My colleague, Ambassador Yang Yanyi of China to the European Union, on 28 June 2014 introduced in The New Europe her narratives regarding the on-going “oil-rig” incident in the East Sea and the relevance of international law in finding a solution to the dispute. While I welcome Ambassador Yang Yandi’s law-based approach, I would like to offer my response regarding major inaccuracies in the Ambassador’s arguments and explain why these arguments will not stand the test of international law itself.
The Ambassador was trying to justify the operation of the Chinese oil rig by two main assertions of China’s “indisputable sovereignty over the Xisha Islands” and China’s “undisputed waters of the Xisha Islands”. I would respectfully argue that the Ambassador was wrong on both accounts.
First, according to the international law on territorial acquisition, discovery by individuals was insufficient to establish a country’s ownership over a territory. Even discovery on behalf of a state will only create inchoate title, which must be followed by subsequent continuous and effective acts of occupation and management by the State concerned. The so-called Xisha Islands are actually the Paracels (Hoang Sa archipelago in Vietnamese) of Vietnam over which the Vietnamese State has shown keen interests and made determined efforts in establishing jurisdiction since at least the 17th century. Evidence is abundant in official historical documents of Vietnam and records of other countries. Ambassador Yang might wish to take a look at the collection of maps prepared by Philippe Vandermaelen, the famous Belgian geographer, in his World Atlases. In the 1827 edition, he showed the map of Cochinchine with the Paracels belonged to the Annam Empire (Vietnam).
On the contrary, the Chinese State showed no evidence of its interests in the islands, still least its efforts to take them into possession throughout the course of history. No official Chinese historical book or map recorded the Paracels or the Spratlys as Chinese territory up until the mid 20th century. In all Chinese official documents and maps, the southernmost point of China’s territory never exceeded Hainan Island. This is also recorded internationally as in Philippe Vandermaelen’s World Atlases.
Photo extract from Philippe Vandermaelen’s World Atlas published in 1827, section Partie, la Cochinchine. Asie 106 (Source: David Rumsey Map Collection Database and Blog)
The Chinese State’s lack of interests in acquiring territories at sea is evidenced in China’s own history and culture. For thousands of years, China always viewed the sea as a source of piracy and insecurity. Hence, many dynasties in China, as late as the Ming and the Qing, continued to ban maritime activities in the well-known Haijin (or maritime ban) policy that prohibited maritime shipping, required citizen to move 30 - 40 miles inland, and charged the ones who dared to venture out to the sea with treason against the Kingdom and capital punishment. Under such conditions, how could China assert that the Paracels were integral parts of China for more than 1,000 years when international laws require countries to undertake activities to “continuously and effectively” occupy territories in order to establish title over them?
Ambassador Yang’s statement that Vietnam prior to 1974 never questioned what she called “Chinese sovereignty” over the Paracels, and that official Vietnamese statements reaffirmed Vietnam’s recognition that the Paracels were part of Chinese territory is simply unfounded and is a deliberate misinterpretation of history.
At the San Francisco Conference in 1951, the Head of the Vietnamese Delegation, Prime Minister of the State of Viet Nam Tran Van Huu reaffirmed Vietnamese sovereignty over the Paracels and the Spratlys. The reaffirmation met no objections from any of the participating countries at the Conference. On the contrary, the Soviet proposal to recognize the People Republic of China’s sovereignty over the Paracels and the Spartlys was turned down by the 46 out of the 51 participants.
Three years later, the 1954 Geneva Accords on Indochina placed all the territories of Vietnam bellow the 17th parallel under the administration of the Republic of Vietnam and the Paracels and the Spratlys had remained so until the country became united in 1975. As an active contributor to the Accord, China must have been well of that fact. What evidence does China have to claim that prior to 1974 the Republic of Vietnam recognized the Paracels and the Spratlys were part of Chinese territory?
The use of force for territory annexation is against the fundamental principle of international law since the end of World War II, therefore such illegal acts cannot render China’s sovereignty over the Paracels" -- Pham Sanh Chau is the Vietnamese Ambassador to Belgium, Luxembourg, and the European Union
The clear fact was that China used armed forces two times, in 1956 and in 1974, to seize the Paracels from the Republic of Vietnam, killing several Vietnamese servicemen in the later battle. The use of force for territory annexation is against the fundamental principle of international law since the end of World War II, therefore such illegal acts cannot render China’s sovereignty over the Paracels. It is China that has infringed the territorial integrity of Vietnam by its illegal claim of sovereignty over and occupation of the Paracels by the use of force.
Second, China’s Haiyang Shiyou 981 oil rig was deployed to locations approximately 130-150 nautical miles off the Vietnamese coast, which lies deep inside the exclusive economic zone and continental shelf of Vietnam established under the UNCLOS 1982. Being a State Party to the UNCLOS 1982, China is under the obligation to establish its maritime zones in accordance with the provisions of the Convention and to respect other coastal states’ right to establish their maritime zones under the same Convention. In the area where the Chinese oil rig has been operating, whether China is claiming its maritime zones from the coast of Hainan Islands or the coast of any feature in the Paracels (setting aside the sovereignty questions over the islands), there is no way to say the area is “undisputed waters” of China.
Third, the Ambassador wrongly accused Vietnam of violating international laws and harming freedom and safety of navigation in the area where the oil rig operates.
It was China that deployed the oil rig for oil exploration and an unusually large escort which included even military vessels, such as missile frigates, fast attack missile crafts, anti-submarine crafts, landing crafts and jet fighters that gave rise to protests from Vietnam and concern of many other countries. The internationally watched daily footages of China’s oversized vessels deliberately ramming and water-cannoning Vietnamese much smaller law enforcement boats, especially the incident on 26 May 2014 when a Chinese vessel intentionally chassed and rammed the Vietnamese fishing boat DNa-90152-TS until it capsized while Chinese forces prevented Vietnamese vessels from rescuing the 10 fishermen on board, are completely contrary to the Ambassador’s claim that China does not bully smaller countries, and are unequivocally conclusive evidence that China was the aggressor who has seriously impeded freedom of navigation in violation of the 1982 UNCLOS and 1972 COLREGs. The deliberate destruction of Vietnamese boats’ navigation and communication equipment, injuring Vietnamese servicemen constitutes the very criminal acts that should be punished under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.
China’s accusation that Vietnam’s vessels rammed Chinese government ships a total of 1,547 times, ironically, could not be backed up by single convincing evidence.
Ambassador Yang said that more than 30 communications with Vietnam have gone unanswered. But an important fact was concealed. In these communications, what left unanswered was Vietnam’s request that China remove the oil rig from Vietnam’s water, thus creating conducive environment for talks between the two sides aimed at resolving the problem. China’s attitude in the communications, together with its behavior at sea, was unhelpful for reducing tensions, and was clear evidence of the lack of goodwill from China to peacefully resolve the dispute.
I would like to fully agree with Mr. Arif Havas Oegroseno, the Indonesia’s Ambassador to Belgium, Luxembourg and the EU, and President of the 20th Meeting of the States Parties of UNCLOS 1982, who in his RSIS commentary recently stated that China as a Permanent Member of the UN Security Council, carries the moral, political, and legal responsibility of creating peace and stability in the world. I also welcome Ambassador Yang’s statement that China will abide by the principle of seeking peaceful resolutions to any disputes through consultation and negotiation between parties on an equal footing, and that China will continue its effort “to ease tensions with Vietnam” and “to strengthen our bilateral relations”. This is a hopeful sign of China’s goodwill and responsibility to peace and stability of the Asia – Pacific and the rest of the world.
To show evidence of its goodwill to “clear the water” of the East Sea, and to show the world that China’s words are matched with deeds, China should immediately stop all infringement activities, abide by international law, especially the UNCLOS 1982, and never again attempt to send the oil rig and its escort to operate inside Vietnam’s water.
Pham Sanh Chau is the Vietnamese Ambassador to Belgium, Luxembourg, and the European Union.
This piece was first published on Jul. 17 on the NewEurope newspaper at http://www.neurope.eu/article/clear-evidence-helps-clear-water-east-sea