Overview of the East Sea Dispute
China’s recent aggressive acts in the East Sea has pushed escalation of tensions in the area and sparked concern that the area is becoming a flashpoint with global consequences. VietNamNet would like to give you an overview of the dispute in the East Sea to help our reader understand its nature.
I. Overview of the East Sea
The East Sea map.
The East Sea is a semi-enclosed sea in the Pacific Ocean, covering an area of over 3.5 million sq. km. It is bordered by nine coastal countries, namely Vietnam, China, the Philippines, Malaysia, Brunei, Indonesia, Thailand, Cambodia and Singapore.
The East Sea is abundant in natural resources, especially oil, gas and marine resources. Recently, data suggest that the sea has huge reserves of natural hydrate.
The sea is the second busiest maritime route in the world after the Mediterranean route, with 150 – 200 large-tonnage ships passing through its waters every day. Imports and exports essential for such major economies as China, Japan, the Republic of Korea, Chinese Taiwan and Hong Kong, depend largely on this shipping route. Militarily, the East Sea is where naval fleets from many countries both inside and outside the region operate.
All these factors have led to an inevitable and obvious situation that in the East Sea the interests of many countries are closely intertwined at different levels. Peace and stability in the East Sea directly affect peace and stability in the region and the world.
II. Maritime zones of the countries bordering the East Sea under the international law of the sea
The third United Nations Conference on the Law of the Sea (1967-1982) adopted the 1982 UN Convention on the Law of the Sea containing 320 articles and nine annexes.
As an outcome of prolonged negotiations among different groupings of countries, the Convention constituted a fair and culminant package deal in the process of codification and progressive development of the international law of the sea.
It has definitely established the legal regimes for different maritime zones under sovereignty and sovereign rights of coastal states, providing for the rights and obligations of the states in sea-related activities and setting up a series of important international mechanisms for the implementation of the Convention and settlement of sea disputes such as the International Tribunal for the Law of the Sea, the Conference of States Parties to the Convention, the International Seabed Authority and the Commission on the Limit of the Continental Shelf.
To date, 161 countries and international organizations are parties to the Convention, among them seven countries bordering the East Sea – Vietnam, China, Indonesia, Malaysia, the Philippines, Singapore and Brunei.
By applying the 1982 UN Convention on the Law of the Sea to the conditions of the East Sea, we can see several basic points below:
First, the countries bordering the East Sea have the sovereignty over their internal waters and territorial seas of 12 nautical miles which are measured from their baselines. It is notable that under the international law of the sea of the 1940s-50s, the territorial seas of the countries bordering the East Sea were just 3 nautical miles, beyond which were high seas. Thus, the Convention has enlarged the territorial seas of the countries bordering the East Sea by 9 nautical miles.
Second, each country bordering the East Sea has the sovereign rights over its exclusive economic zone of 200 nautical miles and continental shelf of at least 200 nautical miles. The breadths of both zones are measured from the baseline used to determine its territorial sea. When its actual continental shelf extends beyond 200 nautical miles, a nation bordering the East Sea may expand its continental shelf up to 350 nautical miles provided that it strictly complies with provisions and procedures set out in the 1982 UN Convention on the Law of the Sea .
Each country bordering the East Sea has full jurisdiction to explore and exploit natural resources in its maritime zones, especially the exclusive economic zone and continental shelf, to serve people’s livelihoods and national development. Each country bordering the East Sea has full powers to allow or disallow other countries to exploit natural resources in its maritime zones. At the same time, it is obliged to respect those sovereign rights of other neighboring countries. In pursuance to the 1982 UN Convention on the Law of the Sea, the countries bordering the East Sea are concurrently obliged to respect other nations’ rights to freedom of navigation in and flight over their exclusive economic zones and the airspaces above these exclusive economic zones and continental shelves.
Third, under the 1982 UN Convention on the Law of the Sea, how should China’s signing of a contract with the Crestone Energy Corp. in 1992 on Vietnam’s Tu Chinh bank and official submission of its “U-shaped line” claim to the United Nations in May 2009, be viewed? The Tu Chinh bank completely lies within Vietnam’s 200-nautical mile continental shelf on which Vietnam has assigned oil exploration blocks. China National Offshore Oil Corp’s signing of a contract in 1992 with the American Crestone Energy Corp. to explore oil and gas in the Tu Chinh bank area within Vietnam’s 200-nautical mile continental shelf (which was called Wan’an Bei in Chinese) was a blatant violation of Vietnam’s sovereign rights under the 1982 UN Convention on the Law of the Sea.
With regard to the “U-shaped line” or “nine-dotted line” claim, Chinese scholars all are clearly aware that at international seminars on the East Sea held in Hanoi (in 2009) and Ho Chi Minh City (in 2010) as well as other international seminars, French, Belgian, American and other foreign scholars clearly stated that the “U-shaped line” claim was dubious and groundless and that China should clearly explain the legal nature of sea areas within that “U-shaped line.” So far, both Chinese politicians and scholars have failed to provide satisfactory answers.
