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Monday, 21 August 2017 16:47
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Vietnamese policies in settling the territorial disputes in the East Sea

(LLCT) - In the modern regional and global context, in order to protect the sovereignty and territorial integrity and settle the disputes in the East Sea, Vietnam has signed several bilateral agreements and conventions with related countries, such as the agreement about the historical water with Cambodia in 1982, the agreement of joint exploitation with Malaysia in 1992, the agreement of dividing water border with Thailand in 1997, the agreement of fixing the boundaries in the Gulf of Tonkin and fishing cooperation with China in 2000, and the agreement of fixing the continental shelf with Indonesia in 2003. 

As becoming the second biggest economy after the USA, since 2010, China has been trying to assert its role as a great nation in the Asia-Pacific Ocean. In order to become a marine power, it must monopolize the East Sea. To achieve this goal, on May 7th, 2009, China sent a diplomatic note to the Secretary General of the United Nations with which he enclosed 9-section line map (U-shaped path or “cow tongue-shaped line”) claiming appropriation of almost all of the East Sea. China has required that the international community acknowledge its “historical sea area” which is covered by the “cow tongue-shaped line”. “Cow tongue-shaped line”,“U-shaped line”, or “9-section line”... are different names used by international scholars to indicate the Chinese territorial claim of 80% of the East Sea area, which was drawn close to the shores of Vietnam, Indonesia, Malaysia, Brunei and the Philippines.

Initially, this line was drawn by the Chinese Government (under the Chinese Nationalist Party) in 1947, with 11 sections. It was used later by the People’s Republic of China, after cutting 2 sections in the Gulf of Tonkin. With the above-mentioned 2009 diplomatic note and map China expects that, by default, the East Sea will be considered its own historical sea. In time, this equivocation will make “cow tongue-shaped line” to be mistaken as China’s maritime border. China has also skilfully combined this line with the concept of exclusive economic zone and continental shelf of modern international maritime law by announcing its unquestionable sovereignty over the countries adjacent to Truong Sa archipelago (Spratly islands). As a result, China expects to make the whole East Sea its own home.

In the perspective of international legality, the claim of “cow tongue-shaped” of China lacks two conditions: 1) Lasting, continuous and peaceful enforcement of the real sovereignty; 2) Public acknowledgement or silent admission from other countries, especially the neighbouring countries with related benefits. Therefore, the claim of “cow tongue-shaped” violates not only the territory of related countries but also challenges the nautical and aeronautical interests of international community. The world community will never acknowledge such a claim or the fact that a large sea area, an important international nautical path, will be under the jurisdiction of only one country, as claimed by Chinese “cow tongue-shaped line”.

China has always professed its wish for peace and stability and intends to settle the East Sea disputes through peaceful measures, but in reality, China has been using violence to monopolize the East Sea. Although Hoang Sa archipelago (Paracel islands) belongs to Vietnam, China invaded some of its East islands in 1956 and the ones in the West in 1976. In 1988, China used military force to invade islands and reefs in Spratly islands, which also belongs to Vietnam. In recent years, China increased activities in the region include military attempts to impose the claim of “cow tongue - shaped line”, regardless of other countries in the region or international laws, which they have acknowledged and signed. For example, twice in 2011 (May 26th and June 9th), Chinese ships cut the cables of Vietnamese exploratory drilling ships, which were operating within Vietnamese water territory. (On May 27th, 2011, Vietnam sent a diplomatic note to the Chinese ambassador to denounce China’s violation of the United Nations Convention of the Law of the Sea and Vietnamese territory right in Vietnamese exclusive economic zone and continental shelf). However, China did not stop there. With its chauvinism and defiance of international laws, morality or the territory of related countries, May 2014, China blatantly and illegally lowered Haiyang 981 drilling rig with escorting motor ships and planes, deep in Vietnamese water territory, further violating Vietnamese territory.

