Guiding principles for settling Viet Nam - China maritime issues
  • | Hoang Truong | October 29, 2011 08:00 AM

During the official visit to China by General Secretary Nguyen Phu Trong (October 11-15, 2011), Viet Nam and China signed the Agreement on the basic principles guiding the settlement of maritime issues between the Government of the Socialist Republic of Viet Nam and the Government of the People’s Republic of China (herein referred to as the Agreement). The signing of this Agreement is of great significance, given the complicated developments in the East Sea particularly. Although some points in the Agreement remain vague, it could be said that the Agreement has recognized some basic principles guiding the settlement of disputes in the East Sea by peaceful means. To have a correct view and understanding of this recently signed Agreement, we should go into its details.

Signing ceremony of Vietnam-China Agreement on basic principles guiding the settlement of sea-related issues.

First, Article 2 of the Agreement on the search for fundamental and lasting solutions to the East Sea issues has identified that international law and in particular, the 1982 UN Convention on the Law of the Sea, that both Viet Nam and China are parties to, will be used as the basis for the settlement of disputes in the East Sea. This is a particular important content as it serves as the legal foundation for the two sides to discuss the settlement of maritime issues. If this principle is seriously observed, the two sides would definitely be able to find fair, reasonable and mutually acceptable solutions to disputes in the East Sea.

Article 2 of the Agreement also clearly states that “it is essential to fully respect legal evidences”. This statement means that legal evidences and materials will be used as the main bases to settle disputes. Other factors such as history and topography, etc. will be considered as the supplementary ones during dispute settlement. This is totally in line with international practices in solving territorial and border disputes in the world. Reality in solving territorial and border disputes shows that historical and other relevant factors such as topography and de facto administration would only be taken into account once the legal evidences are unclear. In this connection, the legal documents on sovereignty of the Vietnamese feudal state such as the official documents and royal ordinances, etc... will be very precious in the settlement of the issues in the Paracel islands because they clearly prove Viet Nam’s administration of this group of islands. Historical factor here does not mean reference to the “nine-dotted line” claim by China because throughout the Chinese history, China has never had real administration over the nine-dotted line”. Moreover, the “nine-dotted line” of China is legally groundless and not supported by any country.

Second, Article 3 of the Agreement says that “in the negotiations on maritime issues, the two sides shall seriously observe the agreements and common perception reached by the two countries’ high-level leaders and shall adhere to the principles and spirit of the “Declaration on the Conduct of Parties in the South China Sea (DOC)”. This content is very important to the maintenance of peace and stability in the East Sea. DOC is an important document signed between ASEAN and China, providing crucial regulations (i.e. respecting freedom of navigation and aviation in the East Sea; restraining from taking actions that might further complicate the disputes or negatively affect peace and stability; committing to exerting more efforts aimed at confidence building; seeking and conducting possible cooperation activities in the less sensitive fields while searching for comprehensive and lasting solutions to the East Sea disputes; and most importantly, not to use or threat to use force in the East Sea). These principles should be seriously implemented by the parties concerned in order to maintain peace and stability in the East Sea. Recently, ASEAN and China have signed the Guidelines on the implementation of DOC and as such, the serious implementation of the DOC is the responsibility of each signatory.

Third, one of the most important contents demonstrating the consistent viewpoint of Viet Nam on the modalities to settle maritime issues both bilaterally and multilaterally has been acknowledged in Article 3 of the Agreement, which states that “on maritime disputes between Viet Nam and China, the two sides shall resolve the disputes through friendly negotiations and consultations. If the disputes involve other countries, the consultations shall include all other parties concerned.” This means that Viet Nam and China can only resolve bilateral disputes such as the Paracel Islands or the Mouth of Tonkin Gulf and cannot resolve other disputes involving other parties such as the Spratly Islands. This is also the first time China signed an official document stating that disputes involving many parties should be discussed with those concerned. These points of the Agreement have opened up opportunities to settle the disputes multilaterally in the East Sea. This content is compatible with the common views of countries inside and outside the region, in line with the current state of affairs of the disputes in the East Sea and with the current trend of dispute settlement involving many parties in modern international relations.