Proceeding from the provisions of the 1982 UN Convention on the Law of the Sea to which China is also a contracting party, it is apparent that this claim is absolutely contrary to provisions of the Convention. No provision in the Convention can justify this claim. Simply because the sea areas encircled by the “U-shaped line” cannot be the territorial sea or exclusive economic zone or continental shelf of China. These sea areas belong to the exclusive economic zones and continental shelves of Vietnam, the Philippines, Malaysia, Indonesia and Brunei. The irrational “U-shaped line” claim has seriously violated the sovereignty rights of the five ASEAN nations over their exclusive economic zones and continental shelves. Therefore, Vietnam, Malaysia, Indonesia and the Philippines have sent their diplomatic notes to the United Nations General Secretary to reject this claim.
The presentation of the mentioned irrational claim to the United Nations in 2009 and recent field activities to pursue this claim are further complicating the East Sea situation, causing great concerns among the world community. Countries involved in the East Sea dispute and also many other countries have expressed their displeasure with this claim.
III. Current disputes in the East Sea with respect to international law
There are two types of disputes concerning the East Sea – one over the overlapping continental shelves and economic exclusive zones and the other about sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos.
a. Due to the narrow breadth of some areas in the East Sea, such as Bac Bo (Tonkin) Gulf and the Gulf of Thailand, which is less than 400 nautical miles wide, parts of the economic exclusive zones and continental shelves of neighboring countries overlap. As a result, there exist a number of disputes over the boundaries of the economic exclusive zones and continental shelves between the countries bordering the East Sea.
Relating to Vietnam, in the North, we have an overlapping area in the continental shelf and economic exclusive zone with China in the Bac Bo (Tonkin) Gulf and a smaller area in the entrance to the Gulf. While to the South there are overlapping areas which are claimed by Vietnam, Cambodia, Thailand and Malaysia in the Gulf of Thailand. In the South of the East Sea, there is an overlapping area which is claimed by both Vietnam and Indonesia. The same overlapping areas are reported among other countries bordering the East Sea, such as between Malaysia and Thailand, between Thailand and Cambodia and between Indonesia and Malaysia. Sovereignty over these overlapping areas has been gradually settled by Vietnam and relevant countries in an amicable way in accordance with the 1982 UN Convention on the Law of the Sea.
b. The Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos consist of a series of tiny coral reefs and banks in the middle of the East Sea. At present, these two archipelagos are at the centre of complicated disputes between several countries bordering the East Sea. The sovereignty dispute over the Hoang Sa (Paracel) islands is between Vietnam and China while that over the Truong Sa (Spratly) is between five countries and six parties, including Vietnam, China, the Philippines, Malaysia, Brunei (Brunei claims sea areas) and Chinese Taiwan.
To settle territorial sovereignty disputes, international law has already come up with a principle to establish sovereignty – the principle of effective occupation and effective, continuous and peaceful exercise of state authority. This principle has been used by countries and international jurisdiction bodies in settling disputes over territorial sovereignty in the world. Some of the classical cases should be mentioned here are the dispute over the Palmas island between the USA and the Netherlands, the Minquiers and Ecrehous case between the UK and France, the case of the Clipperton island between Mexico and France or the case of Greenland between Norway and Denmark.
IV. The dispute between Vietnam and China
It is a dispute over territory and sovereignty over the two archipelagoes of Hoang Sa (Paracels) and Truong Sa (Spratlys).
1. China’s territorial claims and its evidence – justification
a. China’s U-shaped claims
China’s U-shaped line.
China claims by far the largest portion of territory – an area defined by the so-called “nine-dash line” which stretches hundreds of miles south and east from its most southerly province of Hainan. Beijing says its right to the area comes from 2,000 years of history where the Paracel and Spratly island chains were regarded as integral parts of the Chinese nation.
In 1947 China issued a map detailing its claims. It showed the two island groups falling entirely within its territory. Those claims are mirrored by Taiwan, as the Republic of China.
In fact, China had never claimed sovereignty over the islands before the 1940s. Vietnam has actively ruled over both the Paracels and the Spratlys since the 17th Century – and has the documents to prove it.
b. China’s illegal and aggressive acts in the East Sea
China has raised the biggest claims in the East Sea. After implementing the closed door policy for a long time, this country began eyeing and encroaching into the East Sea. The process has happened as below:
In 1909 it began to occupy Hoang Sa (Paracel) Archipelago.
In 1946 it drew the U-shaped line, which covers around 80 percent of the East Sea. However until May 2009 it made the line public. At the same time it occupied eastern islands in Hoang Sa Archipelago and Ba Binh Island in Truong Sa (Spratly) Archipelago.
In 1956, the People’s Republic of China occupied the eastern part of Hoang Sa while Taiwan held Ba Binh Island in Truong Sa.
In 1958, the People’s Republic of China officially raised its sovereignty claims over Hoang Sa and Truong Sa.
In 1974, this country occupied the western part of Hoang Sa. It continued to occupy some islands in Truong Sa in 1988 and Vanh Khan Island of Truong Sa in 1995.
On February 21, 1992, China stipulated that the East Sea belongs to the territorial waters of its Hainan province.