Facing strong protests from Vietnam and international community, China was forced to withdraw Haiyang 981 from Vietnamese water territory. However, China has continued to carry out the scheme to monopolize the East Sea by constant extension, construction and militarization of the islands and reefs in the East Sea, regardless of protests from other countries in the region and international public opinion. China completed the illegal construction of seven artificial islands in the East Sea and the deployment of the missile HQ 9 complex in Phu Lam island of Paracel islands - a Vietnamese archipelago. On April 11th, 2015, China sent the warplane J-11 to Phu Lam island. The extension and militarization of strategic places in the East Sea and the announcement to establish the air defence identification zone (ADIZ), which covers most of the East Sea, is evidence of China’s ambition to drive the other countries out of the disputed territorial area.

The aforementioned Chinese activities show that China’s attempts, whether implicitly or explicitly, to monopolize the East Sea, and threaten the independence, sovereignty, unity and territorial integrity of Vietnam. Facing these chauvinistic Chinese actions, Vietnamese state, on one hand, confirms its sovereignty over Paracel and Spratly islands and professes their determination to protect their independence, sovereignty, unity and territorial integrity; on the other hand, Vietnamese State aims to settle the territorial or any other disputes through peaceful measures basing on the principles of equality, mutual understanding, respect for international laws (especially the United Nations Convention on the Law of the Sea in 1982), and respect for the sovereignty and jurisdiction rights of the seaside countries towards exclusive economic zone and continental shelf. According to Vietnamese Government, while waiting for basic and long-term resolution, the related parties must maintain stability by keeping the status quo, avoiding actions that can complicate the situation and restraining the use or threat of violence. These opinions were expressed on May 12th, 1977, soon after the Vietnamese Government announced regulations regarding Vietnamese water territory, contiguous area, exclusive economic zone and continental shelf. Vietnamese Government and related parties, through negotiations built on principles of mutual respect for independence and sovereignty, and for international laws and customs, solve their own water territory and continental shelf problems.

In the modern regional and global context, in order to protect the sovereignty and territorial integrity and settle the disputes in the East Sea, Vietnam has signed several bilateral agreements and conventions with related countries, such as the agreement about the historical water with Cambodia in 1982, the agreement of joint exploitation with Malaysia in 1992, the agreement of dividing water border with Thailand in 1997, the agreement of fixing the boundaries in the Gulf of Tonkin and fishing cooperation with China in 2000, and the agreement of fixing the continental shelf with Indonesia in 2003. Vietnam has carried out talks, politics and security cooperation in the region, especially through ASEAN Regional Forum (ARF), ASEAN Defence Minister’s Meeting plus (ADMM+), Meeting of ASEAN Chiefs of Security Agencies (MACOSA) and ASEAN Mayors Forum (AMF) as well as promoted consultation on policies related to the relationship between Vietnam and the countries involved in the territorial disputes in the East Sea.

1. Consultation with the countries in ASEAN in order to complete the proposal and approve the East Sea Code of Conduct

In order to peacefully solve conflicts in the East Sea, policies must be drawn to prevent any unilateral actions that can cause tension. Since 2010, Vietnam, China and the other 9 members of ASEAN started to discuss a set of rules to avoid disputes in the East Sea. After a series of consultations between Vietnam and the other ASEAN members, such as the 6th ASEAN Senior Officials’ Meeting and China, the 9th meeting of the Joint Group ASEAN - China on the implementation of the Declaration on the Conduct of the Parties in the East Sea (DOC) September 14th - 15th, 2013 at Suzhou City, China, besides the periodical review and promotion of the implementation of DOC, ASEAN and China had an official consultation at senior level about the construction of the Code of Conduct in the East Sea. At these meetings, ASEAN and China emphasized the importance of maintaining peace, stability, security, safety and nautical freedom in the East Sea as well as the necessity of building the Code of Conduct. After the consultation, Vietnam’s opinion, which was supported by other ASEAN members, was that it was necessary to build a binding Code of Conduct which generalizes the conduct and behaviour of the parties to ensure peace, security, nautical safety, prevention, management and mediation in dispute cases, done through peaceful measures following the principles of international laws and the United Nations Convention on the Law of the Sea in 1982.

