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In the South China Sea, the Law and Geography are China’s Two Enemies
By Nguyen Huu Thong, Esq
In 1982, 119 nations signed the United Nations Convention on the Law of the Sea. The Convention entered into force in 1994.
The two principles guiding the Law of the Sea are:
1.Protecting the fishing rights of coastal nations and their right to exploit oil and natural gas within 200 nautical miles of their coastline
2. Preserving the freedom of the high sea and the freedom to exploit deep seabed mining.
Below are the general concepts for the technical terminology used in the Law of the Sea.
According to the International Court of Justice at The Hague and the United Nations Convention on the Law of the Sea, Historic Waters represent the internal waters on the landward side of the baseline of the Territorial Sea.
The Baseline usually refers to the low-water line along the coasts.
The Territorial Sea extend 12 nautical miles from the Baseline.
The Exclusive Economic Zone extends 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.
The Continental Shelf usually extends 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.
An island is a naturally formed area of land surrounded by water, which is above water at high tide. The Islands of Taiwan or Ceylon have been granted an exclusive economic zone and a continental shelf of 200 nautical miles. However, small islands which cannot sustain human habitation or economic life of their own shall have only a territorial sea (such as the Paracel and Spratly Islands).
PART ONE
INTERNATIONAL TREATIES
The dispute between Vietnam and China regarding the sovereignty over the Paracel and Spratly Islands can only be settled definitely on the basis of international public law. In the South China Sea, the Law and Geography are China’s two enemies.
1. The Vietnamese, French, and Chinese Treaties
In 1884, Vietnam and France signed the Patenôtre Treaty, whereby France agreed to protect and represent Vietnam in diplomatic matters and pledged to protect Vietnam’s national security and territorial sovereignty.
According to the Tien Shing Convention signed with France in 1884, China renounced its sovereignty over Vietnam, and pledged to respect all Franco-Vietnamese treaties such as the Patenôtre Treaty.
In 1887, France (on behalf of Vietnam) signed with China the Beijing Treaty to allocate the territorial waters off the North Vietnam Gulf with 63 percent assigned to Vietnam and the remaining 37 percent to China.
2. The Cairo Declaration of 1943
During the Second World War, the three major powers of the Allied Forces represented by U.S. President Roosevelt, England’s Prime Minister Churchill, and Chinese Generalissimo Chang Kai Shek signed the Cairo Declaration on November 27, 1943 to strip Japan of all the territories and islands which it had seized in the Pacific, and to return Manchuria, Formosa (Taiwan), and the Pescadores to China. In the Cairo Declaration, the reason why Generalissimo Chang Kai Shek did not claim the Paracel and Spratly islands for China is because he knew and recognized these islands were not China’s territories (but belonged to Vietnam).
3. The Potsdam Declaration of 1945
According to the Potsdam Declaration of 1945, in the Pacific which stripped Japan of all its military arsenal and power, the Allied Forces decided to split Vietnam into two regions: The Chinese army was assigned the task of disarming the Japanese army North of the 16th Parallel (Da Nang), including the Paracel Islands. The British army was responsible for disarming the Japanese army from the 16th Parallel on South, including the Spratly Islands.
Disarmament does not mean acquisition. Therefore, if the British did not take possession of the Spratlys, neither did the Chinese have any rights over the Paracels and the Spratlys.
4. The Elysée Treaty of 1949
In 1947, Great Britain restored their independence to India and Pakistan. In 1948, France and Vietnam signed the Joint Along Bay Declaration to recognize Vietnam’s sovereignty and independence.
In March 1949, French President Vincent Auriol and Emperor Bao Dai signed the Elysée Treaty in Paris to restore Vietnam’s independence.
In April 1949, the Regional Congress of Southern Vietnam voted to dismantle the colonial regime in the South and to integrate Southern Vietnam into the independent and unified territory of the State of Vietnam.
Having regained its independence and territorial unity in 1949, Vietnam had the power and legitimacy to protect its national sovereignty and its territorial integrity, from the Northern most point at Nam Quan to the Southern tip of Ca Mau, including the Paracel and Spratly Islands.
5. The San Francisco Peace Treaty of 1951
In Spring 1945, 51 allied nations gathered at the San Francisco Conference to establish the United Nations. In 1951, delegates from the 51 allied nations which had founded the United Nations met at the San Francisco Peace Conference and signed the Peace Treaty of Japan on September 8, 1951.