In 1999, China submitted its U-shape line map to the United Nations, in which it claims almost all the East Sea. Vietnam and related countries have strongly protested China’s groundless and illegal U-shape line.
China claims sovereignty over the whole Hoang Sa Archipelago. It considers Hoang Sa and the adjacent waters as its natural territory. It also claims sovereignty over the entire Truong Sa Archipelago and its adjacent waters, but admits to have disputes.
From the 90s, along with China’s fast economic development and the improvement of China’s position in the international arena, China began building and implementing a new marine policy. Under this policy, China has strengthened its control and exploitation of the sea to serve its goal of becoming a maritime superpower. China believes that it cannot become a real superpower if it is not a maritime superpower.
China’s policy is exploring the far waters firstly and then to the near waters, the disputed waters firstly and then its waters; diplomatic methods go firstly, followed by naval force; sowing division among members of the Association of Southeast Asian Nations (ASEAN); taking advantage of and restricting the US and Japan.
In terms of cooperation mode, China focuses on bilateral cooperation and multilateral cooperation when China holds the key role. Its main direction in the sea is the East Sea, where natural resources are abundant, big countries do not have military bases and related small countries are weak at military ability.
In 2011 China has been taking more aggressive and provoking acts in the East Sea, including encroaching Vietnam’s territories and cut the cables of Vietnam’s sea surveillance and oil exploration ships named Viking 2 and Binh Minh 2. This country also issued ban on fishing in the East Sea, covering the traditional fishing ground of Vietnam.
In 2012-2013, this country strengthened its provoking acts in the East Sea, as follow:
– Establishing the so-called “Sansha” city
The information about China’s establishment of the so-called “Sansha” city, which includes the island district of Truong Sa (Spratly) of Khanh Hoa province, Vietnam and the Hoang Sa (Paracels) island district of Da Nang, Vietnam, was released in June 2012.
In July 2012, China formally established the so-called “Sansha” city, based on Phu Lam Island, in Vietnam’s Hoang Sa archipelago, despite the objections of the international community.
China urgently strengthened the so-called government apparatus of “Sansha” city by building ports, airports, bridges, offices, etc.
China also planned to build waste treatment works, apartments, roads in Vinh Hung or Vietnam’s Phu Lam Island.
China held a flag raising ceremony on October 1, 2012 to mark its National Day on Phu Lam Island in the Hoang Sa archipelago.
On October 3, 2012 the Chinese navy’s Nanhai Fleet held an exercise in the waters of the Hoang Sa archipelago and five days later, China set up a meteorological station in the so-called Sansha City.
– Invitation of international bids for 9 oil and gas lots
In June 2012, China announced the opening of international bids for 9 oil and gas lot within Vietnam’s exclusive economic zone and Vietnam’s continental shelf.
In August 2012, China again opened international bid for the oil and gas block 65/12, seriously violating Vietnam’s sovereignty over the Paracel Islands.
The nine oil and gas lots that the CNOOC opened international bids for are entirely in the exclusive economic zone of 200 nautical miles and the continental shelf of Vietnam
– Seizing Vietnamese fishing vessels and fishermen
In 2012, China arrested 21 fishermen and two Vietnamese fishing vessels in the waters of the Paracel Islands of Vietnam.
– The ‘U-shaped’ passports
China began issuing electronic passports with the U-shaped line in May 2012. Shortly after it was discovered, Vietnam asked China to remove the wrong content on this passport.
– Escalating violations
On November 23, 2012 China published a map of “Sansha,” which includes the Hoang Sa and Truong Sa archipelagos and the exclusive economic zone and continental shelf of Vietnam.
On November 27, 2012, Hainan Province ratified the revised “Charters on coastal border management and security of Hainan Province,” which put the two archipelagoes of Hoang Sa and Truong Sa of Vietnam in the scope of application.
On November 30 2012, while Vietnam’s Binh Minh 02 ship was conducting normal seismic exploration in the exclusive economic zone and continental shelf of Vietnam, two Chinese fishing vessels deliberately obstructed and cut the ship’s cable, regardless of the warning signal of functional forces of Vietnam.
On March 20, 2013, a fishing boat numbered QNg 96382 with fishermen from the central province of Quang Ngai, Vietnam, was chased and shot by a Chinese ship in the waters of the Hoang Sa Archipelago of Vietnam.
Most recently on May 1, 2014 it deployed the mobile HD-981 drilling rig in the exclusive economic zone and continental shelf of Vietnam. The drilling rig is escorted by many ships of the coast guard, the naval and fishery surveillance forces of China. Chinese ships attacked vessels of the law enforcement forces of Vietnam in Vietnam’s waters. They also rammed fishing ships of Vietnam. These acts have been strongly objected by Vietnam and the international community.
c. Why China’s U-shaped claim and argument are wrong?
The U-shaped line
First, let’s consider whether this line can be consistent with the extent of an EEZ and continental shelf belonging to the Paracels and Spratlys.
That line lies beyond the equidistance line between the disputed islands and the territories around the East Sea. Jurisprudence by the International Court of Justice always gives such small islands EEZs or continental shelves that fall far short of the equidistance line, usually not much father than 12 nautical miles from the islands.
