Who “passed the buck”?

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South China Sea 2016 01 30 18 07 07To justify the illegal activities of the Haiyang Dizhi 08 vessel group deep in Vietnam's 200-nautical-mile exclusive economic zone and continental shelf, China affirmed that the operation of the Haiyang Dizhi 08 vessel group was completely legal, since:

1. Vanguard Bank is an integral part of "Nansha Islands" under China's "historical sovereignty";

2. The waters surrounding Vanguard Bank are the "adjacent waters" and "related waters" of "Nansha Islands" (ie: Vietnam’s Spratly Islands).

Can this position of China stand firm against the current provisions of international law?

In order to clarify the truth of China’s position mentioned above, we will discuss and analyze the following two relevant legal issues:

I. The sovereignty over Paracel Islands and Spratly Islands:

When considering a state’s rights to acquire a territory which is in dispute or when there is a disagreement over national sovereignty, normally legal principles underlying the positions of the concerned parties are compared and reviewed:

1. The principle of “effective occupation”

Article 3, Article 34 and Article 35 of Berlin General Act (General Act of the Berlin Conference on June 26, 1885) determines the content of the principle of “effective occupation” and the key conditions for the “effective occupation” as follows:

-  There must be notification of an occupation to other signatory nations of the Act.

-  Occupying nation must establish sufficient authority in the territory to protect its existing rights.

The Declaration of the Lausanne Institute of International Law in 1888 emphasized: "Every occupation that wants to make nominal sovereignty... must be true, i.e., real, not nominal.” It’s this statement that gives the principle of effective occupation of the Berlin General Act a common value in the process of consideration and resolution of sovereignty disputes among countries in international law.

The main contents of the effective occupation principle in international law include:

- The establishment of territorial sovereignty must be conducted by the state.

- The occupation must be conducted peacefully on a derelict territory (res nullius) or on a territory abandoned by a country that had previously owned it (derelicto). The use of force to occupy the territory is unlawful.

- The occupying state must enforce its sovereignty in the necessary levels, which at least, fit the geographic and demographic of that territory.

- The enforcement of sovereignty must be continuous and peaceful.

Although the Saint German Convention on September 10, 1919 voided the Berlin General Act since the world no longer had derelict territories, because of the Act’s relevance and coherence of this principle, lawyers and international tribunals continue to apply it to resolve sovereignty disputes over islands. For example, The Hague Permanent Court of Arbitration in April 1928 applied this principle to settle the dispute between the United States and the Netherlands over Palmas Island; the award of the United Nations International Tribunal in November 1953 on sovereignty dispute between Britain and France over the islands of Minquiers and Ecrehous...

However, these international-level institutions cannot prevent the use or threat of force to constantly compete for the market, fulfill the ambition of hegemony, dispute territories, especially islands, maritime territories, areas with geo-economic, geo-political, geo-strategic significance... The peaks of fierce conflicts among capitalist countries were the First and Second World Wars in the early 20th Century, which claimed tens of millions of lives and destroyed many villages, cities and assets of mankind..., seriously violated the territorial integrity and national sovereignty of many countries in the world, followed by the Cold War arms race, continuous terrorism, ethnic and religious conflicts, border and territorial disputes in across the globe...

Recently, in December 2002, the International Court of Justice held Malaysia won against Indonesia in a sovereignty dispute over Pulau Ligitan and Pulau Sipadan as the court found that Malaysia had regularly conducted a series of state activities. However, the aforementioned institutions cannot resolve conflicts, competitions and disputes among countries, especially in the search for markets for supply and consumption of goods manufactured by developed capitalist countries. Therefore, the wars and conflicts keep taking place at different scales and levels: the First World War, the Second World War, the Cold War, territorial border disputes, terrorism, ethnic and religious clashes...

In order to prevent the risk of wars caused by ambition for hegemony, invasion of territory of sovereign states by use or threat of force, the UN Charter was signed on June 26, 1945 in San Francisco and took effect on October 24, 1945. The UN Charter is said to become the highest international legal principle to protect the existence of nations as entities in modern international relations. In principle, it is a weapon used to disable the territory acquisition methods using powers in previous historical periods. This is the reason why the world still recognized the legality of the use of force to invade part or the whole territory of a nation until the early 20th century. It also explains why the UN Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.