Article 2 of the Peace Treaty stipulates that allied nations in the Asian Pacific should regain their territorial sovereignty as follows:
a. Restore independence to the Korean people.
b. Return the territorial sovereignty of Taiwan (Formosa) and the Pescadores Islands [to China].
c. Return the territorial sovereignty of the Kurile Islands and the Sakhalin Island [to the Soviet Union].
d. Turn over the management of the Pacific Islands which the League of Nations had formerly entrusted to Japan [to the United States].
e. Japan must renounce all rights of Japanese nationals in the Antarctic.
f. Japan must renounce all right, title, and claim to the Spratly Islands and the Paracel Islands [to be returned to Vietnam].
Such decision makes a lot of sense.
In fact, during World War II, there was a power struggle between Japan and Vietnam on these two archipelagoes. On March 30, 1939, Japan declared that it was placing the Paracels and Spratlys under the control of the Tokyo Government. China did not raise any objections. Only the French Ambassador in Tokyo, on behalf of Vietnam, sent a diplomatic note of protest to the Japanese Government on April 21, 1939. That is why when Japan declared it was renouncing all rights to the Paracel and Spratly Islands, the nations that participated in the San Francisco Peace Conference categorically rejected all Chinese claims of sovereignty and unequivocally agreed to return these two archipelagoes to Vietnam.
Prior to the final ratification of the Treaty, Soviet Foreign Minister Andrei Gromyko submitted an amendment on September 5, 1951 to request that the Conference return Manchuria, Formosa, the Pescadores, the Pratas Islands, Macclesfield Bank, the Islands of Paracel and Spratly to China. The amendment, however, was rejected by the Conference by a vote of 46 against to 3 in favor.
On September 7, 1951, Prime Minister Tran Van Huu, head of the Vietnamese Delegation made a statement proclaiming Vietnamese sovereignty over the Paracel and Spratly Islands and met no objections from any of the countries attending the Conference.
6. The Geneva Accords of 1954
The Geneva Conference was assembled in 1954 to resolve the Indochinese War. Nine countries participated, including the Five Major Powers: the U.S., Great Britain, France, the Soviet Union, and China, as well as Laos, Cambodia, and the two Vietnams, i.e., the State of Vietnam (in the South) and the Democratic Republic of Vietnam (in the North). The Geneva Accords signed on July 20, 1954, once again reaffirmed the territorial sovereignty of the Republic of Vietnam (at the time called the State of Vietnam) over the Paracels and the Spratlys.
In fact, according to Article 4 of the Geneva Accords, the line of demarcation which separated the North from the South extended into the territorial waters through a straight line perpendicular to the coastline. The French Union Army had to withdraw from all the islands north of the demarcation line (17th Parallel). The Vietnamese People’s Army (of North Vietnam) had to withdraw from all the islands south of that line (17th Parallel), including the Paracels and the Spratlys.
On September 4, 1958, the Chinese Government announced the expansion of its territorial waters from three to twelve nautical miles. This decision was applied to all the islands such as Formosa/Taiwan, the Pescadores, Pratas, Macclesfield Bank, Sishatsuntao and Chunshatsuntao (Paracels), and Nanshatsuntao (Spratlys). The Declaration purposely listed some of the islands under Chinese territorial sovereignty because they are situated on the 200-nautical-mile continental shelf, such as Taiwan (located in the vicinity of Mainland China, the Pescadores Islands (in the Strait of Formosa), and the Pratas Islands (situated on the 21st Parallel, 135 nautical miles from China).
In addition, the Declaration was a blatant attempt to draw in and seize a number of islands and archipelagoes that were not under Chinese sovereignty because they are situated beyond the 200-nautical-mile continental shelf, such as the shoal of Macclesfield Bank (situated on the 16th Parallel, 300 nautical miles from Mainland China), the Paracel Islands ( on the 17th to 15th Parallels, 270 nautical miles from Mainland China), and the Spratly Islands (on the 12th to 8th Parallels, from 550 to 780 nautical miles from Mainland China).
The Declaration of September 4, 1958 from the Chinese Prime Minister was simply a literal copy of the amendment which the Soviet Union had submitted at the 1951 San Francisco Peace Conference. As you may recall, this amendment had already been rejected by the Conference by a vote of 46 against to 3 in favor.
According to the 1943 Cairo Declaration, the 1951 San Francisco Peace Treaty, and the 1954 Geneva Accords, the Paracels and Spratlys are not part of the territorial sovereignty of China but of the Republic of Vietnam. Therefore, the Hanoi Government had no right to cede these islands to any other country, including China.
7. The Paris Treaty and Agreement of 1973
On January 27, 1973, the U.S., the Republic of Vietnam, the Democratic Republic of Vietnam, and the Republic of South Vietnam signed the Paris Peace Treaty to “end the war and restore peace to Vietnam”. According to Article 15 of the Treaty, “the unification of Vietnam shall be realized in stages by peaceful means, using negotiations and agreements between North and South, without coercion from either side, or takeover of the other side, with the time for unification to be mutually agreed upon by South and North Vietnam”.
