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PARTIES’ CLAIMS AND LEGAL FOUNDATIONS ON SOVEREIGNTY IN THE EAST SEA (BIEN DONG)

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At present, major issues in the East Sea dispute are territorial sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes and overlapping claims of sovereign rights over territorial waters. Besides, recent emerging elements are clashes over the rights of coastal states and other nations that use the sea, mainly between the US and China, regarding military vessels’ activities in exclusive economic zones.

The complexity of the East Sea issue involves many aspects, especially strategy, competition among large countries, legal aspects, economics, overlapping interests, the intertwining internal and external affairs of the countries concerned. Apart from the elements of sovereignty, national virtue, strategic geographical position, the delimitation of territorial waters in the East Sea and sea boundaries among countries have given rise to divisions in great economic benefits such as energy, seafood... The dispute over islands, reefs, and historical territorial waters has been going on for two centuries with each period having new factors and developments and at present solutions remain open. This article primarily refers to international legal aspects of claimants of sovereignty in the East Sea.

1. Claims of China (including those of Taiwan)

a) In the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes

China claims to its sovereignty for the Truong Sa and Hoang Sa archipelagoes are mainly based on a number of arguments on discoveries, occupation and the relationship between “a master country and vessel countries” in history. China said it was the first country that had discovered and occupied the two archipelagoes from ancient time. It also said that even when other countries were able to prove their sovereignty over the Hoang Sa and Truong Sa islands, at that time these countries also acted in the name of the Chinese Emperor with the relationship between a master country and a vassal so these new territories also belong to China(1).

However, in reality, China did not occupy really and peacefully in the name of the State under the contemporary international law the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes. If there was discovery as China said, it was only the discovery which was made by fishermen personally and not on behalf of the State. Furthermore, the discovery itself was not sufficient enough to establish sovereignty if it was not accompanied with constant and effective administration.

China did not implement the “effective occupation” of the two archipelagoes, especially the Truong Sa islands - the current prerequisite under international legal precedents to prove sovereignty. China’s activities were not continuous and history books that China cited only recorded a few events in a thousand of years(2). Before 1909 (the first time China sent expeditions of Lee Chuan to Hoang Sa islands, the maps and official documents of the Qing dynasty only viewed the last tip of Hainan island as China’s farthest point so China could not detect and occupy Hoang Sa and Truong Sa islands from ancient time.

The Vietnam-China relations in the history were not the relationship between a master and a vassal in the true sense of the words but were a fairly equal relationship - Vietnamese kings carried out policies independently. Even if the relationship was regarded as “a master country and a vessel one” or “a colonist and a colonized”, after gaining independence, territories of a vassal country or colony belong to the sovereignty of a new state according international law and under precedents.

China also argued that Vietnam had recognised China’s sovereignty and did not have the power to change under estoppel principle. The argument was based on the fact that in 1958 when Prime Minister Pham Van Dong sent a letter to state his approval of Chin’.s Declaration on its territorial sea, including Hoang Sa and Truong Sa islands(3).

However, it is necessary to study the circumstances at the time when the US sent its 7th fleet warships to the Taiwan Strait, directly threatening China’s security. The letter was totally a goodwill action of the late Prime Minister Pham Van Dong to support China’s decision to expand its territorial sea and reduce security risks for China in the Taiwan Strait at that time. The letter only showed the respect and approval within China’s “territorial waters” of 12 nautical miles and did not contain any word which said that the Democratic Republic of Vietnam recognised China’s sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes. More importantly, under the 1954 Geneva Accords, the Sai Gon administration administered the area from the 17th latitude southwards, including the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes. The administration was a party directly involved in the dispute over the two archipelagoes. From 1954 to 1975, the Sai Gon administration exercised its sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes in both legal nature and reality. Vietnam was reunified in 1976, the Government of the Socialist Republic of Vietnam enjoyed the rights and obligations of both the Democratic Republic of Vietnam and the Sai Gon administration. Regarding the territories separated under the 1954 Geneva Accords, the Government of the Socialist Republic of Vietnam administered Vietnam’s entire territory and inherited the claim to sovereignty over Hoang Sa (Paracel) and Truong Sa (Spratly) and became a party in the dispute. Therefore, Vietnam has unceasingly exercised its sovereignty over both Hoang Sa (Paracel) and Truong Sa (Spratly). China has acknowledged the dispute between itself and Vietnam over the two archipelagoes. On September 24, 1975, Deng Xiaoping told Party General Secretary Le Duan in Beijing: “Between the two countries, there is the dispute over the two archipelagoes and the issue can become the topic of negotiation between the two sides”(4). Hence, regarding the letter as an evidence of the Democratic Republic of Vietnam recognition of China.s sovereignty over Hoang Sa (Paracel) and Truong Sa (Spratly) is a deliberate distortion which is contrary to historical fact.

