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Facts and law on the sovereignty and sovereign rights of Vietnam vis-à-vis Paracels and Spratleys

Paper presented at the INTERNATIONAL WORKSHOP ON PARACELS AND SPRATLEYS, June 19, 2014, Đà Nẵng.


INTERNATIONAL WORKSHOP ON PARACELS AND SPRATLEYS
JUNE 19, 2014, DA NANG




Facts and law on the sovereignty and sovereign rights
of Vietnam vis-à-vis Paracels and Spratleys
and their surrounding maritime areas,
and prospects for peaceful resolution of past
or potential disputes with other countries,
through negotiation, conciliation and arbitration


Tạ Văn Tài

Ph.D., attorney,
also associate and former lecturer, Harvard Law School, USA.



The sovereignty and sovereign rights of Vietnam over large extent of the arhipelagos of Paracels and Spratleys (not all of them – we have to say so, to be factually and legally judicious and fair to other nations) are based firmly on historical facts and on traditional international law and the new law of the sea in the UN Convention on the Law of the Sea (UNCLOS). A much longer paper and a much longer time are needed to go into the details , and so, in this short presentation, we can give only the highlights – or synopsis – to present the solid grounds of the Vietnamese claims, in order to show the good will of the Vietnamese position when offering peaceful settlement of actual or potential disputes through negotiation, conciliation and/or arbitration concerning national claims or international joint development.


I. The factual and legal basis and extent of Vietnamese claims
of sovereignty and sovereign rights on the two arhipelagos
and the surrounding maritime areas.


A. Claims of sovereignty over each land feature in the Paracels and Spratleys must be based on the customary/traditional/classical rule of international law of the last 4 centuries on acquisition of territorial sovereignty over land : a government wishing to establish a sovereignty claim over a land area has to assert, after discovery or occupation, its intention to make such claim, and to continue administering such area in peace, and if such land area is taken over by another government through the use of force, it has to protest in order to prevent the new authority to acquire sovereignty by prescription, i.e. continuous and undisputed exercise of sovereignty.

​Each state claiming sovereignty over a land feature in the two archipelagos (please note that we use the term 'land feature' because almost , if not all of them are just reefs/rocks, and not islands, in the definition of the UNCLOS) has to present evidence of lawful, peaceful discovery and occupation of each land feature (that is why the US always says, rightly, that it does not side with any party in the territorial disputes in the South China Sea, and only urges that disputes must be solved peacefully, under international law).

​The land features in the Spratleys have been discovered and occupied/administered peacefully by many Southeast Asian countries and there has been no big dispute among them, except the ones caused by an outside power's, China's, taking over by force of Gac Ma rock from Vietnam in 1988, killing Vietnamese navy men, and China's recent muscling its way into the submerged Scarborough shoal, kicking out the fishermen and the military vessels of the Philippines. But these acts of occupation by force do not validate Chinese claims under international law, not only because under UNCLOS, only coastal states can build artificial islands over submerged rocks, but also because Vietnam and the Philippines continue to protest to prevent prescription to happen. As for Vietnam, there are historical records describing the Vietnamese annual state expedition missions being sent, between the 3rd and 8th lunar months (April and September Gregorian calendar), to Paracels (carried out by The Hoang Sa flotilla which was established around the reign of Southern Lord Nguyen Phuc Lan, 1635-1648) and also to Spratleys, Con Son and Ha Tien (carried out by the Bac Hai flotilla, established around 1776). These historical records were not only Vietnamese, such as Phu Bien Tap Luc (Frontier Chronicles), 1776, by mandarin Le Qui Đon, or Thien Nam Tu Chi Lo Do Thu (Maps of travels under the Southern Sky), 1686, but some were Chinese records too (such as the 1696 Overseas Journals – Hai ngoai Ky su, Hai wai ji shih). These expeditions were continued in the 19th century under the Nguyen Dynasty with detailed instructions from the emperors to the naval units and local officials (1803 until the French taking over Vietnam as a colony in 1884). Under the French they identified at least 6 rocks or land features in Spratleys. Vietnam since 1945 has occupied the most of rocks, 29, or fewer, if counting the loss to China in 1988 and some more in years after that. China only paid attention to the Spratleys by the time Mr. Bai Meichu, a low level official, drew up in 1947 the Nine-dotted line which enclosed without legal foundation the 80 % of the South China Sea and all Paracels and Spratleys in it. But China took no action until The Republic of China took over Itu-Aba in 1956 without having to use force and until The PRC attacked the Vietnamese garrison on Gac Ma in 1988. While China has used force to take over a number of reefs in Spratleys, Vietnam stated in its January 1, 2013 domestic law of the sea, in reasonable manner, that the extent of Vietnam's sovereignty on which reefs is to be determined later in a list, presumably after consultation with other Southeast Asian countries.

The disputes on the land features of Paracels have involved only China and Vietnam. During the most recent flare up in the dispute caused by China's placement in May 2014 of the HY981 oil rig in the area between Paracels and Vietnam's coast, next to the oil blocks numbered 142 and 143 of Vietnam, China claimed that the spot is “ placed completely within the waters of China's Paracels ”, i.e within the exclusive economic zone of China measuring from Paracels which China took over in military moves, the most recent one was the naval battle of Hoang Sa in 1974 against the then Republic of Vietnam. Thus, we have to discuss the legal issue of which state has sovereignty over Paracels, as the history of which country or countries having controlled jurisdiction over this archipelago is a long one and the HY981 oil rig crisis is only the latest of the series of controversy.