To implement the Paris Treaty, the twelve parties who participated in the International Conference on Vietnam signed the Agreement of the International Conference on Vietnam on March 2, 1973, with the endorsement of the Secretary General of the United Nations.
According to Article 4 of the Agreement, “the signatory parties to the Agreement respectfully pledged to strictly respect the independent sovereignty, national unity, and territorial integrity of Vietnam.
Despite this pledge, 10 months later, in January 1974, China mobilized all its military power to invade the Paracels Islands which belonged to the Republic of Vietnam, in total disregard for the Cairo Declaration, the San Francisco Peace Treaty, the Geneva Accords, and the Agreement of the International Conference on Vietnam. In addition, China violated the United Nations Convention on the Law of the Sea, infringed upon the territorial integrity of Vietnam, and invaded Vietnam’s continental shelf and its exclusive economic zone. This infraction is not admissible under the law.
At any rate, Article 77 of the Law of the Sea stipulates that the continental shelf belongs to the absolute sovereignty of costal nations, and that any invasion from anywhere has no legal power or validity, especially if it is a coercive invasion.
PART TWO
THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
In 1982, China joined 118 member nations of the United Nations to sign the United Nations Convention on the Law of the Sea.
After it signed the Convention, Beijing had cause to worry! After all, once it had pledged to abide by the Convention, it had the obligation to respect it. The articles spelled out in the Convention are quite clear: Coastal nations are only allowed 200 nautical miles of exclusive economic zone for fishing rights and the zone corresponds to the continental shelf for the exploitation of oil and natural gas.
Along the same line of argument, the Paracel Islands are 270 nautical miles away from China while the Spratly Islands are 750 nautical miles away. Therefore, neither archipelago falls under Chinese territorial sovereignty.
1. Historic Waters
Falling short on the legal argument, China used the Historic Waters theory, or China’s Dragon Tongue. China’s Dragon Tongue is a large stretch of ocean that runs from Vietnam past Indonesia, Malaysia, Brunei, and the Philippines. According to Beijing’s hyperbolic statements, China’s Historic Waters are half the size of the entire Mainland China.
China’s Dragon Tongue is located along the Southeast Asia Sea, 40 nautical miles from Quang Ngai, 30 nautical miles from Natuna (Indonesia), 25 nautical miles from Sarawak (Malaysia) and Palawan (Philippines). It encompasses in their entirety three deposits of oil and natural gas, which are being exploited and are located at Vanguard Bank of Vietnam, Natuna Island of Indonesia, and Reed Bank of the Philippines. The Dragon Tongue claims more than 80 percent on the Southeast Asia Sea.
Regarding China’s Historic Waters claim, legal scholars at the Institute of Oceanography of Hawaii stated that: ”There is no principle or article in the International Law that supports Beijing’s contention!”
Indeed, according to China’s outdated policy, the so-called Policy of the Great China, all the territories and islands that were under the control of China in the olden days, during the reigns of Emperors Tan Thuy Hoang, Han Wu, and Minh Thanh To, will be forever part of China’s territorial sovereignty.
This policy has been clearly delineated in the aftermath of the 1949 Revolution in “A Brief History of Modern China”. This book was adapted from the political program disseminated through Mao Ze Dong’s declarations in the late 1930’s and includes the following excerpt:
“All the territories and islands belonging to China have been seized by the Western Imperialist factions from the middle of the 19th century through the First World War. These territories include the Sakhalin Island, Korea, Taiwan, the Pecadores, the Islands of the Philippines, Hong Kong, Vietnam which the French have forcibly occupied, as well as islands in the South China Sea (such as the Paracels and Spratlys). All must be returned to China. All these territories and islands will become permanently part of China as they were in the olden days. “
Such is the traditionally outdated policy of China to recapture all the territories and islands listed above. “Territory once won for civilization must not be given back to barbarism.” (Doctoral dissertation presented by Chi- Kin Lo, a scholar, at the School of Political Economics in London in 1986).
The Great China Policy mentioned above has been actively promoted since the Treaty of Panmunjom in Korea in 1953 and the 1954 Geneva Accords on Indochina. It reached its zenith in 1974 when the U.S. and the Allied Forces withdrew from Vietnam after the Paris Treaty of 1973.
In the Southeast Asia Sea, historical waters or the China’s Dragon Tongue constitute Beijing’s strategic goal.
