BienDong.Net

LEGAL BATTLE AT THE UN OVER THE HOANG SA ARCHIPELAGO

E-mail Print PDF

SCSC - Since early May, a legal battle on sovereignty over the Hoang Sa archipelago has been sparked at the United Nations with the submission of diplomatic notes and attached materials by Viet Nam and China to the UN.

Viet Nam has sent diplomatic notes three times and position papers twice to the UN to present evidence for its sovereignty claim. China has also sent position papers twice to the UN to present its viewpoints on sovereignty over the Paracels.

In its diplomatic notes, Viet Nam asserted that the feudal states in Viet Nam had established and exercised sovereignty over Hoang Sa in an uninterrupted manner and in keeping with the provisions of the international law of territorial acquisition. Viet Nam also presented concrete evidence of the operation of the Hoang Sa Flotilla dispatched by the Nguyen Dynasties to the islands.

Viet Nam’s diplomatic notes and documents also clarified that under the French colonialism, France had, on behalf of Viet Nam, managed and exercised sovereignty over the Paracels. France had conducted many practical activities in Hoang Sa to exercise Viet Nam’s sovereignty such as establishing resident guard posts in Hoang Sa for administrative governance, including issuing birth certificates for Vietnamese born in Hoang Sa (Vietnamese media have recently reported a great deal about the birth certificate issued by the French administrative authority in Hoang Sa to Mrs. Mai Kim Quy who was born on Hoang Sa), constructing hydro - meteorological stations that were recognised by the International Meteorological Organisation, building lighthouses, etc. France had also exchanged notes verbal with China in opposition to China’s claims on Hoang Sa. It had even requested China twice to resolve disputes through international arbitration, which had always been refused by China.

In particular, Viet Nam’s documents reaffirmed that Viet Nam’s sovereignty over Hoang Sa had gained international recognition at the 1951 San Francisco Peace Conference, reflected in the remarks by the Prime Minister of the State of Viet Nam on September 7th, 1951 asserting Viet Nam’s sovereignty over Hoang Sa and Truong Sa. In the mean time, the San Francisco Conference had rejected the request by the Soviet Union to hand over Hoang Sa and Truong Sa to China.

The papers and notes verbal of Viet Nam affirmed that after withdrawing from Viet Nam, France had handed over the management of Hoang Sa to the Government of the State of Viet Nam, which later became the Republic of Viet Nam. The Government of Viet Nam has effectively exercised its sovereignty by concrete actions. Viet Nam’s papers underscored that “In January 1974, China used military force to occupy the entire Hoang Sa Archipelago. The Government of the Republic of Viet Nam and the Provisional Revolutionary Government of South Viet Nam issued statements to express their positions and to protest China’s action. The Government of the Republic of Viet Nam requested that the United Nations Security Council hold an urgent meeting on China’s use of force. Under the international law of territorial acquisition, the use of force to occupy a territory cannot create territorial title”.

In the position papers sent to the UN on June 9th and July 24th, China put forward some arguments about the so - called “China’s sovereignty over the Paracel Islands”, yet it failed to back them up with any concrete evidence. China’s arguments were vague and inaccurate. China even mistakenly cited or misinterpreted a number of Chinese and foreign materials.

In response, Viet Nam put forward a number of arguments in absolute rejection of China’s in the documents circulated at the UN on August 22nd, 2014. The documents offered concrete evidence rejecting China’s argument that it “has exercised jurisdiction rights over Hoang Sa since the Northern Song Dynasty”. The geographical records in history books of the Song Dynasty showed that the southern - most point of the Chinese territory under the Song Dynasty was Qiong Ya (the ancient name of Hainan island). Many maps drawn around this time (such as the “Jiuyu Shoulingtu” map to govern the heads of provinces nation - wide, which was drawn in 1121 and found in 1960 in Sichuan) displayed Qiong Ya (or Hainan) as the southern - most point of China. Similar maps of China until the first half of the 20th century also tell the same story.

The Cairo Conference and Potsdam Conference did not touch upon the sovereignty over Hoang Sa (and Truong Sa either). Thus, China’s documents have distorted history when stating that the sovereignty over Hoang Sa was “returned” to China at the end of World War II.

