China after the oil rig incident: what should Vietnam do?

VietNamNet Bridge - The Silk Road on the sea exists with the contribution of all coastal countries. The honor of the Road must be based on respect for international law, respect for the independence and sovereignty of related countries, for the sake of peace and stronger friendship between peoples, and should not be mixed with any self-interested purposes.



Silk Road on the sea, East Sea, China, Vietnam




In 2007, Cambodia applied for UNESCO's recognition of world cultural heritage for the Preah Vihear Temple but the proposal was rejected due to a dispute with Thailand, and partly because Thailand objected to this proposal.

A year later, the Ministry of Foreign Affairs of Thailand supported Cambodia’s proposal, on June 7, 2008. The World Heritage Committee met in Canada and recognized the Preah Vihear Temple as a world heritage. This decision was made based on the judgment of the International Court of Justice in 1962 recognizing the sovereignty of Cambodia over Preah Vihear Temple.

World History records the Silk Road starting from Fuzhou, Hangzhou, Beijing (China) through Mongolia, India, Afghanistan, Kazakhstan, Iran, Iraq, Turkey, Greece, around the Mediterranean and reaching to Europe. The road also goes to South Korea and Japan. It has a length of about 4,000 miles, or 6,437 kilometers.

During the Ming Dynasty, the Silk Road was controlled by the dynasty, which imposed such high taxes on goods transported on the road that merchants had to seek a sea route.

With the seaborne trade development (formation of the Silk Road on the sea), Guangzhou was seen as the start of the Silk Road on the sea. This routes extends from the port of Tu Van, Hop Pho (Leizhou peninsula) across the Gulf of Tonkin, along the coast of Vietnam to the Gulf of Thailand to the west - south of Malaysia, through the Strait of Malacca to the south coast of Thailand, to Myanmar and then the Bay of Bengal and down to southern India and stops at the island of Sri Lanka. The French sinologist Edouard Chavanse (1865-1918) in his book "West Turkish Histories" wrote that "the Silk Road has two lines: land and sea".

Can there be a common heritage road?

The Silk Road is not only a lifeline for trade but also a cultural and religious itinerary that can bring many multilateral benefits in cultural and tourism exchanges. "The Silk Road is the road of Trade, Travel, War and Faith." Currently, international organizations like UNESCO, ICOMOS and UCL are developing a research project entitled “Silk Roads World Heritage Serial Nomination”, with 15 participating countries.

On June 22, 2014, at the 38th session, UNESCO recognized the Grand Canal of China and the Silk Road (on land) of China, Kazakhstan and Kyrgyzstan as the world's cultural heritage, bringing China’s heritage sites to 47.

UNESCO is also interested in the protection of underwater cultural heritage. The underwater archaeological sites were first mentioned in the Convention on the Law of the Sea 1982. The two clauses directly related to underwater cultural heritage are 149 and 303.

Article 149 stipulates: "All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.”

Article 303 stipulates:

" 1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose.

2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.

3. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges.

4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.”

Article 33 is the provision on the legal regime of the contiguous zone. Thus, in the East Sea, where there are many claimants, it will be difficult to have the common heritage zone, so only Article 303 can be applied for the 24 nautical mile contiguous zone.

To further clarify the provisions of UNCLOS 1982, in 2001 UNESCO adopted the Convention on the protection of underwater cultural heritage.

Article 1 of the Convention defines underwater cultural heritage as follows: 1. (a) “Underwater cultural heritage” means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: (i) sites, structures, buildings, artifacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character.

(b) Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage.

(c) Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage.

The criterion of time of 100 years has removed all traces from the two World Wars until now.

The main purpose of the Convention is the protection and conservation of underwater cultural heritage "for the benefit of all humanity" right at the situ point. Coastal states and other countries work together to protect underwater cultural heritage to avoid the impact of technology and of human activities (such as setting cables, drilling, and exploitation of natural resources) and to improve education, and spread the knowledge of this heritage for generations.

The Law of Salvage and Law of Finds will not be applied to the underwater cultural heritage. The Convention entered into force on 2/1/2009 and 48 countries have ratified it (In Southeast Asia, only Cambodia is a participant).

What should Vietnam do?

The Silk Road on the sea is actually a trade route. Commodities for exchanges were not only silk. The countries along the East Sea coast all have the rich maritime commerce history.

The salvage of wrecks in Cu Lao Cham in 2003 showed the world a distinctive civilization of Chu Dau ceramics which is completely different from Chinese ceramics and they were traded to many countries around the world. The ports of Pho Hien and Hoi An were once large marine commercial centers of the region. Vessels running in the East Sea all had the safest journey, particularly running along the coast of Vietnam, so the sea route via Vietnam is also part of the Silk Road on the sea in the past.

The history of Vietnam has recorded many activities of the State on the exploitation of goods and items from shipwrecks in Hoang Sa and Truong Sa, and rescue of foreign vessels in distress in Vietnam’s waters. By the action of the Hoang Sa and Bac Hai flotillas, Vietnam is the first State that asserted sovereignty over the two archipelagos and the surrounding waters, at least from the seventeenth century without encountering any response from any country.

Based on the Convention on the Law of the Sea 1982 and the Conventions on the protection of cultural and natural heritage of UNESCO in 1972 and 2001, Vietnam is a coastal state that has sovereignty over “all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: sites, structures, buildings, artifacts and human remains, together with their archaeological and natural context; vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and objects of prehistoric character” in its internal waters, territorial waters and contiguous zone.

At the same time, Vietnam also has the obligation to cooperate with other countries in the protection and preservation of underwater cultural heritage in the exclusive economic zone and continental shelf, the common heritage zone of mankind outside the waters under the sovereignty and sovereign rights of coastal nations.

On that basis, Vietnam needs to quickly check and supplement regulations on cultural, historical and archeological heritage in the contiguous zone into the Law on Vietnam’s Waters 2012 and Decree No. 96/2009/ND-CP dated 30/10/2009 on the disposal of buried or sunk property discovered or found attached to the mainland, the islands and waters of Vietnam.

Vietnam also should survey, research, and make a list of sites to apply for UNESCO’s underwater cultural heritage title as well as promote the knowledge of underwater cultural heritage to the public.

Nguyen Hong Thao

Silk Road on the sea, East Sea, China, Vietnam
 
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