Vietnam, China Maritime Disputes: Time For A Paradigm Shift – Analysis

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By KT Tan

Mr Rajaram Panda’s claim that “China’s illegal deployment of Haiyang Shiyou 981 oil rig is located 60-80 nautical miles deep within the exclusive economic zone and continental shelf of Vietnam” has no merit. (‘Vietnam Flays China’s Position On South China Sea – Part I’).

He conveniently ignored the fact that Yongxing (Woody island) in the Paracels (Xisha) is an island as it has a sizable population, buildings, a hospital, hostels, a post office, department stores, cafes, a harbour and an airport.

Under the UN Convention of the Law of the Sea (UCLOS), Article 121 (2) states that “the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.”

Therefore, clearly under UNCLOS, Yongxing (Woody Island) is entitled to a 200 nautical mile exclusive economic zone (EEZ).

Since this overlaps with Vietnam’s 200 nautical mile EEZ, under Unclos Article 15, their respective EEZ is ‘equidistant from the nearest points on the baselines’.

As the distance from Vietnam to Yongxing (Woody island) is about 260 nautical miles, the equidistant point is about 130 nautical miles.

Since China’s oil rig was only 120 nautical miles from Yongxing (Woody island) and 140 nautical miles from Vietnam, Mr Panda’s claim that the Haiyang Shiyou 981 oil rig was “located 60-80 nautical miles deep within the exclusive economic zone of Vietnam” has no legal basis and is deeply flawed.

Mr Ning Fukui, China’s Ambassador to Thailand, was therefore right to say that the Haiyang Shiyou 981 oil rig was located in Chinese waters at the material time.

Mr Panda asked: “Who is the real trouble-maker in the South China Sea”? The answer is obvious because Chinese vessels were rammed over 1,400 times in Chinese waters and the deadly riots in May in Vietnam killed 4 Chinese workers, wounded hundreds more and destroyed hundreds of factories owned by Chinese and Taiwanese owners.

In the light of what really happened, Mr Panda’s attempt to characterize China as an alleged ‘bully’ is just rhetoric. Furthermore, his claim that “Vietnam was the first country to occupy and consistently exercised peaceful sovereignty over the Paracels, at least since the 17th century, when this territory was terra nullius” is incorrect.

In fact, in the 17th century the country was known as Đại Việt (Great Viet) and not Vietnam. The name ‘Vietnam’ was adopted by Emperor Gia Long only in 1804.

And paradoxically, by Mr Panda’s own unintended admission, Đại Việt was not the first to discover and claim the Paracel islands because China had already discovered and named them from the Northern Song dynasty (960 -1127 AD) onwards. Chinese records show that one of the earliest references to today’s Paracel islands is the “Chu Fan Chi”, a 13th century book translated by Friedrich Hirth and W.W. Rockhill in 1911.

The title of the English version is “Chau Ju-kua: His work on the Chinese and Arab Trade in the 12th and 13th centuries”.

Mr Chau Ju-kua was the customs inspector of foreign trade in Fujian province and he wrote this : “To the East of (Hainan island) are the ‘Chien-li chang-sha’ and the ‘Wan-li shih-chuang'”.

The translators, Hirth and Rockhill, agreed these islands referred to the Paracels. In 1292, the Yuan Emperor sent a large maritime expeditionary force to Java to punish the King for branding an envoy with hot irons. The fleet sailed through “Ch’i-chou yang’ (Paracels) and ‘Wan-li shi-tang’ (Spratlys).

During the Ming dynasty (1368–1644 AD), China was the world’s only maritime ‘Superpower’ from 1405 to 1433.

In his first of seven voyages in 1405, Admiral Zheng He set sail with 27,800 men and 317 ships, (some Treasure Ships were 450 ft in length and laden with Ming-blue porcelains, celedons, ceramics, silks, and all sorts of objet d′art) to seek tributes and expand commerce and trade but not to colonize any country.

As his home-port was near Nanjing, the fleet had to regularly sail pass ‘Wan-sheng shih tang’ (Paracels) and Shih-shing Shi-tang’ (Spratlys) enroute to Champa (part of old Vietnam), Java, Malacca, Aceh, Ceylon, India and later Oman, Hormuz, the Red Sea ports and East Africa, using a Chinese invention: the magnetic compass, which made it possible for sailors to navigate in the high seas and oceans.