This is the legal principle that Vietnam has relied on to prove and assert that Vietnam has sovereignty over Paracel Islands and Spratly Islands in the South China Sea. It was because, the State of Vietnam is the first state in history to have possessed and exercised its sovereignty over these two archipelagos since they were derelict territory (Res nullius), from at least the 17th Century. The possession and enforcement of Vietnam's sovereignty in these two archipelagos are clear, continuous, peaceful, in accordance with the current principle of territorial acquisition – the effective occupation – of the international public law. Vietnam has enough valid historical evidence to prove and defend its sovereignty over these two archipelagoes throughout historical periods.

Evidences showing that Vietnam's occupation and enforcement of sovereignty over these two archipelagoes fully meet the conditions of the effective occupation:

Firstly, in the name of the State, through State-established administrative units and organizations; for instance:

Throughout three centuries, from the 17th century to the end of the 19th century, through 3 different dynasties, the State of Dai Viet had fulfilled their sacred duty of occupying and enforcing Vietnam's sovereignty over Paracel Islands and Spratly Islands. Hoang Sa Team, an organization established by the State to manage, protect and exploit Paracel Islands and Spratly Islands, later formed Bac Hai Team, managed by the leader of Hoang Sa Team. It operated under the orders of 7 lord generations, from Lord Nguyen Phuc Lan or Nguyen Phuc Tan until the rise of Tay Son movement. In this historical period, a very important evidence cannot be ignored when proving the real and effective management of the feudal state of Vietnam over these two archipelagos. It was the organization of Hoang Sa administrative units (Paracel Islands and Spratly Islands) in the state’s administrative system at that time. During the reign of Lord Nguyen, Hoang Sa is part of Thua Tuyen, Quang Nam or Quang Nghia (Ngai) as “Phu” (inter-district administration) or “Tran” (township) as put in the saying “The yellow sandy beach in Phu Quang Nghia”/ “Bai Cat Vang in Phu Quang Nghia” (Collection of Thien Nam Tu Chi Lo Do Thu); “Hoang Sa is in Phu Quang Nghia, Dinh Quang Nam, Binh Son District, An Vinh Commune” (Le Qui Don’s Phu bien Tap luc); in the Tay Son period, Phu Quang Nghia changed to Phu Hoa Nghia. Under the Nguyen dynasty, Paracel Islands belonged to Quang Ngai Province.

Secondly, the protection and enforcement of sovereignty is continuous and peaceful; for instance:

In the French colonial rule period in Vietnam: As a representative of the Vietnamese State in foreign affairs under the Patenotre Treaty of 1884, the French colonial government exercised protection and management of the two Paracel Islands and Spratly Islands in accordance with the contemporary legal procedures. Then came the period when the South and the North of Vietnam were temporarily divided. Paracel Islands and Spratly Islands, located below the 17th parallel, came under management by the South Vietnam government; and the polities in the South Vietnam, as entities with legal status in international relations, continued to protect and manage Paracel Islands and Spratly Islands between 1954 and 1975. The South Vietnam regime continued to exercise Vietnam's sovereignty over Paracel Islands and Spratly Islands by state administrative documents, as well as the actual enforcement of sovereignty on the ground over these two archipelagos.

In the same period, the Provisional Revolutionary Government of the Republic of South Vietnam declared its position in this issue:

- Sovereignty and territorial integrity are sacred issues for each nation.

- Borders and territorial issues are those caused by historical conflicts between neighboring countries.

- Concerned states should consider this issue in the spirit of equality, mutual respect, friendship, good neighborhood, and resolved it through negotiation.

From April 13 to 28, 1975, the People's Liberation Army of South Vietnam forces, under the leadership of the Provisional Revolutionary Government of the Republic of South Vietnam, took over the islands occupied by the Republic of Vietnam’s army, at the same time, deploying forces to occupy islands and some other locations of Spratly Islands.

On June 5, 1975, the Spokesperson of the Ministry of Foreign Affairs of the Provisional Revolutionary Government of the Republic of South Vietnam issued a statement affirming Vietnam's sovereignty over Paracel Islands and Spratly Islands.

Coming next was the period under the polity of the Socialist Republic of Vietnam. On July 2, 1976, at the first session of the 6th National Assembly (1976-1981), the National Assembly of united Vietnam, elected on April 25, 1976, decided to change the country's name to the Socialist Republic of Vietnam. The State of the Socialist Republic of Vietnam had full obligations and rights to continue managing and protecting Vietnam's sovereignty over Paracel Islands and Spratly Islands in an transparent, peaceful, continuous and effective way.

