A diplomatic note dated June 9, 2014 from the Permanent Mission of China to the United Nations, addressed to the General Secretary (A/68/907)⁽¹⁾, confirmed the installation of HYSY 981 oil rig in the territorial waters of the Hoang Sa Archipelago. In the midst of this official correspondence, China also presented the Diplomatic Note dated 1958 (accompanied by several other documents) written by the Prime Minister (PM) of the Democratic Republic of Vietnam, Pham Van Dong, to the PM of the People’s Republic of China, Zhou Enlai, as evidence that the Social Republic of Vietnam recognized China’s sovereignty over the Hoang Sa and Truong Sa Archipelagos.

The focal point of the Diplomatic Note dated June 9, 2014 from the Permanent Mission of China did not concern the placement of the HYSY 981 platform, but rather their interpretation of PM Pham Van Dong’s 1958 Diplomatic Note as evidence that Vietnam recognized China’s sovereignty over the Hoang Sa and Truong Sa Archipelagos. China’s distortion of this Diplomatic Note is believed to be a scheme conceived to negate Vietnam’s legal sovereignty over the islands and create misleading doubts among the international community, which may eventually prevent Vietnam’s fighting to protect its sovereignty of the archipelagos with legal measures, including the possibility of bringing the case to the International Court.

Numerous articles have been published that discuss the legality of the contents in PM Pham Van Dong’s 1958 Diplomatic Note and the evidence provided by China. This article, referring to a number of works conducted by domestic and foreign researchers, attempts to analyze the legality of PM Pham Van Dong’s Diplomatic Note in the hope of asserting that the document has a common diplomatic nature, showing the socialist system’s solidarity against US invasions during the early stages of the Cold War. Thus, it does not exert any impact on Vietnam’s legitimate sovereignty over the Hoang Sa and Truong Sa Archipelagos.

1. Historical background:

The Government of the People’s Republic of China publicly issued an official declaration about China’s territorial sea on September 4, 1958.

The Government of the People’s Republic of China declared:

(1) The breadth of the territorial sea of the People’s Republic of China shall be twelve nautical miles. This provision applies to all territories of the People’s Republic of China, including the Chinese mainland and its coastal islands, as well as Taiwan (separated from the mainland and its coastal islands by the high sea) and its surrounding islands, the Penghu Islands and the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands, and all other islands belonging to China.

(2) The baseline for China’s territorial sea along the mainland and its islands is composed of straight lines connecting base-points between the mainland coast and the offshore islands; the water extending twelve nautical miles from this baseline is China’s territorial sea. The territory inside the baseline, including Pohai Bay and the Chiungchow Straits, are Chinese internal waters. The islands inside the baseline, including Tungyin Island, Kaoteng Island, the Matsu Islands, the Paichuan Islands, Wuchiu Island, the Greater and Lesser Quemoy Islands, Tatan Island, Erhtan Island and Tungting Island, are islands of Chinese internal waters.

(3) No foreign military vessels and no foreign aircraft may enter China’s territorial sea or air space without the permission of the Government of the People’s Republic of China. While navigating Chinese territorial sea, all foreign vessels must observe the relevant laws and regulations laid down by the Government of the People’s Republic of China.

(4) The above provisions (2 and 3) shall be applicable to Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands, and all other islands belonging to China.

The Taiwan and Penghu areas are still occupied by the United States armed forces. This is an illegal encroachment on the territorial integrity and sovereignty of the People’s Republic of China. Taiwan and Penghu are yet to be recovered, and the Government of the People’s Republic of China has the right to recover these areas by all suitable means at a suitable time. This is China’s internal affair, in which no foreign interference will be allowed.

On September 6, 1958 the declaration of Chinese territorial sea was publicized on the first page of the Chinese People’s newspaper. On September 14, PM Pham Van Dong issued a Diplomatic Note addressed to PM Zhou Enlai, expressing Vietnam’s respect for China’s declaration. The content of the document is as follow:

“We would like to inform you that the Government of the Democratic Republic of Vietnam has noted and supports the September 4, 1958 Declaration by the People’s Republic of China, regarding the territorial waters of China. 

