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Collision between Vietnam and Indonesia Vessels in International Law
Perspectives
Muhammad Fariz Abdillah ( 20180510370 ), Muhammad Halim Arrosyid ( 20180510364 ),
Nanda Blestri Jasuma ( 20180510371 ), Zikri Fatua Pratama ( 20180510394 )*)
*) Department of International Relations, Faculty of Social and Political Sciences, Universitas
Muhammadiyah Yogyakarta
ABSTRACT
The collision between Vietnam and Indonesia vessels brought up the disputes between both states.
This happened because the collision happened intentionally in the EEZ of Indonesia. The fact is
both of Vietnam and Indonesia still don’t have any agreement regarding the area of EEZs in seas.
Indonesia claims unilaterally the EEZs in Natuna seas without any agreement with Vietnam, beside
that, Vietnam still considered the Natuna seas which claimed by Indonesia as their EEZ is still
their area. Indonesia argued that in UNCLOS there is a regulation that said the archipelago states
can took the EEZs to outer border from its outer islands but still there is no agreement between
these two states. However, in this incident, the vessel of Vietnam is crashing deliberately to the
Indonesia military ships. It means that the collision which caused by Vietnam vessel violates the
international law especially COLREGs, UNCLOS, and SOLAS. Those three laws specifically
regulate about safety in the sea. In this paper the authors will analyze the law that violated by the
collision. The authors conclude that, the incident actually violates some treaties in international
law about safety in the sea. This incident leaving some dilemma to the government of Indonesia
and Vietnam to solving the dispute of the borderline in seas.
Keywords: Indonesia, Vietnam, EEZ, Collision, COLREG, UNCLOS, SOLAS
A. Introduction
Indonesia is a country located in Asia which the exact location is in Southeast Asia.
Indonesia is one of the most biggest archipelagic state in the world. Based on the UNCLOS Article
46 (a) :
“Archipelagic State means a State constituted wholly by one or more archipelagos and may
include other islands”. It is what the Archipelagic state means. Yet it is different with
Archipelago, UNCLOS Article 46 (b) mention :
“Archipelago means a group of islands, including parts of islands, interconnecting waters and
other natural features which are so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity, or which historically have
been regarded as such” (UNCLOS, Archipelagic States, 1982).
However Indonesia not only known as one of the most biggest archipelagic state in the world,
Indonesia also known as Maritime Nations and Law Nations. Therefore what will be discussed
more deeply are related to the Indonesian titles, Indonesia as Law Nations and Indonesia as
Maritime Nations.
The fact in the 1945 constitution it has been said that Indonesia is a Law Nations. Moreover
in the 1945 Constitution article 1(3) : Indonesia is a Law Nations. Yet not only that, the sentence
also means that Indonesia is based on law (Rechtsstaat) and is not based on mere power
(Machtsstaat) (Fitriacida, 2011).
Indonesia also known as a Maritime Nations that vast sea of 5.8 Million km2 that consisting
of territorial waters, sea waters, and the 12 mile Exclusive Economic Zone (ZEE) waters of
Indonesia. Moreover, Indonesia also has 17,504 islands with a coastline of 104,000 km. Indonesian
regions lies between the Pacific Ocean and the Indian Ocean, this positions what makes Indonesia
became very strategic country because it is located in the heart of world trade (Wahyono,
Tangkilisan, & Marihandono, 2011). Certainly as a Maritime Nations, Indonesia must have a
reliable maritime strategy to protect its own area and protect the country from attacks by enemies
that threaten the security and stability of the country. This Maritime strategies are important not
only for guarding the country’s sea boundaries and maintaining sea lanes but also to serve national
security policies (Suseto, Othman, & Razalli, 2018). Furthermore, based on UNLOSC (United
Nations Law Of Sea Convention) article 55 :
“The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the
specific legal regime established in this part, under which the rights and jurisdiction of the coastal
State and the rights and freedoms of other States are governed by the relevant provisions of this
Convention.”
Based on that article, each state has their own Exclusive Economic Zone (EEZ) that can be used
properly and have their respective rights. However archipelagic state has EEZ and Sovereign
Rights (UNCLOS, Exclusive Economic Zone, 1982).