The historical facts about Vietnam's discovery and occupation of Paracels, and also an unspecified number of land features in Spratleys, dated back to centuries-old Vietnamese historical records, such as Phu Bien Tap Luc (Fronties Chronicles), mentioned above, while Chinese historical records did not mention Paracels or Spratleys but stopped at Hainan as the southernmost boundary of China ; among these Chinese records is the detailed Kiangsi emperor map of 1717 compiled by the French Jesuits, a copy of which, drawn by J. B. Bourguignon, was recently donated by German Chancellor Merkel to Chinese President Xi Jin-ping. The Vietnamese historical records under the emperors and under the French colonial rule show Vietnam's repeated assertions of sovereignty over and administration of both Paracels and Spratleys (which were named Hoang Sa and Truong Sa). Western travelers' and Christian missionaries' writings also confirmed them. For limited time and space, this paper can only mention in very general terms those historical factual evidence on Vietnam's assertion and exercise of sovereignty, available in many writings of other experts, and this paper will concentrate on a few crucial legal issues.

​There are two groups of land features in the Paracels : The Western group, called the Crescent, with Pattle (Hoang Sa) in it, is indisputably belonging to Vietnam under international law, despite the present occupation of it by China, because the Chinese taking over it by force in 1974 from the then administering state of Republic of South Vietnam does not take away the rightful title of sovereignty of the succeeding state of the Socialist Republic of Vietnam, as Vietnam has resisted by force the occupation in 1974 and has continued to protest Chinese occupation ever since. Some people argue that the Eastern group of land features of Paracels, called Amphitrite, with the largest land feature of Woody (Ile Boisée, called the French) was managed, when the French were not very diligent in 1909, by the Guangdong province of China which granted to the Japanese the exploitation of phosphate there, and therefore, Vietnam's claim of sovereignty seems not very solid ; but the contrary view is that many documents mentioned that the Japanese company Mitsui Bussan Kaisha respected the authority of the French, who in 1920 sent scientific mission to Amphitrite, including Boisée, then established a meteorology station on Woody in 1938, then objected to the occupation of it by the Republic of China in 1946 and finally transferred it to the Vietnamese government of Bao Dai in 1950 when the ROC withdrew. In the 1951 San Francisco Conference for the post-war arrangement, The Soviet Union moved the Conference to grant China the administration of the archipelagoes, but the Conference did not vote for that and Bao Dai's prime minister Tran Van Huu made a declaration asserting Vietnam's claim on Paracels and Spratleys and no country objected. After Ngo Dinh Diem became head of Vietnam government in 1954, his foreign minister also asserted Vietnam's claim, including in a communique on the occasion of The People's Republic of China's taking over Woody by force in 1956 – which would not subject to prescription the sovereignty claim of Vietnam over it.

One intervening event needs to be tackled : the 1958 diplomatic letter or note from Prime minister Pham Van Dong of the Democratic Republic of Vietnaam to Zhou En-lai on China's claim of 12-mile territorial sea. As China, in 2014, refers again—after many times in the past – in various ways to this Pham Van Dong's diplomatic letter as Vietnam's alleged concession of territory over Paracels and Spratleys, in connection with the controversial placement of the oil rig HY981 in the EEZ of Vietnam, we need to go into detailed legal arguments about this. The contents of Mr. Zhou En-lai's and Mr. Pham Van Dong's communications were as follows. Mr. Zhou En-lai declared China's sovereignty over territorial seas emanating from the whole territory of China, including the mainland and islands in the ocean, such as Taiwan and neighboring islands, Dong Sha, Xi Sha, Zhong Sha, Nan Sha and other islands. Mr Pham Van Dong wrote to Mr. Zhou, stating : “ We solemnly inform Your Excellency the Prime Minister that The Government of The Democratic Republic of Vietnam notes and seconds the September 4,1958 declaration of the Government of the People's Republic of China  deciding on the territorial sea of China. The Government of the Democratic Republic of Vietnam respects that decision and will instruct our state agencies to respect China's 12-mile territorial sea ”.

The Note did not mention sovereignty over Hoang Sa and Truong Sa. First and foremost, the 1954 Geneva Agreement splitting Vietnam into two parts handed the right of administration of the Hoang Sa and Truong Sa archipelagoes south of the 17th Parallel (the partition line), over to the then Government of South Việt Nam (the Republic of Viet Nam) south of that parallel. That is why, any actions asserting and exercising sovereignty over the Hoang Sa and Truong Sa archipelagoes fell under the authority of the Republic of Viet Nam. That government, as well as its navy, powerfully affirmed Viet Nam’s sovereignty over the islands during and after the 1974 Hoang Sa naval fight between the navy of South Vietnam—then occupying and administering the archipelagoes – and that of China that came to attack. The late Prime Minister Pham Van Dong of North Viet Nam (the Democratic Republic of Viet Nam, DRV) had no authority, or intention, of making a declaration about the sovereignty of the Hoang Sa and Truong Sa archipelagoes, which belonged to the Republic of Viet Nam at the time. He only made a declaration that recognized China’s 12-nautical mile territorial sea claimed by China in Chinese Prime Minister Chou En-lai's declaration.

Even though the aspiration in the motto “ the Vietnamese nation is one, Viet Nam is one ” was an idealist statement, expressed by many Vietnamese including Ho Chi Minh, the existence of a state is a question of fact, under international law. Therefore, the actual existence of the two states of Viet Nams from 1954 to1975, as the Democratic Republic of Viet Nam and the Republic of Viet Nam, was in conformity to international law, with the Republic of Vietnam exercising sovereignty over the archipelagoes during that time.