Pursuant to these rules, the U-shaped line is too excessive and arbitrary to be justified as the Paracels and Spratlys’ EEZ and continental shelf boundary. Consequently, the maritime zone around Reed Bank rightfully belongs to the Philippines; the area around James Shoal to Malaysia; the Natuna region to Indonesia; the maritime zones around Nam Con Son and the Vanguard Bank to Vietnam. These delimitations are incontestable regardless of the fact that the Paracels and Spratlys and Scarborough Shoals are disputed.
Furthermore, the U-shaped line covers an area in the middle of the East Sea where the international community might well have the right to exploit economically the column of water, for example, to fish.
Thus, that line encircles an excessive area, adversely affecting the rights of the nations entitled to EEZs and continental shelves in the East Sea, as well as those of the international community.
To justify such extensive claim, Beijing would have to adduce the status of historic sovereignty and rights over maritime space.
However, UNCLOS only recognizes historic sovereignty and rights over maritime space within 12 nautical miles of baselines, not over the area enclosed by the U-shaped line. As a signatory to UNCLOS, China must respect this rule and cannot allege historic sovereignty and rights over maritime space in order to justify the U-shaped line. In addition, there is no evidence that China has historical sovereignty over the maritime space enclosed by that line.
Next, let’s consider the U-shaped line in terms of what rights, under international law, China intends to claim for it.
So far, China has been opaque about this claim. This “Middle State” [Editor’s note: Another translation of the ancient name for China are “the Middle Kingdom.”] has never stated exactly what rights it is claiming inside that line, even when it included a map showing the U-shaped line with its note verbale to the United Nations in 2009 to protest against continental shelf submissions by Vietnam and Malaysia.
Whether China claims the maritime space within the U-shaped line as EEZ and continental shelf, or as a maritime zone similar to “historic waters,” such claim is a threat to the Philippines, Malaysia, Brunei, Indonesia and Vietnam. In addition, it affects considerably the rights of the international community, because UNCLOS grants rights within this body of water to all nations in the world.
The U-shaped line is like a dagger pointing at the heart of the East Sea without the holder giving any explanation or saying how he intends to use it. Supported by an increasingly powerful navy, it constitutes a threat to all nations in the world.
While the international community can be neutral on the disputes over the islands, it cannot afford to be neutral on China’s U-shaped line.
Both maritime history and UNCLOS show that the East Sea is an international sea, like the Mediterranean. The international community has an interest and the right to have a say in the maritime claims there. China’s opposition to the “internationalization” of the East Sea issue is tantamount to an attempt to de-internationalize an international sea. Once the East Sea has been de-internationalized, Beijing will be able to bring its strength to bear on the East Sea nations and impose its own rules on this body of water.
To understand China’s vague U-shaped line and its plot in the East Sea, please read the following articles on VietNamNet Bridge:
The argument is based on the principle “historical sovereignty.” They said that China used to be here, used to discover this archipelago, used to name, map…
Many international scholars have warned that if using historical events that were noted in different historical and geographic documents to consider territorial sovereignty or to settle territorial claims, this world will see a lot of changes. If using history, Spain, Portugal or Britain will have the right to claim all islands or the waters that they used to pass or come to.
Therefore, it is unable to rely on history and the name of history to defend territorial claims over islands amid the East Sea, and it is even unable to use the name of history to raise the U-shape claims and to seek every way to regularize that claim, regardless of clear criteria of the international law and practice.
To implement its marine strategy and its ambition to totally control the East Sea, China has applied many domestic and foreign measures, on negotiation table and on the field, to confirm its sovereignty in the East Sea.
China officially raised its U-shaped line claim in May 2009, by attaching a map with this line to a diplomatic note to the United Nations in protesting Vietnam’s report and the joint report of Vietnam and Malaysia on the boundary of the continental shelf. Accordingly, China claimed sovereignty over Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagos and the exclusive economic zone (EEZ) and continental shelf of the two archipelagos.
China used the regulations on island nation of the UN Convention on the Law of the Sea 1982 (UNCLOS) to outline the baseline for Paracel Islands. It stated to draw the baseline for the Spratly Islands, to claim EEZs and continental shelves for the two archipelagoes.
However, China’s claim is contrary to the UNCLOS; so in general, other countries did not agree with the claim.
To speed up propaganda on China’s sovereignty claims over the East Sea, the Chinese media has systematically published articles to excite the public opinion and slander countries in the region, especially Vietnam–of appropriating China’s marine resources.
China has published many maps and publications, organized international contests and supplied online maps related to China’s marine sovereignty.
This country has also collected documents associated with the East Sea and built up historical evidences to prove its sovereignty in the East Sea.
China has been seeking any measure to prove and defend its legal viewpoint on its process of establishing and implementing historical sovereignty over Hoang Sa and Truong Sa.
However, China’s ambition contradicts its documents. A lot of ancient documents clearly described and outlined that Hainan Island is China’s southern-most territory.
