Tensions recently escalated between Beijing and Hanoi after the former positioned a mobile, deep-water drilling rig in waters off the Paracel Islands on May 2.
The Hoang Sa archipelago (or the Xisha islands, as China calls them) was seized in 1974 during a bloody Chinese naval assault that claimed the lives of 74 sailors from the US-backed Republic of Vietnam (South Vietnam).
Experts agree that having seized the Paracels by force cannot serve as a legal basis for a claim to sovereignty.
Instead, China relies on a diplomatic letter written by then Prime Minister Pham Van Dong of North Vietnam, to then Chinese Premier Zhou Enlai in 1958 regarding the breadth of China’s territorial waters.
China recently reiterated its position that Dong's letter recognizes its sovereignty over both the Paracel archipelago and the more southernly Spratly (Truong Sa) archipelago. In doing so, China has intentionally misrepresented the letter, which contains no direct reference to either island chain.
In addition, it ignores the spirit and time in which the letter was written.
PM Dong penned the cable during Vietnam's division (1954-1975). During that time, the two communist neighbors shared extremely close ties and the US navy threatened them both.
Experts agree that the letter represented a diplomatic gesture of goodwill that has no legal relevance to the current territorial dispute.
Below is a translation of the letter.
“Dear Comrade Prime Minister,
We solemnly inform you that the Government of the Democratic Republic of Vietnam acknowledges and supports the declaration dated September 4th,1958 by the Government of the People’s Republic of China regarding the decision on the breadth of China’s territorial sea.
The Government of the Democratic Republic of Vietnam respects that decision and will direct its state agencies to absolutely respect the 12-nautical mile breadth of China’s territorial sea in all the relations with People’s Republic of China at sea.
The letter sent by Prime Minister Pham Van Dong of North Vietnam to Chinese Premier Zhou Enlai in 1958 regarding the 12-nautical mile breadth of China’s territorial waters
On September 4, 1958, with the seventh fleet of the US Navy patrolling the Taiwan Straight, China announced its decision to extend the breadth of its territorial waters to 12 nautical miles.
This border was to extend from the shores of mainland China and its islands, according to the announcement.
China made the declaration in order to exert its interests over maritime territorial matters.
The United Nations (to which China was not yet a member) had just held its first Conference on the Law of the Sea in Switzerland in 1956, and the resulting treaties, including the Convention on the Territorial Sea and Contiguous Zone, were signed in 1958, said Dr. Balazs Szalontai, a Hungarian researcher on Asia. (1).
Though the UN conference was considered a success, it left the exact breadth of each nation's territorial waters somewhat unresolved--the US, for instance, said it should extend just three nautical miles.
On September 14, 1958, North Vietnam’s PM Pham Van Dong wrote his letter to Zhou Enlai in response to China’s declaration.
No legal sense
The letter of North Vietnam’s PM Pham Van Dong has no legal relevance in China’s sovereignty claims to the Paracel and Spratly archipelagos for the three following reasons:
Point 1: The Democratic Republic of Vietnam (North Vietnam) was not in control of the Paracel and the Spratly archipelagos at the time PM Dong wrote his letter.
The Geneva Accords of 1954 -- to which China was a signatory-- divided Vietnam temporarily along the 17th parallel into two administrations (north and south) pending reunification through free general elections.
The Paracel and the Spratly archipelagos (which lay below the 17th parallel) remained under the administration of the US-backed Republic of Vietnam (South Vietnam) after being handed off by France in 1956 under the accords, Tran Duy Hai, deputy head of Vietnam’s National Border Committee, told an international press conference in Hanoi on May 23.
The French bestowed its titles, rights, and claims over the two island chains to the Republic of Vietnam (RoV) in accordance with the Geneva Accords, said Nguyen Hong Thao (2), Associate Professor at Faculty of Law, Vietnam National University.
As the rightful title-holder, South Vietnam formed administrative organizations and conducted economic investigations and exploitation in the archipelagos while also maintaining naval patrols around them, he said.
In 1956, the RoV’s Ministry of the Economy granted licenses to harvest guano on the Paracel islands of Quang Anh, Huu Nhat, and Phu Lam to one Le Van Cang. In 1959, a license was granted to the Phosphate Company of Vietnam, to continue the guano exploitation until 1963.
With respect to the Spratlys, the RoV Navy landed on the archipelago and erected a monument asserting its sovereignty on August 22, 1956. By Decree 143/VN of October 20, 1956, the Spratly Islands were incorporated into Phuoc Tuy Province.
Lawyer Hoang Viet (3), a senior researcher on the East Sea, said that North Vietnam neither had a legal title to the two archipelagos under international law nor exercised sovereignty over them in practice. Hence, it had no right to concede them to other countries.