The Socialist Republic of Viet Nam was the successor state that succeeded to the role as sovereign protector over that land. This succession in the exercise of sovereignty was also dealt with by Prime Minister Nguyen Tan Dung in a speech to the National Assembly on November 25, 2011. He affirmed that in 1974, China used force to occupy the whole Hoang Sa archipelago under the “ actual administration of the then Saigon government, i.e. the government of the Republic of Viet Nam. The government of the Republic of Viet Nam raised its voice to protest against this attack and proposed the United Nations to interfere ”.

According to the 1933 Montevideo Convention summarizing centuries of customary / traditional international law on the issue of the existence of a state, the Republic of Viet Nam was an entity that had all the four conditions of a state : (a) a stable population, (b) a clear-cut territory, (c) a government, and (d) the capacity to enter into relations with other states. When other countries recognize a state possessing these 4 qualifications and establish relations with it, that recognition is a political decision, which is added to the four legal standards. This means that even if a state does not like another state and does not recognize it, it cannot eliminate the status of that state. Take Cuba for example. While it is hated and not recognized by the United States, the US cannot eliminate its statehood. In the 1920's, even the US government did not recognize the Soviet Union, the US courts affirmed the Soviet state ruled by the Bolsheviks was immune from suits to claim compensation for confiscation of deposits in banks in that country. The state of the Republic of Viet Nam in the 1954-1975 period was recognized by several dozen countries. Even The Soviet Union once proposed that the two Vietnams be admitted to the United Nations. Whether a state is admitted into the UN or not, this is only a political matter and admission or non-admission into the UN is not one of the standards set for the birth of a state.

The Geneva Agreement could not be used to argue that, because this Agreement recommended that reunification of the two temporarily-divided parts of Viet Nam be achieved through a general election, the Republic of Viet Nam did not exist under the sun. Proponents of this idea did not understand the centuries-old international law on the birth of a state. They also mixed up the legal standards for the existence of a state under this customary/traditional international law with a political arrangement by world powers in the Agreement joined by only a few countries. In so doing, they had intentionally forgotten the political reality that several dozen countries had recognized the birth of the Republic of Viet Nam. They had also forgotten international law in the sense that the small number of countries that signed the Geneva Agreement could not deny the rights of the several dozen countries that recognized the Republic of Viet Nam.

Prime Minister Nguyen Tan Dung has said, and in the past, presumably the late Prime Minister Pham Van Dong might also have implied (ambiguity in this case is an art of diplomacy and politics) that there were two states of Viet Nam during the 1954-1975 period and he dealt only with the 12-mile territorial sea claimed by China and would not touch the issue of sovereignty over the territories mentioned by Chou En-lai ; how could he grant China sovereignty over territories, islands or rocks, ruled by Taiwan and South East Asian countries, including the Republic of Vietnam ? Such implied statement about the two countries of Vietnam at that time does not reduce the value of achieving national reunification in 1975-1976, because in world history, many states have been divided into several parts and some were then reunified again. For example, Pakistan was divided in two states, the other being Bengladesh. Sudan was once one state, but now there are two states. These states still have their own positions and are recognized among the community of states.

The 1958 diplomatic note, as a unilateral declaration, has no effect under international law. A unilateral declaration such as the official letter by the late Prime Minister Pham Van Dong has no international legal effect. In international law, it is impossible to try to apply the “ Estoppel ” theory to this case of Vietnam. This theory of estoppel is from the domestic law of a number of states and stipulates that “ once something is said, it cannot be withdrawn ”. This theory is not applicable in international law in the same way as it is applied in domestic law, because there are very strict conditions. Therefore it is impossible to consider a unilateral statement as inevitably binding under international law. This was stated by an international court in judging a case involving the continental shelf between Germany and Denmark/Holland. According to another legal case, when considering the significance of a unilateral declaration, the international court must strictly interpret the “ intention ” of the declarer. According to the decision of the International Court of Justice in “ Nuclear Tests Case, Australia & New Zealand versus France, 1974 I.C.J. 253 ”, “ When states make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.... The sole relevant question is whether the language employed in any given declaration does reveal a clear intention... The Court must form its own view of the meaning and scope intended by the author of a unilateral declaration... and cannot be bound by the view expressed by another state which is in no way a party to the text ”. According to the standards of the ruling in that legal case, the intention of the late Prime Minister Pham Van Dong in the 1958 diplomatic note should be considered within the framework of the his role under the 1946 Constitution. As provided by that Constitution, the Government consisted of the President, Vice-President and the cabinet (Article 44). In the cabinet, there was the Prime Minister (Article 44). In order to make such important decisions such as sovereignty over land, including the concession of land, the President, on behalf of the country (Article 49, clause a), would have to sign a treaty with another country (Article 49, clause h), binding Viet Nam. The President's signed treaty to make that land concession had to be ratified by the National Assembly, the supreme organ of power (Articles 22 and 23). The Prime Minister cannot go beyond his role, according to the principle of the theory called “ ultra vires ” (going beyond authority). The official letter of the late Prime Minister only intended to give diplomatic support to China on the 12-nautical mile territorial sea which China was anxious to declare to oppose the then (1958) threat from the US from Kinmen and Matsu islands occupied by the Taiwanese army with the US strong support and the greater US threat from the Taiwan Strait with its 7th Fleet.

Moreover, the intention of the late Prime Minister Pham Van Dong cannot be inferred as related to the land concession, because China demanded all Hoang Sa and Truong Sa archipelagoes, and other territories, in which a lot of reefs/islands belong to a number of the Southeast Asian countries, which the late Prime Minister  could not represent to talk about land concession. China cannot use the words of the late Prime Minister to oppose the other Southeast Asian countries. According to the said “ Nuclear Tests ” case, the international court finds it unnecessary to hear China’s subjective and self-interested explanation.