2. The principle of "historical sovereignty"

Meanwhile, to realize the strategy of monopolizing the South China Sea, taking the South China Sea as a springboard to rise up to compete for the position of an international superpower in a geopolitical, geoeconomic, geostrategic competition with the US, China used force to invade and create disputes with Vietnam on sovereignty over Paracel Islands in 1909, 1956, 1974 and some entities of Spratly Islands in 1946, 1950 (Republic of China) and 1988 (People's Republic of China).

To justify the forceful invasion, the Chinese side argued that China had "historical sovereignty" over the Xisha and Nansha Islands (ie Paracel Islands and Spratly Islands of Vietnam), claiming Chinese ancestors, for thousands of years, had discovered, exploited, occupied and exercised sovereignty over these two archipelagos.

On June 27, 2018, in response to US Secretary of Defense James Mattis’s criticism, during a visit to China, on China’s militarization in the South China Sea, tensions escalation and concern creation in the region, President Xi Jinping asserted: “ We must not lose even an inch of the territory that our ancestors (China) left behind even an inch must not be lost. We don't need even an inch of whatever belonging to others.”

President Xi Jinping's statement is a "historical sovereignty" claim that we have heard many times. According to this position, China has been seeking all means, citing numerous books, geographic and historical documents to justify and defend the legal position on the process of establishing and enforcing the so-called China's “historic sovereignty” over "Xisha" and "Nansha". But, in the view of Li Lenhua (Lý Lệnh Hoa), a well-known Chinese expert in international public law, "... that evidence (history) plays a less and less significant in modern international law ... , evidence that is truly convincing is the actual control. You said it’s your place, but have you ever managed it? Are the people there subjected to your management? Whether other people have no comment? If the answers to these questions are "yes", then you win for sure. Yet it’s not what we have in case of Nansha..."

Ms. Monique Chemillier Gendreau, a professor emeritus of public law and political science at the University of Paris VII Denis Diderot, the former President of the French Democratic Lawyers Association and former President of the European Lawyers Association, concluded that long time ago, the Chinese people knew that there were many scattering islands in the South China but this could not be a legal foundation to defend the argument that China was the first state to discover, exploit and manage these two archipelagoes.

Only with some evidences mentioned above, we can say for sure that the principle of "historical sovereignty" is worthless, if not a very dangerous viewpoint which destabilizes the current legal existence of countries around the world. If based solely on history, many countries could no longer exist as they do today, including the great China... Therefore, it is only a variation of extreme nationalism, which ignores international law and practices to realize the ambition of expansion, hegemony, of a big country.

II. Is Vanguard Bank an integral part of "Nansha Islands" and the water surrounding Vanguard Bank is "adjacent waters" and "related waters" of "Nansha Islands" (ie Spratly Islands of Vietnam) under the provisions of UNCLOS 1982?

As everyone knows, China was one of the first countries to sign and ratify UNCLOS 1982, even one of the active developing countries which participated actively and contributed significantly in the 3rd UN Conference on the Law of the Sea.

However, in pursuit of the policy to monopolize the South China Sea, using it as a springboard to rise up to compete for the position of an international superpower in a geopolitical, geo-economic and geo-strategic competition with the United States, China has carried out activities that violate the legitimate rights and interests of the states along the South China Sea, as well as countries outside the region with relevant rights and interests, ignoring international law, especially the UNCLOS 1982. For instance, China continues to maintain the "u-shaped line" claim which covers more than 90% of the South China Sea and seeks to legitimize this unreasonable claim with the following arguments:

- This is a maritime boundary made by history, which came before UNCLOS 1982 took effect, so it is not affected by UNCLOS 1982.

- China has a historic right to resources in waters within this boundary.

- Moreover, China has sovereignty over the "Four Shas" in the South China Sea including "Dong Sa" (Pratas Islands), "Xisha" (Paracel Islands), "Nansha" (Spratly Islands) and "Zhongsha" (Macclesfield Bank).

Therefore, "in accordance with UNCLOS 1982", China has the right to expand the "related waters" of "Four Shas" to the maritime boundary in line with the “u-shaped line”.

The above argument of China, in legal term, can be called as an "explanation and application" of UNCLOS 1982. But, this "explanation and application" is completely wrong, and is an disguise, which many people believe, for China’s rewrite of the international Law of the Sea in its favor.

The disguise in China's efforts for 1982 "interpretation and application" of UNCLOS 1982 can be shown through the following facts:

Firstly, the "historical boundary" and the "historic rights"

According to UNCLOS 1982, as an official member of the Convention, a state must absolutely comply with it and amend all non-aligned regulations issued prior to the Convention’s date of effect accordingly. If the state doesn’t remove or amend those regulations, it cannot legally enforce them on other states parties.