However, since it is only a fictitious policy which is not based on any objective, impartial, and authentic documents such as articles of the Law of the Sea or International Public Law, it cannot be accepted by the law or by any tribunal.
According to the International Court of Justice at The Hague, Historic Waters are just internal waters.
According to the United Nations Convention on the Law of the Sea of 1982: ”The Historic Waters or internal waters of a State are located on the landward side of the baseline of the Territorial Sea. “ (Article 8)
Therefore, the South China Sea does not constitute China’s Historic Waters because it represents external waters and is located two thousand kilometers from the Chinese continent.
Since 1982, the Great China Doctrine or China’s Doctrine of Hegemony which Mao Ze Dong set in motion in 1955 has been impeded by the law and by the tribunals of civilized humanity.
2. The Doctrine of Sovereign Acquisition
Having failed with the Historic Waters doctrine, China resorted to the doctrine of Sovereign Acquisition, acquisition through discovery and acquisition through occupation.
Acquisition through Discovery
According to Beijing, more than 2,000 years ago, under the reign of Emperor Han Wu, a Chinese naval force of 100,000 discovered the Paracel and Spratly Islands while patrolling in the South China Sea.
Furthermore, in the 15th century, under Emperor Minh Thanh To, Chinese naval forces on reconnaissance patrol in the South China Sea discovered and took possession of these islands.
This event has never been authenticated.
First of all, there exists no objective document attesting that, under the Han dynasty, there were any reconnaissance patrols by the Chinese navy to coral islands in the South China Sea. History only records that a naval force of 100,000 was led by Tsao Tsao under the authority of the Han Emperor to conquer Dong Ngo and that it was completely destroyed by Chu Du during the naval battle of Xich Bich.
Under Emperor Ming, in their plan to invade Vietnam, the Chinese naval forces sent to reinforce Vuong Thong were routed by Le Loi in the ocean and on the rivers.
Moreover, discovery does not necessarily mean ownership.
Indeed, in the 15th century, international seafaring explorers discovered many new territories. For example, Vasco de Gama discovered the Cape of Good Hope in Africa and a host of desert islands in the Indian Ocean. Magellan traveled across oceans, from the Atlantic Ocean through the Indian Ocean all the way to the Pacific Ocean, discovering many islands including Guam. Yet Portugal did not claim sovereignty over any of these islands.
Acquisition through Occupation
According to the International Court of Justice, in order to acquire sovereignty over an abandoned land (terra nullius), the occupation must meet the following requirements:
a. Peaceful Occupation
It is undeniable that in 1974 and 1988, China used military power to occupy a number of rocks in the Paracels and a number of shoals in the Spratlys. This occupation was not in the least peaceful but was an armed invasion and, therefore, is not protected by the law. Likewise, during the Second World War, Japan used military forces to occupy the Paracels and the Spratlys, and therefore, its sovereignty had no legal foundation.
b. Continuous and Prolonged Occupation
China has provided no objective proof to show that it has occupied the Paracels and the Spratlys continuously since the Han or the Ming Dynasty. Only after World War II, when the Japanese army withdrew, in the end of 1946, did China forcibly occupy a number of the Paracel islands in the Amphitrite Group, located in the Northeast.
In 1974, China used power to invade and occupy the Paracel islands in the Crescent Group, located in the Southwest.
In the Spratlys, the Chinese admitted, for the first time in 1988, that they had forcibly occupied a number of shoals and reefs.
This occupation is invalid because it was not done peacefully.
Furthermore, until 1974 and 1988, the Paracel and Spratly Islands were occupied by Vietnam, and therefore, cannot be considered as abandoned lands (terra nullius).
c. In addition, the occupation was not recognized by the nations involved in this issue.
As mentioned earlier, at the 1951 San Francisco Peace Conference, the Soviet Union requested that the Conference hold a vote to return the Paracel and Spratly Islands to China, but the Conference rejected this amendment with 46 against it. Subsequently, the head of the Vietnamese Delegation made a statement proclaiming Vietnamese sovereignty over the Paracel and Spratly Islands and met no objections from any of the 51 countries attending the Conference.
3. Ten Criteria to Determine Sovereignty over the Islands
The Committee for the Demarcation of the Continental Shelf, the United Nations Tribunal on the Law of the Sea, the International Court of Arbitration, and the International Court of Justice at The Hague presented ten criteria to resolve issues pertaining to the demarcation of territorial waters or to determine the sovereignty of coastal nations over islands.
1. Location of the islands with respect to the contiguous coastline
In the territorial waters of the Paracels, these islands are situated 160 nautical miles from Vietnamese Coast and 270 nautical miles from Mainland China. As for the territorial waters of the Spratlys, Vanguard Bank is located 190 nautical miles from Vietnam; the Spratlys are 220 nautical miles from Vietnam and 750 nautical miles from China. Therefore, Vietnam has priority and the International Tribunal will allow the Paracels and Spratlys to be under Vietnam, sovereignty.