Some further Chinese arguments to be rebutted


Besides Prime Minister Pham Van Dong’s Diplomatic Note, China has tried to claim Vietnam’s alleged concession of sovereignty over the archipelagos to China by pointing out two articles in Nhan Dan daily, one on August 6, 1958 publishing Zhou En-lai’s declaration complete with the paragraph mentioning Xi Sha and Nan Sha, and one on May 9,1965 protesting the US for violating China’s territorial seas  at Xi Sha and Nan Sha. China also referred to Deputy Foreign Minister Ung Van Khiem’s words. Then China added that the Democratic Republic of Vietnam kept silence for many years without protesting the loss to China in 1956 of the Amphitrite area of Paracels with Woody island and in 1974 of the Crescent area with  Pattle/Hoang Sa island. Finally, Vietnam printed maps with names of Xi Sha, Nan Sha (China) and had a line in a 9th grade school textbook stating that “ The chain of islands from the Nansha and Xisha islands to Hainan Island, Taiwan island, the Penghu islands and the Zhoushan Islands are shaped like a bow and constitute a Great Wall defending the China mainland ”.

Vietnam can rebut by pointing out that even the unilateral declaration of Prime Minister Pham Van Dong did not validly constitute a concession of territory. Much less so the few articles by reporters, or a statement in passing of Mr. Khiem, which only repeated verbatim China’s alleged claim in words which served only to flatter China during the period of Vietnam’s dependence on Chinese aid, words which did not constitute a concession of land, which concession would, by law, have to come from the state authority legally empowered to make land concession...

As for the silence of the Democratic Republic of Vietnam on losses of Paracels before 1975, it was due to the fact that during that period, the protest duty fell on the government of the Republic of Vietnam which had sovereignty and administration on the archipelagos, and the Republic of Vietnam did protest strongly, in words and in a valiant naval battle in 1974. At unification in 1975, or near unification of the country, the navy of the Democratic Republic of Vietnam hurried to take over Spratleys, and then since 1976, the government of unified Vietnam continuously raised voice to protest China to preserve Vietnam’s sovereignty on the lost territories in Paracels and also in Spratleys.

As for the maps, Vietnam printed them to flatter China, an ally that gave aid. But that did not have legal effect on the issue of land concession, and did not mean, in the same way as the current printing by China of the 9-dotted line in Chinese passports does not confer China sovereignty over 80 % of South China Sea. In both cases, maps do not constitute property concession of, or acquisition of sovereignty on, land, which would require an act of the proper state authority, the chief of state, in a treaty. Moreover, China sent experts to work in Vietnam's Office of the Maps.

The sentence in the 9th grade textbook is merely a propaganda motto, a figure of speech, to prop up China at a period of China's worry about a previous declaration by US President Johnson designating the area as a war zone – and does not constitute a concession of Xiaha and Nansha to China, Xisha being just taken over by force from RVN and Nansha being not at all under China's control. This sentence cannot be now used as a concession of land to China.

During the existence of the two Vietnams from 1954 to 1975, the role of asserting sovereignty over Paracels and Spratleys fell on the Republic of Vietnam – RVN – which was entrusted with the administration of Paracels and Spratleys, situated south of the partition line of 17th parallel, by the 1954 Geneva, which was signed by a number of big powers, including by China, and by the Democratic Republic of Vietnam represented by Prime Minister Pham Van Dong himself. RVN President Ngo Dinh Diem signed two decree-laws providing that Spratleys was part of Baria Province and Paracels part of Quang Nam Province, sent troops to archipelagos and allowed an industrialist to exploit phosphate there.

But the most resounding assertion of Vietnam's sovereignty over the Paracels was the valiant sea battle the RVN navy fought on January 19, 1974 with China's navy which was sent to occupy Hoang Sa — a long time occupied and administered by Vietnam – after China's announcing sovereignty over Hoang Sa and Truong Sa on January 12 and the RVN protested on January 16 with a request for the United Nations Security Council to take action, which request was repeated on January 20, for UN Security Council to hold an emergency meeting. At the June 28,1974 UN Conference on the Law of the Sea in Caracas, the RVN repeated its claim of sovereignty over the archipelagos and  its protest against illegal occupation by China. On September 24, 1975, at talks with a Vietnamese delegation on visit to China, Vice-Premier Deng Xiao-ping admitted there was dispute between China and Vietnam on the archipelagos and suggested discussion to settle the problem.

Ever since the unification of the two Vietnams into one, the successor state of Socialist Republic of Vietnam has many times protested any time there was an encroachment by China, by presenting historical evidence on the sovereignty of Vietnam over Paracels and many territories in Spratleys, in declarations or white papers, in the years of 1978,1979,1980,1981,1982,1984,1988 (protesting China's declared incorporation of the archipelagos into Hainan), 1990,1991,1994 (protesting – not China's territorial claim – rather China's signing agreement with Crestone permitting the latter to survey in Vietnam's continental shelf and exclusive economic zone), 2012 (protesting China's overall plan for management of islands). There was also action in defense of Vietnam's sovereignty in 1988 when in supplying the Vietnamese navymen standing in defense Vietnam-occupied Gac Ma in the Spratleys, Vietnam suffered 88 casualties. All these words and acts claiming and defending sovereignty make it impossible for China to erode Vietnam's sovereignty by prescription.