Mr. Pham Hoang Quan, an independent researcher on China’s history and geographic history, said that from the Han Dynasty to the Qing Dynasty, all official historical books did not note a single word about Hoang Sa and Truong Sa. It is the evidence that China has never considered the two archipelagoes as its territory. All books noted that Hainan Island is China’s southern-most territory.
After researching documents showed off by China, Prof. Monique Chemillier Gendreau, from the Paris VII Denis Diderot University, former Chair of the European Association of Lawyers for Democracy and World Human Rights, concluded: Chinese knew about islands scattered in the East Sea along time ago, but China’s evidence is not enough to defend the argument that China was the first country that discovered, explored, exploited and managed the two islands.
The readers can get more information about China’s ambition in the East Sea, its plot to occupy this area and the evidence for China’s unfounded claims and arguments from the following articles on VietNamNet Bridge:
EastSea: Be careful with China’s “win-win” plot
2. Evidence and justification for Vietnam’s sovereignty over the Paracel and Spratly Islands
a. Name and mistake for sovereignty
China has intentionally taken unfair advantage of the name South China Sea (the way Western people call the East Sea) to make misunderstandings that nearly the entire East Sea belongs to China’s sovereignty.
According to the Vietnam Encyclopedia, Giao Chi is the name for Vietnam and Vietnamese people in the past, used by Chinese feudal dynasties. In the era of Hung Kings*, Giao Chi was one of the 15 provinces of Van Lang country. Chinese feudal dynasties still used Giao Chi or An Nam to call the people and country of Dai Viet (Vietnam). In many ancient documents inscriptions, Giao Chi was still used to denote Vietnam until the end of the 19th century.
On pages 11b and 12a in “Vo Bi Chi” (a book of maps which records the journey of a Chinese man named Cheng Ho from China through the Indian Ocean to Africa in 1405-1433), Vietnam or Giao Chi country was drawn to be adjacent to China’s Qinzhou to the north, Champa to the south, the Giao Chi Sea (the sea of Giao Chi country – East Sea) to the east.
In 1842, another Chinese author named Wei Yuan published “Hai Quoc Do Chi”, book of maps of all countries in the world with meridians and latitudes. There are two maps of Vietnam in this book.
In the first map, An Nam (Vietnam) is divided into two parts (eastern and western parts). Offshore Vietnam to the east, Wei Yuan noted as Great East Sea. In the second map, offshore An Nam is the sea named East Sea.
In almost all ancient maps of China from the 14th century or older, the sea to the east of Vietnam is always noted as the Giao Chi Sea or the Great East Sea or the East Sea, meaning the sea of Giao Chi (or Vietnam) or simply the East Sea (of Vietnam).
b. Vietnam uninterruptedly performs its sovereignty in the East Sea
At least from the early of the 17th century, Vietnam has been conducted its sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagos in the East Sea in an official, continuous way and it has not been complained for scrambled by any country.
Since occupying Vietnam, France – on behalf of Vietnam – also performed that sovereignty under international law. The French built two weather stations on the Paracel Islands and Ba Binh – an island in the Spratly Islands.
In 1947, the government of the Republic of China made claims over the sovereignty in the East Sea with the U-shape line, including 11 interrupted dots. In 1949, the government of the People’s Republic of China made similar claims but the claims were neglected by the international community.
On October 14, 1945, Tran Van Huu, Vietnamese Prime Minister of the Bao Dai government, which was sponsored by the French, stated: “We confirmed our longstanding sovereignty over the Truong Sa and Hoang Sa archipelagos”.
Applying the aforementioned principle to the cases of the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos, everyone clearly sees that the Vietnamese State has effectively occupied these two archipelagos for hundreds of years. Precisely speaking, the Vietnamese State has exercised its sovereignty over these archipelagos at least since the 17th century when they were not under the sovereignty of any country. Since then Vietnam has exercised effectively, continuously and peacefully its sovereignty over the two archipelagos.
There is ample of evidence of Vietnam’s sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos. The first evidence is the maps of Vietnam in the 17th century. In these maps, these two archipelagos were called Bai Cat Vang (Golden Sandbank). And they were part of Binh Son district of Quang Ngai prefecture. The second evidence is contained in many ancient books of Vietnam, including Toan Tap Thien Nam Tu Chi Lo Do Thu (Route Maps from the Capital to Four Directions) in the 17th century, Phu Bien Tap Luc (Miscellaneous Records on the Pacification of the Frontier) in 1776, Dai Nam Thuc Luc Tien Bien and Chinh Bien (the First Part of the Chronicles of Dai Nam and the Main Part of the Chronicles of Dai Nam) between 1844-1848 and others. These books wrote about Hoang Sa (Paracel) and how it was exploited by Hoang Sa brigades. In addition, many foreign ancient books and maps confirmed the two archipelagos belonged to Vietnam. The third evidence was that the Vietnamese feudal state had dispatched the Hoang Sa and Bac Hai brigades to exploit the two archipelagos in the name of the State (each brigade consisted of 70 members and their trip lasted for six months to catch tortoises, holothurians and precious snails and collect merchandises from sunken ships). There were specific rules set up by the State on selecting people to go to the archipelagos as well as awarding those who excelled in their exploitation duties. Those brigades were continuously operating during the Nguyen Lords’ period (1558-1783) to the Tay Son Dynasty (1786-1802) and the Nguyen Dynasty. The Nguyen Dynasty sent generals Pham Quang Anh (1815), Truong Phuc Si, Pham Van Nguyen and Pham Huu Nhat (from 1834-1836) to the Hoang Sa to survey and measure islands to draw a map of the archipelago. During their stay, the sailors also built temples and erected sovereignty markers there. In 2009, the Dang family in Ly Son Island, Quang Ngai Province, presented the Vietnamese State with a decree of the feudal dynasty confirming that the archipelago belongs to Vietnam.
