Measures For Maintenance For Peace, Stability And Enhancement Of Cooperation On The South China Sea, by Dr. Tran Cong Truc

I.       THE SOUTH CHINA SEA DISPUTE[1]

At present, in the South China Sea there exist two major types of disputes:

·         Territorial dispute over the Paracels and Spratlys

·         Dispute over sea boundaries and overlapping continental shelves among countries with opposite or adjacent coasts

These two types of disputes were formed at different times, with different contents and levels, and taking place in different geographical places.

1.      Territorial dispute

The territorial dispute over the Paracels involves Vietnam and China. This dispute arose at the beginning of the 20th century (in 1909), starting with the brief visit by Commander-in-Chief Ly Chuan to some islands with a short landing on Woody island. This was precisely because the archipelago was under the control and management of France, whose troops were staying in solid garrisons, with facilities in service of the management by the French authority then continuing exercising, on behalf of Vietnam, sovereignty over the Paracels and Spratlys dating back at least to the 17th century. In 1946, taking advantage of the disarmament of the Japanese troops, the Chinese government sent its troops to occupy the eastern part of the Paracels but then had to retreat when Kuomintang was driven out of the mainland to Taiwan. In 1956, taking advantage of the French withdrawal from Indochina under the Geneva Agreement, and the Vietnamese government’s failure to take over the Paracels, the People’s Republic of China sent its troops to reoccupy the eastern part of the Paracels. In 1974, upon learning that the Sai Gon government’s troops were on the verge of collapse and American expeditionary force was forced to leave South Vietnam, with tacit approval of the American about China’s freedom of action (laisser faire), the People’s Republic of China sent its troops to the western part of the Paracels to seize Sai Gon-held islands. Vietnam, as the state having sovereignty over the Paracels, opposed or publicly protested against each and every move by China. It is “the first State in history to occupy and exercising sovereignty, the occupation exercise are real, peaceful, and in conformity with international law and practices”[2]. Ever since China has made feverish efforts to consolidate and build the Paracels into a vital military base, a springboard for its southwards movement.  

Territorial dispute over the Spratlys

a.      This has been a dispute between Vietnam and China since the 1930s, beginning in 1932 when a Chinese envoy to France in Paris sent a diplomatic note to the French Ministry of Foreign Affairs, asserting that “Nansha islands are China’s southern most piece of territory”. In 1946, the People’s Republic of China, in the name of disarming Japanese troops, sent its Pacific ship, occupying Itu Aba Island. The 1956 saw the re-occupation of Taiwan over this island. In 1988, troops from the People’s Republic of China moved its troops to occupied 6 sandbar features west of the Spratlys then made every attempt to upgrade these places into military bases.  In 1995, one more feature, namely the Mischief Reef, which lay east of the Spratlys, was taken over. China has so far seized 7 features on the Spratly archipelago. As a result, the total number of islands and reefs occupied by China (including Taiwan) is 8.

b.     This has also been a dispute between Vietnam and the Philippines since Filipino President Quirino declared sovereignty over the Spratly archipelago as because of its proximity to the Philippines. From 1971 to 1973, Filipino troops occupied 5 islands; from 1977 to 1978, 2 more islands. In 1979, it made public a decree signed on 11-6-1979 by President Marcos to claim sovereignty over the whole the Spratly archipelago, except Pattle Island, and rename it the Kalayaan. In 1980, the Philippines extended its occupation to Commodore Reef, another island in the South.

c.      This also is the dispute between Vietnam and Malaysia, starting when the Malaysian Embassy in Sai Gon sent a diplomatic note to the Ministry of Foreign Affairs of the Sai Gon government to enquire whether the Spratlys archipelago of the Republic of Morac Songhrati Meads belong to the Republic of Vietnam or the Republic of Vietnam had any claim over it. On 20 April 1971, the Sai Gon government replied to the effect that the Spratlys belonged to Vietnam’s territory and that any encroachment on the archipelago was violation of international law. In December 1979, the Malaysian government published a map indicating that part of Spratlys in the South belonged to Malaysia, including Amboyna Cay and Barque Canada Reef which were under Vietnamese control. From 1983-1984, Malaysia troops gained control of 3 features South of Spratlys, namely Swallow Reef, Mariveles Reef and Ardasia Reef. In 1988, two more reefs, Enrica and Investigator Reefs, were occupied, totalling the number of Malaysian-occupied features to 5.