B. The maritime zones of the South China Sea (Bien Dong in Vietnamese, West Philippine Sea in Filippino) surrounding the land features of Paracels and Spratleys, have been in the hottest international controversy these days because China draws the nine-dotted U-shaped line surrounding almost 80 percent of the South China Sea and encircling the two archipelagos with the vague assertion that China — already making a sweeping and unfounded, unsubstantiated claim of territorial sovereignty over all these land features and excluding other nations — now also claims all the “ adjacent waters ” surrounding these land features, to the extent of the U-shaped, nine-dotted line encompassing most ot the South China Sea,

​But such sweeping and unfounded claims are clearly in violation of the other Southeast Asian coastal states' claims on their own territorial seas, their exclusive economic zones and their continental shelves. In these maritime zones, the coastal states are protected in the exercise of their sovereignty and exclusive sovereign rights under the 1982 UN Convention on the Law of the Sea (UNCLOS), articles 56, 57, 76 and 77. The sovereign rights to exploit the living resources such as fish in the column of sea water, and the non-living resources such as oil and minerals in the sea-bed, are the exclusive rights of the coastal states in their Exclusive Economic Zone of 200 nautical miles measuring from the base line, i.e. the water mark at lowest tide, and in their Continental Shelf, or seabed and ground under seabed, measuring also from the base line to the continental margin or to 200 miles. These sovereign rights over natural resources are exclusive to the coastal states, which they can enjoy without being required to proclaim a claim to them, and they may construct artificial structures on rocks, whether submerged or not, into artificial islands, and carry out sea research, regulate protection of environment, provided that they respect the rights of other states to freedom of navigation or to laying of oil pipelines or cables. Other states than the coastal states cannot exploit natural resources in the EEZ and Continental Shelf of the coastal states without their explicit consent. UNCLOS has reserved these exclusive rights to coastal states as firmly as 'nail hit into a wooden pole' (as we say in the Vietnamese proverb : “ chắc như đinh đóng cột ”)

THE ISSUE OF FREEDOM OF NAVIGATION AND THE U-SHAPED LINE IN THE SAID MARITIME ZONES. Even states other than the coastal states of Southeast Asia bordering on the South China Sea have  the right to freedom of navigation in the exclusive economic zones of these Asian states and the more so on the high sea area of the South China Sea. Therefore, the U-shaped line, which claims vast ocean areas for China, is unsupported by UNCLOS and even traditional international law, or the 1958 Conference on the Law of the Sea, which recognized only a 3-mile territorial sea for coastal states. China has only raised the U-shaped line since 2009, when oil prospect has brightened in South China Sea, in a submission for extended continental shelf, sent to the UN Commission on the Limit of the Continental Shelf, which submission by China was protested by Vietnam, Indonesia and the Philippines. China calls this U-shaped line a “ historical circumference ” but really cannot justify it by the mere China's historical evidence of the 15th century travels by Admiral Zheng He, when contrasted with thousands of years of fishery and trading activities across the ocean by peoples from Malaysia, Indonesia, Philippines, Vietnam and the Khmer-Funan empire. Indonesians went and settled in Madagascar where there is Malay language and 50 % Malay gene in the population. In international conferences, scholars and officials from China have never articulated a legal foundation for claiming sovereignty over the vast ocean enclosed in the U-shaped Line, even when being repeatedly questioned by representatives from other countries, who even joked that China's claim is similar to the 1493 claim of the Pope to own the oceans and divide them between Spain and Portugal (in the words of Malaysia's Mr. Hamzah) and that the US should claim the whole of the Gulf of Mexico too.


II. Even with solid grounds for our claims,
based on facts and international law,
the Vietnamese should aim for peaceful settlement
of actual or potential disputes with other nations
through negotiation, conciliation, or arbitration,
concerning national claims or international joint development.


We all know about the most recent flare up in the dispute caused by China's placement in May 2014 of the HY981 oil rig in the area between Paracels and Vietnam's coast, next to the oil blocks numbered 142 and 143 of Vietnam. China claims that the spot is “ placed completely within the waters of China's Paracels ” – which raises the issue of which country has a right title of territorial sovereignty to Paracels and what maritime zone Paracels have – while Vietnam says the site of the oil rig is clearly less than 200 miles from Vietnam coast, i.e. within Vietnam's exclusive economic zone and continental shelf. This is a very interesting case that raises many issues and is amenable to all the methods of pacific settlement of dispute, which we will discuss below, most of which are compulsory.

WE HAVE TO IDENTIFY THE ISSUES IN CONTROVERSY BEFORE WE CAN ADDUCE FROM THEM THE FORUMS FOR SETTLING THE DISPUTES.

A. THE SUBSTANTIVE ISSUES RAISED BY THE OIL RIG PLACEMENT ENCOMPASS BOTH THE TRADITIONAL OR CUSTOMARY INTERNATIONAL LAW ON TERRITORIAL SOVEREÌGNTY AND THE NEW 1982 UN CONVENTION ON THE LAW OF THE SEA ON THE MARITIME ZONES THAT COASTAL AND OTHER COUNTRIES ARE ENTITLED TO.

​China's Foreign Ministry astutely avoided mentioning the infamous U-shaped Line as basis for placing the oil rig, but stated that the rig is “ placed completely within the water of China's Paracels ”, implying that it is within the Exclusive Economic Zone and Continental Shelf of Paracels, under China's administration (which was continuously protested by Vietnam). That EEZ and that continental shelf would be recognized by UNCLOS for any one of the land features in Paracels, such as Tri Ton, about 17 miles from the rig's location, or the bigger territory of Woody (Yongxing), if any one of them has enough qualifications for being an island ; and an island is described in UNCLOS as a land feature capable, in its natural state, to sustain independent human life, with an self-sufficient economy (soft water, foodstuffs planted or raised locally) ; if the land feature does not have those qualifications, it is simply a rock or reef with only 12-mile territorial sea.