Following its domination of Indochina, France, on behalf of Vietnam, continued to govern the two archipelagos by sending battleships to patrol the area to ensure security and prevent smuggling. The French authorities gave permissions to the Japanese to exploit guano on the archipelago. It also sent the De Lanessan ship there to conduct oceanographic, geological and biological research.
From 1930-1932, the French naval ships of Inconstant, Alerte, La Malicieuse and also De Lanessan were sent to the Hoang Sa (Paracel) archipelago on many occasions. In the early 1930s, French troops were deployed at the main islands of the Truong Sa (Spratly) archipelago (Truong Sa, An Bang, Ba Binh, Song Tu, Loai Ta and Thi Tu). Such activities were made public in the Gazette of the Republic of France published on July 26, 1933. In 1933, the General Governor of Indochina issued a decree incorporating the Truong Sa (Spratly) Archipelago into Ba Ria Province. France then separated the Hoang Sa (Paracel) archipelago from Nam Nghia Province and merged it into Thua Thien Province. France also dispatched a unit to a garrison in the Hoang Sa (Paracel) Archipelago.
After returning to Indochina, France demanded that troops of the Republic of China withdraw from some islands which they illegally occupied in 1946. The French troops replaced the Chinese and rebuilt meteorological and radio stations there.
In 1951, the San Francisco Conference discussed draft a Treaty of Peace with Japan. At that Conference, a proposal to return to China the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos was put forward to add to the draft Treaty. Yet, the proposal was rejected. The rejection decision was approved with 46 votes in favor, three against and one abstention. At the Conference, the head of the Vietnamese delegation affirmed the Vietnamese State’s long-standing sovereignty over the two archipelagos. This statement did not receive any objections and/or reservations from the floor.
In 1956 France transferred the Vietnamese southern territory to the Saigon administration. And from then on the Saigon administration sent troops to the two archipelagos and recognized them administratively, setting up in each archipelago a commune which was part of a mainland district. The Saigon administration built sovereignty markers and continued to manage the meteorological stations there.
Since the 1950s, the situation in the two archipelagos became more complicated. Taking advantage of the withdrawal of French troops from Indochina under the Geneva Accords in 1954, China occupied the eastern part of the Hoang Sa (Paracel) Archipelago in 1956. The Saigon administration vehemently opposed the occupation. In 1959, Chinese troops disguised as fishermen landed on the western part of the Hoang Sa (Paracel) archipelago. However, they were repelled by the troops of the Saigon administration and 82 Chinese “fishermen” were arrested. As for the western part of the Hoang Sa (Paracel) Archipelago, the Saigon administration continued to control them until 1974. In the same year, taking advantage of the fight between the army of the Saigon administration and the liberation forces of the South Vietnam Provisional Government, China once again used navies to occupy the western part of the Hoang Sa (Paracel) archipelago. Following the incident, both the Saigon administration and the South Vietnam Provisionary Government came out strongly against the illegal Chinese occupation.
In 1975, when the Saigon administration was overthrown by the revolutionary forces, the Vietnamese State overtook control of the islands within the Truong Sa (Spratly) archipelago and established the districts of Hoang Sa and Truong Sa. The naked truth is: by 1988 China had never occupied the Truong Sa (Spratly) Archipelago. On March 14, 1988, China started to use force to occupy some rocks on Vietnam’s Truong Sa (Spratly) Archipelago. In the imbalanced fight on that day, 64 Vietnamese soldiers sacrificed their lives to protect the homeland’s sovereignty.
In short, under the light of the international law, Vietnam has all historical evidence and legal foundation to confirm her sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos. According to historical records, China only started to occupy the eastern part of Vietnam’s Hoang Sa Archipelago in the 1950s. And in 1974, China resorted to military force to occupy the western part of the archipelago. On March 14, 1988, China again used military force to occupy some rocks of Vietnam’s Truong Sa (Spratly) Archipelago.
To get more information about this topic, please read the following stories:
Royaldocuments affirms Vietnam’s sovereignty over sea, islands
3. Solutions to the East Sea dispute?
a. The nature of the East Sea disputes
If we look at the map of the East Sea, the territorial water sovereignty of each country and the international maritime order have been clearly clarified under the United Nations Convention on the Law of the Sea 1982 (UNCLOS).
