Dr. Tran Cong Truc, former head of the National Border Committee
Q: In the seminar “Paracel-Spratly Islands: The historical truth” held in Danang on June 19-21, Dr. Jerome Cohen from the School of Law, New York University, USA, said that the arbitration mechanism of the United Nations Convention on the Law of the Sea (UNCLOS) does not provide a solution to Vietnam to deal with the present dangerous disputes with China. It says that only the referees can decide that all the islands in the Paracel Islands are "rocks", according to Clause 3, Article 121 of UNCLOS and therefore they are not entitled to have the exclusive economic zone (EEZ). What do you think about this?
Dr. Tran Cong Truc: For Professor Cohen's comments, I think that we have to understand what he did mean. First of all, I would like to assure you that there are some kinds of disputes in the East Sea (South China Sea), such as disputes over territorial sovereignty like the disputes over the Paracel and Spratly Islands.
The second type of disputes is over overlapping areas based on the provisions of the UNCLO, which usually happen to countries having their coasts opposite or adjacent to each other.
Another type of dispute is the interpretation and application of the provisions of the UNCLOS 1982 to make concepts, claims, demands not in accordance with the regulations and standards of the Convention. There are also other disputes occurring during the operations of vehicles and people of different countries.
There are disputes that when the involving parties want to use bilateral or multilateral international arbitration mechanisms to solve, they must sign an agreement and then send it to the tribunals, so the courts can handle them - for example, disputes over territorial sovereignty and the delineation of overlapping waters.
According to the rules, tribunals do not have the responsibility and authority for handling the case that is unilaterally submitted by one party. In the case of the Paracel dispute, to resolve the disputes, it must have the consent of China and Vietnam.
But there is a kind of dispute that Vietnam can unilaterally be lodged at the court; for example, suing China for deliberately interpreting and applying the UNCLOS 1982 in a wrong way in order to make ridiculous claims, according to Appendix 7, Section 5 of the Convention.
I understand that Professor Cohen means that we can sue China for wrongly interpreting and applying Article 121 of the UNCLOS 1982 to claim the EEZ for turn shoals, small rocky islands and even true islands, which are unsuitable for human life, with no economic life. We have the right to do that.
The Philippines did it two years ago, when they took legal proceedings against China for wrongly explaining and applying the role of the rocks and small islands, as well as making the "nine-dotted line" not based on any standards of the UNCLOS. The lawsuit has been accepted by the Permanent Court of Arbitration.
Q: Could you say more about the expansion of the scope of the seas, including the EEZ, of the coastal states, islands and archipelagos.
Dr. Truc: There are two contents, how the EEZ of coastal states and the island and archipelago nations are determined. For coastal states like Vietnam, according to the UNCLOS, they have the right to make the baseline, according to the usual method and the straight baseline.
A baseline is the line from which the seaward limits of a state's territorial sea and certain other maritime zones of jurisdiction are measured. Normally, a sea baseline follows the low-water line of a coastal state. When the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.
The area within the baseline is called the internal waters. Outside the baseline, the area within 12 nautical miles from the baseline is the territorial waters. The line that is 12 nautical miles from the baseline is the national borders in the sea. Within that line, the coastal state has full sovereignty over the territorial waters and internal waters.
The EEZ is an area beyond and adjacent to the territorial sea, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of the UNCLOS.
Generally, a state's EEZ extends to a distance of 200 nautical miles (370 km) out from its coastal baseline. States also have rights to the seabed of what is called the continental shelf up to 350 nautical miles (648 km) from the coastal baseline, beyond the EEZ, but such areas are not part of their EEZ.
In the EEZ, the coastal state has sovereign rights and jurisdiction over the natural resources in economic terms. I note that the coastal state has sovereign rights, not sovereignty, and in the EEZ, other countries have freedom of navigation and freedom of aviation.
So while exercising its sovereignty in the EEZ, coastal states are not allowed to obstruct the freedom of others, unless the others affect the sovereignty and rights jurisdiction of the coastal states.
