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Frequently Asked Questions (FAQ) on the South China Sea (The East Sea or The West Philippines Sea)

(1) On Binh Minh 2 incident 26/05/2011 and Viking 2 incident on 9 June 2011

It is incredible that a government like China can lie not to its own people but to the world as well even though the evidence is so clear that Chinese boats cutting Vietnamese survey ship within the EEZ of Vietnam. Here is the youtube video of the event at sea

Perhaps the Chinese lies and fabrication is not surprised at all as the Chinese government to this day still denies that the Tianmen Square Massacre of their young educated students did not happen.

Such an ultra-nationalist is dangerous to the world. I hope that the majority of Chinese people is more rational. I have a number of Chinese friends mostly western-educated and very reasonable. We should strive for a logical and sensible solution in a spirit of a law-abiding world.China is a worthwhile power if it carry the spirit of justice and act like a responsible country in the affair of the world, then it will be admired by other countries and its cultural values will be adopted. I have nothing against China and hope that its people will be open-minded and democratic one day as the hope of many young intellectual students in 1989. A future dynamic and flexible China that is imbued with universal values can only be good to the world.

With regards to the short video you have seen, it was made by the seismic vessel team. This vessel was captained by a Russian engineer hired by Petro-Vietnam. It was not made by a teen-ager. The GPS coordinates of the location was recorded here in the long video here.

This reminds everyone that the same thing happened last year when a Chinese boat tried to ram a Japanese coastguard ship. The Chinese authority immediately then said that the Japanese ship harassed the Chinese ship and kidnapped the Chinese captain illegally. But as soon as the Japanese coastguard released the video on national TV and youtube, the Chinese government changed tact and made a fuss about Japan evil past and unleash a torrent of ultra-nationalist demonstration and boycott of Japanese business as well stopping the supplies of rare earth materials to Japanese companies to distract the blunder and lies.

Yes indeed the Russian engineer was interviewed in national newspapers and TV.

Don’t you see the Chinese ship in the Petro-Vietnam video is a China Marine Surveillance ship (white painted) NOT a poor fisherman fishing ship.

No one recognised these disputed islands as part of China in the past and the present.

Also, the recent tension has nothing to do with the disputed islands (Paracel and Spratly). The action of China (cutting cables of the Vietnamese ships and chasing away the seismic vessel of the Philippines) were far away from the disputed islands (beyond 200 miles), but happened within the continental shelf and EEZ of Vietnam and the Philippines. That’s why these two countries are so angry.

China claimed the u-shaped line covering nearly the entire South China Sea (or East Sea or West Philippines Sea) has no basis in UNCLOS law. And this is why China tried to divert the issue to the disputed islands. So talking about the Spratly or Paracel on the recent action of China is not the point and the reason for the reaction of Vietnam and the Philippines.

The ancestors of the Filipino people had been to the Spratly islands a long time, even before the Warring States Period inChinaand of course before China was unified under the Han dynasty.

Irrespective of whom claimed ‘historic’ seas, ‘historic’ islands, the Paracel and Spratly islands were not inhabited until recently. Before that only fishermen from many countries visited them.

The two relevant documents to the disputed islands are the UN Convention on the law of The Seas (UNCLOS) and The Declaration on the Conduct of Parties (DOC) on the South China Sea (or East Sea or West Philippine Sea).

The first document, UNCLOS, is international law (China is a signature) while the DOC is a non-binding declaration between China and ASEAN countries on the conduct regarding to the disputed islands.

The recent tension has nothing to do with the disputed Spratly islands. It is due to the u-shaped line covering nearly the entire South China Sea (East Sea or West Philippines Sea) which China claimed. This line went beyond and deep inside the continent shelf and EEZ of Vietnam and the Philippines. This u-shaped line has no basis in UNCLOS and China knows this. Their u-shape claim was lodged in haste by China recently in 2008 after China was surprised by the Malaysia-Vietnam joint submission on the delineation of the continental shelf between the two countries before the deadline as specified by the treaty to UNCLOS.

