Author: Seungmin Jung
The recently skyrocketing number of reports on armed Chinese fishing vessels illegally entering the territorial sea and EEZ of South Korea and depleting its water resources raises several fascinating legal questions. Amongst them lies can this certain form of Chinese fishing practice in the West Sea (or Yellow Sea) be construed as to constitute Piracy under public international law, specifically 1982 UNCLOS (United Nations Convention on the Law of the Seas). Despite several media reports by YTN and Herald Economics have cited the term “piracy,” the answer to the question above is NO.
Facts on Chinese Vessels operating within South Korea’s EEZ and territorial sea:
- Arms status : Men utilize hooks, iron pipes, and switchblades against South Korean authority + Vessels are coated with sharp blades and iron bars to evade interception or even close contact with law enforcementNumber : more than 1000 Chinese fishing vessels operate in Korean territorial waters including the East Sea + In 2013, South Korea had seized about 220 Chinese ships for illegal fishing in the West Sea
- Navigation Patterns : small vessels moving in large numbers + minimum at 50 to prevent interception from and fight back against local law enforcement as well as other fishermen + poses a threat to maritime navigation in the region
- Economic Effect : marine resources in the region are rapidly becoming depleted, fishing schedules set for long term marine life protection by the South Korean government are being mutilated,
- Casualties in Conflict : In 2011, a South Korean coast guard officer was killed in a clash with Chinese fishermen in South Korean waters + In 2013, a Chinese fishing vessel captain was shot dead during a conflict with South Korean law enforcement officers
- Sources : The Diplomat, The Guardian, KBS, JongAng Daily.
1982 UNCLOS is a binding treaty between South Korea and China, therefore a source of authority under international law on maritime incidents and disputes. Article 101 of the 1982 UNCLOS codifies the definition of ‘piracy’ under public international law as follows :
- (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
As seen above, Article 101 of 1982 UNCLOS stipulates, an act of “piracy” under international law would require the act to be either “on the high seas” or “in a place outside the jurisdiction of any State.” The territorial waters of South Korea is within the jurisdiction of South Korea. The High seas form beyond the 200 NM EEZ of South Korea and therefore is irrelevent to this discussion. Unless stipulated otherwise in the domestic legislation of South Korea, an act of “piracy” cannot be construed for any maritime acts within her territorial waters under 1982 UNCLOS. Even in a parallel case where illegal fishing and resisting arrest with violent means by Chinese fishermen took place in South Korea’s EEZ, “piracy” will still remain impossible to be established. Under Part V of 1982 UNCLOS, South Korea has jurisdiction regarding the ‘fishing rights’ in its EEZ.
In fact, through Operation Dawn of Gulf of Aden in 2011, South Korean government has raided and captured Somali “pirates,” placing them in domestic court to face justice. These 5 pirates have hijacked a South Korean chemical freighter Samho Jewelry and kidnapped its crew of eight South Koreans, two Indonesians and 11 citizens of Myanmar. In addition to these crimes including a attempted murder and maritime robbery charge, Somali pirates were heavily armed with rocket launchers as well as AK47s. The severity of the jus cogens crime “piracy” allows universal jurisdiction, empowering South Korea to enforce its jurisdiction on Somali individuals captured nowhere near South Korean territory nor waters – Somalia. These characteristics are absent in the illegal Chinese fishing vessels in West Sea.
Indeed the Chinese fishermens’ actions of entering territorial waters or EEZ of South Korea absent authorization from the South Korean government in order to deplete her natural resources while deploying force through armed weaponry fall under the jurisdiction of and are punishable by South Korean domestic law enforcement. It is within the South Korean government’s discretion to legislate and enforce its domestic laws in her territorial waters. 1982 UNCLOS also stipulates these rights under Part II regarding territorial waters. South Korean law enforcement are allowed to stop, intercept, and board vessels reasonably persumed to be committing illegal activity. Furthermore, in Article 111, the right of hot pursuit allows domestic law enforcement to pursue such vessels beyond one’s territorial waters and out into the High Seas.
As despicable Chinese fishermens’ actions are in the West Sea, under international as codified in 1982 UNCLOS, their illegal fishing in South Korean territorial waters and EEZ, armed resistance against South Korean law enforcement, and committing violence against South Korean fishing vessels fails to meet the criteria set for “piracy.”
Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS.