MESSAGE TO THE HANOI GOVERNMENT
REGARDING THE DETERMINATION OF VIETNAM'S CONTINENTAL SHELF
NGUYEN HUU THONG, ESQ.
United Nations Convention on the Law of the Sea. (LOS Convention)
From the time when people learned to live together in society and established nations, they have created rules and regulations to address the relationship between their rights and their obligations in community activities.
The globe is made of three parts of land to seven parts of water. Therefore, if there are laws for the land, there must also be laws regulating coastal waters or maritime zones of national jurisdiction.
On December 10, 1982, 119 States signed the United Nations Convention on The Law of The Sea, including China and Vietnam. To become law, the Convention must be ratified by the majority of the States Parties. On November 16, 1993, 60 States Parties ratified the Convention and it entered into force one year later, on November 16, 1994.
The word territory includes land, coastal waters and air space.
In the coastal waters the normal baseline is the low-water line along the coast as officially recognized by the coastal State.
The territorial sea extends 12 nautical miles (22 kilometers) from the baseline.
The International Court of Justice defined "historic waters" as internal waters. Three factors are considered in determining whether a state has acquired historic title in coastal waters:
1. The state must exercise sovereign authority over the area;
2. Such exercise of authority must have been exercised regularly for a considerable time; and
3. Other states must acquiesce in such exercise of authority.
Furthermore, historic waters are just the internal waters situated on the landward side of the baseline (LOS Convention Article 8).
Therefore, the so-called "China's Historic Sea", also referred as "China's Dragon Tongue", must only include its internal waters. They cannot be the South China Sea or Southeast Asia Sea that is international waters situated 2000 kilometers from the Chinese continent.
The exclusive economic zone (EZZ) for fishing rights extends 200 nautical miles (370 kilometers) from the territorial sea.
The legal continental shelf to explore and exploit oil and natural gas corresponds with the exclusive economic zone for fishing rights and also extends 200 nautical miles from the territorial sea.
By the International Court of Justice the continental shelf is a natural prolongation, into and under the sea, of the land mass of the coastal state.
The LOS Convention (Article 76) also expands the definition of the continental shelf to include the seabed and subsoil of the submarine areas that extend throughout the natural prolongation of its land territory to the outer edge of the continental margin. However, in no event may the outer limit of the shelf exceed 350 nautical miles from the territorial sea.
In the Paracel Islands, the geological continental shelf is the natural prolongation of the land territory sloping gradually from the Truong Son Mountain Range into the ocean East of Quang Tri, Thua Thien, Quang Nam, and Quang Ngai provinces. The deepest point at the Paracel Archipelago is 900 meters. From a physical and geological viewpoint, the sea-bed area at the Paracels is a natural prolongation of the Truong Son Mountain Range from Re Cay to Triton, Pattel, and Woody Islands. They are plateaus of continental Vietnam on the surface of the ocean. If the ocean went down 900 meters, the entire Paracels would become a corridor sloping down from the Truong Son Mountains to the Southeast Asia Sea.
In 1925, after two years of research, geological analyses, physical measurements, and drawing maps of the islands and the seabed area, Doctor A. Krempt, Director of the Oceanography Institute of Indochina, concluded in his report that: "From a geological perspective, the Paracel Islands are part of Vietnam" (Geologiquement, les Paracels font partie du Vietnam).
In contrast, between the Paracels and Mainland China, there is a channel more than 2,380 meters deep. Because, unlike with Vietnam, the Paracels' seabed area is not the natural prolongation of the Chinese continent out into the ocean, China has no valid claim to expand its continental shelf from 200 to 350 nautical miles.
In addition, since the Paracel Islands are situated on the 15th to 17th North Parallels, 160 miles from the coast of Vietnam, they naturally belong to Vietnam's continental shelf.
The same arguments apply to the Spratly Islands. From a physical and geological viewpoint the seabed area at the Spratlys is a natural prolongation of the land territory. At Vanguard Bank where natural gas is being exploited, the ocean is less than 400 meters deep, and around the Spratly Islands and Amboyna Cay (which Vietnam has occupied), the depth is only 200 meters. Vanguard Bank is situated about 190 nautical miles from Vietnam's coastline and 800 nautical miles from China's. The Spratly Islands, which are located on the 12th to 8th North Parallels (from Cam Ranh to Ca Mau), are about 220 miles from the coast of Vietnam, compared to 750 miles from the coast of China. Therefore, the Spratly Islands naturally belong to Vietnam's continental shelf.
Furthermore, from a physical and geological perspective the Spratlys and Mainland China are separated by a channel more than 4,630 meters deep. Since the Spratlys' seabed area is not the natural prolongation of the land territory, China's claim to expand its continental shelf to 350 nautical miles is without foundation. In all instances, the Spratly Islands are too far from China, between 700 and 800 nautical miles (1,300 and 1,480 kilometers), considerably above the maximum 350 nautical miles allowed for the geological continental shelf under Article 76 of the Law of the Sea.