China's claim of EEZ and Continental Shelf for the placement of the oil rig can also be based on the baseline of Hainan island coast, which is 180 miles from the placement site, and thus within the 200-mile extent of EEZ and Continental Shelf that UNCLOS grants to coastal state, and therefore, even the rig site is only 120 miles from Ly Son island of Vietnam, and within the EEZ and continental shelf of Vietnam, the final resulting issue is the overlapping of the two countries' EEZs and continental shelves. The resulting obligation of the two countries to negotiate for an equitable solution to the overlapping, probably using a median line, may have to precede any lawsuit. That is why the case of Vietnam and China here is more difficult than the Philippine suit against China in the arbitral tribunal of UNCLOS, in which the Philippines clearly has the law on its side : under UNCLOS, China cannot build on the submerged rock Scarborough and hope to legally create sovereignty and territorial seas around it, because only the coastal state that has the continental shelf on it sits the submerged rock can build on it, and that rock is thousand miles away from Hainan, and clearly there is no overlapping of continental shelf or EEZ in this area, and by definition, the continental shelf and EEZ in this area belong to the Philippines.

​Vietnam can conceivably try for total victory in the International Court of Justice by suing for taking back territorial sovereignty over Paracels that Vietnam exercised for centuries and that China used force to take away from Vietnam. And if that Court returns Paracels to Vietnam, then the oil rig is in the EEZ and continental shelf of Vietnam. We think that if the ICJ accept to take the case,Vietnam has high hope to win back sovereignty over Paracels, at least the Amphitrite area, given the historical evidence presented above. However there is the difficult issue in front of this ICJ forum : the optional clause, with which one party can refuse to go to court

​Or Vietnam may have to be content with a lesser victory by suing at the arbitral tribunal of UNCLOS, under compulsory procedure that can drag an unwilling state to the tribunal, for an interpretation or application of UNCLOS (specified in articles 286 and 288), for the definition of reefs and islands as it is applied to Paracels, with the hope that the tribunal would rule that Paracels are all rocks/reefs at the original state of nature (presenting historical evidence dating back many centuries ago when the imperial rulers sent annual missions to the archipelagos which did not have self-sustaining economy or enough rain water and foodstuff for human habitation), and therefore, even during this present loss by Vietnam to China of sovereignty over Paracels, the tiny land features in Paracels cannot generate a continenal shelf or an EEZ ; and therefore the oil rig location is within the continental shelf and the EEZ of Vietnam generated by Vietnam's coast.

The relevant articles in UNCLOS are the following. Art 121 Par 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. The first categories of land features is defined in par 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. The second categories of land features, or islands, are discussed elliptically in par 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory [islands must sustain human habitation and economic life of their own]. Article 60 talks about submerged rock on which people build artificial island, installation and structure which do not have status of islands (par 8) and may not be constructed where they may interfere with international sea lanes, and their presence does not affect the delimitation of territorial sea, the exclusive economic zone, or the continental shelf. Paragraph 1 of article 60 says only coastal states shall have the exclusive right to construct these artificial islands, installations and structures.

​If most or all land features in Paracels or Sptratleys are mere reefs or rocks, and not islands, the conflicts in maritime boundary are greatly minimized, because there would be only territorial seas surrounding them. In the Spratleys Archipelago, there are no islands that, in the natural condition before artificial construction, could accommodate human habitation or self-sustained economic life and therefore they are reefs or rocks in their natural condition and cannot generate any maritime zones more than the 12-mile territorial sea. An arbitral tribunal of the Law of The Seas will easily decide upon submission of a petition for interpretation that no reefs or rocks in Spratleys deserve to be islands as defined by UNCLOS and therefor no one has any maritime zone more than 12-mile territorial sea. Then, we can ask the same tribunal to render a declaratory or interpretative decision on the land features in Paracels . IF the court then finds that, after subtracting the artificial construction on those land features, no one land feature in Paracels, as in Spratleys, in its natural state, can sustain either human habitation (no existence of drinking water except imported by ship, and no food planted locally) or independent economic life and therefore no one can be called island in the original state of nature, THEN the inevitable conclusion is that there is no 200-mile exclusive economic zones or 200-mile continental shelf areas surrounding the Paracels. And if so, the potential for conflict between China and Vietnam is enormously reduced. China cannot encroach on the EEZ of Vietnam and prevent Vietnam from exploration of its mineral and oil resources or fishery resources.

​Within the compulsory jurisdiction of UNCLOS arbitral tribunal, Vietnam can raise other issues, or counts in the arbitral tribunal, besides (a) the issues of interpreting islands or rocks/reefs and  the extent of their territorial waters or EEZ :

(b) – China has been using a large number of vessels, at times up to more than 130, including military vessels, and military airplanes, to patrol around a large area of the ocean, to ram on and fire water canons on Vietnamese civilian law enforcement ship and fishermen's vessels ; these acts obstruct freedom of navigation and threaten peace and safety on the ocean

(c) – China has sunk Vietnamese fishing boats, for example on May 26, 2014, and prevented Vietnamese fishermen to earn their livelihood in their traditional area of fishing. Besides the protection of the fishermen in UNCLOS, such as accelerated procedure to solve the cases of arrest of fishermen, there is also Vietnam-China Convention of Fisheries which obligates parties to settle peacefully any dispute. Therefore, we should insist on full implementation of the Vietnam-China Convention on Fishery by having joint consultations anytime there is an incident, on humanitarian treatment for all poor, proletarian fishermen. But a massive violation of the rights to livelihood of the Vietnamese fishermen can become an issue of massive violation of human rights which Vietnam can bring to the United Nations or sue in the arbitral tribunal. In order to sue for suffering violent assaults on the human rights of fishermen, they should have camera or video tapes to record evidence.

