By Shu Zhenya, Studies for Strategic Development, State Oceanic Administration
According to the official web site of the Vietnamese Government, the Third Plenary Session of the Thirteenth National Assembly of Vietnam opened on May 21, 2012 and concluded a few days later. The meeting examined and adopted the Vietnam Law of the Sea. This law also concerns the Xisha and Nansha Islands of China, thus, having seriously infringed upon China's territorial sovereignty and maritime rights and interests.
I. A Legislative Overview of the Vietnam Law of the Sea
To develop the legislative conception of the Law of the Sea had been a long-awaited matter in Vietnam, which had been included in the Vietnamese National Assembly's legislative planned program as early as the year 1998. In January 2007, the Communist Party of Vietnam adopted a Vietnam Marine Strategy 2020, aiming at developing into a "sea power" by the year 2020. The formal adoption of this "Vietnam Law of the Sea" is the important step and the inevitable result of pushing ahead with the established maritime strategy by Vietnam.
The "Vietnam Law of the Sea" is a comprehensive law with the basic and operational nature, and makes more systematic rules to defend its sovereignty and maritime rights and interests based on the Vietnamese maritime legislation in the past, but also adopts comprehensive provisions focusing on the development of marine economy, strengthening the marine management and protection.
The core contents of the Law include the following: Firstly, specify the scope of application of the law, covering a variety of waters such as the islands of Hoang Sa archipelago (China Xisha Islands) and Chang Sa Islands (China Nansha Islands) and other archipelagos, Islands and reefs claimed by Vietnam under its jurisdiction, and emphasize on "mobilizing the strength of the whole nation in Vietnam to take all necessary measures" to defend Vietnam's sovereignty, sovereign rights and jurisdiction of the waters, islands and archipelagos. Secondly, according to the United Nations Convention on the Law of the Sea (hereinafter referred to as "the Convention"), determine the Vietnam's waters system, specify the measurement for straight baselines to determine the baseline of its territorial sea, with particular reference to the "Islands" concept continental countries rarely use. Thirdly, put emphasis on the development of marine economy, and promotion of international and regional cooperation. Fourthly, provide the maritime patrol and inspection forces.
II. Including the Chinese Territory in the "Vietnam Law of the Sea" by Vietnam is a Serious Violation Of The International Law
The fact that Vietnam insists on including China's territory in its maritime legislation is a wrongful act, ignoring the inherent territorial sovereignty of China, contrary to the Parties to the South China Sea Declaration on the Code of Conduct (hereinafter referred to as the "Declaration"), serious violation of China's territorial integrity and maritime rights, and a serious violation of basic principles and spirit of international law, and totally illegal and invalid.
(A) China has indisputable sovereignty over the Xisha and Nansha Islands
From a historical perspective, several thousand years of literature and history has proved that China is the first to discover, the earliest to develop and operate and manage the South China Sea islands under its national jurisdiction. China during the Han Dynasty had discovered South Sea Islands, the Tang and Song Dynasties refer specifically to the ancient Chinese names of the Nansha Islands, the jurisdiction of the Yuan Dynasty extended all the way to the Nansha Islands, maps of the Ming and Qing dynasties had included the South China Sea islands in the territory of China. In the year 1948, the national maps published with the order of the Chinese Government marked the South China Sea with the intermittent lines, and determined the sovereignty on the beaches, reefs, islands and waters resources rights within the intermittent line. After the founding of New China in the year 1949, the intermittent line has been inherited and followed. Before the 1970s, neighboring countries surrounding the South China Sea and the international community do not dispute China's rights over the South China Sea and show no objection at all. Park Chun-ho, a judge of the International Tribunal for the Law of the Sea as well as Britain, American and other countries’ well-known scholars have pointed out that China is the country with the oldest and most sufficient evidence among the disputed parties of the South China Sea.