2. The size of the islands compared to the length of the contiguous coastline
The Paracels cover a surface area of .56 square kilometers, or 1/1000th of the Phu Quoc Island, (568 square kilometers), and therefore, can be assimilated into Vietnam. Meanwhile Vietnam’s coastline is more than ten times longer than Hainan’s coastline on the side where Hainan is adjacent to the Paracels.
3. The depth and the topography of the seabed
The islands, cays, reefs, and banks of the Paracels and Spratlys are natural extensions of the Vietnamese continent from the mainland out into the ocean. The deepest point at the Paracels is 900 meters, and at the Spratlys it is 200 meters. In contrast, from the Paracels and the Spratlys to Mainland China, there are two deep channels of more than 2,300 meters and 4,600 meters, respectively. Hence, the two archipelagoes are not natural extensions of China’s mainland out into the ocean.
4. The geology of the islands
In 1925, following two years of research, measurements, and drawing maps, Doctor A. Krempt, Director of the Institute of Oceanography of Indochina certified that: ”From a geological perspective, the Paracel Islands are part of Vietnam.”
5. The demography of the islands
The Paracels and Spratlys do not have permanent residential populations and are not economically self-sufficient. At the same time, the number of inhabitants residing along the coast of Vietnam is ten times larger than the population of Hainan Island.
6. The climate and ecology of the islands
The coral islands as well as the vegetation and fauna which exist in the Paracels and Spratlys are characteristic of the tropical zone of Vietnam, but are not seen in the temperate zone of China.
7. Exclusive Economic Zones
The Southeast Asia Sea and the Paracels and Spratlys constitute Vietnam’s basic fishing grounds. Meanwhile, aside from its territorial waters to the West, Hainan Island has an additional 200 nautical miles of fishing grounds to the East and out into the Pacific Ocean.
8. The Continental Shelf
In its continental shelf, Vietnam has some deposits of oil and natural gas in the North Vietnam Gulf and at Vanguard Bank situated South West of Ca Mau. This is the place where sediments are brought in by the ocean containing organic alluvium from the Red River and the Mekong River. The longest river in South East Asia, the Mekong River, which originates from the plateau of Tibet, has been going out to sea for a million years. There is no large river flowing from China or from Hainan into the China Sea. Therefore, any oil or natural gas deposits are due to organic materials originating from Vietnam, not from China. Moreover, aside from its territorial waters to the West, Hainan Island has an additional continental shelf of 200 nautical miles to the East and out into the Pacific Ocean to exploit oil and natural gas.
9) The Southeast Asia Sea and the Paracels and Spratlys have a more considerable economic, political, strategic, and national security impact on Vietnam than on China. That is because China also has access to the Yellow Sea and the East China Sea which flow into the Pacific Ocean.
10) Documents
Any documents, such as books, newspapers, maps, or historical evidence must be objective, impartial, and authentic. After all, these documents are not as valuable as scientific elements which include geography, topography, geology, demography, climate, ecology, and elements specifically related to the political economy, military strategy, and national security.
Regarding the South China Sea, we will only cite a number of objective documents which were compiled by the Chinese themselves:
a. According to Chinese scholars, the Sea of South China or South Sea is the name given to the sea in the Southern part of China, and is situated 50 lis South of Guangdong. Western navigators called it the South China Sea.
b. According to the New Practical Chinese English Dictionary compiled by Chinese scholars in Hong Kong in 1971: “the South Sea is the part of the Ocean which extends from the Strait of Formosa to Guangdong”.
c. According to Tu Hai Dictionary published in 1948, “the South China Sea falls under the territorial sovereignty of five nations which are China, Vietnam, Malaysia, Philippines, and Taiwan”. (To be exact, Indonesia is located in the tropical zone instead of Taiwan being in the temperate zone).
Therefore, if the Indian Ocean is not India’s ocean, then the South China Sea is not China’s sea in the South either.
Because these territorial waters are situated in South East Asia, in his Report sent to the chiefs of member states of the Association of South East Asian Nations (ASEAN) in 1995, the author proposed to change the name of South China Sea to Southeast Asia Sea.
{English Summary accomplished with the collaboration of Tanette Nguyen-McCarty}
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This article is not only a confirmation but also an encouragement for all of the patriotic Vietnamese to strengthen their belief and bolster their commitment to keep fighting on for their sovereignty and their rights despite the military strength and the aggression of Beijing regime.