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Deploying survey ships to violate Vietnam's waters, once again China threatening peace, stability

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7c213e6c-ac2f-11e9-a61f-bc570b50c4e7 image hires 152750Since early July 2019, China has deployed the Haiyang Dizhi 8 geological survey vessel escorted by several Coastal Guard ships and militia fishing boats into the waters close to Vanguard Bank under Vietnam’s control. This action shows that China has grossly violated Vietnam's sovereignty contrary to what they have recently "proposed" to high-ranking Vietnamese leaders; in doing so, China cannot be regarded as a "responsible major power" as has been declared by itself. It’s necessary to clarify the situation with the public inside and outside the country as well as the Chinese side in this connection.

First of all, it must be affirmed that Vietnam has sufficient convincing legal grounds to take appropriate measures to protect its maritime sovereignty. Under the Constitution of Vietnam, in 2012, National Assembly of Vietnam passed the Law of the Sea of Vietnam as an important legal basis for all activities of Vietnam at sea. This document has been written in the spirit of the UN Convention on the Law of the Sea 1982 (UNCLOS 1982, known as the world's constitution on the sea) of which Vietnam, China and all the countries surrounding the South China Sea are members.

On the basis of these two legal documents, Vietnam has established its legal rights and obligations in the South China Sea.

The principle of the domination of the land over the sea is the first one for states to establish maritime zones with their corresponding institutions, which means: (1) Coastal states can establish their maritime zones towards the sea. (2) States with ownership of offshore features rising on the water at high tide (most notably offshore islands) can also establish their surrounding waters in accordance with international law.

This principle is important in that the further offshore the coastal state is stretching, the more limited control it has over the sea. Therefore, sequentially towards the sea, states have sovereignty over the internal waters and territorial sea. In contiguous zones, exclusive economic zones and continental shelves, states have respective sovereign rights and jurisdiction according to various characteristics.

With its statements in 1977, 1982 and the Law of the Sea 2012, Vietnam has established sovereignty all over its waters in the South China Sea enjoying the respective rights and obligations in the region.

Secondly, as far as sovereignty, sovereign rights and jurisdiction are concerned, Vietnam has full and absolute sovereignty over the internal waters as it does over the land territory. Over its territorial sea, Vietnam has full and absolute sovereignty, which means that Vietnam has the rights to set out laws and enforce them for all activities in the waters, the air space as well as its seabed and subsoil. However, all foreign vessels have the right for innocent passage (quickly, continuously and expeditiously) through Vietnam’s territorial sea. Within the contiguous zones, Vietnam can exercise control activities in relation to customs, immigration and environment.

Within the exclusive economic zone, Vietnam exercises sovereign rights for economic exploitation and exploration of natural resources and energy in the waters and the seabed.

Sovereign rights can be understood as the exclusive rights to exploitation and use of Vietnam's exclusive economic zone. Other states can carry out these activities only with the permission granted by the Vietnamese Government in the most popular form as treaties with strict provisions on such exploitation.

In addition, other activities related to the establishment of artificial islands, structures for sea traveling, scientific research or environmental protection in the exclusive economic zone are under Vietnam’s jurisdiction. This means that Vietnam can exercise the rights to issue regulations related to these areas and Vietnam's law-enforcing forces have the rights to take necessary measures to ensure that the above provisions are complied by not only Vietnamese but also foreign vessels passing the areas.

Regarding the continental shelf, there are many cases in which coastal states’ continental shelf extends within 200 nautical miles and the water column above is also the exclusive economic zone. But with favorable geological conditions, Vietnam is among the states which can further expand their perspective continental shelves.

In 2009, Vietnam submitted a dossier to expand its continental shelf to the Commission on the Limits of the Continental Shelf and is awaiting for the confirmation from the agency. However, within its 200 nautical mile continental shelf, Vietnam has full sovereign rights, no occupation or exploitation by any other states can affect the legal status of Vietnamese continental shelf.

Vietnam's sovereign rights and jurisdiction over the continental shelf are similar to those over the exclusive economic zone. However, international law of the sea emphasizes that drilling operations on continental shelf in any form or purpose have to comply with the regulations and management of the Government of Vietnam.

Thirdly, regarding the freedom of navigation of foreign vessels. Vessels of other states can exercise their freedom of passage through the waters within one state’s exclusive economic zone or continental shelf. However, it should be noted that they must not conduct any acts regarding economic exploitation and structures built by coastal states there. The international law of the sea even authorizes coastal states to set safe areas not exceeding 500 meters around their built structures. Respecting these areas is a mandatory obligation for all passing vessels regardless of their nationalities.

Fourthly, Vietnam’s waters in the South China Sea are independent and not overlapping.

Currently, Vietnam has basically completed its international legal obligations to firmly establish its waters from the mainland and nearby islands. Based on the ruling of the Permanent Court of Arbitration to the United Nations Convention on the Law of the Sea (PCA) in the Philippines’ proceeding against China, it is impossible to establish more than 12 nautical mile waters around all entities in the Spratly, it can be said that Vietnam's waters are independent and do not overlap with the seas emerging from this archipelago.

In addition, Vietnam has been conducting maritime delimitation with China in the North and the Philippines, Malaysia, Indonesia and Cambodia in the South.