From a legal point of view, China's territorial claims on the Xisha and Nansha Islands are in full compliance with the international laws concerning the territorial principles and criteria for territorial acquisition, intertemporal law, and historic rights, etc. China, also through having adopted the maritime legislations, constantly has reiterated on many occasions that the South China Sea Islands, including Xisha and Nansha Islands belonging to China. In the year 1958, the Government of the People's Republic of China published the Statement on the Territorial Sea that determined the system of China's territorial waters. Article 1 of the Statement states that "these clauses apply to all territory of the People's Republic of China including the Chinese mainland and offshore islands, … Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, Xisha Islands, Zhongsha Islands, Nansha Islands and other islands belonging to China. In the year 1992, Article 2 The Territorial Composition of the Territorial Sea and Contiguous Zone reiterates that China's land territorial mass include the People's Republic of China mainland and offshore islands, including Taiwan and its Diaoyu subsidiary islands, the Penghu Islands, the Dongsha Islands, Xisha Islands, the Zhongsha Islands, the Nansha Islands and other islands belonging to the People's Republic of China. In the year 2009, Article 2 of the People's Republic of China on Protecting Islands provides that: the protection, utilization and related management activities of the islands belonging to the People's Republic of China to which this Law shall apply. "Speaking of the islands belonging to the People's Republic of China", they have been repeatedly articulated in the declaration of the Chinese Government and legislation, and Xisha and Nansha Islands are naturally included. In the year 2012 Island Conservation Planning on the Island Division Protection Provisions, clearly identifies the Xisha Islands District, and Zhongsha and Nansha Islands District.
(B) The inclusion of the Chinese territory by the Vietnamese legislation is illegitimate
Article one of the "Vietnam Law of the Sea" lists the Xisha and Nansha Islands into the scope of its application, which is the first time for the Vietnamese to make clear-cut claim on the Xisha and Nansha Islands at the highest level of its marine law. The Vietnamese move is nothing more than an attempt to provide a new legal basis for the concocted Xisha controversy, and consolidating its so-called Nansha "sovereignty". There is no legal basis for the Vietnamese approach, and no valid basis in international law could be formed either.
First, an attempt to grab territory of other countries by passing legislation does not produce any legal effect. Article 2 of the Charter of the United Nations states that the UN Member States shall not infringe upon territorial integrity of any of its Member State or other states. As mentioned earlier, the Xisha and Nansha Islands has always been China's inherent territory since ancient times. The foregoing series of Chinese law also show that China has always attaches great importance to securing the sovereignty evidence through legislation. In defiance of history and facts, the Vietnamese inclusion of the Chinese territory in its domestic law violates China's territorial sovereignty, is illegal and invalid. Vietnam attempts to legitimate the illegal occupation through legalization, how can such illegal acts generate a legitimate right?
Second, actions contrary to the principle of estoppels is invalid. Before the year 1974, the Vietnamese Government had officially recognized the Xisha and Nansha Islands as the Chinese territory, whether in the forms of the statement, note, or the newspapers, maps and textbooks. In the year 1956, Vietnam had on a few diplomatic occasions publicly stated that, according to information Vietnam possessed, the Xisha and Nansha Islands should historically belong to China. In the year 1958, China published its Territorial Waters Statement; the then Vietnamese Prime Minister Pham Van Dong admitted with the statement that China has the sovereignty over the Xisha and Nansha Islands. This shows that Vietnam has already recognized that the Xisha and Nansha Islands are Chinese territory. Today, Vietnam is inconsistent, in defiance of its position and commitment, and includes the Chinese territory of the Xisha and Nansha Islands in its domestic law. This is a serious violation of the principle of estoppels in international law, is illegal and invalid.
Third, contrary to the corresponding national commitment to taking no unilateral action. Both China and Vietnam are signatories of the Declaration. The core content of the "Declaration" is Article Five, which states that "all the parties concerned are committed to exercising self-restraint, and to taking no action to complicate or escalate the dispute and to affect peace and stability. Vietnam has included purposely the Xisha and Nansha Islands in its legislation, a direct violation of the provisions of this clause. This shows that Vietnam is lack of sincerity to abide by and implement the Declaration, and fails to fulfill the Declaration in good faith.
