Has China forgotten its commitments?

In terms of politics and international diplomacy, China's behavior has egregiously violated the Declaration on the Conduct of Parties in the East Sea (DOC) that China and ASEAN countries signed in 2002, says Dr. Ngo Huu Phuoc, head of the International Law Faculty of the Ho Chi Minh City University of Law, sat for an interview with VietNamNet.

In the interview, Dr. Phuoc confirmed that China’s deployment of its drilling rig in Vietnam’s exclusive economic zone and continental shelf is a serious violation of international law. Vietnam can sue China in the international court, he asserted.

ngo huu phuoc, china, DOC, UNCLOS, international law 

Dr. Ngo Huu Phuoc.

VietNamNet: What do you think about China’s recent acts in Vietnam’s exclusive economic zone and continental shelf?

Ngo Huu Phuoc: China's behavior has violated the 1982 UN Convention on the Law of the Sea (UNCLOS) and the basic principles of international law on friendly relations between countries that are prescribed in the UN Charter and codified in the Declaration of the UN General Assembly, dated 24/10/1970.

Under the provisions of the UNCLOS, coastal states have the right to set an exclusive economic zone that shall not exceed 200 nautical miles from the baseline. In these waters, the coastal states have rights of economic sovereignty such as exploration, exploitation, conservation and management of natural resources and living creatures in the waters above, the seabed, and the marine subsoil.

At the same time, the coastal states have jurisdiction (allowing or not allowing, checking, monitoring, handling or judging) for the installation of artificial islands and works such as underground cables, underground pipelines, oil rigs, etc.; marine scientific research and the protection and preservation of the marine environment in their exclusive economic zone.

To exercise the right of sovereignty and national jurisdiction in the exclusive economic zone, the UNCLOS allows coastal states to take all necessary measures, including examination, inspection, arrest and prosecution to ensure respect for the laws and regulations that the countries have issued in accordance with the UNCLOS (Article 73).

For the seabed and subsoil of the sea, the UNCLOS allows coastal states to set up a continental shelf with width from the baseline to the continental margin of at least 200 nautical miles to 350 nautical miles, or from a 2,500 meter depth contour of not over 100 nautical miles. All the natural resources within the continental shelf may be regarded as the "property" of the coastal states.

It is an exclusive right, meaning that if the coastal states do not explore or exploit natural resources in their continental shelf, no one has the right to exploit without the consent and agreement of that country (Article 77). The coastal states have jurisdiction for the installation and use of artificial islands, structures and devices; drilling and exploration; conducting marine scientific research; preserving and protecting the marine environment in their continental shelf.

However, when the law enforcement agencies of Vietnam asked China to withdraw its illegal drilling rig from Vietnam’s exclusive economic zone and continental shelf, China mobilized more than 80 vessels, including military ships and aircraft, to intimidate and assault the boats of the Vietnam Coast Guard and fishery administration body.

This is a serious violation of international law in general, of the UN Charter, the UNCLOS 1982 and the basic principles of International Law, particularly the principle of sovereign equality among states; the principle of prohibiting the use and threat of use of force; the principle of peaceful settlement of international disputes; the principle that states are obliged to cooperate with each other; the principle of the right of self-determination and the principle of pacta sunt servanda – that China, as a permanent member of the UN Security Council, must play an important role in the construction and protection of international law, and as an economic, military and cultural powerhouse, must be exemplary.

VNN: According to Vietnam law, what are China’s violations?

NHP: The deployment of a drilling platform in Vietnam’s waters has seriously violated the laws of Vietnam, especially the Law of the Sea 2012.

This Law was enacted on the basis of inheriting the laws of the sea that Vietnam had issued before, such as the Declaration of the Government of the Socialist Republic of Vietnam on Vietnam’s waters dated 12/5/1977; the Declaration of the Government of the Socialist Republic of Vietnam on Vietnam’s baseline dated 12/11/1982; the National Borders Act 2003 and other legal documents.