The locations where China surveillance ships cut off the cables of the Vietnamese exploration ships and chased away the Philippine seismic ship happened within Vietnam continental shelf and within the EEZ of the Philippines. The locations were very far from the disputed islands (much beyond 200 miles of the Spratly) and about 180 miles from Vietnam coast and 80 miles from the Philippines. This was the reason why these two countries were so upset by China action.

The discussion about the disputed islands is a red herring. It is not the real issue.China is diverting attention to those islands and trying to confuse the issues.

For both the Paracel and Spratly islands, fishermen from nations (around the “South China Sea”, ‘The East Sea” or “The West Philippines Sea”) had visited them for centuries. The Austronesian-speaking people were probably the first as they migrated from the Archipelago to the mainland South East Asia (and founded the ancient kingdom of Champa, and probably the Funan kingdom as well in the 3rd century BC).

Fishermen visited the places does not mean they belonged to the nation from where these fishermen came from. The continuous human occupation and the traditional cultural linkage of the island-inhabited people to the country is the basis of the UNCLOS law of the sea. Human occupation of the Paracel and Spratly only started in the early parts of the 20th century. Vietnamese and French personnel were in the Paracels and Spratly in the 1940s. Chinese human inhabitation was only recently in the late 1950s (by army personnel of the Taiwanese ROC).

China needs to be enlightened, if it is so sure, bring the issue to International Court of Justice and solve it logically and fairly to all parties.

The areas where Vietnam (and Philippines) explored are within 200 miles economic zone of their continental shelf which is not in dispute and far from the Spratly islands which does not have a continental shelf.China claim is illegal and absolutely in contrary to the UN law of the sea (UNCLOS). The approach to solve the issue is not the “Bruce Lee” kung-fu styled approach but an approach which is much civilised, it is called the International Tribunal on the Law of the Sea (ITLOS).

(2) On Pham Van Dong diplomatic note to Chou En Lai in September 1958

You have to understand the context and international situation at that time and the reason of that note given to China to see that the North Vietnamese PM Pham Van Dong actually did not support or endorse China ownership of the Paracel and Spratly islands.

1958 was a dangerous year for China. The Taiwanese strait crisis, in which China PLA was battling with the Kuomingtan forces (representing the Republic of China, ROC) on the Matsu and Kinmen islands, was flaring up dangerously with artillery duels between the two forces. The US fleet was sailing to theTaiwanese Strait to support the ROC force. There was talk in the US of using nuclear weapons to repulse the Chinese communist attack on the Matsu and Kinmen islands from the mainland (Fujian).China then declared 12 miles territorial water around its coast and all islands that it purports to claim to prevent the incoming intrusion of the US fleet. In this crisis, the Chinese People’s Congress passed this declaration quickly.

In solidarity with the People Republic of China (PRC), North Vietnam’s comrade in arm and in ideology, the North Vietnamese Prime Minister at that time, Pham Van Dong, sent a diplomatic note to the Prime Minister of the PRC, Chou En Lai, to support the PRC 12 miles territorial water declaration, without mentioning anything about the Paracel or Spratly islands.

The purpose of the diplomatic note was to support the PRC in the impending crisis in theTaiwanese Strait and in its struggle with the US and the ROC forces. At that time, both the Paracel and Spratly islands were in the hand of the South Vietnam government. These islands were handed over from the French (except some islands of the Amphitrite group in the Paracel and islands occupied by the Philippines and one big island called Itu Aba or Taiping occupied by ROC force after the Second World War in the Spratly islands).

Since then China has used this solidarity diplomatic note to claim that Vietnam recognised China ownership of the Paracel and Spratly islands. It is a cynical ruse by China, taking advantage of the good will of the North Vietnam PM extending to Chinain the support of North Vietnam to the People Republic of China against the US threat.

After the end of the Vietnam War in 1975, and then after the unification ofVietnam, the National Assembly of Vietnam never passed any law or declaration to cede the Paracel and the Spratly islands toChina.

(3) The Paracel, Spratly Islands and Scarborough shoal

 

The Paracel islands are divided into two groups: the Crescent group in the west and the Amphitrite group in the east.

(a) The Crescent group was occupied by the French before 1933 and afterward transferred to the South Vietnamese Government before the Chinese seized it in 1974.

