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The Truth About The South China Sea: A Voice From Vietnam (Part II)

11:04 | 18/08/2020

China is always asserting that it has full "historical and legal grounds" on China's "indisputable sovereignty" in the South China Sea. Let's see how the situation actually is.

chinese bomber appeared illegally at hoang sa paracel archipelago Chinese bomber appeared illegally at Hoang Sa (Paracel) archipelago
japans defense minister warns high cost china risks paying for south china sea intimidation Japan's Defense Minister warns 'high cost' China risks paying for South China Sea intimidation
vietnam resolutely opposes chinese illegal moves in south china sea bien dong sea Vietnam resolutely opposes Chinese illegal moves in South China Sea (Bien Dong Sea)

Regarding China's so-called "indisputable" sovereignty claim

The issue of sea-related sovereignty, in a broader sense, mainly includes sovereignty over islands, banks and other sea features, and sovereign rights and jurisdiction over waters and seabed resources.

Concerning sea features, the emerging disputes include mainlybilateral disputes between China and Vietnam over the Hoàng Sa (Paracel) Archipelago and disputes among 5 countries, 6 parties (China,Taiwan/China, Vietnam, the Philippines, Malaysia and Brunei) over the Trường Sa (Spratly) Archipelago. The islands now under Chinese administration include the Hoàng Sa (Paracel) Archipelago seized by China from Vietnam in 1956 and 1974 and a number of islands and banks in Trường Sa (Spratly) seized by China from Vietnam in 1988 and from the Philippines in 1995. This whole process was carried out by China by armed force, in contravention with basic principles of the United Nations Charter and the international law.

However, China now recognizes only disputes over Trường Sa (Spratly) islands and rejects all negotiations concerning Hoàng Sa (Paracel) on the grounds that it is "completely undisputed". Recently, China has even invoked a 1958 Official Letter from the Prime Minister of the Democratic Republic of Vietnam to assert that Vietnam had recognized Hoàng Sa and Trường Sa as belonging to China, while this Official Letter actually expressed support and approval only for China’s "decision on a territorial sea” (or territorial waters) of 12 nautical miles, with absolutely no mention of Hoàng Sa and Trường Sa. In fact, the main intention of the Letter then was to express political support for China in the context of increasing US presence in the region to put pressure on China following conflicts in the Taiwan Strait. For this reason, the Government of the Democratic Republic of Vietnam did not include in the Letter any protest against China's claim over the Hoàng Sa and Trường Sa archipelagos,which were then administered by the Republic of Vietnam according to the Geneva Agreements[1]. This Vietnam’s goodwill has been abused and distorted by China today to consolidate its irrational claims. Although Vietnam has on many occasions clarified its standpoint with China, China still keeps invoking the above argument in its Notes to the United Nations, causing possible misunderstanding to the international public about the true nature of this issue.

the truth about the south china sea a voice from vietnam part ii
Illustration photo: China's claim to "nine-dash line" in the South China Sea

Regarding sea areas, the story is much more absurd. The Chinese Kuomintang administration first realeased a map of China with a "dashed line" covering more than 80% the South China Sea area in 1948 without any explanation about its actual contents and meaning. The Declaration of the Government of the People's Republic of China announced by Prime Minister Zhou EnLai on September 4, 1958, officially determined that "the width of the territorial sea of the People’s Republic of China is twelve nautical miles” from the mainland’s coasts and offshore islands.

However, over recent years, with an utterly vague "historic rights" concept, China has made this "dashed line" its claim over nearly the entire South China Sea, turning other littoral countries’ exclusive economic zones and continental shelves into "disputed areas" between them and China. When the Permanent Court of Arbitration (PCA) on the United Nations Convention on the Law of the Sea (UNCLOS) issued a ruling on July 12, 2016, affirming that “there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’” and"there was no evidence that China had historically exercised exclusive control over the waters of the South China Sea”, China announced a "Three NO" policy, namely non-acceptance of the jurisdiction of the Court, non-recognition of its ruling, and non-implementation of its decisions.

In fact, China had been mobilizing all its experts for “creation” of “legal arguments” to justify its irrational claim. Recently, in a Note to the United Nations on April 17, 2020, China put forward an additional concept -- "Four Sha" -- arguing that China has sovereignty over four archipelagos in the South China Sea, each of these with a territorial sea, a 200-nautical-mile exclusive economic zone and a continental shelf, therefore, “China has sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof". The "relevant waters" drawn by China encompass all the 200-nautical-mile areas around these island groups with a total expanse larger than that covered by the "nine dash line", or more than 90% of the South China Sea area.

the truth about the south china sea a voice from vietnam part ii
Photo: China's new claim "Four Sha" in the South China Sea (JPEG image)

Let’s have a closer look at historical and legal grounds of this China’s “renewed” claim.