b) On the U-shaped line

Apart from the issue of sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes, China has circulated a map with the U-shaped (oxtongue or nine-dotted) line drawn by an individual person in the 1930s and issued by the Kuomintang government in 1948. At first, the U-shaped line had 11 dashes but Zhou Enlai omitted two dashes in 1953. Although China’s maps depicted the U-shaped line, China did not officially declare its claim and legal basis for the line. Most Chinese scholars believe that the Taiwanese Government has circulated a map with the U-shaped line since 1948 without neighbouring countries’ objections. Therefore, China owns certain historical title to the U-shaped line, not sovereignty to all but only to a number of historical rights such as fishing and natural resources exploitation(5).

In 2009, for the first time China made public its map with the U-shaped line in its note sent to the United Nations to oppose Vietnam and Malaysia’s report on outer continental shelf boundary(6). Recently, China has enforced a modern sea law to supplement its argument over the legal basis on the line to show that it has sovereignty over archipelagoes in the East Sea and the archipelagoes have economic life of their own that has created the exclusive economic zone and the continental shelf like the U-shaped line. On April 14, 2011, China sent a note to the UN Commission on the Limits of Continental Shelf accusing the Philippines of “invading” and “occupying” some islands and reefs in “China’s Truong Sa islands”. China’s note also stated that “Under the relevant provisions of the 1982 UN Convention on the Law of the Sea as well as the Law of the People’s Republic of China on Territorial Sea and Contiguous Zone (1992) and the Law of the People.s Republic of China on the Exclusive Economic Zone and the Continental Shelf (1998), China.s Truong Sa islands is fully entitled to territorial sea, the exclusive economic zone and the continental shelf(7).

However, China still upholds its stance on “historical rights” in the East Sea based on the U-shaped line. The main reason is applying the 1982 UN Convention on the Law of the Sea in the direction of using Hoang Sa and Truong Sa to claim for the exclusive economic zone and the continental shelf cannot create a territorial waters large enough for China to claim its rights to the areas off the coast of other countries (which are rich in natural resources, particularly oil and gas). The Binh Minh 02 ship incident in May 2011 and Vietnam’s declaration of the location of the incident to the world have weakened China’s argument. Therefore, in the protest against the cooperation of the Indian ONGC Company and Vietnam at lots 127 and 128, the spokesperson of the Chinese Ministry of Foreign Affairs for the first time officially stated that the country’s “rights” have been formed in the history” in the East Sea and that the 1982 UN Convention on the Law of the Sea did not affect China’s rights. In protest against the Philippines. seizures of fishing vessels within the exclusive economic zone of the Philippines or the second cable-cutting incident against Vietnam in Sizheng region, China said its fishermen were fishing in “traditional fishing waters”.

Earlier, at the ASEAN-China Foreign Ministers Meeting in Indonesia in July 2011, Chinese Foreign Minister Yang Jiechi for the first time stated that the dotted line (or U-shaped line) had existed since 1948 and the Chinese Governments have consistently upheld the defence of their sovereignty and rights(8).

From different perspectives, the Ushaped line cannot be accepted:

In terms of form, the U-shaped line cannot be a valuable line depicting the .boundary. (in whatever sense) on the sea because it has no specific coordinate; it was drawn arbitrarily as an original solid line at first and then a dotted line with 11 dots and 9 dots at present and sometimes 10 dots. In addition, this is a curved line and not an broken line connected with coordinates like all other boundaries in the world.

In terms of nature, the U-shaped line was first drawn personally and not by the State’s official stance so it does not have international legal value. China’s note which was sent to the UN in May 2009 to reject Vietnam and Malaysia’s reports on the outer limits of the continental shelf did not include the formal stance on the legality of the line.

