On March 23, 2011, Xinhua, the
official news agency of China, published an article titled “The Nanhai sea
dispute from the perspective of the international law of the sea” by scholars He
Jian and Wang Ao from the Xiang Tan University, which not only asserted the
so-called “sovereignty” of China in the East Sea but also accused Viet Nam and
other Southeast Asian nations of having “bent” the 1982 UN Convention on the Law
of the Sea and fought against “China’s sovereignty” in the East Sea.

Vietnam
News Agency is publishing an article titled “The East Sea issue under the light
of international law” written by Hai Bien, a Vietnamese East Sea researcher,
aiming to elaborate on the East Sea issue with respect to international law,
particularly the 1982 UN Convention on the Law of the Sea.

1.
Overview of the East Sea

This photo shows a part of the Truong Sa (Spratly) District in Truong Sa archipelago. The material and spiritual life of people and soldiers in the district have been increasingly improved in recent years. (Photo: VNS)

The East Sea is a semi-enclosed sea in the Pacific Ocean,
covering an area of over 3.5 million sq. km. It is bordered by nine coastal
countries, namely Viet Nam, China, the Philippines, Malaysia, Brunei, Indonesia,
Thailand, Cambodia and Singapore. The East Sea is abundant in natural resources,
especially oil, gas and marine resources. Recently, data suggest that the sea
has huge reserves of natural hydrate.

The sea
is the second busiest maritime route in the world after the Mediterranean route,
with 150 - 200 large-tonnage ships passing through its waters everyday. Imports
and exports essential for such major economies as China, Japan, the Republic of
Korea, Chinese Taiwan and Hong Kong, depend largely on this shipping route.
Militarily, the East Sea is where naval fleets from many countries both inside
and outside the region operate.

All
these factors have led to an inevitable and obvious situation that in the East
Sea the interests of many countries are closely intertwined at different levels.
Peace and stability in the East Sea directly affect peace and stability in the
region and the world.

2.
Maritime zones of the countries bordering the East Sea under the international
law of the sea

The
third United Nations Conference on the Law of the Sea (1967-1982) adopted the
1982 UN Convention on the Law of the Sea containing 320 articles and nine
annexes. As an outcome of prolonged negotiations among different groupings of
countries, the Convention constituted a fair and culminant package deal in the
process of codification and progressive development of the international law of
the sea. It has definitely established the legal regimes for different maritime
zones under sovereignty and sovereign rights of coastal states, providing for
the rights and obligations of the states in sea-related activities and setting
up a series of important international mechanisms for the implementation of the
Convention and settlement of sea disputes such as the International Tribunal for
the Law of the Sea, the Conference of States Parties to the Convention, the
International Seabed Authority and the Commission on the Limit of the
Continental Shelf. To date, 161 countries and international organisations are
parties to the Convention, among them seven countries bordering the East Sea -
Viet Nam, China, Indonesia, Malaysia, the Philippines, Singapore and Brunei.

By
applying the 1982 UN Convention on the Law of the Sea to the conditions of the
East Sea, we can see several basic points below:

First, the countries bordering the East Sea have
the sovereignty over their internal waters and territorial seas of 12 nautical
miles which are measured from their baselines. It is notable that under the
international law of the sea of the 1940s-50s, the territorial seas of the
countries bordering the East Sea were just 3 nautical miles, beyond which were
high seas. Thus, the Convention has enlarged the territorial seas of the
countries bordering the East Sea by 9 nautical miles.

Second, each country bordering the East Sea has the
sovereign rights over its exclusive economic zone of 200 nautical miles and
continental shelf of at least 200 nautical miles. The breadths of both zones are
measured from the baseline used to determine its territorial sea. When its
actual continental shelf extends beyond 200 nautical miles, a nation bordering
the East Sea may expand its continental shelf up to 350 nautical miles provided
that it strictly complies with provisions and procedures set out in the 1982 UN
Convention on the Law of the Sea .

