016.
Q2: What do you think about the attack, since it seems to be based on China’s illegal
claims and is Beijing asserting its own rules?
ANSWER: China’s enforcement of its unilateral ban by ramming a Vietnamese fishing
boat is against the Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation (SUA convention) that prohibits, among other things,
seizing control of a ship by force or threat of force, committing an act of violence
against a person on a ship if it is likely to endanger the safety of the ship; and
destroying or damaging a ship or its cargo in such a way that endangers the safe
navigation of the ship.
According to media reports, China Coast Guard 4006 deliberately rammed the
Vietnamese fishing boat causing it to take on water and list and forcing the crew to
jump into the sea for their own safety. The crew of China Coast Guard 4006 seized
the boat’s Global Positioning System, other navigational equipment and one ton of
fish. The Chinese crew also kicked and beat the Vietnamese boat captain. In sum,
China Coast Guard vessel 4006 violated all three of SUAs legal prohibitions
mentioned above.
The China Coast Guard vessel 4006 sails under the flag of the People’s Republic of
China. China has an obligation to ensure that its ships operate within international
law including the SUA convention. In 2016, the Arbitral Tribunal found that China
had violated its obligations as the flag state by allowing its vessels to ram those of
other countries. China is once again violating international law.
Q3: What can Vietnam and other countries who are affected by the fishing ban can
do to prevent further aggressive actions by China, as well as to protect their interests
and the safety of fishermen?
ANSWER: Vietnam must lodge a diplomatic protest with the Chinese Foreign
Ministry and request compensation. Vietnam should brief other ASEAN states about
this incident and seek their diplomatic support. Vietnam should call on the
international community for support. All these efforts should be aimed at “naming
and shaming” China for acting in violation of international law.
Vietnam will also have to review its present guidance to fishermen to protect
themselves at sea. This could include sailing in larger groups. Better radio
communications. And perhaps providing a Vietnam Coast Guard presence within
Vietnam’s EEZ.
Vietnam and other fishing states, including ASEAN members, should try to engage
China to work out how they can collectively protect the fish stock during breeding
season by cooperating together. This could be done under the auspices of the Asia
Pacific Economic Cooperation (APEC) forum so Taiwan can be included.
The bottom line, however, is that China’s Coast Guard is larger in numbers and size
than all the Coast Guards in Southeast Asia put together.
Q4: What can be China’s motivation to act amid the current tensions on the Sea?
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ANSWER: China’s motivations are long-standing and crystal clear. China arrogantly
claims “undisputable sovereignty” over the islands and waters in the South China Sea
on the basis of historic rights. China arrogates to itself the right to unilaterally
enforce “rights protection” measures, including the use of force. China aims to
pressure if not force littoral states to accept China’s interpretation of international
law.

Suggested citation: Carlyle A. Thayer, “China Enforces Illegal Ban by Ramming

Vietnamese Fishing Boat,” Thayer Consultancy Background Brief, June 13, 2020. All
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.