Historically, the South China Sea has been the traditional living space of all littoral nations, and never belonged exclusively to China alone. China has used armed force to seize Hoàng Sa (Paracel) and part of Trường Sa (Spratly) from Vietnam. That is an undeniable truth.

In legal terms, China's "Four Sha" claim is utterly irrational, and runs completely counter to international law, in particular the 1982 Convention on the Law of the Sea, which serves as a Constitution on oceans governing all activities in determination of sea areas, exploitation and use of seas and oceans ..., and to which China itself is a party.

First of all, the claim is based primarily on China’s assertion that it has full legal sovereignty over all the four island groups, called Dongsha, Xisha, Nansha and Zhongsha by China. But, according to international law, sovereignty is only recognized legal when established by peaceful means, while China has seized Hoàng Sa (Paracel) and part of Trường Sa (Spratly) from Vietnam by armed force. That is why, until now, China’s claim of sovereignty over these two archipelagos has not been internationally recognized, and China itself has admitted that there are “disputes” regarding Trường Sa (Spratly). In addition, the Macclesfield Bank, called Zhongsha by China, is actually just a reef and, according to international law, including UNCLOS, cannot be subject to claims regarding sovereignty and water areas. Also, the merging of Scarborough Shoal and St. Esprit Shoal into an "archipelago" for sovereignty claim is completely inconsistent with international law. Thus, in the first place, China has no legal grounds for sovereignty over at least three of the four "Sha" of its claim. The remain fourth islands called Dong Sa by China is under control of Chinese Taiwan at present.

On the other hand, China is not at all an "archipelagic state" and, according to UNCLOS, “islands which cannot sustain human habitation or sovereign economic life of their own shall have no exclusive economic zone or continental shelf”. The PCA's ruling of July 12, 2016 also clearly determined that no features in Trường Sa (Spratly) could generate an entitlement beyond 12 nautical miles. The remaining features in the South China Sea have basically similar structures and conditions. Thus, China’s claimof a 200-nautical-mile exclusive economic zone for the above-mentioned four "archipelagos" also runs completely counter to international law.

The fact that even the China’s newly created legal argument submitted to the UN still cannot march with the existing international laws exposes China’s incapability of finding any “historical and legal ground” for its ambitious claim. The reason is very simple: there is no “historical and legal ground” exists for such a claim.

That is why China’s unlawful claims have been officially rejected by all other countries in their recent notes and statements in connection with the South China Sea.

In term of practical implication, if China's "nine dash line" or "Four Sha" claim were realized, over 90% of the South China Sea, including the crucial international maritime and air routes passing through it, would fall under China’s monopoly control, almost all the exclusive economic zones and continental shelves of many coastal countries would become "disputed" areas with China, and China alone would be entitled to make decisions on "joint exploration" or other countries’ exploration. Please imagine a similar situation happenning in the Mediterranean, Caribbean or any other international waters, and you will understand why it is impossible for countries in the region and the international community to accept those irrational claims. And you can also imagine what would happen if a bigpower uses its might for the unilateral realization of such claims.

Just very recently, China has changed the official status of the large area of the sea between Hainan island and Hoang Sa (Paracel) from “high sea” to “coastal waters”, visibly for the subsequent expansion and intensification of its control of this area.

By Tran Minh (VPDF)

To be continued

[1]The 1954 Geneva Agreements on ending the war and restoring peace in Vietnam (with the participation of China) temporarily divided Vietnam into North Vietnam from the 17th parallel upwards administered by the Democratic Republic of Vietnam, and South Vietnam from the 17th parallel downwards controlled by the Republic of Vietnam. The Hoang Sa and Truong Sa archipelagos were both below the 17th parallel and, therefore, were then under the control of the Republic of Vietnam. However, China used armed force to seize parts of the Hoang Sa from the Republic of Vietnam in 1956 and 1974. Not only the Republic of Vietnam Government protested against China’s action, but also did the Provisional Revolutionary Government of the Republic of South Vietnam issue statements opposing China’s behaviour and asserting Vietnam's sovereignty over Hoang Sa in 1974. It is known that, after Vietnam reunified the country, Deng Xiaoping did tell Vietnamese leaders that “the Hoang Sa and Truong Sa isue will be discussed later". However, after launching an aggressive war attacking border provinces of Vietnam in 1979, China sent warships to seize six more Vietnamese islands and banks in Truong Sa in March 1988.

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Tran Minh (VPDF) - Translated by Tarah Nguyen

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