(d) – China refused to respond to 30 Vietnamese endeavors to contact and negotiate at various levels, showing no understanding and cooperation, especially in adopting provisional measures, required by UNCLOS articles 74 and 83.


B. THE METHODS FOR SETTLING THESE ISSUES.

There is an overall principle of pacific settlement of disputes : countries are obligated to settle disputes peacefully under the UN Charter, articles 2 and 33, and can only use force in self-defense, as solely the UN Security Council is entrusted by the Charter to use force for peace-keeping. There are non-adjudicatory procedures such as negotiation, mediation and conciliation, then adjudication by the International Court of Justice and other international tribunals and finally, the political mechanism of international organizations such as UN General Assembly and Security Council and regional organizations (say ASEAN).

After many weeks of Chinese belligerence in May and early June 2014, China seems to mellow up after seeing the disastrous negative impact of its behavior on the international public opinion scene : it has tried to recover its reputation by sending a report to the office of the UN Secretary General, suggesting that probably because the two sides have not negotiated on the boundaries of EEZ and Continental Shelf, there should be a chance for both sides to submit their claims under UNCLOS.

1. Thus, megotiation and conciliation are the first measures to settle dispute. In fact, negotiation and conciliation on maritime boundary disputes, such as overlapping of EEZ and Continental shelf, are the required stages under UNCLOS article 298 (a). UNCLOS articles 74 and 83 provide for negotiation and then arbitration for problems of overlapping EEZs and continental shelves between states with opposite or adjacent coasts, such as Vietnam and China in the Tonkin gulf or near Paracels; these rules provide for equitable solutions. Vietnam's 30 efforts for contact and negotiation, even when China was not responsive in such examples as the refusal to pick the phone when Vietnam's Party General Secretary Nguyen Phu Trong called the red line to Beijing, show the correct policy of Vietnam to conform to UNCLOS. In world public opinion,Vietnam shows a much calmer approach of a small country than big bully China. “ In diplomacy, we shall never show too much zeal ”, Talleyrand, Foreign Minister of Napoleon, said. Also, our Vietnamese forefathers always pursued friendly relations with China even after military victories against Chinese invasions ; emperor Quang Trung even asked for the hand of a Ch'ing Dynasty princess as a peace gesture. Vietnam is right in insisting on friendly negotiation between Vietnam and other nations, especially China, as equal sovereign nations dedicated to the principles of peaceful settlement of disputes of the UN Charter and UNCLOS and regional instruments such as ASEAN Declaration of Conduct or Code of Conduct. Only with China being fair toward smaller countries in Southeast Asia would these countries not be tempted, as some already are, to rush toward the other big powers such as US, Japan, Russia, India and Australia, in self-preservation – to the detriment of China's national interest.

Besides bilateral diplomacy, small Southeast Asian countries must use multilateral diplomacy, together with the big powers where their role is indicated, in the discussion with China, of the broader issues of freedom of navigation and exploration of natural resources in the high sea area of the South China Sea. This united front strategy is essential to deter China from disrespect of the rule of law, for China would feel isolated in world politics if riding roughshod over the world community's interests. This multilateral approach is particularly essential or helpful for Vietnam, the militarily strongest and most war-seasoned nation of Southeast Asia but also the first target of China's aggressiveness. Prime Minister Nguyen Tan Dung has acutely felt this need in his declaration that Vietnam prefers to work with ASEAN first on the Code of Conduct before facing China and also in his appeal in the multilateral forum of Shangri-La for strategic trust.

​What about negotiation for joint development ? Chinese leader Deng Xiao-ping proposed the Chinese solution to disputes on the archipelagos and the maritime zones in the South China Sea in the three mottos : zhu quan zai wo, ge zhi zheng yi, gong tong kaifa (sovereignty is mine/ours, cast aside dispute, joint development). The second motto is actually the desire of all countries involved in South China Sea, as we see in the slow but persistent efforts of developing, from the current merely suggestive Declaration of Conduct, into a legally binding Code of Conduct, for decreasing disputes. The third motto is just another name for the already common way to exploit natural resources in the modern world, with joint ventures between one country and business firms from other countries – for example oil exploration joint ventures of US with Vietnam in the maritime areas of Vietnam, in which production sharing agreement is a component ; there are no worry about these joint ventures. So, we wonder why some people fear it. Mr. Deng's first motto on sovereignty, may raise fear among small countries in Southeast Asia, because it looks like China is a crouching tiger ready to spring forward to swallow the weak with its claim of sovereignty ('sovereigny is mine') over all the South China Sea. We propose a solution to get rid of this fear of Zhu quan zai wo : the best way to counter China's aggressive or imperialist threat is to ask or to force China, by negotiation or, eventually, suit at international tribunals, to define – under the binding force of traditional international law or UNCLOS – the limits of its sovereignty claims, whether over land area of islands and rocks, or over maritime areas in the economic zones or continental shelf of other countries and on the high seas also, especially the meaning or lack of meaningful definition of the U-shaped line. In that way which is similar to the persistent cross-examination in a court of law, we can limit the fear or the actual possibility of war. By forcing China to speak out a careful legal analysis of its claims, the small ASEAN countries, including Vietnam – together with the big powers – can deter China from belligerence, as China would wake up to the necessity of a big power to behave, not as a lawless thug, but as a responsible and even benign great power, in order to maintain its respectability and good image, essential elements of national power and pride and status. In other words, we are telling the Chinese that you cannot say “ what is mine is mine, what is yours is negotiable or going toward me ”. Even the man of peace Dalai Lama said that a firm position but no angriness or fear is the way to deal with the Chinese.