On June 9th, 2016, in Ha Long City, Quang Ninh province, under the joint chairmanship of China and Singapore, which is the country responsible for regulating the relationship between ASEAN and China, was organized the 12th ASEAN Senior Officials Meeting and China (SOM), on the implementation of the DOC (Declaration on the Conduct of the Parties in the East Sea) and the construction of COC (Code of Conduct in the East Sea). At this meeting, the ASEAN members expressed their concern about the current happenings in the East Sea and emphasized its importance and the interest of international community in the region. The ASEAN members and China reasserted the importance of the East Sea and undertook to fully and effectively implement DOC, especially Article 4, (peaceful dispute settlement), Article 5, (self-restraint), Article 6, (cooperation and promotion) and Article 10 (on construction of COC) in order to increase the trust and promote realistic cooperation and contribution to maintaining peace, stability, security, nautical and aeronautical safety in the East Sea.

For the first time, on this occasion, countries discussed the nature, the approach to construction, the completion deadline and the proposal for COC. They also agreed to promote the application of “early harvest” method, including the early completion of the hotline between ASEAN and China diplomatic officials, concerning the urgencies in the sea as well as the complete construction of joint statement on the application of the Code for Unplanned Encounters at Sea (CUES) in the East Sea.

2. Philippines consultation on the enforcement of the July 12th, 2016 verdict of Permanent Court of Arbitration (PCA) in La Haye, regarding China’s claim in the East Sea

Until now, Vietnam has refrained from suing China for violating the Vietnamese territory in the East Sea and instead, considered the best approach to settle this dispute. However, Philippines victory facilitates Vietnamese use of international laws to protect its independence and sovereignty in the East Sea if necessary.

After Permanent Court of Arbitration (PCA) issued the final verdict on July 12th 2016, rejecting China’s claim on the “cow tongue-shaped” map, Vietnam welcomed the verdict and confirmed its consistent standpoint as fully expressed in the statement of December 5th, which was sent to the Court of Arbitration. In that spirit, Vietnam strongly supports the use of peaceful measures in settling disputes in the East Sea, including diplomatic methods and legality, security, peace and stability, safety, nautical and aeronautical freedom in the region, as well as respect for maritime and international laws, especially the United Nations Convention of the Law of the Sea in 1982. On this occasion, Vietnam also asserted its sovereignty over Paracel and Spratly islands, its rights and jurisdiction over the exclusive economic zone and continental shelf, in addition to all national rights and benefits related to the physical structure of Paracel and Spratly islands.

Along with these measures, Vietnam has been consulting and cooperating with the Philippines in its struggle against China’s violations in the East Sea. In July 2014, when Vietnamese Prime Minister Nguyen Tan Dzung met with Philippines Minister of Foreign Affair, Del Rosario, he stated that ASEAN members and all countries with sovereignty in the East Sea must join in the fight to prevent actions that violate international laws, even if, in order to do that, they need to call upon the international community to pressure China into ceasing provoking actions that violate international laws, but instead employ DOC and sign COC. 

Vietnamese Prime Minister Nguyen Xuan Phuc, meeting with the Filipino Minister of Foreign Affairs, proposed that governments of both countries maintain joint programs, promote the unity and the role of ASEAN in maintaining peace and cooperation in the East Sea, earnestly applying DOC and moving forward to complete COC. Filipino Minister of Foreign Affairs, Jose Almendras, once again asserted the two countries’ need to promote cooperation in the sea and committed the Philippines to fully and responsibly cooperate with Vietnam in this area.

3. Consultation with Japan on the settlement Japan and China dispute over the sovereignty of Senkaku archipelago

Vietnam has always maintained that Japan and China are powerful and influential countries in the region and two important Vietnamese partners. Its hope is that Japan and China satisfactorily settle their existing disagreements through negotiations on the principles of international laws. Friendly relations between Japan and China is important to the stability and development of the region at the same time that it benefits both countries and promotes their positions as great contributors to the regional and the world peace, stability and development. Vietnam also hopes that Japan and China resolve their dispute over Senkaku archipelago through peaceful negotiations and measures in order to maintain the stability, cooperation and development in the region.

Through the meetings with Japan, Vietnam can draw some lessons in settling territorial disputes with China, since the dispute over Senkaku archipelago and the dispute in the East Sea have some similarities. One such similarity is that, in the case of Senkaku archipelago, China also claims sovereignty by asserting a historical link with the region. The difference is that the “history”, in the case of Senkaku archipelago, can be discussed with reference to international laws, but the “historical right” in the East Sea cannot be discussed because international laws do not recognize historical waters except that which parties all admit. That means the term “history” is used in two different contexts.