Each
country bordering the East Sea has full jurisdiction to explore and exploit
natural resources in its maritime zones, especially the exclusive economic zone
and continental shelf, to serve people’s livelihoods and national development.
Each country bordering the East Sea has full powers to allow or disallow other
countries to exploit natural resources in its maritime zones. At the same time,
it is obliged to respect those sovereign rights of other neighbouring countries.
In pursuance to the 1982 UN Convention on the Law of the Sea, the countries
bordering the East Sea are concurrently obliged to respect other nations’ rights
to freedom of navigation in and flight over their exclusive economic zones and
the airspaces above these exclusive economic zones and continental shelves.

Third, under the 1982 UN Convention on the Law of
the Sea, how should China’s signing of a contract with the Crestone Energy Corp.
in 1992 on Viet Nam’s Tu Chinh bank and official submission of its “U-shaped
line” claim to the United Nations in May 2009, be viewed? The Tu Chinh bank
completely lies within Viet Nam’s 200-nautical mile continental shelf on which
Viet Nam has assigned oil exploration blocks. China National Offshore Oil Corp’s
signing of a contract in 1992 with the American Crestone Energy Corp. to explore
oil and gas in the Tu Chinh bank area within Viet Nam’s 200-nautical mile
continental shelf (which was called Wan’an Bei in Chinese) was a blatant
violation of Viet Nam’s sovereign rights under the 1982 UN Convention on the Law
of the Sea.

With
regard to the “U-shaped line” or “nine-dotted line” claim, Chinese scholars all
are clearly aware that at international seminars on the East Sea held in Ha Noi
(in 2009) and Ho Chi Minh City (in 2010) as well as other international
seminars, French, Belgian, American and other foreign scholars clearly stated
that the “U-shaped line” claim was dubious and groundless and that China should
clearly explain the legal nature of sea areas within that “U-shaped line.” So
far, both Chinese politicians and scholars have failed to provide satisfactory
answers.

Proceeding from the provisions of the 1982 UN Convention on the Law of the Sea
to which China is also a contracting party, it is apparent that this claim is
absolutely contrary to provisions of the Convention. No provision in the
Convention can justify this claim. Simply because the sea areas encircled by the
“U-shaped line” cannot be the territorial sea or exclusive economic zone or
continental shelf of China. These sea areas belong to the exclusive economic
zones and continental shelves of Viet Nam, the Philippines, Malaysia, Indonesia
and Brunei. The irrational “U-shaped line” claim has seriously violated the
sovereignty rights of the five ASEAN nations over their exclusive economic zones
and continental shelves. Therefore, Viet Nam, Malaysia, Indonesia and the
Philippines have sent their diplomatic notes to the United Nations General
Secretary to reject this claim.

The
presentation of the mentioned irrational claim to the United Nations in 2009 and
recent field activities to pursue this claim are further complicating the East
Sea situation, causing great concerns among the world community. Countries
involved in the East Sea dispute and also many other countries have expressed
their displeasure with this claim.

3.
Current disputes in the East Sea with respect to international law

There
are two types of disputes concerning the East Sea – one over the overlapping
continental shelves and economic exclusive zones and the other about sovereignty
over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos.

a. Due
to the narrow breadth of some areas in the East Sea, such as Bac Bo Gulf and the
Gulf of Thailand, which is less than 400 nautical miles wide, parts of the
economic exclusive zones and continental shelves of neighbouring countries
overlap. As a result, there exist a number of disputes over the boundaries of
the economic exclusive zones and continental shelves between the countries
bordering the East Sea.

Relating
to Viet Nam, in the North, we have an overlapping area in the continental shelf
and economic exclusive zone with China in the Bac Bo Gulf and a smaller area in
the entrance to the Gulf. While to the South there are overlapping areas which
are claimed by Viet Nam, Cambodia, Thailand and Malaysia in the Gulf of
Thailand. In the South of the East Sea, there is an overlapping area which is
claimed by both Viet Nam and Indonesia. The same overlapping areas are reported
among other countries bordering the East Sea, such as between Malaysia and
Thailand, between Thailand and Cambodia and between Indonesia and Malaysia.
Sovereignty over these overlapping areas has been gradually settled by Viet Nam
and relevant countries in an amicable way in accordance with the 1982 UN
Convention on the Law of the Sea.

b. The
Hoang Sa and Truong Sa archipelagos consist of a series of tiny coral reefs and
banks in the middle of the East Sea. At present, these two archipelagos are at
the centre of complicated disputes between several countries bordering the East
Sea. The sovereignty dispute over the Hoang Sa islands is between Viet Nam and
China while that over the Truong Sa is between five countries and six parties,
including Viet Nam, China, the Philippines, Malaysia, Brunei (Brunei claims sea
areas) and Chinese Taiwan.