(b) The Amphitrite group: Before the French claimed, on behalf of the protectorate Annam emperor, the Paracel Island and sent troops to the Crescent group, on the Amphitrite group the Japanese employed Chinese workers to built a port to exploit bird-derived phosphate deposit. That was the reason that the French did not send troop to the Amphitrite group. This Amphitrite group was later occupied by the ROC nationalist after the war and then when the ROC withdrawed in 1949, the PRC came to occupy it.

(c) For a long time after Vietnam was occupied by the French, the Vietnamese emperor officially no longer sent people to the Paracel and this is the reason Japan and China can send people to exploit the phosphate deposit about 1907. Regrettably the French did not protest and assert the Vietnamese claim at that time. Only until 1933, when there was a public pressure in the colony to pressure the French to protect the Vietnamese claims. Only then the French declared the Vietnamese claim on the Paracel Islands. Despite of this, at no time thatVietnamrelinquishes the Paracel island to China. And before the World War II,Japan and China never show any interest on the Crescent group as there is no phosphate there for them to exploit.

As mentioned before, the Paracel islands were divided into 2 main groups: the Crescent group in the west and the Amphitrite group in the east. No human occupation before the 1930 until the French sent personnel to administer the Crescent group while in the Amphitrite group the Japanese hired Chinese workers to exploit phosphate deposit. The French therefore did not want to assert physical presence there even they claimed the whole Paracel Islands based on Vietnam imperial past presence on the Islands. After the war, the Chinese nationalist occupied the Amphitrite group. When the French left, the South Vietnam took over the Crescent group.

Woody Island (Phú Lâm) in Amphitrite group with an area of 2,1km2. The Woody Island hosts a range of military related infrastructure including a well developed 2350 meter runway for military aircraft, a mobile missile battery, naval facilities for ships and a network of intelligence and communication infrastructure.

 

 

 

 

Pattle Island (Hoàng Sa) in the Crescent groupArea of the island is about 0.5 km2 before being expanded further by human.

The Paracel Islands are surrounded by productive fishing grounds and by potential oil and gas reserves. In 1932, French Indochina annexed the islands and set up a weather station on Pattle Island; maintenance was continued by its successor, Vietnam. China has occupied all theParacelIslands since 1974, when its troops seized a South Vietnamese garrison occupying the western islands.China built a military installation on Woody Island with an airfield and artificial harbour. The islands also are claimed byTaiwan andVietnam. It has an airport with 1,524 to 2,437 m runway.

Pattle island in the Crescent group(seized by China in a bloody battle in 1974)

(b) The Spratly islands

Itu Aba island in the Spratly is the largest with an area about 5.2km2, length 1400m and width 400m. Itu Aba is a sandy cay, rising to 2.4 meters near its centre. The island is about 1400 meters from northeast to southwest and about 600 meters wide. The first European who visited the island seems to be Antonio de Manchene in the mid of the 16th century. The English Henry Spratly in 1767 named the complete reef area by his ship’s name ‘Tizard’, a name known till today. In 1944 the Japanese occupied all islands on the Tizard Bank and built up a submarine base on Itu Aba Island, and a radio base on the southern Namyit Island. After WW II  The Philippines officially claimed in 1947 the complete reef, but in 1955 Taiwan built up a military garrison with about 400 soldiers on Itu Aba and later on Vietnam built a base on Namyit Island. In 1974 the Philippines protested in the UNO about the claim of Taiwan and Vietnam, but without success.

(c) The Scarborough shoal

The shoal is not part of the Paracel or the Spratly islands. It lies closed to the Luzon island of the Philippines, about 120 miles. The Philippines asserted its sovereign rights in 1997

(4) On legal jurisdiction of the East Sea

You quote the wrong Article. Article 40 only applies to Straits not open sea. This only applies to straits such as Malacca strait. Part 3 is “Straits used for international navigation”. The relevant parts are Part 5 and Part 6 which deal with sea (such as ‘South China Sea’, or ‘East Sea’ or ‘West Philippines Sea’). The articles that are applied to the current issue (exploitation of oil, gas) are Article 56 (part 5), article 76, 77 (part 6).

