On 14 May, Sam Bateman published his commentary on RSIS named: ‘‘New Tensions in the South China Sea: Whose sovereignty over the Paracels?” The author suggests that China may be within its rights to deploy the HYSY 981 oil rig.

In fact there are many errors in the papers that need to be further elaborated. The Beijing’s action of deploying the HYSY 981 oil rig violates Vietnam’s maritime sovereign rights, endangers freedom of navigation and over flight and causes instability in the region.

Location of the rig

The author mentioned that ”Vietnam claims that because the rig is closer to its mainland coast than to China’s and well inside 200 nautical miles of its coasts, it lies within its EEZ and on its continental shelf…geography proximity alone is not an unequivocal basis for claiming sovereignty or sovereign rights…”

It should be made clear differentiation between distance and proximity. The first relates to maritime delimitation while the later relates to territorial acquisition principle.

The term ”proximity” the author mentioned here might be referred to land disputes, but not necessarily to maritime delimitation. The famous example for this principle is the case of Island of Palmas, the land dispute between the US and the Netherlands that was arbitrated in 1928. In the dispute, one of the arguments that the US invoked is that the Palmas Island is closer to the Philippines than to the Netherlands, therefore, it should be territory of the Philippines.

However, this argument was rejected by the famous arbitrator Judge Huber since the territorial acquisition must base on its own principles of territorial acquisition under the customary law and the ”proximity” does not help anything at all for this purpose. The principle of ”proximity” since the Island of Palmas case has not been (or rarely) invoked by claimants over the territorial disputes.

In the case of oil rig location, the nature of dispute over the location of oil rig is different from land dispute under customary law mentioned above for the following reasons:

Firstly, what Vietnam is protesting is that the oil rig is closer to Vietnamese sea on its side of potential equidistant (median) line from the undisputed Hainan Island. Putting the rig on this location, therefore, violates Vietnamese sovereign rights.

It is evidenced in reality of jurisdictional cases on maritime and continental shelf delimitation between states that the courts or tribunals often apply the equidistant line and take into account of special circumstances to delimit the overlapping maritime zones of opposite coastal states.

Based on the facts the author given in the article, i.e the rig is about 120 nautical miles east of the Vietnamese coast and 180 nautical miles south of China’s undisputed Hainan Island, the equidistant line between Vietnam coast and Hainan coast of China should be 150 nautical miles from each side. So clearly, the location of the oil rig is on the side of Vietnamese coast from the equidistant line of about 30 nautical miles. So what Vietnam is rightly protesting that the oil rig is located closer on the Vietnamese sea from the potential equidistant line but not necessarily referring to the sovereignty issues regarding the ”proximity” principle of territorial acquisition under international law at all.

Secondly, the regime of the Woody and Triton, namely whether they are rocks or islands needs to be discussed more. Under the UNCLOS, the Article 121 defines how a land feature can be an island and how it can be a rock. However, under the paragraph 3 of this Article, the description of a rock is still controversial and interpreted in different ways by scholars.

In this case, (1) the Woody may be considered as the rock with the reported size of 200 hectares. It does not meet the conditions of sustaining the human habitation or have the economic life of its own, therefore it is entitled to 12 nautical miles only. Triton is much more smaller than the Woody, thus it surely should be rock; (2) in case the Woody and even Triton are not considered as rocks, under the international law practice of international courts and tribunals in maritime delimitation, the islands are often reduced effect or given no effect at all.

In the maritime delimitation case between Nicaragua v. Colombia in 2012, the Providencia/Santa Catalina and Sanandrés islands of Colombia, which are opposite to Nicaragua mainland involving in maritime delimitation, are many times bigger than the biggest Woody Island of the Paracels. The Providencia/Santa Catalina Island is 1750 hectares with the population of 5000 and the Sandrés Island is 3600 hectares with the population of 70.000. These two islands were given only 12 nautical miles of territorial sea by the court. If the application of 12 nautical mile to the Woody and Triton island, the location of oil rig is on the Vietnamese coast and outside 12 nautical miles of the Woody Island Triton (which is more than 100 nautical miles and 17 nautical miles respectively from the oilrig).

Sovereignty issues

The author considered that Vietnam’s current claim on the Paracels is ‘weakened by North Vietnam’s recognition of Chinese sovereignty over the Paracels in 1958 and its lack of protest between 1958-1975″ and such governments as the United States “have explicitly or implicitly recognized Chinese sovereignty over some or all the islands”. “China has occupied Woody Island since the end of World War Two.”

The author misleads readers in the comment and it is needed to make clear on the following points.