To
settle territorial sovereignty disputes, international law has already come up
with a principle to establish sovereignty - the principle of effective
occupation and effective, continuous and peaceful exercise of state authority.
This principle has been used by countries and international jurisdiction bodies
in settling disputes over territorial sovereignty in the world. Some of the
classical cases should be mentioned here were the dispute over the Palmas island
between the USA and the Netherlands, the Minquiers and Ecrehous case between the
UK and France, the case of the Clipperton island between Mexico and France or
the case of Greenland between Norway and Denmark.

Applying
the aforementioned principle to the cases of the Hoang Sa and Truong Sa
archipelagos, everyone clearly sees that the Vietnamese State has effectively
occupied these two archipelagos for hundreds of years. Precisely speaking, the
Vietnamese State has exercised its sovereignty over these archipelagos at least
since the 17th century when they were not under the sovereignty of any country.
Since then Viet Nam has exercised effectively, continuously and peacefully its
sovereignty over the two archipelagos.

There is
ample of evidence of Viet Nam’s sovereignty over the Hoang Sa and Truong Sa
archipelagos. The first evidence is the maps of Viet Nam in the 17th century. In
these maps, these two archipelagos were called Bai Cat Vang (Golden Sandbank).
And they were part of Binh Son district of Quang Ngai prefecture. The second
evidence is contained in many ancient books of Viet Nam, including Toan Tap
Thien Nam Tu Chi Lo Do Thu (Route Maps from the Capital to Four Directions) in
the 17th century, Phu Bien Tap Luc (Miscellaneous Records on the Pacification of
the Frontier) in 1776, Dai Nam Thuc Luc Tien Bien and Chinh Bien (the First Part
of the Chronicles of Dai Nam and the Main Part of the Chronicles of Dai Nam)
between 1844-1848 and others. These books wrote about Hoang Sa and how it was
exploited by Hoang Sa brigades. In addition, many foreign ancient books and maps
confirmed the two archipelagos belonged to Viet Nam. The third evidence was that
the Vietnamese feudal state had dispatched the Hoang Sa and Bac Hai brigades to
exploit the two archipelagos in the name of the State (each brigade consisted of
70 members and their trip lasted for six months to catch tortoises, holothurians
and precious snails and collect merchandises from sunken ships). There were
specific rules set up by the State on selecting people to go to the archipelagos
as well as awarding those who excelled in their exploitation duties. Those
brigades were continuously operating during the Nguyen Lords’ period (1558-1783)
to the Tay Son Dynasty (1786-1802) and the Nguyen Dynasty. The Nguyen Dynasty
sent generals Pham Quang Anh (1815), Truong Phuc Si, Pham Van Nguyen and Pham
Huu Nhat (from 1834-1836) to the Hoang Sa to survey and measure islands to draw
a map of the archipelago. During their stay, the sailors also built temples and
erected sovereignty markers there. In 2009, the Dang family in Ly Son Island,
Quang Ngai Province, presented the Vietnamese State with a decree of the feudal
dynasty confirming that the archipelago belongs to Viet Nam.

Following its domination of Indochina, France, on behalf of Viet Nam, continued
to govern the two archipelagos by sending battleships to patrol the area to
ensure security and prevent smuggling. The French authorities gave permissions
to the Japanese to exploit guano on the archipelago. It also sent the De
Lanessan ship there to conduct oceanographic, geological and biological
research.

