Vietnamese_boats

by ROBERTO TOFANI

Quang Ngai – “In South China Sea—East Sea as referred by the Vietnamese–China is unable to present historical evidence of its claim. Its territory was historically limited to Hainan island, thus Chinese used force to illegally occupy rocks, features and islands in the Paracel and Spratly archipelagos”. With these remarks, Prof. Pham Dang Phuoc, Rector of Pham Van Dong University, closed the workshop ‘Sovereignty over Paracel and Spratly Archipelagos: Historical and Legal Aspects’ held in Quang Ngai at the end of April.

Participants, including scholars and researchers from various countries, shared the view that Vietnam can boast various and substantial documents and evidence on the sovereignty over Paracel (Hoang Sa) and Spratly (Truong Sa) archipelagos.

From 1949 to 1973, the People’s Republic of China (PRC) maintained a physical presence on only one feature in the South China Sea, the Amphitrite group (Nhom Tuyen Duc) in the eastern Paracel Islands (Quan Dao Hoang Sa). “Since 1973—writes Prof. Carlyle A. Thayer of the University of New South Wales at the Australian Defence Force Academy in Canberra (Australia)–the PRC has embarked on a prolonged campaign to assert control over the South China Sea basing its claims to ‘indisputable sovereignty’ and historical rights on those of its predecessor the Republic of China (ROC).” (1)

In May 2009 China officially tabled a map with the UN Commission on the Limit of the Continental Shelf containing nine-dash lines thus stating that it had “indisputable sovereignty” over the Paracel and Spratly archipelagos and their “adjacent waters” and that it had “sovereign rights and jurisdiction” over the “surrounding waters.” The Chinese claim was based on one previously issued by ROC in 1947. “New historical evidence seems to indicate that the 1947 map was drawn up by the ROC’s Inspection Committee for Land and Waters Maps in 1933. Because the Inspection Committee had never carried out and did not have the means to carry out a proper survey it copied existing British Admiralty maps,” Prof. Thayer explains. Errors in the British maps (since corrected) were carried over and incorporated into ROC maps. (2)

Moreover, up to today China has never provided a legal clarification of its territorial claims in the South China Sea, basing its maritime claims on its land sovereignty. However, “many of these land features would likely not meet qualifications set by UNCLOS to serve as a base for Exclusive Economic Zone (EEZ) and continental shelves,” as underlined in a recent report of the International Crises Group (ICG – ‘Stirring up the South China Sea II: Regional Responses‘). Hence, it’s becoming more and more important to establish and clarify to the UN Commission on the Limits of Continental Shelf the difference between islands and low tide elevations or others rocks which are always under the water even at low tide. In fact, as established by Article 121 of the UNCLOS, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

International Law 
But The South China Sea dispute was also fuelled by the different interpretation and application of the international law. In such a context, according to Nguyen Thi Lan Anh from the Diplomatic Academy of Vietnam (3), there are three set of rules that need to be taken into account.

The first is the law concerning territorial acquisition which originated in the West and was crystallised under customary international law. Under international law concerning acquisition, a title to territory can be obtained through five modes, namely occupation, prescription, cession, conquest and accession. Given the fact that these rules originated from Western countries, “it is arguable that the littoral states did not have sufficient knowledge and their claims were not made fully in accordance with international law concerning acquisition,” Lan Anh writes. Vietnam argued that the exploitation activities of the Vietnamese kings–i.e., the establishment of the Bac Hai and Hoang Sa company and the visit of their Gia Long King to the Paracels in 1816, during which he declared the possession of the archipelago by an official ceremony and by hoisting the Vietnamese flag–were themselves evidence of their sovereignty. “Unfortunately, these activities were not followed by an official declaration to the world,” the Vietnamese diplomat explains.

The second set of rules concerning the dispute in South China Sea dispute derives from the law of the sea codified in customary international law and three conferences on the law of the sea led by the United Nations. “Accordingly, the role of the islands was emphasized. Islands are not only subjects for territorial claims, but also eligible to generate maritime zone equal to mainland for the owner states,” the Vietnamese diplomat underlines. Establishing the parameters which allow for the definition of the term “island” is important because this empowers states to generate title and entitlement to certain maritime zones.

The final set of rules concerns the law on the dispute settlement. “Based on the sovereignty equality of state, no international judicial body has compulsory jurisdiction to settle a dispute without the consent of states concerned. This rule helps a country easily block the settlement of a dispute by not accepting the jurisdiction of a judicial body,” Lan Anh explains. Furthermore one must remember that there is no enforcement body in the international legal system to enforce judgement given for the South China sea dispute.

Notes

  1. ‘The Philippines’ Claims to the UNCLOS Arbitral Tribunal: Implications for Viet Nam’.
  2. Bill Hayton, “How a non-existent island became China’s southern most territory”, South China Morning Post, Feb. 9 2013.
  3. The views expressed are solely those of the author and not necessarily reflect the position or policies of the Diplomatic Academy.

 

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

On Twitter: @Sudestasiatico
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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