In terms of legal status, there exist different views among the Chinese leaders on the legality of the U-shaped line. The first viewpoint said that the U-shaped line is a line featuring the “historical waters” over which China has sovereignty like internal waters (or territorial sea). The second viewpoint said that this is a line depicting the waters over which China is entitled to a number of historical rights like fishery rights and traditional administrative areas. The third viewpoint said this is a line encompassing islands. The fourth viewpoint considered the line as the outer boundary of the exclusive economic zone and the continental shelf from the farthest islands of the Hoang Sa and Truong Sa islands(9).

However, detailed analysis showed that the U-shaped line cannot be a line depicting China’s historical waters due to its failure of meeting the requirements of the international law, including firstly, coastal states actually exercise their sovereignty in a constant, peaceful and durable manner; secondly, they receive public approval and non-opposition from other countries, particularly neighboring countries having interests in this territorial waters.

On the first requirement: On one hand, China fails to meet this reqirementbecause all official documents of Chinese feudal states, such as the unified Daruan (1294), the unified Daming(1461), the unifed Daqing (1842) and before 1909 confirmed that “the southern tip of China is Ya Xian on Hainan island”. Other countries’ maps of China also explained in the same way such as the map made by Peter de Goyer and Jacob de Keyzer of the Dutch East-India Company in the 17th century, which clearly explained that “The farthest land of China starts from the South of Hainan Island at 180 North and from there goes up north to 420 latitude”. Regarding Truong Sa, in 1932, the note of Sept. 29, 1932 from the diplomatic mission. of the Chinese Republic in Paris still confirmed that islands of Hoang Sa group were located 145 nautical miles from Hainan island and “form” the southernmost part of Chinese territory”(11).

On the other hand, China could not unceasingly and peacefully exercise its sovereignty over such the large territorial waters from ancient time. The East Sea recorded activities of fishermen and merchants of neighboring and other countries shows no evidence to prove that the sea belong to China. Chinese old literature books recorded activities of Arabian, Indian, Malaysian and Gulf fisherman and merchants in territorial waters(12).

On the second requirement: It is obvious that nations encircling the East Sea never recognise China.s sovereignty over waters within the line. China.s argument regarding adjacent countries. silence being interpreted by China as the acknowledgement of sovereignty is totally groundless because the U-shaped line, which was personally drawn, did not represent the State so other countries did not need to protest. Moreover, the fact that these countries have adopted laws and made declarations on the regulations and activities relating to the overlapping territorial waters on the U-shaped line have indirectly rejected this line(13).

On the other hand, the argument about “historical waters” enjoying the status like internal waters or territorial sea contradicts China’s official stance stated in the Declaration on China’s territorial sea on September 4, 1958 in which China admitted that islands are separated from the continent by the sea, not by historical waters.

In addition, the 1982 UN Convention on the Law of the Sea, to which China is a party and therefore must abide by its regulations, rejects the concepts of “historical waters”. In China’s codes, including the Law of the People’s Republic of China on Territorial Sea and Contiguous Zone in 1992 and the Law of the People’s Republic of China on the Exclusive Economic Zone and the Continental Shelf in 1998, did not mention “historical waters”.

The argument about the U-shaped line - the line features “historical right” - reveals legal weaknesses similar to the above-mentioned argument about the “historical waters”. Besides, it is likely that in the past, Chinese fishermen went offshore fishing. However, not only Chinese fishermen but other countries’ fishermen went fishing in the East Sea. Scientific and technological conditions did not allow the exploitation of natural resources under the seabed, especially oil and gas. On the other hand, the 1982 UN Convention on the Law of the Sea defines the right to sovereignty and jurisdiction in the exclusive economic zone and the continental shelf for coastal states.

The possibility of the third explanation that regards the U-shaped line as the line to encompass islands is only seen internationally as a claim. In reality, Vietnam has sovereignty over the Truong Sa (Spratly) and Hoang Sa (Paracel) archipelagoes (to be presented in the following part) and China can hardly prove its sovereignty over the two archipelagoes as analysed above.

Regarding the fourth explanation about the U-shaped line which is the outer line of the exclusive economic zone and the continental shelf from the farthest islands of the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes. This argument lacks grounds as it is an indulgent that connects the U-shaped line drawn almost half a century ago with the concepts of the exclusive economic zone and the continental shelf of the modern sea law. On the other hand, it is impossible for China to prove its sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes by using the islands to create boundaries of territorial waters.