“States Parties" (Etats Parties) are those that have accepted the binding of the Convention, the Convention takes effects in these countries. and the Convention applies mutatis mutandis (with changes in details if necessary) to the entities referred to in article 305, paragraph l (b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each entity; within that extent, the term "States Parties" also refers to these entities.

During the 3rd UN Conference on the Law of the Sea, the delegations discussed whether to include the concept of "historic rights" over resources in the exclusive economic zone, eventually this concept was removed from the provisions of Part V, from Article 55 to Article 75.

In the PCA’s Award on July 12, 2016, the Arbitration Council also rejected the "historic rights to resources" in China's claimed "u-shaped line" waters.

Secondly, the validity of geographic features in the South China Sea in determining the boundary of the seas and continental shelves.

China declared a straight baseline system in the Xisha Islands (Paracel Islands of Vietnam) in 1998 based on a method of establishing baseline system for archipelagic states. Part IV, Article 46 of the Convention defines:

(a) "archipelagic State" (Etat Archipel) means a State constituted wholly by one or more archipelagos and may include other islands;

(b) "archipelago" (Archipel) means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

Article 47 provides that: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

In Part IV, there is no provision on the method of drawing archipelagic baselines for those that are not archipelagic states.

Therefore, the sovereign continental state must draw a baseline for each geographic feature within the archipelago to determine the boundary of the waters and continental shelf of each feature in accordance with the standards specified in UNCLOS 1982.

Thus, China has interpreted and applied incorrectly the provisions of Part IV of UNCLOS 1982 in establishing the baseline system for Paracel Islands of Vietnam. China is also considering establishing a baseline system for Spratly Islands, which it calls Nansha, after finishing occupying features such as shoals within the exclusive economic zones and the continental shelves of the states surrounding the South China Sea. Based on that wrong way of establishing the baseline system, China asserted that it had the right to determine the "adjacent waters" and "related waters" of the islands it called "Four Shas" in the South China Sea. Please note that "adjacent waters" and "related waters" are the terms not included in UNCLOS1982. China has manipulated these terms to play fast and loose to deliberately interpret and apply the UNCLOS 1982 incorrectly.

This is another fault that follows the first one analyzed in Point I, given provisions of UNCLOS 1982, in Part VIII, Article 121 that states “1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”.

According to the PCA’s Award in the Philippines’ case against China in 2016, if considering the origins of the islands in Spratly Islands, all of them in the area are very small islands which cannot sustain human habitation and their own economic lives; therefore, they are only eligible for territorial waters of up to 12 nautical miles.

Hence, the shoals locating no more than 200 nautical miles off the coast of the South China Sea states are not part of Spratly Islands; because they are shallow shoals separated from the archipelago by deep trenches, which made it impossible to form an intrinsic geographic and geological entity, and, especially, not interconnected economically or historically enough to form a whole archipelago, simply because humans cannot inhabit these under-the-water shoals. Therefore, Vanguard Bank cannot be either part of Spratly Islands or the "adjacent sea" and "related sea" of this archipelago.

Given the above information and analysis, readers can certainly assess the substance of the statement made by Mr. Geng Shuang, Spokesman of the Ministry of Foreign Affairs of China on September 18 which loudly asserted that China has sovereignty over Nansha Islands, sovereign rights and jurisdiction over adjacent waters of Wan'an Tan in the Nansha Islands (Spratly Islands of Vietnam). As many international experts and researchers say, the statement clearly shows that China is ignoring the principles of current international law and trying to rewrite the International Law of the Sea.

For such reasons, China's statement about Vietnam’s unilateral conduct of oil and gas drilling since May 2019 in China's Wan'an Tan waters seriously violating Chinese rights and interests, Vietnam-China bilateral agreement on basic guiding principles to settle maritime issues, Article 5 of the Declaration on the Conduct of Parties in the South China Sea (DOC), and relevant provisions of UNCLOS 1982 is indeed a lousy act of scapegoating and buck passing, a blatant slander against Vietnam’s oil and gas exploration activities within its exclusive economic zone and 200-nautical-mile continental shelf under Vietnam's sovereignty and jurisdiction in accordance with UNCLOS1982.

If China keeps maintaining the activities of Haiyang Dizhi 08 vessel group, increase the use of military and paramilitary forces to threaten, prevent and obstruct legal resource exploitation activities, causing casualties and damaging properties; at the same time, pushing forward the above irrational arguments.., surely the Vietnamese will know what to do with their legitimate self-defense rights on the diplomatic, legal fronts and even on the site.