The Government of the Democratic Republic of Vietnam respects this decision and will direct the proper government agencies to absolutely respect the 12 mile nautical territory of China in all dealings with the People’s Republic of China on the sea. We would like to send you our sincere regards”.

The note was publicized on September 22 in Vietnamese People’s newspaper.

In order to have an insight into the causes underlying PM Pham Van Dong’s diplomatic intentions expressed in the 1958 Diplomatic Note, which sought to voice Vietnam’s political support of China, we must first examine the international legislations concerning territorial waters at that time.

Until the early 20^th century, the established international legislations governed that a state’s territorial waters extend up to 3 nautical miles from its baseline. Nevertheless, a number of nations felt the need to expand their sovereign territory and pursued more privileges in regard to sovereignty of the sea. Between the late 1940s and early 1950s, some nations extended their territorial waters from 3 to 12 nautical miles.

The United Nations Convention on the Law of the Sea I⁽²⁾ (UNCLOS I) held in Geneva from February 24 to April 27, 1958, concluded with four treaties including the Convention on the Territorial Sea and contiguous zone. Regarding the issue of breadth of territorial waters, the United States, United Kingdom and several nations insisted on maintaining the 3 nautical mile limit while many others, especially socialist states and developing countries, advocated for the extension of 12 nautical miles. As no agreement was reached, the regulation on the breadth of territorial waters was left open.

During the 1950s, the People’s Republic of China (PRC) was put under pressure with issues related to the breadth of its territorial waters. The outbreak of the Korean War in May of 1950 pushed Korea and Taiwan to the edge of being attacked by the PRC. In an attempt to place Taiwan under American protection, the U.S sent their Seventh Fleet to the Taiwan Strait to prevent further conflicts, an actionthat drew intense opposition from China. In early September 1954, the PRC began an artillery bombardment against the Kinmen and Matsu Islands in an attempt to expel the Republic of China (ROC) Army in Taiwan. In August of 1958, the PRC launched another bombardment against Kinmen. The U.S. acted accordingly by ordering 2 naval vessels to the Taiwan Strait to protect the logistic route from Taiwan to the islands. These vessels convoyed Taiwanese ships to within 3 nautical miles from the coast of Kinmen Island.  As a result, the PRC deemed this action a violation of its sovereignty, to which the U.S. responded that their vessels only operated outside the territorial waters of China.

With the 1958 UNCLOS I concluded without the participation of PRC, and considering the urgent need to hinder foreign military activities in the coastal areas, the Government of PRC publicized the aforementioned declaration of China’s territorial sea. Vietnam and USSR, as fellow comrades in the socialist block, voiced their support of China’s decision by issuing diplomatic notes⁽³⁾. This was considered an absolutely normal and necessary diplomatic behaviour in the Cold War period, during which the conflict between the USSR’s socialist block and the capitalist block led by the U.S. was escalating. Consequently, PM Pham Van Dong’s 1958 Diplomatic Note should be understood as a unilateral diplomatic document expressing the Democratic Republic of Vietnam’s (DRV) solidarity with the People’s Republic of China.

In conclusion, a thorough understanding of historical circumstances is necessary in examining the legality of PM Pham Van Dong’s Diplomatic Note and its impacts on Vietnam’s territorial sovereignty.

2. PM Pham Van Dong’s Diplomatic Note within the scope of international law

Deciphering the true intentions of a signed document within its textual context is absolutely necessary according to international law. The author’s intention is interpreted by the “within-four-corners rule” and “the specific govern the general” principle⁽⁴⁾. According to these guidelines, the insertion of subjective viewpoints into a document is not allowed and the author’s intentions must be deducted from the textual context of the document (within the four corners of the page containing the document). Thus, PM Pham Van Dong’s note consists of 2 paragraphs. Within the first paragraph, the PM only mentioned Vietnam’s general recognition and agreement of China’s declaration of its territorial waters: “We would like to inform you that the Government of the Democratic Republic of Vietnam has noted and supports the September 4, 1958 declaration by the People’s Republic of China regarding the territorial waters of China”. The second paragraph further explains, “the Government of the Democratic Republic of Vietnam respects this decision and will direct the proper government agencies to absolutely respect the 12 mile nautical territory of China in all dealings with the People’s Republic of China on the sea”. In short, as the specific governs the general, the “12 nautical sea miles” was the primary focus of the Diplomatic Note without any further notice from the PM.

