Three Vietnamese academics take strong issue with a recent Asia Times op-ed
By TRAN HUU DUY MINH, HOANG THI NGOC ANH And NGUYEN HAI DUYEN
SEPTEMBER 28, 2021
Chinese fishing vessels set sail for the Spratly Islands. Photo: AFP
In an article recently published by Asia Times, Mark Valencia claims that China is not the only wrongdoer in the South China Sea but Vietnam is as well. This view misinterprets the policy of China in the South China Sea.
China has not only violated the maritime rights of other states but also systemically rejects the United Nations Convention on the Law of the Sea.
China maintains maritime claims that are clearly inconsistent with UNCLOS. It denies the awards of the South China Sea Arbitration, which are final and binding. It utilizes the advantages of a more powerful country to realize aggressively its unlawful maritime claims in the South China Sea and to disturb the normal and lawful exploitation of other states’ resources in their maritime zones.
In contrast, respecting international law, including UNCLOS, remains the foundation of the position of the Association of Southeast Asian Nations regarding the South China Sea.
In 2020, under the chairmanship of Vietnam, the 36th and 37th ASEAN Summits emphasized the importance of upholding international law, including UNCLOS, in the South China Sea. Therefore, Beijing’s violations in the South China Sea are a matter of principle, not of degree.
Moreover, China is culpable for significantly changing the status quo in the South China Sea. From 2013 to 2015, it built seven artificial islands, reclaiming 17 times as much land in 20 months as all other claimants combined over the past 40 years, accounting for 95% of all reclaimed land in the Spratly Islands.
The Arbitral Tribunal in 2016 determined that China’s land reclamation in the Spratly Islands had caused irreparable harm to the marine environment and thus violated its obligation to protect and preserve the marine environment under UNCLOS. China is also building large military bases on these islands with the aim to control the whole South China Sea.
For Vietnam, the state of play has hardly changed in three decades. Its last outpost was established more than 30 years ago, in 1988.
Mark Valencia stated in his article that Vietnam had rejected the lawful claims of China in the South China Sea. That is a misunderstanding of Vietnam’s position. Vietnam recognizes China’s claims as long as those claims are consistent with UNCLOS.
Indeed, the two states concluded an agreement to delimit the waters in the Gulf of Tonkin to which both states have UNCLOS-compatible claims. In 2011, Vietnam and China signed a six-point agreement to facilitate the settlement of remaining maritime issues between the two states. They agreed that their negotiations would be conducted “based on the legal regime and principles recognized by international law, including the 1982 UN Convention on the Law of the Sea.”
However, in the South China Sea, China maintains unlawful maritime claims by interpreting international law in its own way. With the aim to gain more than what it could assert under UNCLOS 1982, China claims so-called customary “historic rights” in the South China Sea, which had been categorically rejected by the Tribunal in the South China Sea Arbitration.
Those unlawful claims have been consistently objected to by states around the world (just see the notes verbales a dozen states recently sent to the United Nations secretary general, including Malaysia, Indonesia, the Philippines, Australia, Japan, New Zealand, the United States, the United Kingdom, France and Germany).
When it comes to the Code of Conduct in the South China Sea (COC), the negotiations are being delayed by unacceptable proposals by China. Beijing insists that oil and gas exploration and exploitation by ASEAN countries in the South China Sea “shall not be conducted in cooperation with companies from countries outside the region.”
China also demands that military exercises with countries outside the region are to be prohibited. These proposals intervene in the sovereignty of a state to conduct its foreign policy.
Another issue that prolongs the negotiation of the COC is the difference in its geographical scope among ASEAN countries and China. As a semi-closed sea with competing claims to maritime features and entitlement, a single tension can potentially disturb the whole region. In practice, incidents between China and ASEAN countries have occurred in various parts of the South China Sea.
In 2014, China and Vietnam were involved in a heated confrontation when the former deployed an oil rig in the exclusive economic zone and continental shelf claimed by Vietnam. In 2019, Chinese survey vessels conducted an illegal survey in the Vanguard Bank of Vietnam.
Chinese fishing and coast-guard vessels have been regular intruders in the Philippines’ maritime zones.
Even Indonesia, which lies far south of the South China Sea, has been another target of Chinese vessels. In early 2020, they trespassed into the waters of Indonesia near the Natuna Islands, leading to a strong protest from that country’s Ministry of Foreign Affairs.
Just recently, in June 2021, 16 Chinese military planes conducted an adventurous exercise near Borneo, which was considered by Malaysia a “serious threat to [its] national security.” Malaysia even summoned the Chinese ambassador to lodge a diplomatic protest.
As the title of the COC suggests, the instrument should cover the whole South China Sea to ease tensions wherever they occur.
Saying that Vietnamese government “scholars” have used Western think-tanks to hold conferences against China is pointless. Conferences are public. Nothing is secret.
The Center for Strategic and International Studies, which is mentioned explicitly in Valencia’s article, even invited the Chinese ambassador to the US to talk about Beijing’s view on the South China Sea Arbitration on the day that the tribunal delivered the final award. Chinese government researchers were presented as speakers at CSIS’ South China Sea conferences.
As for illegal activities by Vietnamese fishermen, the situation has been significantly improved. In 2017, Vietnam did receive a “yellow card” from the European Commission. Since then, Vietnam has shown remarkable efforts to prevent and deter illegal, unreported and unregulated fishing.
The country established a national steering committee on combating IUU fishing and adopted new laws and regulations with severe sanctions for its fishermen who engage in IUU fishing. Under the Vietnamese chairmanship of ASEAN, an ASEAN Framework for Combating IUU Fishing was adopted.
IUU fishing, nevertheless, is not a key issue of the disputes in the South China Sea. What needs more focus here is China’s persistent illegal claims over the South China Sea.
In sum, there must be a reason other states are concerned about China, not Vietnam. It is not a matter of who is a worse violator, but who is trying to water down the international-law-based order in the South China Sea.
Tran Huu Duy Minh, Hoang Thi Ngoc Anh and Nguyen Hai Duyen are lecturers in the Faculty of International Law, Diplomatic Academy of Vietnam.