As for the island nations, as the Philippines and Indonesia, they have the right to determine the baseline by connecting the outermost islands. From that baseline, they can determine the waters under the standards applied for the coastal states.
As for the off-shore archipelagos of coastal states, the baseline is not determined in the same way with the island nations. Thus, each island in the archipelago has its own baseline and that island must ensure the standards in Article 121 of the UNCLOS.
Q: And what do you think about the expansion of China's waters in the Paracel Islands?
Dr. Truc: Back to the Paracel Islands and Spratly Islands, as you know, they are communities of rocks, shoals and tiny islands. The largest island of the Paracel Islands is Phu Lam, which is 1.6 square kilometers in area. The remaining islands are only 100-200m2, without trees and fresh water.
After China robbed the islands from Vietnam, they have tried to build runways, wharves, houses... but the islands are still not big enough for human life so they surely don’t have separate economic life. The UNCLOS does not say how much is enough, but it does not mean that several hundred square meters can create their own economic lives.
In the eyes of the lawmakers and scientists, the two islands do not have suitable conditions for human or economic life as they are too small and located in extremely harsh environments. You know that the most important thing for life is water but in these islands, there is no water or trees, so how people can live there. China can deliberately create the conditions to serve the forces duty there. In the old days our ancestors went there in April and returned in August.
The UNCLOS and the Vietnam maritime law stipulate that the offshore islands and archipelagos can have the EEZ and continental shelf if they are large enough for humans and have economic life of their own. Those islands that are not big enough and not suitable for human life and have no economic life can have only 12 nautical miles of territorial waters.
Therefore, for the Xisha Islands (or Paracel Islands of Vietnam), China intends to expand the territorial waters and the contiguous zone to 200 nautical miles from the baseline that they announced in 2006 which is the wrong application of the UNCLOS. They said they normally operate in the waters of Xisha and they said this archipelago has the territorial waters and contiguous zone. I would like to say that this is their trick of pun.
If we have professional eyes, we can see that this is a trick, a trap of puns of the Chinese. If one hears China talk about the territorial waters and the contiguous zone, he may think that China obeys the UNCLOS. But in fact, the contiguous zone, in terms of spatial extent, is still part of the EEZ, and China is wrong.
Q: What is the basis for Vietnam’s claims of sovereignty over the Paracel Islands?
Dr. Truc: Vietnam’s sovereignty over the Paracel is not calculated from the baseline as some people mistakenly believe. it is formed from the Vietnam State’s possession and enforcement of sovereignty compliance with the principles of international law; it is the principle of actual possession.
The State of Vietnam is the first country in history to possess and enforce sovereignty over the Paracels and Spratly Islands since it was derelict, at least from the 17th century. The occupation is true, clear, continuous and peaceful. Vietnam has sufficient legal basis and historical evidence with legal value.
You should not only show historical events, historical documents, and historical maps to demonstrate that fact because, as Belgian professor/law expert Erik Franckx spoke (who also attended the workshop on the Paracel - Spratly Islands held in Da Nang in June) the maps are valuables when they are accompanied by administrative decisions. The maps that are published officially are for reference only.
Secondly, the historical events recorded in the books of history are also the event for reference. For example, the history wrote that the Hoang Sa flotilla was formed by the Vietnam state. This was a real event, but to prove it before the tribunals, we must find the evidence: the royal documents of the Nguyen Dynasty on the establishment of the flotilla. This is the legal value. If we only state the facts, I believe that the court will not accept it.
We should remember that China has also raised related events, such as describing how the Chinese people went to the islands, to name them, etc. They gave vague evidence to prove that in the history China also had sovereignty over the islands.
The approach by Dr. Bui Van Tieng, Chairman of the Science and History of Da Nang, in his presentation at the recent workshop in Da Nang, in my view, is the right approach.
He showed all the evidence proving state activities related to the Paracels, such as administrative decisions on the establishment of administrative units in history. I would like to praise the approach of the chairman of the historical science association who understands the law very well.