Considering the content of the note and the circumstance of the time when it was written, it is safe to conclude that the Diplomatic Note was no more than a unilateral diplomatic document that skilfully elaborated the intention of displaying support for China in respect to China’s 12 mile nautical territory, without any recognition of its sovereignty over the Hoang Sa and Truong Sa Archipelagos in particular. Almost all foreign and domestic scholars support this interpretation⁽⁵⁾.

Nevertheless, there are concerns that the existence of PM’s Diplomatic Note may hinder Vietnam’s claims of sovereignty over the Hoang Sa and Truong Sa Archipelagos because, though it did not publicly recognize China’s sovereignty over the islands, the note did not directly oppose China’s claim of sovereignty over the islands. On that account, customary international law considers this act as “silent means consent”⁽⁶⁾.

In order to discern the role of the Diplomatic Note and its impact on Vietnam’s sovereignty over the Hoang Sa and Truong Sa Archipelagos, the role of the Democratic Republic of Vietnam in regard to these islands between 1945 and 1976 must be addressed. According to many foreign and domestic scholars, French colonists took control of these two archipelagos on behalf of Vietnam from 1945 to 1950. Since 1949, there had co-existed two separated governments in Vietnam: the Democratic Republic of Vietnam in the North and the State of Vietnam in the South. After its establishment in October of 1950, the State of Vietnam officially received sovereignty over the Hoang Sa and Truong Sa Archipelagos from the French colonialists. Then, after the Geneva Conference in 1954, Vietnam was temporarily divided into two zones and the territory from the 17^th parallel to the South, including the Hoang Sa and Truong Sa Archipelagos, was in the control of the State of Vietnam succeeded by the Republic of Vietnam. For many reasons, the General election in July of 1956 for national reunification was never held, which led to the co-existence of two separated states on the land of Vietnam⁽⁷⁾. In 1956, after the withdrawal of the French colonialists, the Republic of Vietnam sent troops to occupy the western group of islands in the area of the Hoang Sa Archipelagos (April 1956) and Truong Sa Archipelagos (August 1956). By these accounts, the Republic of Vietnam was the only political entity that claimed sovereignty over the Hoang Sa and Truong Sa Archipelagos in 1958. Given that the Democratic Republic of Vietnam did not have the duty and power to exercise sovereignty over these islands at that time, its non-oppositional behaviour towards China’s declaration of 12 nautical miles of territorial waters cannot serve as a legal basis for the assumption that Vietnam also recognized China’s sovereignty over the islands.

It should also be noted that the 1933 Montevideo Convention on the Rights and Duties of States explicitly concluded that “The political existence of a state is independent of recognition by other states”⁽⁸⁾ and hence, the relevance of the State of Vietnam and the Republic of Vietnam, as well as their ability to exercise sovereignty over the Hoang Sa and Truong Sa Archipelagos from 1954 to 1975, cannot be affected by any recognition or non-recognition from other countries.

The 1933 Montevideo Convention also asserted that “the replacement of a government does not change the state”. According to customary international law, specifically the Charter of the United Nations, the choice of a government to represent a country or territory lies in the self-determination of its people. When a government is overthrown, the new government must subsequently succeed its predecessor’s legacy, including its territories, treaties, memberships, debts, etc. The liberation war in the South from the establishment of the National Liberation Front of South Vietnam in 1960, and ended on April 30, 1975, was indeed an act of self-determination from the people of Southern Vietnam in choosing their political regime. After April 30, 1975, the Republic of South Vietnam (PRG) had completely overthrown the Republic of Vietnam and became the only political entity representing the people of South Vietnam. As a result, the PRG also legally acquired the rights to exercise sovereignty over the Hoang Sa and Truong Sa Archipelagos from the Republic of Vietnam. China also recognized the fact that the PRG was the only representative government of the South Vietnam people⁽⁹⁾. Given that fact, they indirectly recognized PRG’s succession of the sovereignty over the islands from the Republic of Vietnam according to international law. The Social Republic of Vietnam (SRV) acquired this sovereignty from the PRG after the General Election for reunification in 1976. Based on these events, the transference of sovereignty over the islands was not made official between the SRV and the DRV because, at that time, the DRV did not have the authority over that area. Therefore, the succession of sovereignty over the Hoang Sa and Truong Sa Archipelagos was done according to international law and PM Pham Van Dong’s Diplomatic Note cannot be used as valid evidence for Vietnam’s recognition of China’s sovereignty over the islands.