This case have relation with those two titles , which Maritime nations and Law nations. In
Indonesia itself the case of collision incident of Indonesia and Vietnam Ship in Natuna sea attract
many people from various circles of society. According to the observation, the Vietnam Ship
passing through the territorial sea boundary and also claiming that the territory which was passed
by the Vietnamese ship was a Vietnamese sea territory. Vietnam also stated that they did not
violate any rules and they did not know if the territory that they were passing by is Indonesian
territory.
In the case of Vietnam and Indonesian ships if Indonesian ships attack the vietnam ships
directly, Indonesia will triggering Vietnam which leads to war between Vietnam and Indonesia.
Moreover Indonesia will lost their EEZ ( Exclusive Economy Zone). In addition, it will triggering
all country around the world because it is breaking the LOSC ( Law Of The Sea Convention) and
against the principe of Indonesia itself (Law Nations). However Indonesia does not want to resolve
it in this way, the Government tends to solve the problems with Diplomacy, which this case ends
with a settlement between Government to Government. The Indonesian Government also thinks
that with such problems they do not want to lose their cooperation with Vietnam. Both countries
hope they can continue to have good relations among them. As what have mentioned before it is
related to the Indonesi own title. As an Maritime Nations, Indonesia indeed have a strong guard
and strong military but on the other hand Indonesia is also a Law Nations, the resolution of this
case is also not done arbritrarily so the two are interconnected. UNCLOS Article 73 in verse 1 it
is stated that in exercising their Sovereign Rights, coastal states have the rights to examine, arrest
and even give punishment. In verse 2 to 3 it is explained that the crews and the vessels must be
released immediately after receiving reasonable bond or other security measures and the sentence
given does not include prison sentences. Verse 4 explained that the Coastal state must immediately
contact the flag state related to the law enforcement provided (UNCLOS, Exclusive Economic
Zone, 1982).
This paper is made for discussing about the case of Vietnamese ship that hit Indonesian
Ship and to provide an understanding why this topic is so important that related to disturbing
national security. Problems issues that will be discussed are related to problems that arise such as
those that occur in the Natune sea, illegal fishing and foreign vessels that cross the predetermined
territorial border. In this paper will be analyed more deeply that have correlation to International
Law. This paper have an academic purpose to acknowledge people about how the mechanism of
the International Law work and will be analyzed in detail with a valid data and will be explained
too with a valid data that based on the expert opinion or perspective.
B. Analysis
a) COLREG
The collision between Vietnam ship and Indonesia ship brought up the dispute between
both countries. It is because this case constitutionally violates international law. Moreover, both
of countries are the member of IMO (International Maritime Organization) which has the
regulation about international maritime. Thus, either Indonesia or Vietnam has to obey each
regulation or convention that regulated in IMO. Specifically, in IMO there are several convention
which most of them are regulated about safety of the ships, collision, marine pollution, and etc.
Each protocol has its function in resolve the case.
The collision of Vietnam and Indonesia ship brought us to understand which law that
violated by this case. As we know chronologically by Indonesian point of view, Vietnam ship
deliberately crash the ship of Indonesia meanwhile Indonesia ship at that time was in patrol in
Natuna seas which claimed as Indonesia’s EEZ. This collision happened not because accidently
yet this happened because of the intentional attack. Moreover, in IMO there is convention that
protocols regulated about collision. This convention named COLREGs (Convention on the
International Regulations for Preventing Collisions at Sea). This convention adopted on 20
October 1972 and entry into force on 1977. The 1972 Convention was designed to update and
replace the Collision Regulations of 1960 which were adopted at the same time as the 1960 SOLAS
Convention.
One of the most important innovations in the 1972 COLREGs was the recognition given
to traffic separation schemes - Rule 10 gives guidance in determining safe speed, the risk of
collision and the conduct of vessels operating in or near traffic separation schemes.
The first such traffic separation scheme was established in the Dover Strait in 1967. It was operated
on a voluntary basis at first but in 1971 the IMO Assembly adopted a resolution stating that
observance of all traffic separation schemes be made mandatory - and the COLREGs make this
obligation clear.