One more difference is that the East Sea, especially the water around Spratly islands, is a sovereignty claimed by six parties. This makes it a multilateral territorial dispute with multilateral discussions. Most disputes in the East China Sea are bilateral, but no other is as complicated as Senkaku archipelago.

Upon consideration of these similarities and differences, Vietnam can draw the following lessons:

- Vietnam must continue to reject China’s claim of jurisdiction over the water around the “cow tongue-shaped line”, which China calls “historical water” (this claim was rejected by Permanent Court of Arbitration in La Haye on July 12th, 2016) since the concept of “historical water” does not exist in international laws. If China sticks to their position, it has to explain its claim basing on international laws. Moreover, “historical water” doesn’t mean the water within the exclusive economic zone, which includes some reefs.

- Vietnam must keep track of China’s reactions to Japan’s claims in the case of Okinotori Shima, in order to propose sharp arguments in its struggle to oppose China’s illegal extension in the East Sea concerning Chinese activities to transform the reefs and coral reefs in recent years. In fact, China has accused Japan of violating the United Nations’ principles when Japan widened the continental shelf of Okinotori island by 3000 square kilometres to the North and 174.000 square kilometres to the South on October 1st, 2014. Chinese media also accused Japan of positioning military forces and weapons aimed at China in the Southwest islands. Previously,in 2009, China sent a diplomatic note to oppose Japan’s taking Okinotori as the base for the extension of continetal shelf beyond 200 nautical miles arguing that Okinotori is only a reef, not a residental place. Therefore, Vietnam must: 1) Continue to supervise and publish evidences of China’s extension, widening and construction in the islands and in Spratly island, especially in the unmanaged areas, and prepare forces to prevent fresh provocations. 2) Promptly exchange ideas and satisfactorily settle arising disputes through diplomatic channel, Party channel and direct discussions between ministries and localities of the parties involved in order to prevent them leading to military conflicts. 3) Continue calling upon international community, especially the USA, Japan, India, and ASEAN to raise their voices regarding the East Sea issues and pressure China to cease provoking activities in the region. 4) Promote and popularize Vietnamese historical and legal evidences that, support the verdict of Permanent Court of Arbitration of July 12th, 2016, rejecting China’s claims regarding the “cow tongue-shaped line” in the East Sea. Also call upon related parties to reinforce DOC and accelerate negotiations to construct COC. 5) Improve military potential for execution in the sea; support in both material and means, enforcing effective policies for this force.

- The collision between Chinese fishing ships andthe Japanese patrol is an example on how to deal with China concerning fishermen and fishing ships captured by China. Vietnam must force China to free Vietnamese fishing ships and fishermen captured in the fisheries around Paracel and Spratly islands.

- Moreover, Vietnam must bring Japan to the table for discussion about the East Sea situation, requesting its support for nautical freedom and safety and dispute settlement through peaceful measures, based on international laws, especially UNCLOS 1982, of obeying DOC and construction of COC. Vietnam must also suggest that Japan oppose China’s claim of “cow tongue-shaped line”. Vietnam is especially effective when Japan strongly supports Vietnamese position during bilateral meetings as well as multilateral forums. For the time being, Vietnam, benefits from Japan’s support in the East Sea and at the same time promotes cooperation in improving the ability of the executive forces in the sea while learning from Japan’s experience in settling the water territorial disputes between Japan and China.

With the changes in the policies of Japan’s new Government, it is possible that it will strengthen the cooperation with Vietnam in maritime issues. Vietnam must exchange information with Japan on nautical matters, making public its standpoint in the multilateral forums such as ARF, ADMM+, EAS, rallying Japanese support in improving execution ability at sea. However, in case the relationship between Japan and China is still tense, a close relationship with Japan can affect the relationship between Vietnam and China.Therefore, promoting cooperation with Japan in the East Sea issues, establishing the mechanism for exchanging information and request Japan’s aid to improve execution ability at sea must be implemented carefully in order to avoid negative effects on the relationship between China and Vietnam.

Assoc. Prof., Dr. Phan Van Ran

Institute of International Relations,

Ho Chi Minh National Academy of Politics 

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