The Kingdom of Champa had an Indianized culture of Malayo-Polynesian origins and controlled what is now the southern and central part of Vietnam from around the 7th century to 1832. Its golden age was around 1000 AD. Thereafter, it began a gradual decline under pressure from Đại Việt, the polity centered in the region of modern Hanoi. In 1471, Việt troops sacked the northern Champa capital of Vijaya (located in present-day Bình Định province). In 1832, Emperor Minh Mạng annexed the remaining Cham territories. (Condensed from Encyclopedia Britannica and Wikipedia.)

The port of call for Zheng He’s fleet to replenish supplies and fresh water in Champa is the present-day port of Qui Nhon.

“By 1421 the Chinese had well over six centuries’ experience of ocean navigation.” (See book: ‘1421, The Year China Discovered The World’, by Gavin Menzies, ISBN 0-553-81522-9, p91.)

In contrast, Christopher Columbus could only set sail to the New World in three small ships in 1492, using Chinese compasses that the Europeans obtained from the Arabs, who were among the earliest traders with China.

Mr Panda pointed out that “Vietnam’s Nguyen Kings also established militia teams known as the Hoang Sa group, to administer and develop the Paracels.”

But this was initiated by Emperor Gia Long only in 1802 onwards when he ascended the throne to start the Nguyễn Dynasty. That dynasty ended when the last Emperor, Bảo Đại, abdicated in 1945.

When Gia Long died, the country was renamed Đại Nam (Great South) by his heir, Emperor Minh Mạng (1820-1841).

Mr Panda pointed out that “Vietnam claims that all of these activities are noted in official documents.”

Yes, that is true and the Paracels were only recorded in the ‘The Complete Map of the Unified Đại Nam’ in 1838, not in the 17th century.

(Under the French, the country was carved into three states from circa 1857. In the south was Cochinchina. Annam was in the centre and in the north was Tonkin. In 1945 the country was renamed Vietnam. When the French were decisively defeated by Vietnam’s greatest general, Gen. Vo Nguyen Giap, at Điện Biên Phủ in May of 1954, the country was split at the 17th parallel into North and South Vietnam, at the hastily-arranged conference in Geneva, with the Geneva Accords signed on 21 July, 1954. After the Vietnam war, the country was reunited in1976 as the Socialist Republic of Vietnam.)

Furthermore, Mr Panda’s narrative that “Vietnam has full historical and legal evidence to prove its sovereignty over Hoang Sa (Paracel) and Truong Sa (Spratly) archipelago and the exclusive economic zone and continental shelf in line with international law” is flawed.

No matter how Mr Panda cares to view history, in 1975 Hungdah Chiu, then a visiting associate professor at the University of Maryland School of Law and Choon-ho Park, then a research fellow in East Asia Legal Studies at Harvard Law School wrote, to wit:

“There is no doubt that China discovered and used the Paracels for several hundred years before Vietnam began asserting its claims in 1802.” (See ‘Legal Status of the Paracel and Spratly islands’ p17, in the Ocean Development and International law Journal, Volume 3, Number 1).

In fact, according to China’s Ministry of Foreign Affairs’ paper “China’s Indisputable Sovereignty Over the Xisha and Nansha Islands” (Beijing Review, 18 February 1980) Hanoi had settled the matter of sovereignty over the Xisha (Paracel) and Nansha (Spratly) islands.

This is because, “In June 1956, two years after Ho Chi Minh’s Government was re-established in Hanoi, North Vietnamese Vice Foreign Minister Ung Van Khien said to Li Zhimin, Charge d’Affaires of the Chinese Embassy in North Vietnam, that “according to Vietnamese data, the Xisha and Nansha islands are historically part of Chinese territory.”

Mr Le Loc, Acting Director of the Asian Department of the Vietnamese Foreign Ministry, who was present also affirmed the Vietnamese data and said that, “judging from history, these islands were already part of China at the time of the Song Dynasty.”