In the COLREGs there are 41 rules divided into 6 sections. Part A - General; Part B -
Steering and Sailing; Part C - Lights and Shapes; Part D - Sound and Light signals; Part E -
Exemptions; and Part F - Verification of compliance with the provisions of the Convention. There
are also four Annexes containing technical requirements concerning lights and shapes and their
positioning; sound signaling appliances; additional signals for fishing vessels when operating in
close proximity, and international distress signals. It is also included four annexes such as; Annex
I - Positioning and technical details of lights and shapes, Annex II - Additional signals for fishing
vessels fishing in close proximity, Annex III - Technical details of sounds signal appliances, Annex
IV - Distress signals, which lists the signals indicating distress and need of assistance.
In its essence, COLREGs is such a regulation that used for preventing the collision among
states in the sea. COLREGs actually used as the main guidance for the international court to decide
the decision whether the state violates international law or not. Moreover, in COLREGs included
the rules about how the vessels run in the sea such as the safety speed, vessel’s equipment, rules
about sailing and etc. this regulation often used together with SOLAS in collision cases. So is
Indonesia-Vietnam case.
Collisions that were intentionally carried out by Vietnamese vessels against Indonesia
when viewed in international law, especially in COLREGs, clearly violated the law. This is
because the collision that occurred was done intentionally in the Indonesian EEZ area. In fact, it
should not be possible for Vietnam vessel to do this because Indonesian KRI Tjiptadi-38 vessel
are carrying out illegal fishing patrols on their EEZ wards according to the procedure. Specifically,
this incident has violated Rule 8 Part B Section I about Action to Avoid Collision in COLREGs.
Specifically, on point f which divided into three sub-point stated that; (i) a vessel which,
by any of these rules, is required not to impede the passage or safe passage of another vessel shall,
when required by the circumstances of the case, take early action to allow sufficient sea room for
the safe passage of the other vessel, (ii) a vessel required not to impede the passage or safe of
another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk
of collision and shall when taking action, have full regard to the action which may be required by
the rules of this part, (iii) a vessel, the passage of which is not to be impeded remains fully obliged
to comply with the rules of this part when two vessels are approaching one another so as to involve
risk collision.
This case violated specially the point (i) of Rule 8 Part B Section I. As stated on the point
(i) that vessel must not to impede the passage or safe passage of another vessel. This is very
contrast with the case of Vietnam and Indonesia collision. In this case, the Vietnam vessel clearly
impeded the KRI Tjiptadi-38 vessels which try to do a patrol for protect its EEZ from illegal fishing
action which done by KIAV BD 979. In that incident, there were 2 vessels of the Vietnam fishing
vessels (KN 264 and KN 231) which interfered with the law enforcement process carried out by
KRI Tjiptadi-381. KN 264 and KN 231 initially maneuvered by approaching the Vietnam Foreign
Fish Vessel (KIAV) BD 979 and several times crashed it until the talent section was damaged.
Moreover, the action taken by KIAV BD 979 also violated the point (ii) on this rule. It is
because the vessel of Vietnam did not try to avoid the collision when approaching KRI Tjiptadi-
381. Whereas, the Vietnam vessel must try to avoid the collision yet in fact, they precisely hit
Indonesia Vessel deliberately. On the other hand, the Vietnam vessel also did not try to reduce the
risk of collision by preventing it.
All of the above relate to vessels which have been required to keep out of the way of other
vessels and not to hinder the passage of another vessel. These vessels should therefore take early
action to keep clear, but if they fail then too they are obliged to follow the Rules to avoid a close
quarter situation.
b) UNCLOS and SOLAS
The collision between Vietnam vessel and Indonesia vessel in EEZ seas of Indonesia also
violate the law in UNCLOS 1982. The dealing of sea boundary on Continental Shelf Zone between
Indonesia and Vietnam has been achieved since 2003 and applies / entry into force on 2007. While
the Exclusive Economic Zone ( ZEE ) until now there has been no agreement regarding that issues.