2. Litigation at the International Court of Justice and Arbitration at the Arbitral Tribunal of the Law of the Sea 

a) Will Vietnam be able to overcome the refusal of China – relying on the optional clause – to go to the International Court of Justice for Vietnam's suit on territorial sovereignty which China deprived Vietnam by the 1974 attack ? There are probably two ways for Vietnam to overcome the optional clause :

– First, as in the Case Concerning United States Diplomatic and Consular Staff in Teheran II (US.v. Iran) (ICJ 1980), in which one state fails to appear to protest the jurisdiction, the Court still may render a judgment, with the rule that : If the ICJ finds that the absent party has some kind of advanced consent to jurisdiction in a previous document giving consent, for example the Amity Treaty, and the party before it has presented a convincing claim, it may render judgment even in the absence of the other party involved. Thus, conceivably, Vietnam may present the case on Paracels with detailed historic evidence and solid legal arguments to ask for a favorable ruling, if some consent by China to jurisdiction of the Court can be found in the 2000 Treaty on delimitation of sea boundary in the Tonkin Gulf. Or, as China has used the stratagem of publishing booklength of evidence in its favor without going to the UNCLOS Arbitral Tribunal against the PHILIPPINES, for international propaganda purposes, Vietnam should prepare a thick file of evidence on territorial sovereignty on Paracels and file at the ICJ, and invite China to go to ICJ to answer both Japan case and Vietnam case – as professor Cohen suggested in his paper – and then if rejected jurisdiction because of China 's refusal to appear, Vietnam would still gain a propaganda battle against big bully China.

– Second, Vietnam can ask the UN or a specialized agency to request an advisory opinion regarding territorial dispute from the ICJ, because in Advisory Opinion on the Western Sahara (ICJ 1975), upon the UN General Assembly's request for an advisory opinion on a claim of territory, the Court issued a rule to the effect that the ICJ does not need to obtain consent from the affected state to give an advisory opinion regarding a territorial dispute.

Probably Vietnam should make efforts to sue in ICJ along those lines, and if rejected jurisdiction, it would still be a propaganda victory for Vietnam, being a small country promoting the rule of law but bullied by a big power.

b) The beauty of the UNCLOS tribunals is the compulsory procedure in front of those tribunals (articles 286 and 288) for interpreting and application of the provisions of UNCLOS. Even when compulsory procedure for disputes concerning overlapping EEZ has been excluded by reservation when a state, say China, signed the Convention, another state can, according to article 298 paragraph 4, may submit its dispute with the state making reservation to compulsory procedure.

Under article 297 par. 1a, the obstruction by a coastal state of the freedom of navigation on the sea or the air, or freedom and right to lay cables, in the manner China has done around the site of the oil rig, also gives rise to compulsory procedure in the UNCLOS tribunals.

China also violates UNCLOS articles 74 and 83 (paragraph 3) requiring state members o follow steps in the negotiation in the spirit of understanding and cooperation and to adopt provisional measures to mitigate the harm to the final agreement.

3. Political intervention by the international organizations.

ASEAN with its Declaration of Conduct is always helpful and effort should be made to make it into a Code of Conduct.

​Intervention by the UN Secretary General and General Assembly have the cooling off or softening off impact on belligerent China, especially after strong criticisms of big powers, such as has been done by Japan Prime Minister Abe and US Secretary of Defense Hagel. The Vietnamese ambassador's appeal in May 2014 to the UN Secretary General Ban Ki-moon, with press releases and diplomatic letters, complaining about the oil rig violating international norms, and asserting Vietnamese determination to use self-defense if necessary, has made China suggest talking out between Vietnam and China, especially on the issue of equitable boundary delimitation on the sea, that China said both sides have not done yet, and has also encouraged China to declare on June 13, 2014 that it does not and will not bring military vessels to defend the oil rig.

The net results were both the UN Security Council President and The Office of the UN Secretary General  have high hope for a peaceful solution. More effort should be pursued along these lines.


CONCLUSION

The long run prospect is all big powers such as the US, Japan, Australia, India, would not stand by when facing China's not so “ peaceful ” rising in the Western Pacific because of their national interest in freedom of navigation and trade through the South China Sea. Already in July 2010, US Secretary of State Hillary Clinton declared that the US considers Vietnam not only an important country but an integral part of the strategy of increased American commitment in the Asian-Pacific area, especially in South China Sea. Japan Emperor hosted President of Vietnam in the latter's visit in 2014 to talk with Prime Minister Abe on military assistance to Vietnam.

​The Philippine President Aquino and US Secretary Kerry also explicitly encouraged Vietnam to bring the issue to the international tribunals. Indeed, Vietnam should sue early rather than late, when the issues are still hot and in controversy and Vietnam has the counts of grievances against China to present to the tribunal : invading Vietnam's EEZ and Continental shelf, obstructing freedom of navigation on the ocean, using force to destroy Vietnamese vessels and wound Vietnamese, depriving livelihood of Vietnamese fishermen, violating their basic human rights, and refusing to comply with the obligation imposed in UNCLOS to negotiate seriously. If Vietnam waits until China moves away the rig and the military and other vessels, the suit against the ghost of the rig would be without valid purpose and become moot and Vietnam will miss a chance to assert strongly its national interest in the maritime zone of the country in a law suit that hopefully would bring China back to the international rule of law.

Ta Van Tai


Received from the author, June 24, 2014

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