From
1930-1932, the French naval ships of Inconstant, Alerte, La Malicieuse and also
De Lanessan were sent to the Hoang Sa archipelago on many occasions. In the
early 1930s, French troops were deployed at the main islands of the Truong Sa
archipelago (Truong Sa, An Bang, Ba Binh, Song Tu, Loai Ta and Thi Tu). Such
activities were made public in the Gazette of the Republic of France published
on July 26, 1933. In 1933, the General Governor of Indochina issued a decree
incorporating the Truong Sa Archipelago into Ba Ria Province. France then
separated the Hoang Sa archipelago from Nam Nghia Province and merged it into
Thua Thien Province. France also dispatched a unit to a garrison in the Hoang Sa
Archipelago.

After
returning to Indochina, France demanded that troops of the Republic of China
withdraw from some islands which they illegally occupied in 1946. The French
troops replaced the Chinese and rebuilt meteorological and radio stations there.

In 1951,
the San Francisco Conference discussed draft a Treaty of Peace with Japan. At
that Conference, a proposal to return to China the Hoang Sa and Truong Sa
archipelagos was put forward to add to the draft Treaty. Yet, the proposal was
rejected. The rejection decision was approved with 46 votes in favour, three
against and one abstention. At the Conference, the head of the Vietnamese
delegation affirmed the Vietnamese State’s long-standing sovereignty over the
two archipelagos. This statement did not receive any objections and/or
reservations from the floor.

In 1956
France transferred the Vietnamese southern territory to the Sai Gon
administration. And from then on the Sai Gon administration sent troops to the
two archipelagos and recognised them administratively, setting up in each
archipelago a commune which was part of a mainland district. The Sai Gon
administration built sovereignty markers and continued to manage the
meteorological stations there.

Since
the 1950s, the situation in the two archipelagos became more complicated. Taking
advantage of the withdrawal of French troops from Indochina under the Geneva
Accords in 1954, China occupied the eastern part of the Hoang Sa Archipelago in
1956. The Sai Gon administration vehemently opposed the occupation. In 1959,
Chinese troops disguised as fishermen landed on the western part of the Hoang Sa
archipelago. However, they were repelled by the troops of the Sai Gon
administration and 82 Chinese “fishermen” were arrested. As for the western part
of the Hoang Sa Archipelago, the Sai Gon administration continued to control
them until 1974. In the same year, taking advantage of the fight between the
army of the Sai Gon administration and the liberation fighters of the South Viet
Nam Provisional Government, China once again used navies to occupy the western
part of the Hoang Sa archipelago. Following such event, both the Sai Gon
administration and the South Viet Nam Provisionary Government came out strongly
against the illegal Chinese occupation.

In 1975,
when the Sai Gon administration was overthrown by the revolutionary forces, the
Vietnamese State overtook control of the islands within the Truong Sa
archipelago and established the districts of Hoang Sa and Truong Sa. The naked
truth is: by 1988 China had never occupied the Truong Sa Archipelago. On March
14, 1988, China started to use force to occupy some rocks on Viet Nam’s Truong
Sa Archipelago. In the imbalanced fight on that day, 64 Vietnamese soldiers
sacrificed their lives to protect the homeland’s sovereignty.

In
short, under the light of the international law, Viet Nam has all historical
evidence and legal foundation to confirm her sovereignty over the Hoang Sa and
Truong Sa archipelagos. According to historical records, China only started to
occupy the eastern part of Viet Nam’s Hoang Sa Archipelago in the 1950s. And in
1974, China resorted to military force to occupy the western part of the
archipelago. On March 14, 1988, China again used military force to occupy some
rocks of Viet Nam’s Truong Sa Archipelago.

4.
Solutions to the East Sea issue

a.
Issues concerning the East Sea are very complicated, important and sensitive to
related countries. Marine resources in the East Sea are vital to the livelihood
and daily life of hundreds of millions of people in the nine countries bordering
the East Sea. Natural resources here are a necessary condition for the economic
construction and development of related countries. Countries bordering the East
Sea are stepping up activities in exercising their sovereignty and sovereign
rights over their different sea areas respectively. At the same time, there are
plentiful and diverse activities related to the East Sea (freedom and safety of
navigation, combating crimes at sea, etc.) which are closely associated with the
interests of different countries both inside and outside the region.

b. As a result, it is an objective requirement that all countries
having activities in the East Sea should adhere to the common rules that the
international community, including the countries bordering the East Sea, had
worked hard to build – the 1982 UN Convention on the Law of the Sea. While
applying the Convention in exercising its sovereignty and sovereign rights over
its internal waters, territorial sea, exclusive economic zone and continental
shelf as stipulated in the Convention, each country bordering the East Sea is
obliged to respect the sovereignty and sovereign rights of other countries
bordering the East Sea over their territorial seas, exclusive economic zones and
continental shelves. This is an obligation that
members of the United Nations must follow. This is also an obligation congruent
with the 1982 UN Convention on the Law of the Sea and the 1969 Vienna Convention
on the Law of Treaties.