But why China dares to put forward the U-shape line to claim up to 80 percent of the East Sea – which could only happen if the wheel of history have reversed to the time before the World War II; when Vietnam, the Philippines and the countries around the East Sea were not recognized as independent nations and when Vietnamese, Filipino and other peoples did not have independence and freedom?
Sovereignty of a country must be understood in two ways: 1) the recognition of the international community, accompanied with international conventions on sovereignty. 2) the ability of state to defend the country’s sovereignty, most importantly the ability to ensure security and defense, the rights of its people to explore natural resources and live in the areas where their ancestors lived for thousands of years, even on the mainland or islands and waters.
When this way of approach to the role of the state in defending national sovereignty is applied in ensuring international maritime order, superpowers like the US and Japan must play the role of “super-states”. They ensure the rights of freedom of navigation and security in international waters. In some special cases for example, the joint efforts against Somali pirates, the cooperation among big countries to maintain international maritime security is a solution.
If in a country, expenses for maintaining security and sovereignty in its territorial waters is funded through taxes, the role of guaranteeing security and order in the international waters of super powers is funded through the interests from the freedom of navigation and international trade as well as cooperation in exploring natural resources in the ocean (oil, fish, etc.) with the agreement of host countries.
Therefore, under international viewpoint, the sovereignty on exploring natural resources (fish, oil) in the EEZ of each country is a form of private goods, which belongs to the ownership of that country, which is recognized by international conventions and it takes effect thanks to the role of defending the inviolable sovereignty of that country.
Security and free navigation on international maritime routes, on the other side, is public goods because ships of not only the host country but of all countries can freely travel and are protected on international maritime routes. This is clearly different from the rights to net fish or explore oil on the continental shelf of an independent country, in the meaning that other countries, despite their power, have no right to violate the natural resources belonging to an independent country though this country is much smaller and weaker than them.
This is the standard recognized by the whole world, but it must be protected by the state of the country with sovereignty. On the contrary, a big country that uses power, despite soft or hard power, to infringe the sovereignty of a small country, that appropriation can never build the foundation for sovereignty for the robbery country, as the history has proven many times.
b. The East Sea disputes are not bilateral matter
The national sovereignty, thus, does not stand alone. With the inherent non-proportion of economic and military power among countries, economic, politic and military relations between small and big countries, the sharing of appropriate strategies with international conventions and law will create official or unofficial alliances. The powers of alliances make an effective determent against an invasion of any big country against another country which is weaker in both economics and military.
Once an alliance weakens, the balance of regional and international balance will change, owning to the appearance of “gaps of power”. Nevertheless, the change of world order (and the emergence of the sponsor for the newly rising order) can become a global trend or not highly depends on the justice of that process. Once the injustice infringes, extreme fascism, sooner or later, that unjust ambition will be ruined.
The period of 2008-2010 witnessed the global crisis, which started from the US and spread to Western European countries. The crisis brought about two corollaries.
Firstly, the US, under the great pressure of debts after the two anti-terrorist wars in Iraq and Afghanistan and economic crisis, has weakened in terms of using the soft power to maintain the international order in strategic waters, but it would be very costly for the US if conflicts happen there. The case in which Chinese ships provoked the US’ USNS Impeccable ship near the Hoang Sa Archipelago (Paracel Islands) is an example.
Secondly, the US’ weakening after the crisis, plus the rising of China has made changes to international commercial and investment flows towards encouraging countries in the periphery to be closer together and depend more on China’s economic and soft power. On the other words, the current alliances become weaker. Along with it, the ability to defend sovereignty of state members of alliances like APEC (Asia Pacific Economic Cooperation) or ASEAN has declined.
In that context, China has two options: 1) Cooperating with other super powers in the world, led by the US, to supply goods for maintaining the international order, the stability and prosperity development based on cooperation and global trade; 2) replacing the US and the US’ strategic allies (West Europe and Japan) to set up the new world order and new military alliance headed by the US in order to force others to obey the new order.
In fact, China has chosen the second. This process began by trampling on the UNCLOS in order to turn the East Sea into its pond. It is uneasy for China to realize that ambition because: 1) it abolishes the sovereignty of countries around the East Sea and goes on the contrary with the trend of the time (the campaign to struggle for independence for nations after the fascism was defeated). 2) In the long run, it can make a bad precedent for appropriating the rights of free navigation and maritime safety on international sea routes. Other countries (except for China) will have to pay fees or be fined or banned from using international sea routes or air routes, which are controlled by China.
The key point here is the clear difference between international maritime routes and maritime routes in China’s waters. When politic or interest conflicts occur, China can use its control right to ban related countries from traveling in the East Sea, though in principle, China commits maintaining free navigation. This will not happen if China cannot impose its real control on the waters bordered by the U-shape line.
The sovereignty disputes in the East Sea are not a bilateral matter, but the issue of regional and international security. China understands it very clearly and China understands that the US, Japan, West Europe and other superpowers in the world, like Russia and India also know its plot.
