Investigating the legal status of the Vanguard Bank

E-mail Print PDF

tải xuốngOver the past two months since early July 2019, China has deployed the geological survey vessel Haiyang Dizhi 08 accompanied by several Coastal Guard and militia vessels in the waters near Vanguard Bank. Many researchers, analysts and lawyers have publicly criticized China's behavior. In this article, we will analyze the legal status of the Vanguard Bank to demonstrate China’s unruly behavior.

It is certain that the area in which China's Haiyang Dizhi 08 vessel operated since early July falls completely within the exclusive economic zone and continental shelf of Vietnam, as established in Articles 57 and 76 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982). This is completely not an overlapping or disputed area between Vietnam and China. UNCLOS 1982 clearly puts that if the coastal state does not explore or exploit resources in these areas, no one has the right to conduct these activities without the permission of the coastal state.

Since early July 2019, Vietnam has repeatedly showed objection against Beijing’s action through diplomatic channels and public statements of Vietnamese Ministry of Foreign Affairs’ Spokesperson to denounce Chinese encroachment and demand China to withdraw its vessels. The operations of the Haiyang Dizhi 08, Chinese law enforcement and militia vessels, against Vietnam's objection, have seriously violated UNCLOS regulations and Vietnam's laws regarding Vietnam's sovereignty rights and jurisdiction in the exclusive economic zone and continental shelf of Vietnam. As members of UNCLOS 1982, both China and Vietnamese are obliged to follow provisions of the Convention.

Some Chinese international law experts refer to a paragraph in the preamble of UNCLOS that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law” to justify China's ambiguous claim in the South China Sea. However, all issues related to sovereignty, sovereignty rights, national jurisdiction, especially the exclusive economic zone and continental shelf, are clearly defined in Articles 57 and 76 of the UNCLOS. Perhaps Chinese law experts are pretending to "misunderstand" to cover up its unruly behavior?

So far, China has claimed the South China Sea with the “nine-dash line” created by a Chinese individual in 1947, then later attached a map with the "nine-dash line" to China’s Note to the United Nations in 2009. China says that the area of Vanguard Bank is inside the "nine-dash line" so it is "China's water".

The “nine-dash line” drawn erratically (initially 11 dash lines, then 9 dash lines, then 10 dash lines and recently a solid line as drawn by some Chinese experts) doesn’t have clear coordinates, and are opposed by the international community. The Permanent Court of Arbitration (PCA) in the lawsuit between the Philippines and China in 2016 held that there was no legal basis for China to claim the historic rights to resources in the waters within the “nine-dash line”. Therefore, China has absolutely no legal basis to claim the Vanguard Bank.

After the PCA’s award on July 12, 2016, China introduced a new claim concept of "Four Shas" (including four groups of islands: "Dong Sa" (Pratas Islands), "Xi sha" (Paracel Islands), "Nan sha" (Spratly Islands) and "Zhong sha" (Macclesfield Bank); at the same time, claiming the right to the 200-nautical-mile exclusive economic zone (almost the entire South China Sea) around these four archipelagos.

Recently, in response to questions regarding the incident at the Vanguard Bank in early July 2019, the Chinese Foreign Ministry Spokesperson made an argument that the area of China's waters starting from Spratly Islands in which Haiyang Dizhi 08 operated within derived from the aforementioned "Four Shas" concept. With this reasoning, China hopes to have a vague explanation in accordance with the UNCLOS. However, this argument of China completely runs against UNCLOS regulations as the Spratly Islands are not an archipelagic state, so it is not possible to draw a baseline around the archipelago to claim a separate exclusive economic zone and continental shelf.

Moreover, PCA’s Award on July 12, 2016 in the South China Sea affirmed the features in the Spratly Islands, including Itu Aba Island (largest one in Spratly Islands, currently occupied by Taiwan), are not eligible to be considered an island under Article 121 of the UNCLOS so the features in the Spratly Islands are entitled fora territorial sea of maximum 12 nautical miles only, and do not have their own exclusive economic zone and continental shelf. This means the award completely rejected China's claim to the Vanguard Bank.

Thus, it can be confirmed that Vanguard Bank is completely under the sovereignty and jurisdiction of Vietnam, without any overlapping claim with any other countries. Some lawyers thought that the baseline in the south of Vietnam’s East Sea with Phu Quy and Con Dao islands as the base points is located too far from the coast and not consistent with UNCLOS. However, they also said that even when Vietnam adjusted the base points much closer to the southern coast, Phu Quy and Con Dao islands were fully qualified to have their own exclusive economic zones and continental shelves; thus, the water under Vietnam’s sovereignty and jurisdiction will not be narrowed.

In short, from any perspective, the Vanguard Bank is completely under the sovereignty and jurisdiction of Vietnam, not related to the Spratly Islands as referred to by China to justify its violations of international law, UNCLOS and PCA’s Award on July 12, 2016.

Upholding the rule of law, particularly the UNCLOS 1982, in response to a reporter's question on September 12, 2019, the Spokesperson of the Ministry of Foreign Affairs of Vietnam also presented Vietnam’s legal arguments regarding the area where Haiyang Dizhi 08 vessel group had been showing aggressive action, affirming that: “All maritime economic activities of Vietnam, including those in oil and gas sector, are taking place completely within Vietnam’s exclusive economic zone and continental shelf as determined based on the mainland, in accordance with the provisions of UNCLOS 1982, in which both Vietnam and China are members”; "The UNCLOS 1982 clearly defines the scope, and is the only legal basis for states to determine their entitlement to maritime areas"; “Illegal claims that do not conform to the UNCLOS 1982 cannot be the basis for asserting the existence of disputed or overlapping waters. Any obstruction to Vietnam's petroleum activities in Vietnam's waters is a violation of international law and UNCLOS 1982”.

The US is very cautious in sharing its position regarding legal issues. Experts from the US have also carefully studied the legal status of the Vanguard Bank before making official statements on Chinese actions in the area. The public criticism from the State Department and many US Congressmen, officials of China’s encroachment in Vietnam's Vanguard Bank as an act of coercion clearly showed that the US had acknowledged the Vanguard Bank as an area within the exclusive economic zone, continental shelf of Vietnam in accordance with UNCLOS regulations.

Many other countries such as India, Japan, Australia, Britain, France, Germany and the EU... also criticized China's violations of international law, especially UNCLOS, requested the respect for legitimate rights of coastal states and compliance with the PCA’s Award on12 July, 2016. This shows that the international community widely recognizes that the Vanguard Bank is under the sovereignty right and jurisdiction of Vietnam. No other countries have ever voiced support for Chinese behavior in the Vanguard Bank, even Chinese scholars and lawyers have not provided any legal foundation to justify China’s wrongdoings in the Vanguard Bank.

As those in power in Beijing, ignoring both international law and opinions of other countries and the international community, sink deeper into Great Han’s narrow nationalism path of expansion and hegemony, how can they realize the "Chinese Dream" which Xi Jinping envisioned?

Over the past 2 months, unruly survey operation of China’s Haiyang Dizhi 08 vessel group in the Vanguard Bank could neither change its legal status nor realize the plan to turn this non-disputed area to a disputed one because Vietnam's sovereignty and jurisdiction in the Vanguard Bank has been protected and recognized by the international law and international community. This fact cannot be changed by whatever plots China could think of. For justice will prevail and all morality upright will be vindicated.