From the stated reasons above, it can be concluded that:

First, PM Pham Van Dong’s Diplomatic Note was simply a unilateral diplomatic document supporting China’ declaration of its nautical territory of 12 miles, based on the ties between the two countries in the socialist block. The note was made in urgent circumstances, in which war with the U.S. and the conflicts in the Taiwan Strait were escalating. In addition, the Hoang Sa and Truong Sa Archipelagos were not mentioned specifically within the four corners of the document, making it invalid as a piece of evidence for Vietnam’s recognition of China’s sovereignty over the islands.

Second, between 1954 and 1975, the State of Vietnam (succeeded by the Republic of Vietnam) was a political entity with full-fledged statehood and was assigned sovereignty of the Hoang Sa and Truong Sa Archipelagos. The Democratic Republic of Vietnam was also a political entity with full-fledged statehood and co-existed with the State of Vietnam (eventually succeeded by the Republic of Vietnam) on the land of Vietnam. However, the Democratic Republic of Vietnam did not hold authority over the islands. Therefore, the Democratic Republic of Vietnam did not necessarily have to publicly state their objection towards China’s declaration on its 12 nautical miles territorial waters and its silence does not weaken Vietnam’s claims of sovereignty regarding the Hoang Sa and Truong Sa Archipelagos.

Third, according to international law, the political existence of the State of Vietnam (succeeded by the Republic of Vietnam) with full-fledged statehood was independent of recognition by other states. The Social Republic of Vietnam, therefore, does not have to implement any kind of legal procedures to recognize the statehood of the Republic of Vietnam in order to neutralize PM Pham Van Dong’s Diplomatic Note.

Final, the evidence provided by China in Diplomatic Note A/68/907 was invalid, according to the reasons stated above.

____________________

(1) See Letter dated 9 June 2014 from the Chargé d’affaires a.i. of the Permanent Mission of China to the United Nations addressed to the Secretary -General http://www.un.org

(2) http://vi.wikipedia.org

(3) Cao Huy Thuan: Prime Minister Pham Van Dong’s Diplomatic Note: Contributions to its interpretation, 2014.

(4)Tran Dinh Hoanh: “Deciphering the letter of  Prime Minister Pham Van Dong to Prime Minister  Zhou En Lai on September 14, 1958”,  http://unclosforum.com

(5) Thayer C.A. (2014) The Hoang Sa Archipelago dispute: Geo-Strategic issues and the role of international Law in promoting cooperation. Paper presented to international conference on Hoang Sa and Truong Sa Archipelagoes: Historical truth co-sponsored by University of Da Nang and Pham Van Dong University, Da Nang,Vietnam, http://www.iacspsea.com; Gendreau M. C.

(6)  Duong Danh Huy: The Achilles heel of sovereignty, BBC http://www.bbc.co.uk

(7) James Crawford (2007) The creation of States in international law. Oxford University Press; Gendreau M. C.: Sovereignty over the Truong Sa and Hoang Sa Archipelagos, National Political Publishing House, HaNoi, 1998; Vu Thanh Ca: Vietnam’s Continued Sovereignty over the Truong Sa and Hoang Sa Archipelagos.

(8) Montevideo Convention on the Rights and Duties of States 1933.

(9) China was among the first countries recognizing the existence of PRG. In 1975, the DRV and the PRG acceded to the United Nations and received 123 affirmative votes which forced the U.S. to use its right to veto to negate the decision. In opposition to the U.S., China had renounced its act as “violation of the Charter of the United Nations”.

Assoc. Prof., Dr. Vu Thanh Ca

Vietnam Institute of Sea and Islands

Vietnam General Department of Sea and Islands

MA. Le Minh Phuong

Ho Chi Minh National Academy of Politics