Even theoratically that China has sovereignty over these archipelagoes, it can not claim such a large exclusive economic zone and continental shelf as these sites are too small with no economic life of their own so they can only be territorial seas without the exclusive economic zone and the continental shelf. Even in the case that a number of sites are considered as “islands” under Article 121 (3) of the 1982 UNCLOS, the validity of the islands in the territorial waters is quite low compared with the coasts of the opposite nations. So territorial waters “boundary” created by islands is not significant and can not be the “equidistant line” as a number of Chinese scholars have argued. Even if the islands in Hoang Sa (Paracel) and Truong Sa (Spratly) enjoy the legal validity in delimitation as the mainland, the boundary of the median line is much smaller than the U-shaped line. In addition, China’s argument about island status in the East Sea contradicts their arguments in Huadong sea. In its argument against Japan’s report on the boundary outside the continental shelf, China regarded the Okinotorishima in the Huadong sea (which has similar conditions to Hoang Sa and Truong Sa locations) as rocks without the exclusive economic zone and the continental shelf of their own(14).

2. Sovereignty claims of Vietnam

Vietnam’s claim of sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes is based on historical evidences and legal foundation.

Regarding history, historical documents of the Nguyen dynasty described unanimously that since the 17th century, the Nguyen Lords dispatched the Hoang Sa and Bac Hai brigades to the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes to exploit marine resources for a six month period in a year. After their trip, they had to pay tax to the court’s tax collection stations. These continuous activities lasted until France invaded Vietnam. Even a number of foreign documents said under the Court of Gia Long King in 1816, Vietnam announced its occupation with an official ritual and hoisted its flag in the Hoang Sa (Paracel) archipelago(15). As a result, unlike China’s inaccurate and unofficial historical evidences, Vietnam’s historical evidences officially sourced from its feudal states with high accuracy through unified descriptions and verifications of foreign materials. The exploitation and occupation of Hoang Sa (Paracel) and Truong Sa (Spratly) were activities made unceasingly and effectively in the name of the State. Activities conducted regarding the entitlement to the territory under the provisions of international law can create sovereignty title for Vietnam (16).

Under the French domination, the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes were under its direct control. In 1933, France declared its sovereignty over the two archipelagoes in line with the international law’s sequence on territorial occupation. France maintained its occupation and established an administrative border for Hoang Sa (Paracel) and Truong Sa (Spratly) which was incorporated into Vietnam.s territory in the capacity of a protectorate for Vietnam in the period. This proved that France implemented its occupation of Hoang Sa (Paracel) and Truong Sa (Spratly) for Vietnam in the capacity of the protectorate for Vietnam. After its withdrawal from Vietnam, France handed over the control of the two archipelagoes to the Vietnamese government. In other words, the Republic of Vietnam (the Sai Gon administration) took the succession of sovereignty over the two archipelagoes set up legally by France.

The Sai Gon administration continued maintaining effective control of the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes through its unceasing management and occupation until transferring to the South Vietnam Provisional Revolutionary Government.

In 1976, when the South Vietnam Provisional Revolutionary Government merged with the Government of the Democratic Republic of Vietnam into the Socialist Republic of Vietnam, the unified Vietnam took the succession of sovereignty of the South Vietnam Provisional Revolutionary Government over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes.

Hence, from the historical title and legal foundation on sovereignty that was legally established from the feudal period of the Nguyen Dynasty and the period of the French protectorate and legally inherited, the Socialist Republic of Vietnam has enough grounds to claim its sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes under the provisions of international law.

However, it is also necessary to add that evidence and notes in Vietnam’s history have not clearly separated the Hoang Sa (Paracel) archipelago and Truong Sa (Spratly) archipelago. At the same time, according to modern theoretical points, entities themselves in Hoang Sa (Paracel) and Truong Sa (Spratly) do not create “archipelagoes” in the true sense of the word under the 1982 UN Convention on the Law of the Sea. Sovereignty over each island and separate reef has different history of establishment.

