By Huy Duong Contributor
ON May 26, 2011, tension in the South China Sea was ratcheted up a further notch when three Chinese marine surveillance ships threatened the Vietnamese seismic survey ship Binh Minh 02 and sabotaged several of the latter’s seismic equipment. The incident took place 120 nautical miles from Vietnam’s mainland coast, 340 nautical miles from China’s Hainan Island. It is closer to the Vietnamese coast than to the contested Paracels or Spratlys.
According to international law and state practice, the Spratlys and Paracels’ islands and rocks are only entitled to either a territorial sea of 12 nautical miles, or, at most, a territorial sea plus an exclusive economic zone (EEZ) that does not extend much beyond 12 nautical miles.
According to the case law of international courts and tribunals, a test for fairness in maritime delimitation is the proportionality principle, which states that the ratio of maritime space awarded to two competing geological features should be roughly the same as the ratio of the lengths of those features’ relevant coastlines. The Spratlys and Paracels are groups of tiny features; their combined coastlines are far shorter than those around the South China Sea. As such, even if they deserve EEZs, those EEZs cannot extend significantly beyond 12 nautical miles. By any stretch of the imagination, the Spratlys and Paracels’ EEZs, i.e., the contested area, cannot possibly extend to anywhere near the midline between them and other territories.
War of words
It is interesting to follow the ensuing war of words between Vietnam and China.
On May 27, 2011, Vietnam sent a diplomatic note to the Chinese ambassador in Hanoi accusing China of violating the United Nations Convention on the Law of the Sea (UNCLOS) and Vietnam’s sovereign rights in its exclusive economic zone and continental shelf.
The following day, China retorted, “What relevant Chinese departments did was completely normal marine law-enforcement and surveillance activities in China’s jurisdictional sea area.”
As the term “jurisdictional sea area” is not one of the maritime zones defined in UNCLOS, it remains unclear what China meant by it and what the legal basis for it is.
The exchange of barbs continued on May 29, 2011, when Vietnam retorted that, “the area where Viet Nam conducted exploration activities situates entirely in the exclusive economic zone and the 200-nautical mile continental shelf of Viet Nam in accordance with the 1982 United Nations Convention on the Law of the Sea. It is neither a disputed area nor is it an area ‘managed by China.’ China has deliberately misled the public into thinking that it is a disputed area.”
Effectively, Vietnam was saying that the area was not part of the Paracels and Spratlys disputes.
Not to be outdone, on May 31, 2011, China hit back with, “The law enforcement activities by Chinese maritime surveillance ships against Vietnam’s illegally operating ships are completely justified. We urge Vietnam to immediately stop infringement activities and refrain from creating new troubles.”
Once again, China did not state its claim in terms of UNCLOS maritime zones. Neither did it specify any limit or cite international law to support its claim.
This incident bears striking resemblance to the one at the Reed Bank in March 2011, when two Chinese patrol boats threatened a seismic survey ship operating on behalf of the Philippines. That incident also took place nearer to Palawan than to the contested Spratlys. That time, China also asserted its claim to the area without saying which UNCLOS maritime zone it claims the area as, without specifying any limit, and without citing international law to support its claim. The Philippines’ riposte was also that the Reed Bank is not part of the Spratlys and, therefore, is not subjected to the Spratlys dispute.
In the past, China has made claims against Malaysia at James’ Shoal, against Indonesia over the waters near the Natuna Islands, and against Vietnam in the Vanguard Bank and Blue Dragon areas. These claims and the Reed Bank and Binh Minh incidents should dispel any doubt that China is trying to expand the contested areas well beyond the disputed Paracels, Spratlys and Scarborough Reef, and beyond the waters belonging to these island groups.
Although the Philippines, Vietnam, Malaysia, Indonesia and Brunei are all directly affected by this expansion, the Philippines and Vietnam, being the countries that are nearest to China, will bear its brunt.
Firstly, these two nations’ maritime spaces will be affected the most.
Secondly, if China does not try to claim the Philippines’ and Vietnam’s maritime spaces, its claims over Malaysia’s, Indonesia’s and Brunei’s will disintegrate. This means that while China might possibly make compromises at the southern tip of its notorious U shaped line to keep Malaysia, Indonesia and Brunei quiet while it deals with the Philippines and Vietnam first, it is unlikely to voluntarily scale down its claims in the Philippines’ and Vietnam’s maritime spaces.
Here it must be said as an aside that if China is successful in getting its ways with Philippines and Vietnam, the turn of Malaysia, Indonesia and Brunei to be violated will come.
Therefore both the Philippines and Vietnam are in a situation where they need to seriously protect the maritime space that is vital to each nation’s economy, security and national independence.
Although there remain differences between Philippines and Vietnam over the Spratlys, there is much more scope for the two nations to co-operate in defending their respective maritime spaces that do not belong to the Spratlys. Furthermore, given China’s extensive claims, the maritime space that does not belong to the Spratlys, but is affected by these claims, might well be far more significant than that which belongs to the Spratlys.
PH note verbale
The Philippines’ note verbale to the Commission on the Limits of the Continental Shelf after the Reed Bank shows that the nation is applying UNCLOS to defend its rights in the South China Sea. With Vietnam using the same body of law, the two nations have a common framework for communication, understanding and co-operation.
As an example, if Vietnam and the Philippines could voice diplomatic support for each other in incidents such as the Reed Bank and Binh Minh ones, it would benefit both nations.
More fundamentally, experts and diplomats of the two nations should get together with their counterparts from Malaysia, Brunei and Indonesia to decide what exactly the Spratlys consist of, and how much maritime space actually belongs to the Spratlys. Through this, these five nations will agree and define where the contested and uncontested areas are in the South China Sea. This will help them in individually and collectively opposing China’s attempts to expand the South China Sea dispute into uncontested areas. It will also help to convince the world of the merit of their case.
Another action which the Philippines and Vietnam could take is to explore the possibility if the two nations, probably with the addition of Malaysia and Brunei, could make joint submissions of their continental shelf claims to the Commission on the Limits of the Continental Shelf.
Both of the above actions would be without prejudice to the question of sovereignty over the Spratlys, and would benefit the Philippines and Vietnam enormously in their opposition against China’s claims in the South China Sea.