Rejecting the so - called “Some remarks by the Democratic Republic of Viet Nam” considered by China as evidence of Viet Nam’s “recognition of China’s sovereignty over Hoang Sa”, Viet Nam’s position papers dated August 22nd, 2014 clearly stated: “in accordance with the 1954 Geneva Agreement on the Cessation of Hostilities in Viet Nam, the Hoang Sa and Truong Sa islands, which lie south of the demarcation line, were under the exclusive authority of the Republic of Viet Nam, which did effectively exercise its sovereignty over them and carried out various administrative actions on those territories. Regardless of how it should be interpreted, the letter from the representative of the Democratic Republic of Viet Nam, referred to in the Chinese document, is therefore devoid of legal consequences since the island groups were not under the territorial authority of the Democratic Republic of Viet Nam”.

China, again, distorted of history when it published on the 24th of July 2014 a document saying that “in January 1974, China exercised the right to self - defence”. According to Viet Nam’s position papers dated August 22nd, 2014, “the military operation conducted by China in January 1974 for the purpose of taking possession of the Hoang Sa islands by force cannot be justified by invoking self - defence. The Republic of Viet Nam peacefully governed the islands at that time and was forcibly driven out by the army of the People’s Republic of China. Chinese claims of sovereignty over the Hoang Sa islands do not change the fact that the use of force was a violation of international law and contrary to the principle of the peaceful settlement of international disputes”.

The fact that China does not recognise Hoang Sa as a disputed area and refuses to negotiate with Viet Nam has been dismissed by Viet Nam’s sharp arguments. Viet Nam’s documents dated 22nd August 2014 underscored that “Denying that there is a dispute between Viet Nam and China regarding sovereignty over the Hoang Sa islands amounts to denying the obvious. Indeed, the existence of the dispute was explicitly acknowledged by Vice - Premier Deng Xiaoping in 1975, and put down in writing in a memorandum from the Chinese Ministry of Foreign Affairs in 1988”. Viet Nam’s documents also demonstrated Viet Nam’s good will to resolve peacefully the East Sea disputes. “Given that China cannot, in good faith, deny that there is a dispute with Viet Nam on this issue, Viet Nam, remaining loyal to the principle of settling international disputes by peaceful means, expects China to seek a settlement not through peremptory assertions or intimidatory acts but by peaceful means, a principle that China, like all other Member States of the United Nations, has accepted”.

The fact that Viet Nam and China put forward arguments for their sovereignty claims over Hoang Sa has been beneficial to Viet Nam for a number of reasons:

First, this is, in fact, part of the process to internationalise the issue of sovereignty over Hoang Sa. While China insists on claiming Hoang Sa as “indisputable territory of China” and does not accept to negotiate with Viet Nam on this issue, the fact that both sides have circulated relevant position papers at the UN stands as a testimony to the existence of the dispute over Hoang Sa.

Second, Viet Nam has much more solid legal basis and historical evidence to assert its sovereignty over Hoang Sa than China. Therefore, the debate as such will help the world understand better the nature of the issue and the just position of Viet Nam on the sovereignty over Hoang Sa.

While China keeps refusing to settle East Sea disputes at international arbitral tribunals, this debate is the very legal debate on sovereignty over Hoang Sa. Over the past time, Viet Nam has driven China into a situation in which it was forced to present its viewpoints on Hoang Sa at the UN, thus creating the opportunity for Viet Nam to put forward its arguments to reject China’s false allegations. This is a right move beneficial to Viet Nam in its struggle to defend its sovereignty over Hoang Sa. Viet Nam should continue moving forward this way. If China continues to present notes verbal or materials to the UN, Viet Nam must keep submitting documents to the UN to reject China’s claims and arguments.

China is at a dilemma in the legal debate over Hoang Sa at the UN. On the one hand, China does not want to internationalise the dispute. On the other hand, it cannot remain silent when Viet Nam keeps circulating position papers at the UN to assert its sovereignty over Hoang Sa. This is a wise move for Viet Nam in the struggle to defend its sovereignty by peaceful means.

Joomlart