Apart from its claims to sovereignty over Hoang Sa (Paracel) and Truong Sa (Spratly), Vietnam has made claims to internal waters, the territorial sea, the contiguous zone, economic exclusive zone and continental shelf(18) and submitted claims over expanded continental shelf in respect to the northern area and the southern part (together with Malaysia) to the UN in 2009(19). It can be seen through its reports on outer limits of the continental shelf, Vietnam indirectly refrain from considering locations (geological forms) in Hoang Sa (Paracel) as islands under Article 121 of the 1982 UN Convention on the Law of the Sea, thus having no exclusive economic zone or continental shelf but only the 12 nautical mile territorial sea. If a number of locations exist as islands, the islands have continental shelves of their own which overlap continental shelves from the baseline, hence, it is not necessary to submit the report to the UN Commission.

3. Claims of the Philippines

The Philippines put forth its sovereignty claim based on geographical proximity among islands in Kalayaan island group (the majority of the Truong Sa (Spratly) archipelagoes) and the Philippine territory based on the discovery and effective control and the economic and security significance of Kalayaan for the Philippines(20).

Geographical contiguity was once used by a number of countries to put forth their sovereignty claim to a number of islands in the 19th century. The common argument is that only when islands are close to the territory but outside its territorial sea, can it make claim to sovereignty based on contiguity. However, in the legal precedent of the island of Palmas case, one of the arguments put forth by the US to protect the sovereignty over the island of Palmas is proximity which was rejected by international judges. Arbitrators argued that although in some cases, countries can have sovereignty over near shore islands because of geographical contiguity, defining sovereignty over near shore islands in the outer limits of their territorial sea can not be based on contiguity only(21). Furthermore, Judge Huber clearly elaborated that displays of activities belonging to sovereignty is more significant than the foundation of contiguity even if such contiguity is combined with the existence of natural boundaries(22). Thus, geographical contiguity is not the foundation for making claims of sover eignty over near shore islands outside the territory like the case of the islands of the Truong Sa (Spratly) archipelagoes near the Philippine territory.

On the other hand, the occupation and effective administration were implemented through the discovery of Cloma, a Philippine citizen, in 1956. Cloma’s discovery was made in his own name, not on behalf of the Philippine State. After the discovery, Cloma stated that without the assignment of the Philippine State, Cloma’s discovery was still valid in determining the Philippines’ sovereignty over Truong Sa (Spratly). However, the Philippine Government failed to make its territorial claim except for neutral statements at that time. It was not till 1971, the Philippines changed its stance and that was the first time the Philippines issued the statement on its sovereignty and occupied one island. Sufficient legal foundations of its sovereignty claim were issued in 1978. Whereas, Vietnam’s statements on its sovereignty over Truong Sa (Spratly) as well as the country’s occupation and administration had been made a long time before. Under the provisions of international law on territory succession, occupation can only be carried out on ownerless or abandoned territories and must be managed effectively, constantly and peacefully by State agencies. Thus, the Philippine Government failed to meet these requirements. So one can not say that the Philippines effectively occupied and managed an “ownerless territory” of Truong Sa (Spratly).

Apart from its claims of territorial sovereignty, the Philippines had adjusted and put forward claim for territorial waters from archipelagic baseline which was amended in 2009 to match with the 1982 UN Convention on the Law of the Sea. This was the first time the Philippines gave up the Kalayann boxshaped boundary (the Philippines’ claim area in Spratly) and used the 1982 UN Convention on the Law of the Sea to specify the baseline, the exclusive economic zone and the continental shelf. The Philippines also stipulated regulations for islands in Truong Sa (Spratly) to which the Philippines claimed its sovereignty(23).

The Philippines’ April 5, 2011 note to the UN rejected China’s claim for the “U-shaped” line and other claims which were not based on the 1982 UN Convention on the Law of the Sea(24). The change in the Philippines’ viewpoint in its April 5, 2011 note were indicated in its separation of two types of dispute: the sovereignty dispute over geological features (islands, reefs, grounds,...) and dispute over territorial waters. Although there is still ambiguity in determining that geological features in Truong Sa (Spratly) archipelago only have the 12 nautical mile territorial waters, the Philippines made a shift in stressing the principle of “the land dominates the sea” under the 1982 UN Convention on the Law of the Sea that suggested a possibility for concerned States to discuss the boundary outside the continental shelf that extends from the coast of coastal States on the basis of international law.

4. Claims of Malaysia and those of Brunei

Malaysia made public its map of continental shelf on December 21, 1979 and claimed sovereignty over all islands within its exclusive economic zone and continental shelf. Brunei put forward its claim similar to Malaysia’s.