III. Some Comments on the Vietnam Law of the Sea
In addition to the inclusion of the Xisha and Nansha Islands in the scope of the Vietnam Law of the Sea, which is unfavorable for China to maintain its territorial sovereignty and maritime rights and interests either.
(A) Put on a Vietnamese "Legitimate" Coat on its Illegal Claims
Most relevant provisions of the Vietnam Law of the Sea on the maritime demarcation are borrowed from the UN Convention, and propagate those more favorable to Vietnam, and promote those provisions to provide a legal basis for its claims on the South China Sea exclusive economic zone, continental shelf and the Outer Continental Shelf, and to negate the South China Sea intermittent line. For example, the law purposely stresses that "those reefs and islands unsuitable for human life or economic activities can not be entitled to an exclusive economic zone and a continental shelf", alluding that the Chinese Xisha and Nansha Islands can not have the natural entitlement to the exclusive economic zone or the continental shelf. These are similar positions in its public statements in recent years, and also provide an archipelago concept different from an island concept, which foreshadows demarcation of archipelagic waters for Xisha and Nansha Islands.
(B) Provide an Important Tool for Implementing the Vietnam Marine Strategy
The Vietnam Law of the Sea includes main elements of the marine strategy in Vietnam down to the year 2020 in the adopted legislation, having identified the principle of development of marine economy, key industries, and planning, etc. in the legal form, emphasized the relationship between development of marine economy and defense of the country's maritime sovereignty, the relationship between national security and security order, and listed the six industrial sectors such as exploration and development of marine oil and gas, and mineral resources and development, ports and transport, tourism, aquaculture, scientific research, human resources as a national priority of maritime economic development, preferentially encouraging investment in the development of the island economy and maritime activities. Vietnam will further increase efforts to infringe on the rights and interests of the Chinese reefs and islands as well as marine resources in the future in line with the direction and focus of the Vietnamese development of marine economy provided by the Law.
(C) Provide a "Legal Basis" for Obstructing the Chinese Normal Activities in the South China Sea
The "Vietnam Law of the Sea" defines its maritime patrol and inspection forces, strengthens its patrol, control and law enforcement of waters claimed under its jurisdiction, whose main task is to limit and obstruct the Chinese normal development and management in the South China Sea. The Law also specifies the 500-meter security zone around those artificial islands, installations or structures, in an attempt to set the legal obstacles for China's patrol and law enforcement activities. The Law provides that those foreign organizations and individuals to conduct research activities in waters claimed by Vietnam must get the licenses permitted by the authorities of the Vietnamese Government and accept the supervision of the Vietnamese side, obstructing the Chinese normal scientific survey activities in the South China Sea, and strengthening its jurisdiction.
(D) Create a Legal Environment to Promote the Internationalization of the South China Sea Issue
The "Vietnam Law of the Sea" in several articles clearly stipulates its respect for and protection of the lawful rights and interests of foreign organizations and individuals to carry out resource exploration, development, research, construction of artificial structures and facilities and other activities in Vietnam's exclusive economic zone and continental shelf waters. Vietnam, through the legislative efforts, attempts to draw in and encourage non-regional countries, companies and organizations involved in resource exploration, development and investigation activities in waters claimed under Vietnam jurisdiction in the South China Sea, and protect their rights and create legal environment for realizing the so-called "bundling" of interests with other countries, and promoting the internationalization of the South China Sea issue.
The adoption of the "Vietnam Law of the Sea" strengthens the unilateral position of Vietnam in the South China Sea issue, which constitutes a serious challenge to China and is bound to deteriorate the severe situation in the South China Sea. Surrounding countries including Japan, Vietnam and other countries have adopted comprehensive marine legislations to take charge of the national oceanic affairs. The existing Chinese sea-related laws are limited to a specialized field or industry-centered legislation, the legislative vacuum in the integrated management and the integration and coordination is difficult to meet the increasingly complex needs for safeguarding marine rights and stability. Therefore, to accelerate the legislative process to promote China's maritime basic law and to adopt China’s maritime basic law as soon as possible have become imperative.
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