Thayer Consultancy

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Background Briefing: Vietnam: Law on the Sea Revisited Carlyle A. Thayer January 10, 2013

[client name deleted] Q1. In one of the last emails you sent me you wrote that in 2009 Vietnam clarified its claims in its submission to the UN Commission on the Limits of Continental Shelf. Vietnam appeared to sift from claiming the waters to claiming those features (islands and rocks) which it occupied. Vietnam hasn't yet claimed which features are islands under international law and therefore entitled to a 200 nm EEZ and continental shelf, and which features are rocks entitled to a territorial sea of 12 nm. The questions is: does the new law clarify which features are islands under international law and therefore entitled to a 200 nm EEZ and continental shelf, and which features are rocks entitled to a territorial sea of 12 nm? ANSWER: No. Vietnams Law of the Sea does not address this question. It does not individually list those island and features except references to the Paracel and Spratly islands. A claims to sovereign jurisdiction over maritime waters must be made from land. Claims to an Exclusive Economic Zone (EEZ) and territorial seas are made from baseline drawn on land features. The 2009 submission was to claim that the continental shelf extended beyond the 200 nautical mile EEZ. Q2. Last June, when the Vietnamese National Assembly adopted the law, in reaction Chinese authorities established Sansha, a prefectural-level city that administers the three disputed island groups of Nansha (Spratly Islands), Xisha (Paracel Islands), and Zhongsha (Macclesfield Bank), with the National Peoples Congress (NPC) urging Vietnam to correct the law. Now that the law is in force there have been other reactions? Which could be the effects in the maritime dispute? ANSWER: Let me observe first that Chinas administration based in the Paracels has always had responsibility for the Paracels, Macclesfield Bank and Spratly islands. The decision last year raised the status of Sansha with continuing responsibility over the two islands and bank. Vietnam has been asked to rescind its Law on the Sea. So far China has not tested Vietnams law but the incident last year involving Chinese fishing boats and the cable cutting incident are likely to be repeated. Q3. In an interview published on Vietnam Net, [http://english.vietnamnet.vn/fms/special-reports/26074/provoking-a-militarydispute-in-the-east-sea--china-s-prestige-would-plummet.html] you state that Vietnam and other regional states first much put their claims to sovereignty and

2 sovereign jurisdiction into line with international law. Vietnam claims excessive baselines (the pregnant lady) in the southeast. Vietnam should redraw this claim as the Philippines did recently when it redrew its baseline to bring them into conformity with international law. According to Article 8 of the Law of the Sea The Government of Viet Nam shall determine and, upon approval by the National Assembly's Standing Committee, publicise the baselines in areas where baselines have not been established. Does it mean that Hanoi will redrew its baseline to bring them into conformity with international law? ANSWER: Vietnamese legal scholars and maritime specialists recommended that the baselines be redrawn and this was rejected by the Politburo. Since the pregnant lady baselines have already been established, and in light of the Politburos decision, Vietnam is unlikely to make any changes. Q4. Vietnamese authorities affirm that they want to solve the dispute peacefully. However, some articles of the Law seem to contradict this wish. Like Article 26 for example: "For the sake of safeguarding the sovereignty, national defence, security and interests or securing safety of navigation, protecting marine resources and the marine ecology, combatting pollution, tackling maritime accidents or marine environmental disasters, preventing the spread of epidemics, the Government may temporarily suspend or restrict the exercise of innocent passage in specified areas in Viet Nam's territorial sea." Could you comment on that? ANSWER: There is no contradiction in my mind. A peaceful resolution of territorial disputes relates to islands and land features beyond Vietnams territorial sea. Vietnam has absolute sovereignty over its territorial sea and may put in place temporary restrictions. Vietnam could declare it will conduct live firing exercises in a particular area and restrict foreign ships from passing through the area. All the grounds listed in your question are permitted under international law. On an allied issue, Vietnam, just like the authorities in Sansha city, have the legal right to take action against foreign ships conducting illegal activities in their respective territorial sea. This includes boarding and arresting a foreign vessel. Q5. Analysts, observers and journalists focus mostly on the relationships and dispute between China and Vietnam. But according to some reports the Philippines is the legal owner of the islands in the Spratlys as it is within 200 Nautical Mile Exclusive Economic Zone said United Nations Convention on the Law of the Sea (UNCLOS)." Is that true? How is the relationship between Manila and Hanoi at the moment? ANSWER: The ancient principle of international law is the land dominates the sea. No nation, including the Philippines, can claim sovereignty over islands on the basis that they lie within that nations EEZ. A state has sovereign jurisdiction over the resources in its EEZ (in the water column and seabed). There are numerous examples in the contemporary world where one country has sovereignty over an island that lies within the EEZ of another country. The island is entitled to a 200 nm EEZ on its own. In case of overlap, the EEZ boundaries would be withdrawn to accommodate the interests of both parties. Current judgments by international courts restrict the impact of claims from small islands on the EEZ of the nearest coastline.

3 On Philippines-Vietnam relations: it should be recalled that in 2005 when the national oil companied of China and the Philippines agreed to carry out a joint marine seismic undertaking (JMSU), Vietnam protested because, it claimed, it was an infringement on its sovereignty. Later Vietnams oil company joined the JMSU. It lapsed in 2008 and was not renewed. Vietnam and the Philippines have disputes over sovereignty of islands and features in the South China Sea. A map showing a map of who occupies what features (island and rocks) reveals that many of the Vietnamese occupied features are located in what the Philippines calls the Kalayaan Island Group.Both sides have chosen to downplay their dispute. Last year Vietnam and the Philippines agreed to conduct coordinated maritime patrols in waters where the two countries have overlapping claims, according to a statement released by the Philippines Navy. This agreement was reached during discussions between Philippine Navy Flag Officer in Command Vice Admiral Alexander Pama and Vietnam Peoples Army Navy Commander Admiral Nguyen Van Hien held in Vietnam from March 11-14. The two navies plan to conduct joint naval patrols under the terms of the SOP [Standard Operating Procedures] on Personnel Interaction in the Vicinity of Southeast Cay and the Northeast Cay Island between the VPN [Vietnam Peoples Navy] and PN [Philippine Navy] as spelled out in a Memorandum of Agreement reached in October 2011. Admirals Pama and Hien also signed a MOU on the Enhancement of Mutual Cooperation and Information Sharing between the two navies; the MOU includes a provision for a hotline between the operations centres of the two navies and possible cooperation in shipbuilding. Vietnam has given diplomatic support to the Philippines within ASEAN, especially during the contretemps involving Cambodia as ASEAN Chair. Vietnam share a mutual interest with the Philippines vis--vis China. There is a convergence but not congruence of interests. Vietnam plays its diplomatic hand in quieter more subtle manner than the Philippines. Also, Vietnam will not let its ties with the Philippines impact negatively on its ties with China. Suggested citation: Carlyle A. Thayer, Vietnam: Law on the Sea Revisited, Thayer Consultancy Background Brief, January 10, 2013.