However, it is naïve to believe that because of the DOC, the parties have ceased undertaking activities that complicate the situation. According to the DOC, the parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from any action of inhabiting the presently uninhabited islands, reefs, shoals, cays, and other features, and to handle their differences in a constructive manner.
However, the Declaration does not clarify what kind of activities could be considered to complicate or escalate a dispute. Claimants have continued to construct structures in the disputed features in the East Sea and declared unilateral jurisdictional regulations to demonstrate sovereignty in the disputed areas.
As the most powerful country, China’s approach in the East Sea determines the nature of dispute. Since 2007-2008, as Beijing corrected its policy toward the East Sea issue with more assertive approach, the situation was tense again.
In December 2007, China established the city of Sansha for administrating the Paracel and Spratly Islands (and the submerged reef of Macclesfield Bank), which triggered strong official protest from Vietnam.
In January 2010, China decided to establish local governing bodies in the Paracel Islands and develop the islands’s tourism industry and that act provoked condemnation from Hanoi as a violation of Vietnamese sovereignty.
Later, China passed the “2010-20 Grand Plan for Construction and Development for the International Tourism Island of Hainan,” under which the Spratly and Paracel Islands will be incorporated in a multi-purpose ocean complex, air and sea tourist routes bound for Paracel will be promoted, and registration for the right to use uninhabited islands will be encouraged.
In June 2010, Vietnam Ministry of Foreign Affairs (MOFA) spokesperson condemned the Chinese plan as a violation of its sovereignty and contradictory to the spirit of DOC. She quoted provision five of the DOC: “The parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from any action of inhabiting the presently uninhabited islands, reefs, shoals, cays, and other features, and to handle their differences in a constructive manner.”
China has annually unilaterally declared its fishing ban in the East Sea for two months, June and July, which had been applied since 1999. To enforce its jurisdictional claims in the East Sea, China sent fishery administration vessels to patrol the disputed water. In 2006 and 2007, there were several press reports of incidents of Vietnamese fishermen being killed or wounded by Chinese patrol vessels and gunboats.
Over 2009, Chinese forces have repeatedly detained Vietnamese fishing boats near the Paracel Islands, which both countries claim, and have demanded a fine of $10,000 for the release of the fishermen.20 In early April 2010 Beijing even announced the dispatch of two large fishery patrol vessels to the Spratly Islands to protect Chinese fishing vessels, the first time it has done so outside the period of its unilateral fishing ban in the sea that usually takes place between May and August.
Occasionally, China conducted military exercises in a disputed area as sending deterrent signals to other claimants of the East Sea. The frequent and coordination level of Chinese military exercises have increased significantly in recent years.
Regarding energy developments, China and ASEAN states have actively involved international companies to exploit the energy reserves of their claims in order to fulfill the need of their rapid economic growth. Occasionally, when international energy companies undertake exploration in zones awarded by one country but claimed by another country, especially within the U-shaped claim line of China, activity has been halted by diplomatic protest and even intervention of military or paramilitary vessels.
Starting in the summer of 2007, China told a number of foreign oil and gas firms to stop exploration work with Vietnamese partners in the East Sea or face unspecified consequences in their business dealings with China.
In April 2007, China’s Foreign Ministry spokesman protested Vietnam’s concession and cooperation with British Petroleum to build a gas pipeline near the southern coast of Vietnam that China considered “adjacent maritime zones” of the Spratly Islands.
China readily slipped back into its legally dubious historic claim to most of the East Sea and the nationalist rhetoric that accompanies it. Foreign Ministry spokesperson Qin Gang said, “any unilateral action taken by any other country in these waters constitutes infringement into China’s sovereignty, territorial rights and jurisdiction.” Vietnam reaffirmed that the area covered by its project with BP is located in Vietnam’s EEZ and continental shelf. All conducted activities are in conformity with international law and practices, particularly UNCLOS and the spirit of DOC.
In the spring of 2007, under Chinese pressure, BP stopped its exploitation activities on the gas fields of Moc Tinh and Hai Thach on continental shelf of Vietnam. In 2008, there were many press reports that U.S. energy company Exxon Mobil had been threatened by China.
From 2007 to 2010, China has also frequently protested other exploration activities conducted by international energy companies, including BP in bloc 117; PGS (Norway) in bloc 122; Chevron (US) in bloc 122; Pogo (US) in bloc 124; ONGC (India) in bloc 127; Indemisu (Japan) in bloc 04-3; CoconoPhilips (US) in bloc 133; Pearl Energy (UK) in bloc 06-1; Knoc (South Korea) in bloc 11-4; and Gazprom (Russia) in blocs 111 and 113.