Tran Duy Hai echoed this point of view. “You cannot give to others what you don’t have yourself,” Hai said.
Point 2: The Constitutions of 1946 and 1957 of the Democratic Republic of Vietnam stipulated that territorial transfers must be decided by an act of parliament, the most powerful body in the country. As such, the Prime Minister had no right to relinquish the islands, said lawyer Viet.
Lawyer Viet said that Dong’s letter had a political, not a legal purpose given China's considerable provisions of material assistance to North Vietnam in its fight against the US during the Vietnam War.
The letter endorsed the principle of China's assertion of its 12-nautical mile breath while it was engaged in staving off an attack by the United States, which was maneuvering near the Taiwan Strait.
PM Pham Van Dong did not expressly transfer authority over the Paracels and Spratlys because he simply had no authority to do so. (4)
Point 3: PM Pham Van Dong’s letter is a unilateral declaration written solely as a response to China's declaration on a 12-nautical mile territorial waters, Viet said.
As such, any unilateral declaration should be considered very carefully, he said.
Under international law, territorial claims and the renunciation of territorial claims must be clear and direct.
Tran Duy Hai of Vietnam’s National Border Committee said: “It is essential to point out that the letter makes no mention, whatsoever, of territorial sovereignty over the Hoang Sa and Truong Sa archipelagos.”
China has misleadingly cited the letter as proof that Vietnam officially recognized its sovereignty over the two archipelagos, Hai said.
“Pham Van Dong’s declaration confines itself strictly to recognition of the breadth of the Chinese territorial sea. So it is incorrect to assert that Vietnam had also ‘reaffirmed its recognition of China’s claim’ to the archipelagos,” said Monique Chemillier Gendreau, emeritus professor of public law and political science at the University of Paris VII and former President of the European Lawyers’ Association.. (5)
No effect of estoppel
China has argued that Vietnam changed its position after the country’s reunification in 1975, thereby violating the principle of “estoppel”
The legal rule aims to prevent a party from stating a position inconsistent with one previously stated, especially when the earlier representation has served as a legal basis for actions taken by other parties.
Tu Dang Minh Thu, PhD in law, France’s Sorbonne University, says that estoppel must meet the following criteria:
1. The declaration or action must be taken by a representative person or agency of a country in a clear, public manner.
2.The country relying on estoppel must prove that it has or hasn't taken certain critical actions based on the established declaration or action.
3. The country relying on estoppel also has to prove that based on the declaration of the other country, it has suffered damage, or that the other country has benefited when making that declaration.
- North Vietnam’s PM Pham Van Dong was not a representative of the Republic of Vietnam. Hence, his letter does not fulfill the first condition.
- The letter does not fulfill the two remaining conditions, as China has suffered no damages and Vietnam has seen no benefits from its position stated in the letter.
Nguyen Hong Thao (6), Associate Professor at Faculty of Law, Vietnam National University, also said China hasn't proven that its position on the archipelagos has changed detrimentally due to its reliance on North Vietnam’s declaration.
In addition, the estoppel principle only applies to the position of one state over a continuous period of history. In this case, how can estoppel be applied to the conduct of two distinct governments (i.e. the Democratic Republic of Vietnam
(1954-1976) and the Socialist Republic of Vietnam (1976-present)), Thao continued.
The first had no territorial authority over the archipelagos in question. The Socialist Republic of Vietnam inherited the rights and territories from the Republic of Vietnam, which alone had jurisdiction over the Paracels and Spratlys. (7)
Thao Vi, Thanh Nien News
Thai Thanh Van contributed to this report.
(1) Dr. Balazs Szalontai, a Hungarian researcher on Asia said in an interview with BBC in January, 2008.
(2), (4), (6) Nguyen, Hong Thao, Vietnam's Position on the Sovereignty over the Paracels & the Spratlys: Its Maritime Claim (May 4, 2012). Journal of East Asia International Law, V JEAIL (1) 2012. Available at SSRN: http://ssrn.com/abstract=2123861 or http://dx.doi.org/10.2139/ssrn.2123861
(3) Lawyer Hoang Viet's arguments in the article were taken from the interviews with Tuoi Tre (Youth) newspaper and news website VnExpress in May, 2014.
(5) Monique Chemillier Gendreau, Sovereignty over the Paracel and Spratly Islands (March, 1996).
(7) Nguyen Hong Thao makes the comment based on Gendreau’s remarks in the book above. It reads: “The fact nevertheless remains that this particular moment in the history of the partition of Vietnam blurs the Vietnamese position. The now reunified Vietnam (through the victory of the North) must decide to which entity it is successor on this point. The territorial logic reinforces succession to the rights and actions of South Vietnam, which alone has jurisdiction from the geographical standpoint.”