The Continental Shelf Zone regulate the utilization of seabed. Meanwhile the Exclusive
Economic Zone is regulating the use of water columns. Offshore drilling is the example of is an
example of using Continental Shelf Zone. The capture fisheries are an example of utilizing the
water column in Exclusive Economic Zone.
Back about the development of exclusive economic zone negotiations between Indonesia
and Vietnam. In the beginning, the Vietnamese wanted the Exclusive Economic Zone boundary to
be equal to the Continental Shelf Zone boundary, but Indonesia refused this. Current
developments, Vietnam has received an understanding of the differences between the Continental
Shelf Zone and the Exclusive Economic Zone but the withdrawal of Vietnam's Exclusive
Economic Zone limits uses the basepoint of its outer islands. This was rejected by Indonesia
because Vietnam was not an archipelago, as stipulated in UNCLOS 1982. Unfortunately, until
now there is no agreement about Exclusive Economic Zone between Indonesia and Vietnam.
Source: https://www.un.org/Depts/los/clcs_new/continental_shelf_description.htm
Although there is no agreement on the Exclusive Economic Zone boundary with Vietnam,
Indonesia has claimed the Exclusive Economic Zone boundary unilaterally and set out on the
Indonesian Map. So, the Exclusive Economic Zone boundary around Natuna Island on the official
map of Indonesia above is a unilateral claim for Indonesia. This unilateral claim that has been used
as the basis for the definition of territories and marine jurisdiction by Indonesia. Which later
became a reference in the management of the capture fisheries sector, including in handling illegal
fishing.
In a diplomacy practice, the unilateral claim is a common thing among other states. So of
that other states, especially those close to know the position of the state. Like Indonesia, Vietnam
certainly also has unilateral claims against the Exclusive Economic Zone borders that are close to
Indonesia. Because sea area claims are always followed by the presence of ships from interested
countries, both for patrol missions and fishing activities, so long as there is still a dispute over
claims for Exclusive Economic Zones between Vietnam and Indonesia, the potential for repeated
incidents such as the incident of KRI TPD-381 and two fisheries ships Vietnam in the North
Natuna Sea on April 27, 2019, will remain open.
In the UNCLOS 1982 they deliver some exclusive points to the archipelago states. These
states that composed entirely of island groupings, prefer to draw a baselines around the outer edges
of their outermost islands and claim the water thus enclosed as internal waters. (Jacobson, 1984).
The archipelagic state will have sovereignty in its enclosed waters, but foreign vessels and aircraft
still will be allowed to get transit rights nearly identical to the rights of transit passage through
straits used for international navigation. However, the UNCLOS in many respects is an amazing
treaty. UNCLOS strikes a delicate balance between freedom of navigation and utilization on the
one hand and on the other, sovereign rights and control over the oceans and its resources (Norris,
2011). The reality that while UNCLOS provides an overall framework for legal governance of the
world’s oceans and codifies such important principles as freedom of the high seas and flag-state
primacy, it is by no means the single, definitive statement of the law of the sea. This convention
also have some trouble regarding the law to the sovereign states that has a grey area to conduct a
law between states that have some trouble.
The major thing of UNCLOS does is establish the limits of various maritime zones and
delineate who can do what in each zone, in the airspace above them, and with respect to the
resources of the water column, the seabed, and the subsoil within each zone. UNCLOS permits a
coastal state to declare a territorial sea that extends up to twelve nautical miles from the baseline;
it further permits claims to, and exercise of, sovereignty over all waters shoreward of the twelve-
nautical-mile line.
1
These waters, comprising the territorial sea and a states internal waters, are
collectively known as “territorial waters”. The rest of the worlds waters are known as
“International Waters” and divided into three zones: a “contiguous zone,” which can extend from
the outer edge of a nations territorial sea up to twenty-four nautical miles from its baseline;
2
an
“Exclusive Economic Zone” (EEZ), which can extend from the outer edge of a nation’s territorial
sea up to two hundred nautical miles from its baseline;
3
and the high seas, which are all waters
seaward of declared EEZs.
4
International waters are not “owned” by any nation, though, as we
shall see, UNCLOS does permit nations to exercise limited sovereign rights in international waters.