Unlike the exclusive economic zone, the continental shelf (legal or geological) of a coastal state gives it the absolute and sovereign right to explore and exploit oil and natural gas. Coastal states do not have to share these resources with any other states regardless of whether or not those resources have been exploited or only partly exploited (Articles 77 and 81). Other states have no rights to explore or exploit such resources without the express consent of the coastal state. All violations by occupation, whether armed or not, are illegal and invalid.
Furthermore, on the continental shelf, the rights of coastal states do not depend upon actual occupation, exploration, exploitation, or express proclamation. Therefore, even though Vietnam has not occupied the Paracels since 1974, it has not lost its territorial sovereignty over this Archipelago.
In 1974, 1988, and 1992, China used military power to occupy a number of islands, cays, reefs, and banks at the Paracels and Spratlys situated on Vietnam's continental shelf. Such acts were in flagrant violation of the United Nations Convention on The Law of The Sea. Still, as stipulated in Articles 77 and 81 of the Convention, this illegal occupation does not constitute for Vietnam a loss of its sovereign rights over its continental shelf. Regarding these acts of aggression, the Statute of Limitation does not run out, It is tolled. Such armed aggression cannot be condoned under the conventions and laws in vigor around the world.
Submission to Expand Vietnam's Continental Shelf
Under Article 4 of Annex II to the United Nations Convention on The Law of The Sea, coastal States have the right to submit a petition to the Commission on the Limits of the Continental Shelf to request for an expansion of their continental shelf beyond 200 nautical miles to a maximum of 350 nautical miles.
The deadline to submit particulars of such limits is 10 years from the date the Convention entered into force (November 1994).
In 1995, at the Regional Conference of the Association of South East Asian Nations (ASEAN) held in Brunei, the Vietnamese Lawyers' Committee of for People's Rights presented to the 7 chiefs of state of the ASEAN Members States a report on the territorial dispute over the Paracel and Spratly Islands from an international legal standpoint (by then Vietnam had joined ASEAN). In its conclusion, the Lawyers' Committee requested that ASEAN pass a resolution to change the name of South China Sea to Southeast Asia Sea. It also recommended that ASEAN convene multilateral negotiations to solve the disputes in the Southeast Asia Sea between Southeast Asian nations.
As for the Vietnamese delegation, the Lawyers' Committee recommended that their government gather legal scholars and experts from international oceanography organizations (such as the Oceanography Institute in Hawaii) to establish a report on the specific particulars relating to the physical and geology in the Paracel and Spratly Islands in order to request the Commission on the Limits of the Continental Shelf expand Vietnam's continental shelf from 200 to 350 nautical miles.
From a procedural standpoint the Lawyers' Committee noted that, under Article 4 of Annex II to the United Nations Convention on The Law of The Sea, the deadline for submission is 10 years, or November 2004.
It has been 14 years since that deadline, yet the Hanoi Government has remained silent and inactive. Furthermore, in 2000, it signed an unequal treaty with China on Fishing Cooperation. This treaty includes a clause stipulating that, if natural gas is discovered, both parties would exploit the natural gas together in the continental shelf of the North Vietnam Gulf.
Recently, bowing to petitions from a number of States Parties, the Commission on the Limits of the Continental Shelf agreed to extend the deadline for states who signed or joined the Convention prior to May 13, 1999 (as is the case for Vietnam) by 10 years, thereby giving them until May 13, 2009 to submit their request to expand their continental shelf from 200 to 350 nautical miles.
This decision is based on the two following facts:
1) Despite the fact that the Convention entered into force on November 16, 1994, it was not until three years later, in May 1997, that members were elected for the Commission on the Limits of the Continental Shelf.
2) Furthermore, it was not until May 13, 1999, that the Commission adopted its Scientific and Technical Guidelines in preparing their submissions of particulars.
Because of this five-year delay, the Commission agreed to a five years extension (from November 2004 to May 13, 1999) for States Parties to file their submissions.
It is worth noting that submissions do not have to include all the facts and criteria listed in the Scientific and Technical Guidelines. In such cases, requesting states can reserve themselves the right to present additional documents to complete their file.
As in 1995, today, once again, the Vietnamese Lawyers' Committee for People's Rights is sending this Vigilance Message and requests that the Hanoi Government submit without delay its submission to the Commission on the Limits of the Continental Shelf of the United Nations. The ultimate goal is to protect and maintain the territorial sovereignty of Vietnam in the various continental shelves situated at the Paracel and Spratly Archipelagos.
Together with the communities within Vietnam and overseas, the Lawyers' Committee will be watchful and will closely monitor the attitude, actions, and sense of duty of the Hanoi Government in this historic responsibility.
Written overseas on February 22, 2009.
On behalf of the Vietnamese Lawyers' Committee for People's Rights
Nguyen Huu Thong
Attorney at Law