A spokesperson from Vietnam’s MOFA confirmed that in the case of Exxon Mobile, “these (awarded blocs) are totally under the sovereignty right of Vietnam and in line with the 1982 UN Convention on the Law of the Sea,” and “Vietnam will ensure all the legitimate interests of foreign investors when they operate in Vietnam.” Vietnam “welcome[s] and shall facilitate all cooperation with foreign partners, including Chinese investors operating in Vietnam, on the basis of full respect for our sovereignty.”
In 2009, China also objected to the Philippines’s drilling in the Reed Bank area, about 60 miles (100 kilometers) west of Palawan, which may contain 3.4 trillion cubic feet of gas and 450 million barrels of oil.29 Malaysia and Brunei also dispute about the development of a gas field in an area where their claims overlap. Identical blocs were awarded to different companies: Malaysia awarded exploration rights to Murphy Oil, while Brunei awarded similar rights to Royal Dutch Shell and Total.
On the Chinese side, China was driven by the great need of the marine resources, especially the energy, to serve its fast-growing economy. China has been an oil-importer since 1993 and, according to Zhu Jianjun of the China National Petroleum Company (CNPC), China’s oil imports will reach 50 percent of consumption in 2010 and 60 percent in 2020. Therefore, ensuring a constant supply and secure transportation routes plays a decisive role in maintaining China’s sustainable economic development.
The East Sea is described by some Chinese analysts as containing huge reserves of oil, gas, and combustible ice resources. It is estimated that the oil reserves could reach 23–30 billion tons, accounting for one-third of China’s aggregate oil and gas resources.
Zhang Dawei of the Ministry of Land Resources claimed that the South China Sea would become one of China’s ten major oil and gas sites: the oil reserves were estimated at 23-–30 billion tons or 168–220 billion barrels. As with oil, estimates of the East Sea’s natural gas resources vary widely. One Chinese estimate for the entire area estimates natural gas reserves to be 2 quadrillion cubic feet. Another Chinese report estimates 225 billion barrels of oil equivalent in the Spratly Islands alone.
In April 2006, Husky Energy working with the Chinese National Offshore Oil Corporation announced a find of proven natural gas reserves of nearly 4 to 6 trillion cubic feet near the Spratly Islands.35 In 2007 Beijing opened the concession and invited bids for 22 petroleum blocks in the East Sea in areas up to 1000 miles from Hainan. Recent activities occurred in May 2010 when China sent the seismic survey vessel M/V Western Spirit to conduct seismic studies in the waters off Tri Ton island of Paracel group, in area overlapping with Vietnam’s oil and gas exploration blocks 141, 142 and 143. At the same time, China carried out ground leveling activities on Tri Ton island in preparation for construction. On August 5th the Vietnamese government formally protested and demanded an immediate cessation of activities.
While protesting against energy development activities taken by other countries in the area within the U-shaped claim, China was pushing forward the idea of joint developments of energy resources in the East Sea. In principle, other claimants do not oppose Chinese proposal of joint development, however, finding acceptable really disputed areas remains the most intractable problem for putting these ideas into practice. Other claimants would not accept the Chinese proposals for joint developments in the areas within the Chinese U-shaped claim, sometime in distance of five to seven hundreds nautical miles from Hainan Island but within 200 nautical miles EEZ of other claimants.
As demonstrated in the case of the Agreement for Joint Marine Seismic Undertaking in the East Sea in 2005 signed between national petroleum corporations of China, Philippines and Vietnam, the Philippines had not to renew the agreement due to opposition within Philippine domestic politics, which condemned the government of allowing the area of joint developments overlaps with the country’s exclusive economic zone.
Outer limit of continental shelf submissions
Tensions over resources on East Sea continental shelf also were not unrelated with developments in the East Sea in the last 2-3 years relating to the deadline 13th May 2009. The deadline May 13, 2009 was set by a subsequent agreement of the States Parties to the UNCLOS for states to lodge claims extending their continental shelves beyond the 200 nautical mile limit to The United Nations Commission on the Limits of the Continental Shelf (CLCS).
On May 6, 2009, Malaysia and Vietnam submitted a joint proposal to the CLCS in respect to an area seabed in the southern East Sea located seaward of their 200 nautical miles EEZ limits.37 On the following day, Vietnam made a separate submission in relation to northern parts of the East Sea. China immediately protested both submissions as a violation of its sovereignty and called on the UN commission to reject it. After almost three months, on August 4, 2009, the Philippines also protested submissions to CLCS made by Vietnam and Malaysia. Vietnam and Malaysia immediately protested the notes by the Philippines China.
China also made a submission of preliminary information to the CLCS relating to the East China Sea. Chinese preliminary information included the statement that China reserved the right to make submissions on the outer limits of the continental shelf that extends beyond 200 nautical miles in “other sea areas.” This statement possibly referred to areas in the East Sea.
The Philippines also made a partial submission to the CLCS for areas of outer continental shelf seaward of its 200 nautical miles EEZ limit in the Benham Rise region in the Philippine Sea. The Philippines, however, reserved the right to make additional submissions for unspecified “other areas at a future time.”