The above-mentioned facts are the fundamental contents of Vietnam's Law of the Sea in 2012, under which Vietnam can implement all measures to protect its sovereignty. Therefore any action infringing upon the rights are violation of the international law and Vietnam’s laws of sea. This was confirmed again in Vietnam's statement on July 19th 2019 regarding the provocative acts by Chinese vessels in Vietnam's exclusive economic zone and continental shelf in Vanguard Bank. As stated by Vietnamese Ministry of Foreign Affairs’ Spokesperson Le Thi Thu Hang, Chinese survey ship Haiyang Dizhi 8 and its escorts have over the past few days conducted activities in the southern area of the East Sea violating Vietnam's exclusive economic zone and continental shelf in the southern area of the South China Sea. This is absolutely sovereignty waters of Vietnam, as determined in accordance with the provisions of the UNCLOS 1982 of which Vietnam and China are both members. Vietnam has repeatedly made contact with China on multiple occasions via different channels, delivering diplomatic notes to oppose China's violations, and staunchly demanding China to stop all unlawful activities and withdraw its ships from Vietnamese waters, respect Vietnam's sovereign rights and jurisdiction in the spirit of bilateral relationship, stability and peace in the region. Vietnam's competent maritime forces have taken many appropriate measures to exercise sovereignty, sovereign rights and jurisdiction in a peaceful and lawful manner to protect Vietnam's waters.

In the face of these developments, reviewing the situation and analyzing China’s actions, observers in the region and beyond share the following points:

Firstly, China has been acting illegally contrary to the UNCLOS 1982 and the PCA’s rulings in 2016 that reject Beijing's claims over South China Sea. Under the UNCLOS 1982 and the PCA’s rulings, states are prohibited from violating others’ national resources. In this case, China is violating Vietnam's exclusive economic zone in the South China Sea. An exclusive economic zone is an area where a coastal state can exercise its sovereign rights to natural resources. By sending the survey vessels to operate within Vietnam's exclusive economic zone, China has illegally intervened in Vietnam's interests.

Secondly, all activities by Haiyang Dizhi 8 and its escorts have obviously violated the exclusive economic zone and continental shelf of Vietnam in the South China Sea. As a signatory party and member of the UNCLOS 1982, China must respect international laws and should behave as a great power. As a country having a close, long-lasting friendship with Vietnam, China should not have such behaviors. As China and ASEAN have signed the Declaration of Conduct of Parties in South China Sea (DOC), Beijing must realize its commitments with ASEAN provided in that document.

Thirdly, with these activities, China has failed to match words with deeds. It claims that there has been progressed in negotiation for the Code of Conduct of Parties in South China Sea (COC) with ASEAN, even a senior Chinese leader has said that the negotiation would be concluded in the next three years, while in reality Chinese vessels have been violating Vietnam’s sovereignty. This shows that China has no goodwill towards COC, which may result in a prolonged deadlock in the COC negotiating process.

Fourthly, China has once said that external interference and provocations into the region are the factors that hinder the negotiation of COC. However, the fact is, it is China that is "pulling" the outsiders into the South China Sea, leading to instability in the region and causing much more difficulties to the COC negotiations.

Meanwhile, regarding Vietnam's foreign policy and response/behavior in this issue, in the view of analysts in the region and the world, Vietnam has tried to use international law to protect the maritime rights sea and sovereignty against Chinese activities. Unfortunately, Beijing has ignored international law, insistently maintaining illegal actions against Vietnam's rights and interests, from conducting aggressive exercises, ramming Vietnamese fishing vessels, arbitrarily issuing fishing ban in Vietnam's exclusive economic zone, to bringing seismic survey ships to infringe upon the legal sovereignty of Vietnam.

In other developments, the most notable of which was, following China's action, US National Security Advisor John Bolton put in his Twitter message on July 19, 2019 that respecting sovereignty & freedom of navigation is fundamental to the Indo-Pacific vision shared by U.S. and the Association of Southeast Asian Nations (ASEAN). China’s coercive behavior towards its Southeast Asian neighbors is counterproductive & is threatening regional peace & stability.

This is not the first time Mr. John Bolton has rebuked strongly against Chinese behavior. In mid-March 2019, during a Fox News interview, he also stressed that China's actions in the South China Sea were "unacceptable". According to Bolton, the United States will continue to conduct operations to safeguard freedom of navigation and other actions to prevent Beijing from turning the region into a "new Chinese province". Meanwhile, on July 18, 2019, Admiral Philip Davidson, Commander of the US Indo-Pacific Command, criticized Beijing for "showing off muscles" in the South China Sea and for failing to respond to Washington’s call for establishing a crisis communication mechanism to mitigate the risks of miscalculation.

According to South China Morning Post newspaper, Mr. Davidson has affirmed Washington's commitment to continuous presence in the South China Sea to facilitate peaceful settlement of disputes and maintain law-based order in the region. The US admiral also criticized China's military ambitions in the South China Sea and reiterated that Beijing recently carried out a missile test into the waters shortly after Chinese Defense Minister Wei Fenghe made a statement at the Shangri-La Dialogue in Singapore in June 2019.

It would be noted that amid the ongoing tension stand-off between China and Vietnam at Vanguard Bank, US National Security Advisor John Bolton said that the US and other countries such as Japan, Korea, Australia and Russia need to show clearly that they cannot support China's risky policy. Other countries need to coordinate with Vietnam to repel China's pursuit of its ambition to monopolize control of the South China Sea. If realized, John Bolton's statements and plans will push the South China Sea into a new “stirring-up" period with more complicated developments. Peace, stability and cooperation are under threat and again the main causing factor is none other than China.

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