This is the law that has the highest legal value on the sea of Vietnam, the most important national legal basis for the state and all agencies, organizations and citizens of Vietnam to manage, exploit and protect the sovereignty, sovereign rights and jurisdiction over the waters which are internal waters, territorial sea, contiguous zone, exclusive economic zone and the continental shelf of Vietnam.

The Law of the Sea 2012 of Vietnam is fully consistent with the UNCLOS 1982. According to this law, Vietnam has internal waters and territorial sea which are the maritime territory of Vietnam. At the same time, Vietnam has three waters under the sovereign rights and jurisdiction: the contiguous zone, the exclusive economic zone and the continental shelf.

Breaking agreements

VNN: China’s actions make the public feel like they have "forgotten" their responsibility to the commitments that they signed. Should we remind them of their commitments with ASEAN and Vietnam?

NHP: In terms of politics and international diplomacy, China's behavior has seriously violated the Declaration on the Conduct of Parties in the East Sea (DOC) that China and ASEAN signed in 2002 in Phnom Penh, Cambodia and the guidelines on principles to solve marine issues between Vietnam and China that was signed by top officials of the two countries in 2011.

I would like to present here some contents that China and ASEAN agreed to in the DOC:

Article 1: The Parties reaffirm their commitment to the purposes and principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations;

Article 2: The Parties are committed to exploring ways for building trust and confidence in accordance with the above-mentioned principles and on the basis of equality and mutual respect;

Article 3: The Parties reaffirm their respect for and commitment to freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

Article 4: The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

Article 5: 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 the action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

Pending the peaceful settlement of territorial and jurisdictional disputes, the Parties concerned undertake to intensify efforts to seek ways, in the spirit of cooperation and understanding, to build trust and confidence between and among them …

Article 6: Pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities.

Article 7: The Parties concerned stand ready to continue their consultations and dialogues concerning relevant issues, through modalities to be agreed by them, including regular consultations on the observance of this Declaration, for the purpose of promoting good neighborliness and transparency, establishing harmony, mutual understanding and cooperation, and facilitating peaceful resolution of disputes among them;

Article 8: The Parties undertake to respect the provisions of this Declaration and take actions consistent therewith;

Article 9: The Parties encourage other countries to respect the principles contained in this Declaration;

Article 10: The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.

Especially, for Vietnam, China's actions have completely broken the agreement in principle resolving maritime issues between Vietnam and China that the most senior leaders of two sides signed in 2011.

Under the agreement, the relationship between the two countries should follow the motto “Friendly neighborliness, comprehensive cooperation, long-term stability and looking towards the future” and the spirit of “Good neighbors, good friends, good comrades and good partners” while handling maritime issues through negotiations and friendly consultations.

Both countries should attempt to find basic long-term solutions for settling disputes related to maritime issues based on respect for legal evidence and other relevant factors such as the history and stance of each side, according to the agreement.

During the process of negotiating maritime issues, both sides should abide by agreements and the consensus reached by the senior leaders of the two countries and the Declaration on the Conduct of Parties on the East Sea (DOC). While resolving maritime disputes involving other countries, both sides should also consult with those countries, the agreement says.

It also states that, while looking for a basic, long-term approach for settling maritime issues in the spirit of mutual respect and equal and mutually beneficial treatment, both sides should discuss interim and temporary solutions, including research and negotiations on joint development in the sea, without impacting each side's stance or policies.

The two sides should address maritime issues incrementally and speed up the demarcation of territorial waters off the Tonkin Gulf, in addition to discussing cooperation in developing these waters. Both sides should also foster cooperation in less sensitive fields, including marine environmental protection, sea science research, search and rescue operations and natural disaster mitigation and prevention.

The agreement also noted that the two sides should alternately hold biannual meetings between the heads of Government-level border negotiation delegations and extraordinary meetings if necessary. The two sides also agreed to establish a direct hotline between the government-level delegations to help with the timely resolution of maritime issues.

To be continued…

Interviewers: Duy Chien – Ta Lam

ngo huu phuoc, china, DOC, UNCLOS, international law