Regarding to the Vietnam and Indonesia the Exclusive Economic Zone jurisdictional
regime discussed about that issues is wholly applicable within the contiguous zone as well, as that
1
UNCLOS, arts. 2 and 3.
2
UNCLOS, art. 33.
3
UNCLOS, art. 57.
4
UNCLOS, art. 86.
zone is entirely contained within EEZ. In addition, UNCLOS empowers a coastal state in its
contiguous zone to “Exercise the control necessary” to prevent or, in the case of a vessel departing
its territorial waters, punish violations of its fiscal, immigration, sanitary, or customs law. Thus,
for example, the coastal state could exercise jurisdiction as necessary, including enforcement
action in its tribunals against a foreign vessels that was intercepted in the contiguous zone while
attempting to smuggle prohibited items from the coastal state. Again, these coastal-state
jurisdictional rights in its contiguous zone are exercised currently with those of the flag state, which
retains exclusive jurisdiction over its vessels in all other respects while its vessels are in foreign
contiguous zones.
A coastal states jurisdictional rights over a foreign vessel increase significantly once the
vessel crosses from international waters into that states territorial water. UNCLOS provides a
coastal state broad authority in its territorial sea to prescribe laws that apply to all vessels, including
foreign vessels. Examples of what the coastal state has to right to prescribe are its criminal, fiscal,
immigration, sanitary, customs, pollution, and navigational-safety laws and regulations. There are
only two explicit limitations in UNCLOS on the coastal states jurisdiction to prescribe. The first,
it may not prescribe laws relating to foreign vessel sign, construction, manning, or equipment,
unless they merely implement international regulations; as we have seen and pursuant to UNCLOS
article 94, such matters are the province of the flag state. Second, it may not prescribe laws so
burdensome that they have the practical effect of preventing vessels from exercising a fundamental
navigational right in foreign territorial seas that is, the right of innocent passage.
Historically, the state has been given the authority to violate international criminal law by
using two approaches: 1. domestically and using international law at the national level. 2. Use of
international law uses supranational courts or special tribunals, such as the International Criminal
Court (Gunawan, 2012). If talk about International law it has various rules of international law can
be stated about the principles of international dispute resolution such as the principle of good faith,
the principle of the prohibition of the use of violence in settling disputes, the principle of freedom
of choice means of dispute resolution, the principle agreement of the parties, and the principles of
international law concerning independence sovereignty and territorial integrity of states (Adolf,
2004). Although under the UNCLOS framework a coastal state exercise enhancing jurisdiction
over a foreign vessel as the vessel approaches that state is particularly when the vessel intends to
call on the state UNCLOS is deliberately devoid of specifics in many areas. For example, while,
as discussed above, UNCLOS permits a coastal state to adopt pollution laws and regulations
applicable to foreign vessels in its territorial sea, the regimes provides no guidance as to the nature
and scopes of such laws and regulations, other than that they must be “in conformity with the
provisions of (UNCLOS) and other rules of international law.”
5
The impact of this uncertainties in these regions will fall, in the first instance, on this case
with planning the movement of fisheries vessels and officer of Vietnam ships on, under, and over
the sea. There will be added by political and perhaps a military risks even sending aircraft or
submerged submarines through straits bordered by one or more states that object to such passage
on a legal ground or in carrying out maneuvers within 200 nautical miles of those coastal states
who might challenge freedom of navigation in their Exclusive Economic Zone. While this risks
will, in some cases, suggest that alternative routes or sea areas be selected, in other cases the
planners might well decide to challenge the assertions of illegality by doing just the opposites, that
5
UNCLOS, art. 21(1).
is by sending vessels or aircraft into the disputed areas to prevent the perception of acquiescence
in the claims of the coastal states.
For the officers on the bridges who were on duty, the present and future uncertainties
concerning the military uses of the seas will translate into a something greater risk of challenge
and confrontation in disputed straits, archipelagic waters, and Exclusive Economic Zone. Their
missions should be carefully planned and executed, in concert with ongoing diplomatic efforts,
their actions will help to ensure that the broadest possible freedom of ocean navigations and
overflight will continue to be part of the fabric of the international law of the sea for decades to
come.