From the perspective of international law, Malaysia’s and Brunei’s claims of sovereignty over some islands in the Truong Sa (Spratly) were based on the continental shelf theory, one of the principles in the international law of the sea recognizes “the land dominating the sea” and only the territory serves as the foundation for determining territorial waters, including the continental shelf, not vice versa. The continental shelf is not a foundation for defining sovereignty over the territory. The legal precedents of the North Sea Continental Shelf(25) and the 1982 UN Convention on the Law of the Sea have pointed out the relationship between continental shelf, territory and contiguity. Therefore, a coastal state is entitled to sovereign rights over the continental shelf which is defined through the natural prolongation of its land territory. Rights of the coastal states over the continental shelf are not equal with sovereignty. These are titles to sovereign rights for exploring and exploiting natural resources in the seabed and the subsoil thereof(26). Sovereign rights are not synonymous with creating sovereignty over islands within that continental shelf. In the contrary, sovereignty over islands can create territorial waters, with the continental shelf of the islands themselves. Therefore all the claims made by Malyasia and Brunei to a number of islands in the Truong Sa archipelagoes on the basis that the islands are situated on their continental shelves are groundless under the international law.

However, Malaysia and Brunei can argue that a number of geological features in Truong Sa (Spratly) are low tide elevations so parties do not have rights to establish sovereignty over these elevations and sovereignty will belong to nations that possess territorial waters bordering the elevations. On the other hand, the geological features above the water at high tides are entitiled to the 12 nautical mile territory so the sea outside this territory belongs to the exclusive economic zone and the continental shelf of coastal states.

In brief, among the claims of sovereignty in the East Sea, particularly those over the Truong Sa (Spratly) and Hoang Sa (Paracel) archipelagoes made by the States concerned, Vietnam’s claim has more and clear evidence and legal foundations conformity with international law and practice.

Because of the sensitiveness of sovereignty issues as well as the differences in the stances of the States concerned, it is hardly likely that China and other ASEAN nations involved in the East Sea dispute will negotiate and use other peaceful means to definitely settle the issue.

Regarding the Hoang Sa (Paracel) archipelago, it is unlikely that there will be solutions through negotiations or by means of international court since China will reject that approach.

Concerning the Truong Sa (Spratly) archipelago, it is unlikely that the issue will be brought to the international court, and third existing mechanisms will not work as China has not agreed and the other countries are not ready to that due to the lack of evidence. Settling disputes through peaceful negotiations is not feasible since internal pressures do not allow governments to make concessions on sovereignty.

It is difficult to definitely complete the delimitation of overlapping territorial waters in the coming 20-30 years. For the final solution to be realized, three issues to which solutions are almost impossible must be solved at the same time. First, concerned parties must completely settle sovereignty issue and the legal aspects of the Hoang Sa (Paracel) and Truong Sa (Spratly). Second, overcoming such big differences over the forum of negotiation for “the start of a real talk”; China wants to hold bilateral talks to take advantage of a big country while small countries priorities multilateral talks in order to have more chances to gather forces and avoid being inferior to China. Third, most importantly, the solution in compliance with the international law and practice will not satisfy China.s interests interest since it may be entitled to only between 20-25 percent of the East Sea in the north poor in natural resources.

It is more likely that the situation in the East Sea will develop with detente and tensions being intertwined. The parties will exercise their sovereign and jurisdiction rights under the 1982 UN Convention on the Law of the Sea. China is unlikely to give up its “U-shaped” line and will continue its activities on the sea, including blocking other countries’ activities. China will continue its assertiveness in the East Sea in order to protect their “interests” when necessary while minimising the escalation of the disputes into military conflicts, avoiding strategic confrontation with the US, and other powers and ASEAN so as to maintain peaceful environment for development and avoid pushing ASEAN towards the US. The situation will become less tense when China wants to ease tensions in the East Sea in favor of its continued “peaceful development”. Claimant parties still want to hold dialogue and ensure progress. Smaller countries will continue to bring East Sea issues to regional and international forums when necessary. The forums within the framework of ASEAN continues to be venues for parties inside and outside the region to discuss the East Sea situation./.