Legal viewpoints as well as evidences offered by the parties to defend their position vary and can be briefly summarised as follows:

·         The territorial claim should be based on the discipline of first discovery (China)

·         The territorial claim should be based on the discipline of effective occupation (Vietnam)

·         The territorial claim should be based on the discipline of territorial proximity (The Philippines, Malaysia)

2.      Dispute over sea boundaries and continental shelves

This kind of disputes arose admist international trends of revolutionary geo-political and geo-economic change as 36% of the world’s sea area is under coastal states’ sovereignty, sovereignty rights and jurisdiction since the adoption of the United Nations Convention on the Law of the Sea in 1982. As a result, in the world, some 416 sea boundary-related disputes remain, 15 of which are in South East Asia. Negotiations to delimit sea boundaries and continental shelves between Vietnam and other countries around the South China Sea have been and will be carried out on the following zones:

a.      Boundaries between Exclusive  Economic Zones and Continental Shelves inside and outside the Beibu Gulf involving Vietnam and China, where the coastlines are opposite and 400 sea miles from each other

b.     Boundaries between Exclusive Economic Zones and Continental Shelves south the South China Sea, involving Vietnam, Malaysia, the Philippines, Brunei and Indonesia

c.      Boundaries between sea areas and Continental Shelves involving Vietnam, Malaysia, Thailand and Cambodia

d.     Maritime boundaries of sea areas on the Paracels and Spratlys involving concerned parties

So far, the concerned parties have been able to resolve:

a.      Maritime boundaries between Vietnam and China, signed on 25 December 2000

b.     Boundaries between continental shelf between Vietnam and Indonesia south of the South China Sea, signed on 23rd June 2003

c.      Boundaries between Exclusive Economic Zone and Continental Shelf inside the Gulf of Thailand between Vietnam and Thailand, signed on 9th August 1997

d.     Agreements on Temporary Measures for Joint-Development in Over-lapping Areas, signed between Vietnam and Malaysia on 5th June 1992

e.      Agreement on “Historical Waters” between Vietnam and Cambodia, signed on 7th July 1982

Therefore, the remaining task of demarcating maritime boundaries and overlapping continental shelves among concerned states is very big, tough and complicated. This may result from the following factors:

a.      Littoral States have made diametrically claims over maritime zones and continental shelves on the South China Sea, due to either their non-compliance with the related provisions of the United Nations Convention on the Law of the Sea; or their interpretation and application of the criteria in the Convention in a subjective, inaccurate or even wrong way for the benefit their negotiations with concerned parties to demarcate maritime zones and continental shelves.

b.     There exist two archipelagos in the middle of the South China Sea, which are targets of complicated sovereignty dispute as well as different viewpoints on the validity of identified maritime zones and their continental shelves.

II.      SOLUTIONS TO DISPUTE ON THE SOUTH CHINA SEA

1.      In order to end the very complicated dispute, with the risk of tension and conflict, that harms the regional and international peace, security and stability, I personally recommend that the concerned parties should:

First, agree on the interpretation and application of criteria to demarcate maritime zones and continental shelves under the coastal states’ sovereignty, sovereignty rights and jurisdiction around the South China Sea, such as. These include identifying the baselines around the coastline of the mainland, the offshore islands, the baselines of the archipelago states, non-state archipelagos; agreeing on the same criteria for effect of islands in demarcating maritime zones and continental shelves...

Second, agree on identifying the maritime zones and overlapping continental shelves formed by coastal states’ claims in accordance with the United Nations 1982 Convention on the Law of the Sea.

Third, agree on criteria to identify maritime zones and continental shelves on the Paracels and Spratlys as offshore islands, non-state archipelagos, the islands here are very small, inhabitable and having no economic life of its own etc.

Fourth, agree on the legal rules and international practices applied to claiming sovereignty around the Paracels and Spratlys to resolve territorial disputes over these two archipelagos.

Fifth, any given claims that are not compatible with the agreed criteria must be considered invalid. Any states that made the claims must withdraw them on their free will and in the spirit of respecting for international law and practices for peace, security, stability and development in the region and the world.