This game shows adventure in the strategy that China is pursuing. Carefully analyzing that game will create international agreement to solve the East Sea disputes, which China makes up into “bilateral conflicts” on the “indisputable sovereignty” in which China is the victim.
c. The United Nations Convention on the Law of the Sea 1982
The United Nations Convention on the Law of the Sea 1982 (UNCLOS) is the legal foundation to solve disputes over territorial waters and continental shelves between coastal countries that are adjacent or opposite to each other
Article 15 of the UNCLOS says: “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.”
Once a country is a member of the UNCLOS, it has to obey the entire content of this convention. That is the prerequisite for related parties to be able to negotiate and solve maritime border conflicts.
If claims are raised not based on the UNCLOS like the U-shape line, it will surely to reach not any fair result.
Issues concerning the East Sea are very complicated, important and sensitive to related countries. Marine resources in the East Sea are vital to the livelihood and daily life of hundreds of millions of people in the nine countries bordering the East Sea. Natural resources here are a necessary condition for the economic construction and development of related countries. Countries bordering the East Sea are stepping up activities in exercising their sovereignty and sovereign rights over their different sea areas respectively. At the same time, there are plentiful and diverse activities related to the East Sea (freedom and safety of navigation, combating crimes at sea, etc.) which are closely associated with the interests of different countries both inside and outside the region.
As a result, it is an objective requirement that all countries having activities in the East Sea should adhere to the common rules that the international community, including the countries bordering the East Sea, had worked hard to build – the 1982 UN Convention on the Law of the Sea. While applying the Convention in exercising its sovereignty and sovereign rights over its internal waters, territorial sea, exclusive economic zone and continental shelf as stipulated in the Convention, each country bordering the East Sea is obliged to respect the sovereignty and sovereign rights of other countries bordering the East Sea over their territorial seas, exclusive economic zones and continental shelves. This is an obligation that members of the United Nations must follow. This is also an obligation congruent with the 1982 UN Convention on the Law of the Sea and the 1969 Vienna Convention on the Law of Treaties.
It will be very unfair and irrational when a country bordering the East Sea arbitrarily constructed an ambiguous claim line that is contrary to the 1982 Convention, which violates the sea areas of neighboring countries, creates a “disputed area” in the waters of neighboring countries and then requested the affected countries to “put aside disputes to jointly exploit” their very own continental shelves. Similarly, an act of a country bordering the East Sea on its own discretion imposed a ban on fishing in other neighboring countries’ exclusive economic zones is also a violation of the 1982 Convention. Such behaviors are clear violations of international commitments made by a member of the United Nations under the Charter of this body.
The existence of sovereignty disputes over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos as well as disputes over the overlapping continental shelves and exclusive economic zones is an objective fact. The settlement of such disputes, especially the sovereignty dispute over the two archipelagos, is difficult and complicated, but not impossible. As mentioned above, there are overlapping areas concerning the continental shelves and exclusive economic zones of Vietnam and China in the Bac Bo (Tonkin) Gulf, and Thailand, Indonesia, Malaysia and Cambodia in the Gulf of Thailand. In the past, on the basis of the 1982 Convention and in the spirit of friendship, neighborliness and respect for each other’s legitimate interests, Vietnam has settled the maritime delimitation lines with Thailand in the Gulf of Thailand, with China in the Bac Bo (Tonkin) Gulf and the boundary of the continental shelf with Indonesia in the south of the East Sea. Other countries bordering the East Sea have also settled a number of sea disputes through joint efforts and on the basis of international law. Most recently, sovereignty disputes regarding some islets between Malaysia and Singapore, and between Indonesia and Malaysia were also settled by the International Court of Justice (ICJ)
Those experiences showed that sovereignty disputes over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos and disputes over the overlapping sea areas between countries bordering the East Sea will be amicably settled once international law, including the 1982 Convention, is respected, and peaceful means for solving disputes, which are stipulated in the Charter of the United Nations, are applied. Threat of force or threat to use force has been prohibited by international law. Threat of force or threat to use force will never constitute a proper method for resolving disputes in the East Sea.
Disputes related to the East Sea are obviously complicated. The path towards a final solution to these disputes that are acceptable to all concerned parties will be a bumpy and lengthy. That reality requires the parties involved to exert greater efforts to solve these issues. While seeking a fundamental and lasting solution to these disputes, the concerned parties should abide by the commitments prescribed in the Declaration on the Conduct of Parties in the East Sea (DOC), which was signed by ASEAN and China in 2002, in particular the commitment to restraining from any action that can further complicate the situation in the East Sea.
ASEAN member countries and China also need to increase their efforts and work together in building a more legally binding document which is a Code of Conduct in the East Sea. The document can be made in the form of a treaty, an accord, an agreement, or a memorandum of understanding (MOU) between ASEAN and China, which is signed by authorized representatives of ASEAN and China before being approved by competent agencies of ASEAN and China.
Respecting jus cogens principles of international law, the Charter of the United Nations and provisions of the 1982 UN Convention on the Law of the Sea, settling disputes by peaceful means, fully executing all the commitments contained in DOC, advancing toward the building of a Code of Conduct in the East Sea, and jointly working towards making the East Sea a body of peace, friendship and cooperation, are all key to resolving complex issues related to the East Sea.