Synopsis
China’s act of locating its oil rig in contested waters
in the Paracels is more than a dispute over sovereignty. It is also a dispute
about international law of the sea.
Commentary
IT HAS been a month since the South China Sea was again
stirred up near the Paracel Islands. Forty years ago, in January 1974, the
Paracels were a battlefield between China and the then South Vietnam.
In taking control of the islands from South Vietnam,
China sank one South Vietnamese naval ship and damaged four others, leaving 53
Vietnamese killed and 16 injured. The battle resulted in China obtaining full control
of the Paracels for the first time.
More than a dispute over sovereignty
Vietnam’s sovereignty claim over the Paracel Islands is
based on the Nguyen dynasty occupation of the Paracels and Spratlys from at
least the 17th century when the islands belonged to no one. During the period
of Western colonial expansion sovereignty over the Paracels was continuously
exercised by France, the protector of Vietnam.
Sovereignty later passed from France to South Vietnam
under the 1954 Geneva Accords, and it then passed by succession to the
Socialist Republic of Vietnam when North and South Vietnam were united in 1975.
Vietnam has continued to assert its sovereignty claim by protesting activities
conducted by China in the Paracels.
Although Vietnam’s sovereignty claim to the Paracels has
a strong legal basis, China insists that it has “indisputable” sovereignty.
China refuses to acknowledge that sovereignty over the islands is in dispute
and it refuses to discuss the sovereignty issue with Vietnam in bilateral
negotiations. Also, China will not agree to refer the sovereignty dispute to an
international court or tribunal.
The act which made the Paracel Islands the latest hotspot
in the South China Sea was China’s placement of the Haiyang Shiyou 981 oil rig
deep inside Vietnam’s exclusive economic zone (EEZ) and continental shelf, close
to the islands.
At first, the oil rig controversy may look like a dispute
over who has sovereignty over the Paracels. However, a closer look reveals that
it is also a dispute about the international law of the sea.
Geographical distance not the issue
Triton Island in the Paracels, where China located the
deep-water oil rig HD-981, is a 1.6 km2 sand and coral cay that cannot sustain
human habitation or economic life of its own. Consequently, under the 1982
Convention on the Law of the Sea (UNCLOS), it is a “rock” that can generate no
more than a 12 nautical mile territorial sea. Even if some other islands in the
Paracels are in principle entitled to an EEZ and continental shelf, the rig would
still be located in an “area in dispute” for two reasons.
First, since both Vietnam and China claim sovereignty
over the Paracels, any EEZ claimed from the Paracels is an area in dispute.
Second, the rig is in an area of overlapping claims because it is within the
EEZ and continental shelf claimed by Vietnam from its mainland as well as
within the EEZ claimed by China from the Paracels.
The area where the rig has been placed is an area in
dispute until China and Vietnam agree on how to delimit the maritime boundary
in that area. According to the practice of States in maritime boundary
delimitations, Triton Island and the other islands of the Paracels should be
given “reduced effect” in drawing the maritime boundary because the length of
coastline of the small islands is much shorter than the coastline of Vietnam.
China and Vietnam have followed this practice in
negotiating their maritime boundary. In delimiting their limited maritime
boundary in the northern-most section of the Gulf of Tonkin, the two States
agreed to give only 25% effect to Bach Long Vi Island, a Vietnamese island
located in the Gulf of Tonkin. This was the case even though the island has an
area of 2.33 km2 and a permanent population.
In any case, since there is no agreed maritime boundary
in this area, the argument that the rig is located closer to the Paracels than
to the Vietnamese coast is not relevant. The rig is located in a “disputed
area”, where China cannot exercise exclusive rights
China’s oil rig move violates DOC
The true basis for China’s claim to the natural resources
in Vietnam’s EEZ is not an EEZ claim from the Paracels, but its claim to rights
and jurisdiction over all the natural resources with the nine-dash line that
Beijing has demarcated on its map of the South China Sea. Without providing any
official documents supporting this claim or its legal basis under international
law, the nine-dash line map is being used by China to claim rights to all the
natural resources in and under the waters inside the line, even when they are
in the EEZ of other States.
It is very significant that the rig has been place in an
area of disputed waters. Under the law of the sea, until an agreement has been
reached between China and Vietnam on the maritime boundary in this area, the
two States are under a legal obligation to make every effort to enter into
provisional arrangements of a practical nature. The international law of the
sea also imposes an obligation on China and Vietnam not to undertake any unilateral
activities that would jeopardise or hamper the negotiation of a final boundary
agreement.
China is basing its claim on the nine-dash line map
because the areas with high oil and gas potential off the coast of Vietnam are
all located outside the areas that China could claim under the international
law of the sea. Therefore, China has decided to ignore the international law of
the sea, and assert claims based upon its nine-dash line map, which includes up
to 85% of the South China Sea.
International tribunals have ruled that in an area of
overlapping maritime claims, it is unlawful for one State to attempt to exploit
the natural resources by drilling because such a unilateral activity would
permanently change the status quo and thus jeopardise or hamper the negotiation
of a final boundary agreement.
In its discussions with ASEAN on a legally binding Code
of Conduct for the South China Sea, China has consistently maintained that
there must be full and effective implementation of the 1992 Declaration on
Conduct of Parties in the South China Sea (DOC). However, China’s act of
unilateral drilling is a clear violation of the provision in the DOC which
provides that the Parties undertake to exercise self-restraint in the conduct
of activities that would complicate or escalate disputes.
It is hoped that China will soon understand that bullying
neighbouring countries in violation of international law is not the way a
responsible power behaves in the international arena.
Nguyen Thi Lan Anh is the Vice Dean at the International
Faculty of the Diplomatic Academy of Vietnam.