It will
be very unfair and irrational when a country bordering the East Sea arbitrarily
constructed an ambiguous claim line that is contrary to the 1982 Convention,
which violates the sea areas of neighbouring countries, creates a “disputed
area” in the waters of neighbouring countries and then requested the affected
countries to “put aside disputes to jointly exploit” their very own continental
shelves. Similarly, an act of a country bordering the East Sea on its own
discretion imposed a ban on fishing in other neighbouring countries’ exclusive
economic zones is also a violation of the 1982 Convention. Such behaviours are
clear violations of international commitments made by a member of the United
Nations under the Charter of this body.

c. The
existence of sovereignty disputes over the Hoang Sa and Truong Sa archipelagos
as well as disputes over the overlapping continental shelves and exclusive
economic zones is an objective fact. The settlement of such disputes, especially
the sovereignty dispute over the two archipelagos, is difficult and complicated,
but not impossible. As mentioned above, there are overlapping areas concerning
the continental shelves and exclusive economic zones of Viet Nam and China in
the Bac Bo Gulf, and Thailand, Indonesia, Malaysia and Cambodia in the Gulf of
Thailand. In the past, on the basis of the 1982 Convention and in the spirit of
friendship, neigh-bourliness and respect for each other’s legitimate interests,
Viet Nam has settled the maritime delimitation lines with Thailand in the Gulf
of Thailand, with China in the Bac Bo Gulf and the boundary of the continental
shelf with Indonesia in the south of the East Sea. Other countries bordering the
East Sea have also settled a number of sea disputes through joint efforts and on
the basis of international law. Most recently, sovereignty disputes regarding
some islets between Malaysia and Singapore, and between Indonesia and Malaysia
were also settled by the International Court of Justice (ICJ)

Those
experiences showed that sovereignty disputes over the Hoang Sa and Truong Sa
archipelagos and disputes over the overlapping sea areas between countries
bordering the East Sea will be amicably settled once international law,
including the 1982 Convention, is respected, and peaceful means for solving
disputes, which are stipulated in the Charter of the United Nations, are
applied. Threat of force or threat to use force has been prohibited by
international law. Threat of force or threat to use force will never constitute
a proper method for resolving disputes in the East Sea.

d.
Disputes related to the East Sea are obviously complicated. The path towards a
final solution to these disputes that are acceptable to all concerned parties
will be a bumpy and lengthy. That reality requires the parties involved to exert
greater efforts to solve these issues. While seeking a fundamental and lasting
solution to these disputes, the concerned parties should abide by the
commitments prescribed in the Declaration on the Conduct of Parties in the East
Sea (DOC), which was signed by ASEAN and China in 2002, in particular the
commitment to restraining from any action that can further complicate the
situation in the East Sea.

ASEAN
member countries and China also need to increase their efforts and work together
in building a more legally binding document which is a Code of Conduct in the
East Sea. The document can be made in the form of a treaty, an accord, an
agreement, or a memorandum of understanding (MOU) between ASEAN and China, which
is signed by authorised representatives of ASEAN and China before being approved
by competent agencies of ASEAN and China.

Respecting jus cogens principles of international law, the Charter of the United
Nations and provisions of the 1982 UN Convention on the Law of the Sea, settling
disputes by peaceful means, fully executing all the commitments contained in
DOC, advancing toward the building of a Code of Conduct in the East Sea, and
jointly working towards making the East Sea a body of peace, friendship and
cooperation, are all key to resolving complex issues related to the East Sea.

VietNamNet/Viet
Nam News