Tran Truong Thuy*

NOTES

* Dr. Tran Truong Thuy, Director of the Centre for East Sea Studies, the Diplomatic Academy of Vietnam

* The article.s views are personal ideas and do not reflect the viewpoint of the writer.s working agency. The writer thanked Dr. Nguyen Thi Lan Anh of the Diplomatic Academy of Vietnam for contributing ideas and valuable amendments.

1. Speech by Professor Fu. Kueh Chen, the Shanghai Jiaotong University, at the seminar “Policy Options for Developing a Common UNCLOS Strategy in Asia,” May 9-11, 2011 in Hongkong.

2. “Historical Evidence To Support China’s Sovereignty over Truong Sa Islands” http://www.fmprc.gov.cn/eng/topics/3754/t 19231.htm

3. “International Recognition of China.s Sovereignty over the Truong Sa Islands”. http://www.fmprc.gov.cn/eng/topics/3754/t 19232.htm

4. “The Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes and International Law”, Vietnam MOFA, 1988, p26.

5. Zou Keyuan (2012): China’s U-Shaped Line in the South China Sea Revisited, Ocean Development & International Law, 43: 1, 19

6. Seeing the note attached with the “UShaped line” at http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf

7. Seeing China.s note at http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_r e_phl_e.pdf

8. Speech of Chinese Foreign Minister Yang Jiechi at the ASEAN Regional Forum (ARF) Foreign Ministers’ Meeting in 2011. http://www.fmprc.gov.cn/eng/zxxx/t84218 3.htm

9. Speech by Professor Liu Nanlai (China) at the first international seminar on the East Sea in Hanoi jointly organised by the Diplomatic Academy of Vietnam and the Lawyers Association in November, 2009.

10. Peter de Goyer and Jacob de Keyzer: An embassy from the east-India Company United Provinces to the Grand Tartar Cham Emperor of China, Menzies Library, Australia, v. Ige, rare, b DS 708.N64, Documents of the National Border Commission.

11. Note of 29 September 1932 from the Legation of the Chinese Republic in France to the Ministry of Foreign Affairs, Paris. Annex 10 in “Sovereignty over the Paracel and Spratly Islands,” 2000, by Monique Chemillier-Gendreau, Kluwer Law International.

12. G.M.C. Valero: Spratly Archipelago: Is the question of sovereignty still relevant, IILS, University of the Philippines Law Center, Diliman, Quezon City, 1993.

13. Reference to charts of other countries. indirect documents rejecting the UShaped Lie at Zou Keyuan (2012): China.s U-Shaped Line in the South China Sea Revisited, Ocean Development & International Law, 43:1, p 25

14. http://www.fmprc.gov.cn/eng/zxxx/t84218 3.htm

15. Jean Louis, “Note on the Geography of Cochinchina” (1837) VI (Part II) Journal of the Asiatic Society of Bengal, 737-745; John Barrow, A Voyage to Cochinchina, (T.Cadell and W Davies, 1806), page 17

16. “The Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes and International Law”, Vietnam MOFA, 1988, p. 9

17. Ibid

18. The Government of the Socialist Republic of Vietnam on May 12, 1977 issued a statement on the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf of Vietnam and on November 12, 1982 a statement on the baseline used to measure the breadth of the territorial sea and internal waters within the baseline.

19. Seeing two reports on outer limits of the continental shelf at: http://www.un.org/depts/los/clcs_new/submissions_ files/submission_mysvnm_33_2 009.htm http://www.un.org/depts/los/clcs_new/submissions_ files/submission_vnm_37_2009.htm

20. President Decree No. 1596: Declaring Certain Area Part of the Philippine Territory and Providing for their Government and Administration. Philippines. 11 June 1978.

21. Palmas island case, judgment of international judges, (1928) 2 RIAA, page 893

22. As above, page 894

23. .PGMA signs baselines bill into law., Press Release by Philippine Information Agency on March 12, 2009. http://www.pia.gov.ph/?m=12&sec=reader& rp=1&fi=p090312.htm&no=8&date=0 3/12/2009

24.http://www.un.org/depts/los/clcs_new/sub missions_files/mysvnm33_09/phl_re_chn_ 2011.pdf

25. North Sea Continental Shelf Case, Judgment of the International Court of Justice, ICJ Reports (1969) p 3.

26. According to Provisions of Articles 76 and 77 of the 1982 UN Convention on the Law of the Sea.

 

 

 

 

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