Firstly, it might be referred to the China’s Territorial Sea Declaration in 1958 and the diplomatic letter of the North Viet Nam Prime Minister Pham Van Dong in response to the Declaration in the same year in this comment. The China’s Territorial Sea Declaration in 1958 only declared the breadth of its territorial sea of 12 nautical miles, which was in accordance with international law without declaring the sovereignty over any islands.

The letter by P.M Pham Van Dong, also merely recognized the breadth of 12 nautical miles of that declaration but not necessarily relating to sovereignty issues of the Paracels and the Spratlys. In addition, under the Constitutions of Vietnam of 1946 and 1957 stipulated that territorial transfer would be decided by referendum.

Therefore, the letter by P.M Pham Van Dong did not have constitutive character of renouncing territory. As his executive position in the Government at that time, the letter was to show good will of Vietnamese government to the support of territorial sea declaration of Chinese Government only.

In addition, in this Territorial Sea Declaration, China stated that its coastal islands are entitled to 12 nautical miles only when it stated that its coastal islands are separated from mainland coast by the high sea. This statement showed China’s respect to international law at that time. China did not claim historical rights or any rights relating to the U-shaped line to make its Declaration suitable with the international law. China should continue to maintain this position under the current UNCLOS.

Secondly, the role of third party to the dispute.

Under the 1954, the Geneva Agreement on Korean Peninsula and Indochina, which China was also one of the signatory party, Vietnam was separated into two zones, the North and the South. This status of Vietnam lasted from 1954 to 1975. The Republic of Vietnam on the other side of 17th parallel border administered the Paracels and the Spratlys. The Spratlys and the Paracels, therefore, at this time were disputed between China and the Republic of Vietnam. The Democratic Republic of Vietnam was not a party to the dispute, any of its activities or its silence would be considered as the third party that did not affect the legal nature of the disputes. The current position of Vietnam, therefore, is not weakened by its previous activities.

The author also argued that there are a number of governments, including the United States, that have explicitly or implicitly recognized Chinese sovereignty over some islands. This argument must be considered by two points: (1) the evidence of the US’s recognition of the China’s sovereignty over the islands is not provided in the article. In reality, the US always maintains its position of taking no side on the territorial disputes among parties. Recently the US even said the Paracels is disputed territory in its press statement of 7 May1; (2) referring to the above mentioned principle of third party that is not concerned to the dispute, therefore, even if there is evidence of the US’s recognition of China’s sovereignty over the islands, it does not effect the legal status of the islands at all. Those kinds of statement of recognition may be only bear the political meaning.

Thirdly, the use of force.

It also needs recalling the skirmishes between China and Republic of Vietnam. China used of forces to occupy the whole Paracels since 1974, which is prohibited under international law. The use of force has been prohibited under international law since the birth of UN Charter in 1945, any occupation of land territory will not constitute title of that state over the occupied land. In addition, Vietnam continues claiming sovereignty over the islands and continues protesting all the Chinese sovereign activities over the islands, thus preventing the Chinese title over the Parcels from being established.

Further comments – who is using force and violating international law?

The UN Charter, Article 2 (3), which was mentioned again in the Article 279 of the UNCLOS, stipulates that any dispute must be solved peacefully. The UN Charter also prohibits the use of force or the threat to use of force against other country territory. The use of force is allowed for certain special circumstances such as self-defense or under the authorization of the United Nations Security Council.

The Chinese unilateral activities of moving the oil rig HYSY 981 to the sea of Vietnam accompanied with naval vessels and air jets exposed the intention of threatening the use of forces.

Moreover, in reality, the ways Chinese vessels are using water canons shooting at Vietnamese vessels and ramming to Vietnamese ships are actual use of force that may push Vietnam to the last unwanted legitimate option of self-defense under international law. Further more, China is also violating the freedom of navigation and over flight when it declares 3 miles of safety zones around the oilrig while under the Article 60(5) of the UNCLOS, the coastal state is allowed to set up the breath of safety zone around installations or structures which shall not exceed 500 metres. In reality, the extent of Chinese vessels are operating around the oil rig bigger than 3 miles.

In conclusion, there are numbers of errors in the Sam Bateman’s commentary, the actions of China moving the HY 981 oil rig to the South China Sea is actually violating Vietnam’s sea under the UNCLOS. China is not conducting the activities of oil rig within its right and its illegal aggressive action is affecting stability and peaceful environment in the whole region.

The author would like to thank Dr. Nguyen Vu Tung, Director General of the East Sea Institute and Dr. Nguyen Thi Lan Anh, Vice Dean of the Law Faculty, Diplomatic Academy of Vietnam for their comments in drafting the piece.

This article was originally published on Eurasiareview