The other convention that regulate about the safety and security in sea there is also known
as SOLAS ( Safety of Life at Sea ). This convention is an international maritime treaty which
establishes the least safety measures in the construction, equipment, and operation of merchant
vessels. SOLAS 1974 is the last adopted revised convention in 1974, includes a number of
regulations under different SOLAS chapters, which deals with safety precaution and safety
procedures starting from the construction of the ship to real emergency of “Abandon Ship”. The
convention is updated to create a safety norms in the modern shipping industry from time to time.
In SOLAS there are a lot of chapter that each chapter regulate particular operations that has to be
regulate to maintain the safety. In the Chapter XI-1 – Special measures to enhance maritime safety;
the chapter clarifies requirements relating to authorization of recognized organizations
(responsible for carrying out surveys and inspections on Administrations behalves); enhanced
surveys; ship identification number scheme; and port State control on operational requirements.
In the Chapter XI-2-Special measures to enhance maritime security; Regulation XI-2/3 of
the chapter enshrines the International Ship and Port Facilities Security Code (ISPS Code). Part A
of the Code is mandatory and Part B contains guidance as to how best to comply with the
mandatory requirements. Regulation XI-2/8 confirms the role of the Master in exercising his
professional judgement over decisions necessary to maintain the security of the ship. It says he
shall not be constrained by the company, the charterer or any other person in this respect.
Regulation XI-2/5 requires all ships to be provided with a ship security alert system.
Regulation XI-2/6 covers requirements for port facilities, providing among other things for
Contracting Governments to ensure that port facility security assessments are carried out and that
port facility security plans are developed, implemented and reviewed in accordance with the ISPS
Code. Other regulations in this chapter cover the provision of information to IMO ( International
Maritime Organization), the control of ships in port, including measures such as the delay,
detention, restriction of operations including movement within the port, or expulsion of a ship
from port, and he specific responsibility of Companies.
Those regulations in SOLAS that regulate all of the safety and to enhance the maritime
security to the state member of IMO are a mandatory. The vessels of Vietnam in this case is also
violate the safety in maritime with all the standard in SOLAS. Especially in chapter XI in all of
aspects, “Special measures to enhance maritime security” and “Special measures to enhance
maritime safety”. As a sovereign state both of the Vietnam and Indonesia has the responsibilities
in International. State responsibility is defined as liability of a state for failure to observe
obligations imposed by rules of international law. (Breau, 2011). So of that, SOLAS have to be
the standard of a vessels to voyage.
C. Conclusions
The collisions between two vessels from the fisheries ship Vietnam and military ships from
Indonesia that on duty to patrol the EEZ area in Natuna seas is takin the highlight to Indonesia
media since the incident happen. The incident can be seen with two different perspectives from
both states, because among these two states still not get the agreement regarding the obvious area
that belong to their states. Indonesia proclaim that the area in the north Natuna seas is Exclusive
Economic Zone based on the regulation of UNCLOS that said the archipelago states can take the
base line from their outsider islands and not from the Continental Shelf Zone merely. Vietnam
government still consider the area of EEZ Indonesia as their seas, indeed there is no agreement
among Indonesia and Vietnam regarding this issue. Indonesia in their maps area unilateral claim
without any agreement or diplomacy to talk about the borderline with Vietnam governments.
In the perspectives of International Law, this incident actually violate some treaty or
convention that regulate the safety in the sea. Those convention is COLREG ( Convention on the
International Regulations for Preventing Collisions at Sea ), UNCLOS ( United Nations
Convention on Law of the Sea ), and SOLAS ( Safety of life at Sea ). Fisheries vessels of Vietnam
in any point of view are violating those treaty, Vietnam as the member of IMO ( International
Maritime Organization ) has the obligation to follow the regulation in international situation but
in this case Vietnam ships are doing some fallacy. Indonesia and Vietnam should held some
appointment to discuss about the EEZs of Indonesia through diplomacy to get the agreement that
can be good for these two states. The perspective of International Law is showing by how the
vessels that using the state flags do an activity across the border of their states and violate those
treaty that can threat the safety and security even endanger other state vessel.
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