The submissions to the CLCS by Malaysia and Vietnam arguably clarified the borders of their claims of continental shelf from the mainland. Furthermore, it seems that Vietnam and Malaysia do not consider any features in the Spratly Islands (and the Paracel Islands in the case of Vietnamese submission) as islands, as defined in Article 121 of UNCLOS. If any of the East Sea islands is capable of generating EEZ and continental shelf rights, there is no area of outer continental shelf beyond 200 nautical miles for submission to CLCS. The fact that Vietnam did not make any comments on the contract between the Filipino government and Forum Energy in the area within the Reed Bank basin reconfirmed Vietnam’s aforementioned consideration.
If this clarification of Malaysia and Vietnam’s claims regarding the disputed islands would be adopted by all the East Sea parties, it would significantly simplify the dispute overall by substantially narrowing the maritime claims associated with the disputed islands. There would be an entire area in the central part of the East Sea, which could be described as ‘the continental shelf doughnut’ combined by the outer limits of continental shelf from the nearest island or mainland of surrounding East Sea countries, which is open for cooperative developing maritime resources.
This simplified and dispute-solution-oriented interpretation of Vietnam and Malaysia about ‘regime of features’ of Spratly was shared by other surrounding East Sea countries but not by China. In the note protesting the submissions of Vietnam and Malaysia to CLCS, China asserted its “indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.”
Attached to the note was a map showing China’s U-shaped claims to virtually the entire East Sea. This possibly means that China uses an alternative claim, beside its historical claim, based on an EEZ and continental shelf from islets of Spratly that it also claims. Most recently, in the note sent to UN General Secretary responding to the note sent by the Philippines protesting the U-shaped claim, China for the first time publicly and officially states that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf”.
It is worth to note that Chinese government’s position on “regime of islands” in the East Sea contrasts with its own position regarding to regime of Japan’s Oki-no-Tori Shima Island, a small, extremely isolated reef sharing many characteristics with Spratly’s features and located near the centre of the Philippine Sea region of the western Pacific Ocean. In the Chinese note sent to UN General Secretary protesting Japan’s Submission of 200 nautical miles of continental shelf measured from the basepoints Oki-ni-Tori Shima Island and extended continental shelf from 200 nautical miles China argued that “the so-called Oki-ni-Tori Shima Island is in fact a rock as referred to in Aticle 121(3) of the Convention”.
Regarding the position of the Philippines, during the process of preparing the submissions on the outer limit of continental shelf, the Philippines passed the Archipelagic Baselines bill on March 10, 2009, which revised the existing straight baselines and brought them into conformity with the rules for archipelagic baselines set out in the UNCLOS. Under the new law, the disputed Kalayan islands group and Scarborough Shoal remain part of Filipino territory but under a “regime of islands.”
In August 2009, in notes protesting both the submission by Vietnam and the joint submission by Vietnam and Malaysia to CLCS, the Philippines did not refer to any possible continental shelf generated from the disputed Kalayan islands, but that “the submission for extended continental shelf by Vietnam lays claim on areas that are disputed because they overlap with those of the Philippines,” (extended continental shelf beyond the 200 nautical mile limit from archipelagic baseline) and “joint submission for extended continental shelf by Vietnam and Malaysia lays claim on areas that are disputed not only because they overlap with that of the Philippines, but also because of the controversy arising from the territorial claims of some of the islands in the area including North Borneo.”
Arguably, it means that the Philippines do not consider any features in the Spratly Islands as an island, as provided in Article 121 of UNCLOS. Therefore, these features are incapable for generating EEZ and continental shelf rights.
Concerning the Indonesian position, in a note circulated in the UN on July 8, 2010, to protest nine-dotted-lines-map attached to China’s aforementioned note, Indonesia stated that “those remote or very small features in the East Sea do not deserve exclusive economic zone or continental shelf of their own,” and “the so called nine-dotted-lines-map…clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982.”
Brunei also seems to share the view of other concerned countries in ASEAN. In preliminary information concerning the outer limits of its continental shelf, submitted to CLCS on May 12, 2009, Brunei stated that the country has made significant progress towards preparation of a full submission, but it can only provide the full submission after the date of May 13, 2009. “Brunei’s full submission to the Commission will show that the edge of the continental margin, lying at the transition between the Dangerous Grounds and the deep ocean floor of the East Sea, is situated beyond 200 nautical miles from the baselines from which Brunei’s territorial sea is measured.”51 It possibly means that Brunei will fix the outer limit of extended continental shelf beyond 200 nautical miles from the baseline of land territory without taking consideration of claimed islands in the Spratly Islands.
Dr. Tran Truong Thuy
(Dr. Tran Truong Thuy is Director of the Centre for East Sea Studies at the Diplomatic Academy of Vietnam)