You can only exploit the under seabed resources if it is within the continental shelf or the EEZ. For coastal states, most of the times the EEZ is about the size of the continental shelf or within the continental shelf (the continental shelf can be larger than 200 miles). So even if China owned the whole Spratly islands, she could only claim the EEZ (200 miles around) but these islands does not have a continental shelf. Also if the islands are not economic self-sustained (like few people and completely dependent on outside help) then they are allowed only the 12 miles territorial water not 200 miles EEZ. This applies to all coastal states (like China, Vietnam, Malaysia) except the Archilagic States (such as the Philippines and Indonesia) in which they can have EEZ as if it is continental shelf

The areas that Vietnam and the Philippines explored for oil and gas are about 180 miles and 60 miles respectively within their continental shelf and EEZ.

You have to understand the concept of baseline, continental shelf and exclusive economic zone (EEZ) to resolve the issue here.

Here are the relevant articles of UNCLOS:

Article56

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

Article 56 (part 5)

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

Article 76 (part 6)

Definition of the continental shelf

1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Article 77 (Part 6):

Rights of the coastal State over the continental shelf

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

There is a newly-elected Chinese judge on the International Tribunal on the Law of the Sea (ITLOS). This tribunal body is composed of 21 internationally-reputed judges. So far China refuses to agree to jointly submit the case to ITLOS. You could write to the newly-elected judge and strongly adviseChinato agree to jointly submit and pursue the case to prove China and your point is right. That would be a great service toChina.

China signed and ratified but ignores the provisions. The US signed and not ratified.

In 2007 President Bush and the Senate Foreign Committee urged the Senate to pass and ratify the UNCLOS. But it was bogged down by the Republican conservatives. The US is in a disadvantaged position by not ratifying the Treaty (even though it participated and was a driving force of laying out the treaty. Much like the Kyoto Protocol, its idea of Carbon trading mechanism is such a novel approach that the European adopted enthusiastically, thank to the pioneering experience of the US SO2 emission trading scheme in the East Coast).

Not ratifying UNCLOS means that the US does not have a member in the International Tribunal of the law of the Sea (ITLOS) and can not participate in many of the activities there. Many interesting cases were brought before the ITLOS such as the cases between Russia vs.Japan, Singapore vs.Malaysia, Japan vs.Australia and New Zealand in the Southern Ocean, Germany vs.Netherlands….

Not only that, not ratifying the UNCLOS also means that the 200 miles Exclusive Economic Zone (EEZ) of the US can belong to any country which care to go there and exploit the marine resources and oil under its seabed and nothing the US can do about it (but realistically no country wants to do it even the mighty Soviet Union in the past did not).

In 2009, Secretary of State Hillary Clinton said the ratifying of UNCLOS was her priority but so far we hear little of it.

It is right time that the US Senate should pass the UNCLOS. The stumbling block is some conservative Republicans are still opposing it, especially when the Republican now controls both Houses.

The current problem in the South China Sea is that the U-shaped claim of China violates the UNCLOS provisions (i am not talking about the disputed Spratly and Paracel islands which in itself is a separate issue). The claim extended nearly the entire South China Sea, beyond even the 200 miles around the two disputed groups of islands, deep inside the EEZ of Vietnam and the Philippines. As China uses this claim to overrule the UNCLOS law and refuses to go to the ITLOS for dispute settlement, this is why Vietnam, the Philippines were very upset recently when China really means it in its outrageous claim and hence causes alarms in other countries (Indonesia, Malaysia and even Australia and of course the US). But recently, the Philippines unilaterally said it will bring this matter anyway to the ITLOS even without the consent of China or Vietnam.

(5) History of the human navigation and trade in theEast Sea

The Austronesian speaking people had sailed and migrated from the archipelago islands to the south-eastasiamainland to found the ancient Champa kingdom and the Funam kingdom in the 5th century BC. These great seafaring Austronesian people colonised the Pacific islands (up to Easter Island) and even to Madagascar off the coast of Africa, after crossing theIndian Ocean. They set up the Nusanto trade network between the Indonesian and Filipino islands and along the coast from southern China,Taiwan, Champa (Central Vietnam nowadays) to the gulf of Thailand.