On 4 September 1958, China declared that the breadth of its territorial sea was to be 12 nautical miles which applied to all territories of the PRC, including Xisha (Paracel), Zhongsha (Macclesfield), Dongsha (Pratas) and Nansha (Spratly) islands.

On 6 September, NHAN DAN, the official newspaper of the Central Committee of North Vietnamese Workers’ Party, published the full text of the Chinese Government’s declaration regarding China’s territorial sea on the front page.

Then on 14 September, North Vietnam’s Prime Minister Pham Van Dong wrote a letter to Premier Zhou Enlai to acknowledge that “the Government of the Democratic Republic of Vietnam recognizes and supports the declaration of the Government of the People’s Republic of China on China’s territorial sea made on 4 September 1958.”

Later, Mr Pham tried to explain his so-called alleged ‘wrongdoing’. That was published in the 16 March 1979 issue of the ‘Far Eastern Economic Review’, in which he said that the reason he did what he did was because it was ‘wartime’.

But it was already on record that on 15 June 1956 Mr Pham Van Dong said, “From the historical point of view, these islands are Chinese territory” (See the Beijing Review 30 March 1979, p20 and the Far East Economic Review, 16 March 1979, p11).

And on 9 May 1965, the South Vietnam government issued a statement that “President Lyndon Johnson designated the whole of Vietnam and the adjacent waters, which extend roughly 100 miles from the coast of Vietnam and part of the territorial waters of the People’s Republic of China in its Xisha Islands, as ‘combat zone’ of the US armed forces.”

In May 1972, the ‘World Atlas’ printed by the Bureau of Survey and Cartography under the Office of the Premier of Vietnam named the various Xisha Islands by their Chinese names.

In the Geography textbooks, for ninth graders, published by Vietnam’s Educational Press in 1974, they carried a lesson entitled “The People’s Republic of China” that, to wit : “The chains of islands from the Nansha and Xisha Islands to Hainan Island, Taiwan Island, the Penghu Islands and the Zhoushan Islands are shaped like a bow and constitute a ‘Great Wall’ defending the Chinese mainland.”

Furthermore, North Vietnam did not protest when South Vietnam and China clashed over the Xisha islands in 1974.

And prior to 1974, none of the successive Vietnamese Governments, except the short-lived ‘State of Vietnam’ at the 1951 San Francisco Peace Conference, had challenged China’s sovereignty over the Xisha Islands, until the magical word “oil” was uttered.

Today, Vietnam ranks third in South East Asia for petroleum resources and “with nearly 40 years of operation and development, Vietnam’s oil and gas industry has produced almost one billion barrels of crude oil and 300 billion cubic feet of natural gas”. (See link: http://www.oilgasvietnam.com/post/97/Industry-Facts.html).

According to Gong Yingchun, associate professor of International Law at the China Foreign Affairs University: “The 215 oil and gas blocks claimed by the Vietnamese Government in the South China Sea are sufficient to expose Hanoi’s ambitions for exclusive occupation of South China Sea resources.” (See article entitled “Vietnam fooling no one”, China Daily, 13 June 2014.)

Prof. Gong also mentioned that Vietnam occupies about 29 islands and reefs in the Spratlys (Nansha) since the 1970s.

Since Vietnam has gone back on her word by making territorial claims over China’s Xisha Islands, Prof. Gong added, “According to the principle of equitable estoppel of international law, the Vietnamese Government cannot overturn its previous official stance on the sovereignty of the Xisha Islands”.

Sam Bateman, a former Australian Naval Commodore with research interests in regimes for good order at sea said that “Vietnam’s current claim over Xisha Islands is seriously weakened by North Vietnam’s recognition of Chinese sovereignty over the islands in 1958 and its lack of protest between 1958 and 1975.”

But Mr Panda countered by saying that at the September 1951 San Francisco Peace Conference, the “Head of the Vietnamese Delegation, Prime Minister Tran Van Huu, asserted Vietnam’s sovereignty over the Paracels without any objection.”

That was illegal since the PRC and ROC were excluded from attending and Premier Zhou Enlai had already expressly issued a caveat on 15 August 1951 that:

“Whether or not the US-British Draft Treaty contains provisions on this subject and no matter how these provisions are worded, the inviolable sovereignty of the People’s Republic of China over Nanwei Islands (the Spratly Islands) and Sisha Islands (the Paracel Islands) will not be in any way affected”.

