by ROBERTO TOFANI
With the Vietnamese Law of the Sea taking effect at the beginning of 2013, Hanoi writes another chapter on the maritime dispute in the South China Sea, referred by Vietnamese as the East Sea and by Filipinos as the West Sea.
Adopted on Jun. 21 2012 with 99.8 percent of the vote by the Vietnamese National Assembly, the law should “provides for the baseline, the internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, islands, the Paracel and Spratly archipelagos and other archipelagos under the sovereignty, sovereign rights and jurisdiction of Viet Nam; operations in Viet Nam’s maritime zones; maritime economic development; the management and protection of the sea and islands,” as established by Article 1 and according to its English version released by the Vietnam News Agency.
Already enshrined in existing laws, like the 2003 Law on National Border, the Law of the Sea reaffirms Vietnam’s sovereignty over islands, including the Paracel (Hoang Sa) and Spratly (Truong Sa) archipelagos.
Moreover, with this additional legal framework Vietnam confirms its aim to solve the “disputes related to the sea and islands with other countries by peaceful means, in conformity with the 1982 United Nations Convention on the Law of the Sea, international law and practices.” “The most important part of Vietnam Law on the Sea is Article 2.2, where the law states that if anything in the law contravenes international law, international law takes precedence,” commented in an e-mail Professor Emeritus Carlyle A. Thayer, from the University of New South Wales, at the Australian Defense Force Academy in Canberra.
In addition, according to Article 4.3, “the State of Viet Nam settles disputes related to the sea and islands with other countries by peaceful means, in conformity with the 1982 United Nations Convention on the Law of the Sea, international law and practices.” UNCLOS, which is often called the “constitution for the oceans”, marked its 30th anniversary last December.
The new Law also establishes that “the Government of Viet Nam exercises nation-wide state management of the sea.” Hence the maritime law must be intended as a framework that covers major principles for sea-related issues, even though the functions of each ministry and agency are not specified therein. “The law stipulates that the Government exercises unified management over sea and islands. Ministries, agencies and localities exercise such management in their own authorized areas,” as explained by Vietnamese Foreign Minister Pham Binh Minh in an interview to local media.
With the aim “to bring into full play the strength of the entire nation and take necessary measures to safeguard the sovereignty, sovereign rights and jurisdiction over the maritime zones, islands and archipelagos,” the Vietnamese authorities underline the necessity to “encourage and safeguard fishery activities conducted by Vietnamese fishermen in Viet Nam’s maritime zones.”
In the disputed area, which is believed to be rich in fossil fuels and is one of the most productive areas for fishery in the region, Vietnamese fishermen have often been blocked or arrested by Chinese personnel patrolling the area that Beijing considers its national territory. Last year in March, 21 Vietnamese fishermen were detained near the Paracel Islands, which are actually controlled by China.
In 1974, naval forces of the People’s Republic of China and Republic of Vietnam (South Vietnam) had a military confrontation, often described as an escalation in the Republic of Vietnam Navy’s efforts to expel Chinese fishing vessels from the vicinity of some of the Paracels. During that battle, the People’s Liberation Navy established permanent control over the Paracel Islands. After the reunification of Vietnam in 1975, the Socialist Republic publicly renewed its claim to the Paracels, with the dispute continuing into the present day.
In fact, after the Vietnamese National Assembly adopted the Law of the Sea, Chinese authorities reacted by raising Sansha’s status to a prefectural-level city that administers the three disputed island groups of Nansha (Spratly Islands), Xisha (Paracel Islands), and Zhongsha (Macclesfield Bank). The new city also covers the three island group’s surrounding waters. On Jun. 22, the National People’s Congress (NPC), China’s top legislature, urged Vietnam to “correct” the law.
“So far China has not tested Vietnam’s law, but the incident last year involving Chinese fishing boats and the cable cutting incident are likely to be repeated,” commented Prof. Thayer. Last year in May, Chinese patrol boats intentionally severed a seismic cable towed by a Vietnamese survey vessel working about 120 miles (193 kilometres) off Vietnam’s shores and hundreds of miles south of China’s Hainan Island. The incident occurred well within Vietnam’s 200 nautical mile (370 km) Exclusive Economic Zone (EEZ), as defined by the Law of the Sea Treaty (signed by both Vietnam and China). Then last December, Chinese fishing vessels accidentally cut the cables of a Vietnam Oil & Gas Group seismic ship doing work in Vietnam-controlled waters of the South China Sea, according to the company’s Chief Executive Officer Do Van Hau, quoted by Bloomberg.
All these incidents and problems are caused in part because China has not clarified the basis of its claim. China nonetheless contends that any foreign company operating in contested waters is plundering Chinese resources. China’s claims to historic rights overlap Vietnam’s claimed Exclusive Economic Zone. This is where the Indian state-run exploration company Oil and Natural Gas Corp (ONGC) has a license. If China clarified the basis of its claim, it would help towards resolving this particular problem. “For example–explained Prof. Thayer–if China was claiming that a feature (island) that it occupied was entitled to a 200 nm EEZ and this EEZ overlapped the area where ONGC is to conduct its business, the matter would be a legal dispute. International law would then enjoin Vietnam from taking action to exploit the resources (oil and gas) until the matter was resolved.”
However, in 2009 Vietnam clarified its territorial claims in its submission to the UN Commission on the Limits of Continental Shelf (CLCS). China immediately protested the submission as a violation of its sovereignty and called on the UN commission to reject it. After almost three months, in August 2009, the Philippines also protested Vietnam’s submissions to the CLCS. Vietnam and Malaysia immediately protested in return the notes by the Philippines and China.
“The submissions to the CLCS by Malaysia and Vietnam arguably clarified the borders of their claims of continental shelf from the mainland,” writes Dr. Tran Truong Thuy, Director of the Centre for South China Sea Studies at the Diplomatic Academy of Vietnam (DAV). But it has to be said that Vietnam hasn’t yet clarified which features are islands under international law and therefore entitled to a 200 nm EEZ and continental shelf, and which features are rocks entitled to a territorial sea of 12 nm.
Apart form national interests, the South China Sea issue needs a solution. At regional level and among the four ASEAN (Association of South East Asia Nations) members—Brunei, Malaysia, the Philippines and Vietnam–the final aim would be to sign a Code of Conduct between China and the Association based on the Declaration on the Conduct of Parties in the South China Sea (DOC) adopted in Cambodia in 2002. According to Dr. Thuy, “Beijing should accept a legally binding regional Code of Conduct–officially endorsed at the 29th ASEAN Ministerial Meeting (Jakarta, July 21–27, 1996)–which would ensure smaller parties from being intimidated and making them more confident to proceed with the cooperative activities in the South China Sea.”
Roberto Tofani is a freelance journalist and analyst covering South East Asia. He is also the co-founder of PlanetNext, an association of journalists committed to the concept of “information for change” and editor of Sudestasiatico.com.
A contributor and editor at the blog War Is Boring, Kyle Mizokami started Japan Security Watch in 2010 to further understand Japan's defenses and security policy.
Kyle Mizokami has 29 post(s) on Asia Security Watch