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Sovereignty over Paracel and Spratly Archipelagoes

International law and the sovereignty over Paracel and Spratly archipelagoes (Part 2)

Part 2: : Pressure and reaction

In recent decades, in its relations with Vietnam, China has twice used force to win the right to possess the islands, on January 19, 1974 in Paracels (Hoang Sa in Vietnamese) and on March 14, 1988 in Spratlys (Truong Sa in Vietmanese).

After the above-mentioned incidents, although the two countries normalized relations in 1991, tensions do still exist in the sea ([1]). The adoption of the People’s Republic of China’s Law on Territorial Waters on February 25, 1992, which reaffirmed China’s claims to the archipelagoes of Hoang Sa and Truong Sa stirred a new wave of concern in Southeast Asia ([2]) about China’s profound calculation.

In turn, on January 2, 1995, the relations between China and the Philippines became strained. The Philippines accused China of militarily invading a small rocky island in the Truong Sa archipelago, the sovereignty to which had been claimed by the Philippines. The then Philippine Defense Minister introduced the photographs showing polygonal structures built over steel pillars on Mischief Reef which, according to the Philippines, are permanent dwelling structures. China warships were seen concentrating around the rocky island. The Philippines responded by reinforcing military forces in Truong Sa.

China’s establishment on Mischief Reef which was illegally occupied in the Truong Sa archipelago – Picture: AFP

On May 15, 1996, China joined the 1982 UN Convention on the Law of the Sea (UNCLOS) and committed to resolving disputes “in accordance with recognized international law.” However, on the same day, China announced a decree on extending the territorial sea, which applies the baseline drawing for an archipelagic state to the area of the Hoang Sa archipelago. This action of China is “illegal – that’s what many scholars are talking about” and is a subject to questions at the ASEAN Regional Forum (ARF).

The contribution made by Indonesia (in the role of co-chair with Canada), the ASEAN countries, and China at the seminar on “Curbing potential conflicts in the South China Sea” from 1993, the initiatives on the Code of Conduct between Vietnam and the Philippines, between China and the Philippines, and efforts of the directly involved parties led to the signing of the Declaration on the Conduct of Parties in the South China Sea in 2002 (DOC), a new turning point for a solution to the South China Sea (East Sea in Vietnamese).

However, the thirst for oil and other marine resources keep stirring up a new wave of concerns about the encroachment act on the East Sea. In 2007-2009, China launched its “blue ocean” strategy, deploying nuclear submarine base in Hainan, promoting the aircraft carrier building program, upgrading the administrative unit in Sanya, opening tours to Phu Lam island (Hoang Sa). On April 11, 2008, the China National Offshore Oil Corporation (CNOOC) approved the plan to invest 200 billion yuans (29 billion USD) for exploration and exploitation of oil and gas in the East Sea.

China has also increased pressure on foreign oil companies, such as British Petroleum (BP), Conoco Phillips, Exxon Mobil, and Oil & National Gas Company (ONGC) operating on the  continental shelf of Vietnam, maintaining the claim of the “bull-tongue” nine-dotted line and advocating the policy “the sovereignty is ours, put aside the dispute over mutual exploitation.”

On January 5, 2009, the situation heated up by Vietnam’s submission of its own report as well as a joint report with Malaysia on the shared limits of the continental shelf beyond 200 nautical miles to the UN, and China’s protest against such reports. China’s permanent mission to the UN for the first time officially confirmed the country’s claim to all waters and islands within the claimed “bull-tongue line.” Vietnam and Malaysia hold that their report on the shared limits of the continental shelf is calculated from the mainland baseline without affecting the interests of any other countries.

The political, strategic and economic importance of the Hoang Sa and Truong Sa archipelagoes requires a comprehensive solution. But first of all, the dispute there must be regarded as a legal dispute in which what legal title should be relied on to define the sovereignty over these islands?

The question is: Is this dispute related to the acquisition right to the territory which is deemed ownerless (res nullius) or a dispute over a territory on which the national sovereignty had been defined, but with time and the development of events, that territory becomes abandoned (derelictio terre)?

As the occupancy of different islands took place in different stages, so many different titles have been given to the same territory. There were a lot of works at home and abroad written about the sovereignty dispute over the two archipelagoes of Hoang Sa and Truong Sa. We will try to make an in-depth study of the theory of each party to the dispute in the light of the theory of Intertemporal Law.

Intertemporal Law was introduced by M. Hubert for the first time in the Palmas Island case involving two basic principles:
1) A legal fact must be appreciated in the light of the law contemporary with it, not in the light of the law taking effect at the time of the emergence of the dispute or at the time the settlement of the dispute.
2) A law cannot be maintained in a legal system unless it conforms to the requirements in that system.

By Dr. Nguyễn Hồng Thao

[1] Vietnam-China relations have been significantly improved with the two sides raising the relations to “comprehensive strategic cooperation partners” in May 2008, solving disputes in the Tonkin Gulf in 2000 and completing Vietnam-China land border demarcation and marker planting in 2008.

[2] Far East Economic Review (FEER), August 8, 1992.

Source: Thanh Nien News

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