South China Sea: Rightness Is Mightiness, Not Visa Versa

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China claims to South China Sea

China claims to South China Sea

By : Nguyen Hung Son

Recently, several Chinese officials, diplomats and scholars have expressed their views regarding the on-going “oil-rig” incident in the South China Sea, justifying the oil-rig operation in what China claims to be its “indisputed sovereignty over the Paracels”. I felt compelled to point out three major common and repeated inaccuracies in the arguments these officials, diplomats and scholars often make to show why they will not stand the test of international law.

Firstly, China very often argues that it has indisputable sovereignty over the Paracels (China calls it the Xisha, Vietnam calls it Hoang Sa) as far back as the Northern Song Dynasty because Chinese were the first to discover, develop, exploit and exercise jurisdiction over the archipelago.

Since the South China Sea is a common heritage shared by all the peoples of the region, it is very uncertain if the Chinese were the first to discover the islands or how to define if they were Chinese.

More importantly, in the law of territories acquisition, activities of private individuals were insufficient to establish a country’s ownership over a territory. Discovery will only create inchoate title, which must be followed by subsequent continuous and effective acts of occupation and management by the State concerned. The Vietnamese State has shown interests and continuous efforts in establishing jurisdiction over the islands since the 16th century.

Evidence is abundant. Yet, the Chinese State showed no evidence of wanting to take the islands into possession through out its long history. No official Chinese historical book or map recorded the Paracels or the Spratlys as Chinese territory up until the mid 20th century. In all Chinese official documents and maps, the southern most point of China’s territory never exceeded Hainan Island.

The reasons for the Chinese State’s lack of interests in acquiring territories at sea was deeply embedded in China’s history and culture. China had long been a massive land power that did not look at the sea favorably and did not see any need for tiny and dangerous territories at sea. For thousands of years, China always viewed the sea as a source of piracy and insecurity. Hence, many dynasties in China, as late and the Ming and the Qing, continued to ban maritime activities. Chinese must still remember well known Haijin policy that prohibited maritime shipping and encouraged people to be inward looking. This policy helped strengthened the authority of the Emperor and the Middle Kingdom over its vast land territory. A more radical Haijin law during the Qing dynasty even required every coastal citizen to move 30-40 miles inland, emptying the coast line.

Those who ventured out to the sea were charged with treason against the Kingdom, the Emperor and suffered capital punishment as a result. Under such conditions, who would believe that the Chinese State even wanted to occupy these remote features, not to mention to undertake activities to “continuously and effectively” occupy them which was required by international law to establish title over the features?

Secondly, China often said that Vietnam had officially recognised the Paracels as part of Chinese territories prior to 1974. Unfortunately, this is a serious misunderstanding, if not deliberate misinterpretation of history.

The Letter by the late Prime Minister of the Democratic Republic of Vietnam (DRV), Pham Van Dong in 1958, which China often point to as “proof” of Vietnam’s recognition of China’s sovereignty over the Paracels, actually made no reference to the Paracels and Spratlys. It was merely an executive branch’s document ensuring the Chinese government that the DRV’s government agencies would respect the 12 nautical miles breadth of China’s territorial sea. The Letter, in words and in deed, did not deal with sovereignty issue.

Further more, it should be clearly noted that, as an active contributor to the 1954 Geneva Accord, China was well aware at that time that the Paracels were under the administration of the Republic of Vietnam according to the signed Accord, not the DRV represented by Prime Minister Pham Van Dong. In its historical context, Pham Van Dong’s Letter showed the DRV’s support to the attempt of its ally to extend its security parameters from 3 miles to 12 miles in face of eminent threats from the 7th Pacific fleet of the United States encroaching upon China’s coastline in defense of Taiwan. China’s arguments today has taken the fact out of its historical context and twisted it conveniently to back up its territorial claim.

Thirdly, China claims that Chinese companies have been conducting explorations in related waters without impediment for the past 10 years, probably implying that Vietnam has acquiesced to China’s operations in the area. This is grossly counter the facts.

Vietnam never missed an opportunity to protest against China’s illegal activities that infringe Vietnam’s territorial sovereignty, sovereign rights and jurisdiction in the area. Since 2004, China has, on several occasions, intruded this area to conduct 2D and 3D seismic surveys. In all these intrusions, Vietnam always sent law enforcement authorities to protests China’s activities and to protect Vietnam’s rights. Vietnam always communicates with the Chinese through the diplomatic channel and sent diplomatic notes to resolutely protest China’s infringements. Since 2004, Vietnamese Deputy Minister of Foreign Affairs met with Chinese Ambassador to Vietnam in Hanoi at least three times regarding this matter.

In the most recent incident in 2010, when China sent the MV Western Spirit to conduct 3D survey is the area, the spokesperson of Vietnam’s Ministry of Foreign Affairs, on August 5, 2010, publicly protested against China and solemnly requested China to immediately stop the activities. China had to respond to this protest on August 7, 2010.

Therefore, China’s claim that it has “an unshakable legal basis for the sovereignty of the Xisha Islands” is not true. And since the islands do not belong to China, any statements and actions to reinforce China’s claim is a clear violation of international law.

The oil-rig incident is yet another reminder to China that mightiness does not bring rightness, it is the other way around.

The author is a researcher at the Diplomatic Academy of Vietnam.

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