Also Mr Tran only represented the short-lived ’State of Vietnam’, which was a puppet of the French colonial masters. He did not represent the whole of Vietnam as North Vietnam did not recognize the ‘State of Vietnam’.

Mr Panda’s claim that “There also exist no official international documents which mentioned the Paracels was regained by China from Japan in 1946” conveniently ignored the fact that after Japan’s Unconditional Surrender in September 1945, Japan handed back Xisha (Paracel) and Nansha (Spratly) islands to China under Article II, Treaty of Peace on 28 April 1952.

In the Surrender Documents signed on 2 September 1945, it stated that Japan “undertake for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith.”

Article 8 of the 1945 Potsdam Declaration stated unequivocally: “The terms of the Cairo Declaration shall be carried out.”

And the 1943 Cairo Declaration was explicit: “Japan will also be expelled from all other territories which she has taken by violence and greed”.

Japan invaded China in July 1937. The French took advantage of the fog of war and invaded the Xisha (Paracel) islands on 3 July 1938, violating the 1887 Sino-Franco Convention.

And on 1 March 1939 Japan invaded and colonized Xisha (Paracel) and Nansha (Spratly) islands. The French were summarily evicted.

When France protested, Japan reasoned that it was wartime and Japan could annex China’s territories.

Mr Panda pointed out that “a map drawn by Jean-Baptiste Bourguignon d’Anville, a famous French cartographer and published in Germany in the 18th century, only showed that the furthest point of China’s territory under the reign of Qianlong Emperor (1736 –1795) was Hainan Island (without covering islands in the East Sea such as the Paracels).”

That could be a misconstrued interpretation of the map of China then because in the Sino-Franco Convention, concerning the Delimitation of the Border Between China and Tonkin, signed in Beijing on 26 June 1887, it stated clearly that all the isles, East of the treaty delimitation line, were assigned to China and that included Hainan, Xisha (Paracel) and Dongsha (Pratas) islands, etc.

The claim that, in the Bellona and Himeji Maru salvage incidents in 1898, “the Viceroy of Guangdong declared the Paracels was terra nullius, did not belong to China, had nothing to do with authorities of any Hainan’s districts in terms of administration” is flawed because provincial authorities have no jurisdiction over China’s national borders.

If what Mr Panda said is true that “President Truong Tan Sang expressed Vietnam’s desire to maintain peace and stability for national development” then the prognosis is good for a peaceful resolution of the maritime disputes between Vietnam and China.

This is because China also values peace and good relations with Vietnam and the rest of the world.

But in case the nuance escapes Mr Panda, China is the biggest beneficiary from 42 years of peace and stability in East Asia since 1972, when she signed ‘The Three Communiques’ with the United States and ‘The Joint Communique’ with Japan and today China is the largest trading nation on earth and the world’s No 2 largest economy. So why rock the boat now?

On 6 June 2014, in a speech in commemoration of the 20th Anniversary of the Entry into Force of the UN Convention of the Law of the Sea, Deputy Ambassador Wang Min said: “The Chinese Government believes that the most effective way to peacefully settle maritime disputes is negotiation and consultation between the parties directly involved in the dispute on the basis of respect for historical facts and international law.”

This is true as both nations have already successfully concluded the ‘China-Vietnam Land Border DelimitationTreaty’ on 30 December 1999, based largely on the 1887 and 1895 Sino-Franco Conventions. And on 30 June 2004, China and Vietnam ratified the Maritime Boundary Agreement for the Tonkin Gulf (Beibu Gulf) and a Fisheries Cooperation Agreement for the said Gulf, signed on 25 December 2000.

It’s time for a paradigm shift and for both parties to negotiate for another win-win solution over their current maritime disputes.

KT Tan is a private researcher in the maritime disputes in the South China Sea and a regular reader of Eurasia Review. He is based in Singapore. Email : [email protected]

6 Comments

  1. Ho Huy Anh August 7, 2014
  2. KT Tan August 9, 2014
  3. JL August 12, 2014
    • KT Tan August 14, 2014

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