The East Sea issues are very complex and related to the interest of many countries and parties. According to Article 3 of the Agreement, we can understand that with respect to the resolution of the East Sea disputes, the matters only related to Viet Nam and China such as the demarcation of the overlapping waters off the mouth of the Gulf of Tonkin and the issue of the Paracel Islands can be resolved bilaterally between Viet Nam and China while the Spratly Islands disputes shall be discussed and resolved among the parties concerned. The issue of the maintenance of peace, stability and maritime safety and security in the East Sea shall be discussed among all parties concerned and interested.

Fourth, one of the noticeable issues in the Agreement is mentioned in Article 4. The two sides have determined that “In the process of seeking fundamental and lasting solutions to maritime issues, in the spirit of mutual respect, equal treatment and mutual benefits, the two sides shall discuss provisional and temporary solutions without affecting each sides’ positions and policies, including the active consideration and discussion on cooperation for joint development based on the principles mentioned in Article 2 of this Agreement”.

With this, the two sides have brought up a possibility of a temporary solution to the disputed areas, including cooperation for joint development as provided for in Article 2 of the Agreement, which means on the basis of the international law and the 1982 UN Convention on the Law of the Sea. The provisional solution of cooperation for joint development is in line with international law and practices. The temporary arrangement of “cooperation for joint development” was recommended in Articles 74 and 83 of the 1982 UN Convention on Law of the Sea. Accordingly, pending a solution to demarcate the continental shelf and the exclusive economic zone, countries could arrange a practical and temporary solution. The temporary arrangements shall not affect the final demarcation. In the world, there have been many temporary arrangements of “cooperation for joint development” under various forms and in different areas (fishery, oil and gas, etc...). In the Asia-Pacific, the 1974 Agreement between Japan and the Republic of Korea concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, the 1989 Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, etc. are some examples. In 1992, Viet Nam also signed an agreement with Malaysia on oil and gas joint production in an overlapping area and up to now this agreement has been expeditiously implemented.

With the incorporation of this content into the Agreement, we clearly show the attitude and spirit of cooperation to maintain peace and stability at sea. One point stressed in this regard is that Article 76 of the UNCLOS clearly provides that the exclusive economic zone and continental shelf of a coastal state span at least 200 nautical miles from the baseline and may even extend up to 350 nautical miles. Therefore, according to the 1982 UNCLOS, the exclusive zone and continental shelf of a coastal state must be respected while seeking for a temporary and provisional solution for joint development. Therefore, cooperation for joint development could only be conducted in the areas of real disputes beyond Viet Nam’s continental shelf of 200 nautical miles.

Besides, the Agreement also puts in place some other principles, i.e. settling maritime issues incrementally, taking the easier ones first; steadfastly speeding up negotiations on demarcation of the waters at the baymouth of the Gulf of Tonkin and at the same time actively discussing cooperation for joint development in these waters; actively promoting cooperation in the less sensitive fields like marine environmental protection, scientific research, search and rescue, and prevention and mitigation of natural disasters; making efforts to enhance mutual trust to facilitate the settlement of more difficult matters. The two sides agreed to conduct periodical meetings between the Heads of Governmental delegations for border negotiations twice a year, establish a hotline between the Governmental delegations to exchange views and address maritime issues in an appropriate and timely manner.

The outcomes of a negotiation are always the compromise of each side’s interest to find out a common voice acceptable to both sides rather than a win-lose situation. The Agreement fundamentally ensures the major principles of Viet Nam’s position, which is to settle disputes in the East Sea on the basis of international law, the 1982 UNCLOS, and to strictly observe the DOC to maintain peace and stability in the East Sea, to settle disputes in the East Sea both bilaterally and multilaterally, to conduct cooperation for joint development in compliance with international law and the 1982 UNCLOS. That would also mean the respect for the exclusive economic zone and continental shelf of coastal states.

In conclusion, with such analysis, the signing of the Agreement on Basic Principles Guiding the Settlement of Maritime Issues has created a legal basis for negotiations to discuss and settle disputes in the East Sea. However, this is only the first step in the course of settling maritime issues between Viet Nam and China. The situation of the East Sea might go through a lot of complications with further difficult works to be done. A provisional or a lasting solution to disputes in the East Sea will require efforts and goodwill from both sides, particularly the serious implementation of the principles provided for in the Agreement. Moreover, the issues of the East Sea are sensitive and attract the interests of the international community. Therefore, the process of addressing concrete matters related to the East Sea must be open and transparent. Publishing the full texts of the Agreement on Basic Principles Guiding the Settlement of Maritime Issues right after its signing is a right way, which needs to be upheld in the future.

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