2.      In international practices, not a few countries have set examples of great willingness when taking part in negotiations to set sea boundaries. Allow me to give here a vivid and close to home example:

During the negotiation to demarcate boundaries in the Beibu Gulf, despite its claim that in the gulf already existed a boundary according to the Convention signed between France and the Ching Dynasty (1887), namely the 108003’13” meridian eastern[3], Vietnam, on its free will, withdrew the claim after researching more accounts and documents, and found out that boundary had been established just for the sovereignty over coastal islands. Vietnam, thus, agreed to renegotiate with China to demarcate the Beibu Gulf, on the basis of international law and practices, taking into account the situation of the gulf towards a fair and acceptable measure for the two countries. As a result, on December 25th 2000, the two countries officially signed the Sino-Vietnamese Agreement on Demarcation of Territorial Waters, Exclusive Economic Zone and Continental Shelf in Beijing, ending the 27-year-long negotiation with three rounds of talks: in 1974, from 1977-1987  and from 1992-2000.

The Sino-Vietnamese Joint Communiqué signed on 25th December 2000 stressed that “the signing of the “Treaty on Vietnam-China Land Border”, the “Agreement on Demarcation of Territorial Waters, Exclusive Economic Zone and Continental Shelf between the Socialist Republic of Vietnam and the People’s Republic of China” and the “Agreement on Fisheries Cooperation in the Beibu Gulf” is of great historical significance, and will give added impetus to good neighbourliness and comprehensive cooperation between the two countries in the 21st century”. It can be said that together with the relentless effort to solve other disputes with its neighbours, the signing of these agreements represented a new step forward in building an environment of peace, stability and cooperation between Vietnam and other regional countries, making active contribution to enhancing peace and stability in the region and the world. The Agreement on Demarcation of the Beibu Gulf has also contributed to the application and development of international law on maritime demarcation between countries with opposite or adjacent coastlines, the role of islands, reefs, the issue of border river mouths with different features of the seabed riverbed, the issue of the gulf mouths, of international straits, the value of maps in boundary treaties…

3.      We believe that the concerned parties in the South China Sea will bring into fuller play the achievement recorded to first withdraw their unreasonable and groundless unilateral territorial claims, such as the map of the dotted lines, drawn by a Taiwanese citizen, enclosing 80% of the South China Sea used by China…. Then we will be able to find a common denominator to form the legal base for all possible forums aimed at resolving territorial disputes in the future. It is not easy to carry out those recommendations; therefore, practical measures and roadmaps should be adopted.

The motto “First the easy, then the difficult” can be applied in the current situation. Therefore, in my view, we should temporarily put aside the territorial dispute over the Paracels and Spratlys, maintain the status quo among the concerned parties on these archipelagos, each habited island may have the surrounding 12-sea-mile area, the reefs may have the surrounding 3-sea-mile area for management and defence in conformity with regulations on internal waters and maritime zones of the two occupying sides. Beyond the sea area of the islands and reefs, the concerned parties will agree on maritime boundary and continental shelf in accordance with the criteria of the 1982 United Nations Convention on the Law of the Sea to identify overlapping areas, thus, demarcating the maritime boundary and continental shelf. Pending a final resolution by the concerned parties, temporary “joint development” can be considered.

4.      It is essential to set up appropriate mechanism to follow the above roadmap:

Apart from official and non-official bilateral and multilateral negotiation forums created by the concerned parties, it might also be a good idea to make use of the regional and international organisations such as: the United Nations, ASEAN, ASEAN+1, ASEAN+2, … and form ad-hoc committees and sub-committees when necessary to directly carry out studies and propose measures for acceptance or consultation. These organisations should have clear operation regulations and certain responsibilities as well as rights, provided for the dispute parties, and regional and international organisations after negotiations.

Distinguished guests,

In today’s forum, as a researcher in the law on the sea, I do hope that those present today as well as other Vietnamese and foreign colleagues will further discuss the issue to find a common and practical voice, contributing to the resolution of complicated disputes in the South China Sea.

We have all seen the cost that humanity had to pay for the conflicts caused by unreasonable and unjust interests of some forces in history. Therefore, we need to take prompt actions for a world of civilisation, peace, stability, cooperation and development.

Thank you very much for your attention.

Dr. Tran Cong Truc

Former Chairman, Government’s Committee for Boundaries, Viet Nam