They and the Austroasiatic people on the SE Asian mainland forms the backbone of the people of South East Asia today. Indian and sinitic influence is only the veneer but South East Asian is in the inner core. Vietnam joined ASEAN more than a decade ago was a tremendous breakthrough, a return back to its origin and started to escape the hard-edge inflexible sinitic influence from the north.

Vietnamese are basically Austroasiatic who moved north to the south of Yangzhe (vestige of Vietnamese language is mon-Khmer root) with an additional pool of Austronesian people originated from the coast (including Champa and people in the Central Highland of Vietnam, like the Raglai, the Ede…).

The Han further north of Yangshe and HuangHa rivers called the diverse group of people in the south of Yangzhe river as Baiyueh or Bach Viet (hundreds Yuehs). The “Yueh” consisted of many related people, from yueh of Zheijang (nowaday the province at the mouth of Yangzhe river near Shanghai), Min-yueh of Fujian (a lot of them lives also in Taiwan, and a lot migrated to southern Vietnam and South East Asia later), Nan-Yueh (Guangdong) and Lac-Yueh in nowaday Red River delta.

Genetic studies recently showed that the genetic diversity of mitondria in the people south of Yangzhe river is much more than the Han in the north. This shows that they are older than the Han. After modern humans left Africa about 80000 years ago to move along the coast from the Red Sea, Arabia Peninsular, India, South East Asia, they split into two main groups: one moved north to southern China then north China and across the Bering strait to the Americas, the other group moved south to the Sundaland (Indonesia, Philippine at that time connected to the SE Asia mainland via the Sunda shelf which was exposed during the ice age) and finally to Australia via land bridge (when the sea level is 180m below the current level).

We are all closely related, my friend. The degree of relatedness is depending on your current ethnic origin. If my friend is Han then he only related a tweeny bit with me (as Austroasiatic). But if he is a Fukien or Cantonese then he related to me much more. But I also related strongly to Austronesian.

(6 ) Future resolution of the Paracel and theSpratlyIslands

Vietnam economy is like China one, a state capitalist system while politically controlled by the Communist party. One day it will be democratic and hopefully China will be too. Even though the economy is much better now than 20 years ago but people don’t live by bread alone, they needs freedom, choice and the right to elect the government that represent them. People are mature enough now (the middle class is rising fast) that they don’t need the government to decide for them on all matters in life. They yearn for civil society, the right to form clubs, organisation,  papers… without having to be told by the party or government.

Many young people are now studying abroad in Europe, Australia, US.. They will be imbued with universal values and hopefully the transition to a a democratic society will be lead by these people. A vibrant democracy likeTaiwan or Korea will be a good model. And I sincerely hope too that China will be the same and having a prosperous, stable mature democratic state worthy of its civilisation. And we can solve the problem in the spirit of fairness in a law-abiding world.

Europeans (like Germany and France) can do it to form the European Union so why don’t we Asians can do it too. When man of good will (and governments of good will) get together, then everything is possible. Nationalism will be tempered and then trust will not be in short supply.

Yes, the Vietnamese claim of the Spratly islands overlapped with the Philippine claim. In 2012, the two sides are now coming to resolve the issue by first drafting a Code of Conduct (COD) that can become the basis of COD between ASEAN and China in the future.

Philippines foreign minister 2 years ago (2010) said: “what is ours is ours but what is disputed we can share”. That is the clearest (and most reasonable) message from the Philippines (the Scarborough shoal, being close to Luzon and not part of the Spratly is belonged to the Philippines but the Spratly can be shared).

The naval Chief of the Philippines visited Vietnam recently to cement the ties and coordinate a common platform. The Vietnamese side, which always said (like China) in the past to enjoy the “undisputable” rights to both the Spratly and the Paracel, is less rigid than before (due to nationalist pressure, not unlike China).

The fruit of the new cooperation is the backing of Vietnam recently to the suggestion by the Philippines at the ASEAN conference in Phnom Penh 2012 to have an ASEAN COD first before having it discussed with China. And a few weeks ago (3/2012), there was a soccer match on the SouthWest Cay (Song Tu Tay) island between the residents of this island and the residents of the Philippine-held island of Pagasa in the Spratly Islands..

I think the nationalists on both sides are more amenable to international understanding and resolution in the spirit of ASEAN community (a process like that of the French and German-led European community in the 1980s).


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