The Chinese survey ship – Haiyang Dizhi 8 and its escorts carried out alleged geological surveys in the Exclusive Economic Zone (“EEZ“) and the continental shelf (including Tu Chinh area) of Vietnam.  In response to China’s actions, Foreign Ministry spokesperson of Vietnam reaffirmed the sovereignty of Vietnam on East Sea (also known as South China Sea).  The Vietnamese Foreign Ministry spokesperson also emphasized on the consistent policy and persistent settlement of disputes by peaceful measures in accordance with International Law.  To comply with above policy, Vietnam made a variety forms of suitable diplomatic communication such as delivering diplomatic notes to oppose China’s violations and staunchly demanding that China to stop all unlawful activities and withdraw its ships from Vietnamese waters.  The functional forces of Vietnam implemented appropriate and lawful measures[1]

However, the Chinese Foreign Ministry spokesperson made a statement that they hope Vietnam can seriously respect rights, sovereignty and jurisdiction of China in relevant waters and not take any actions that can complicate the situation.[2]  Thus, China seems to believe that the place where China’s ships conducted geological surveys is not on the EEZ and the continental shelf of Vietnam, but on their EEZ and continental shelf.  This statement shows that China continues to rely on the claim of “the Nine-Dash Line” to establish the rights, sovereignty, and jurisdiction in the EEZ and the continental shelf in East Sea.

China’s actions met with strong condemnation from the international community.  Specifically, the U.S. Department and Senior security officials have condemned ongoing provocative actions of China on East Sea and believed that China’s interference in the oil and gas activities of Vietnam was pressing and threatening energy insecurity in the region.  The U.S. requires China to stop its “bullying” acts and destabilizing actions.[3]

Finally, on August 7, 2019, the Group of Haiyang Dizhi 8 ships stopped geological surveys and withdrawn the EEZ and the continental shelf of Vietnam[4].

Were China’s actions legitimate?

The above actions show that China has not yet abandoned the Nine-Dash Line and historical rights for resources in the waters located within the Nine-Dash Line.  The Nine-Dash Line is the South China Sea (East Sea) maritime boundary that China has advocated and unilaterally declared.  The Nine-Dash Line consists of almost 80% of the area of the South China Sea and is established based on the so-called China’s historical rights, but not in accordance with the the United Nations Convention on the Law of the Sea (“UNCLOS“).

China’s assertion on its sovereignty on South China Sea has been challenged by its neighboring countries.  On January 22, 2013, Philippines made a petition in the arbitral tribunal established by Appendix VII of the UNCLOS to sue China about the unilaterally declaration regarding the sovereignty of the South China Sea under the Nine-Dash Line and some other issues.  In 2016, the award of the arbitral tribunal denied all the legal basis for the Nine-Dash Line of China. Therefore, as a member of the UNCLOS China must respect the tribunal’s the determinations of the EEZ and the continental shelf under the UNCLOS.

Under Articles 56 and 77.1 of the UNCLOS, as a coastal State, Vietnam has the sovereign rights to exploration, exploitation of natural resources and the jurisdiction in the EEZ[5] and the continental shelf.[6]  Other Member States are obliged to respect this sovereignty and jurisdiction.  No State may explore the continental shelf or exploit natural resources of the continental shelf without the express consent of the coastal State.[7]  Furthermore, Article 246 of the UNCLOS allows China to perform marine scientific research, but China must obtain a prior consent of the relevant coastal States (e.g., Vietnam).  However, China has not obtained this prior consent from Vietnam.

In addition to the UNCLOS, the Chinese vessels in issue might have been in breach of the Law on the Sea of Vietnam. Because ships, foreign organizations and individuals who want to conduct scientific research in the waters of Vietnam must have a permit from the competent authorities of Vietnam, under the supervision of Viet Nam and comply with the regulations in Article 36 of Law on the Sea of Vietnam.

What legal actions should Vietnam take?

Regarding recent China’s actions, Vietnam may take some of the following legal actions:

Firstly, under section XV of the UNCLOS after having attempted to resolve disputes by peaceful measures, Vietnam shall be entitled to choose dispute resolution methods mentioned in Article 287 of the UNCLOS including taking the case to the International Court of Justice.  However, the International Court of Justice shall not have jurisdiction unless the two parties in the dispute agree to its jurisdiction.[8]  Consequently, the most viable method is the same as the dispute between the Philippines and China, which is to use the arbitral tribunal established by Appendix VII of the UNCLOS because the consent of the other party is not necessary for proceedings before the arbitral tribunal.[9]  Because China’s actions do not satisfy the exception under Articles 297.2 and 298 of the UNCLOS, Vietnam is entitled to settle the dispute through the Permanent Court of Arbitration.

However, in order for the arbitral tribunal to have jurisdiction over the dispute, it is necessary to satisfy all of the following conditions:

  • (i) Haiyang Dizhi 8 event is a dispute on the interpretation or application of the UNCLOS;[10]
  • (ii) Vietnam has satisfied the conditions for exchange of views in accordance with Article 283 of the UNCLOS;
  • (iii) There is no dispute resolution mechanism between Vietnam and China which has the same jurisdiction as the UNCLOS;[11]
  • (iv) Vietnam and China have no agreement to exclude jurisdiction measures under the UNCLOS;[12] and
  • (v) Haiyang Dizhi 8 event is not subject to an exception under Articles 297.2 and 298 of the UNCLOS.

Conditions (i) to (iv) have been clearly met.  The issue might be whether this incident is an exception under Articles 297.2 and 298 of the UNCLOS.

The Article 297.2 exception applies only if China is recognized as the coastal State of the EEZ in issue.  As the tribunal in Philippines vs China affirmed, China is not such coastal State.  The Article 298 exception applies where the State in dispute makes reservation when signing, ratifying or acceding to the UNCLOS.  No such reservation has been made by China.

Secondly, with respect to the alleged violation of the Law on the Sea of Vietnam, Vietnam may, subject to the nature and extent of violation, discipline, sanction of administrative violations, and force China to compensate for damage.  The individuals who violate provision of the Law on the Sea of Vietnam may be subject to criminal liability in accordance with the law.[13]  Under the provisions of Articles 8.3, 8.4 and 8.5 of the Decree 162/2013/ND-CP, China may be subject to (i) penalties from VND800,000,000 to VND1,000,000,000; (ii) seizure of administrative violations; and (iii) applying remedial measures: enforced movement of people and ships away from the territorial waters, islands and continental shelf of Vietnam.

[1] https://kienthuc.net.vn/xa-hoi/tau-trung-quoc-xam-pham-bai-tu-chinh-viet-nam-bao-ve-chu-quyen-hanh-dong-nhu-nao-1255990.html

[2] https://trithucvn.net/tin-tuc-vn/vu-bai-tu-chinh-viet-nam-khang-dinh-hanh-dong-cua-tq-la-vu-viec-nghiem-trong.html

[3] https://trithucvn.net/tin-tuc-vn/vu-bai-tu-chinh-viet-nam-khang-dinh-hanh-dong-cua-tq-la-vu-viec-nghiem-trong.html

https://vnexpress.net/the-gioi/ba-he-qua-khi-trung-quoc-dieu-tau-den-vung-nam-bien-dong-cua-viet-nam-3957340.html

[4] https://www.nhandan.com.vn/chinhtri/tin-tuc-su-kien/item/41150702-nhom-tau-hai-duong-8-da-roi-khoi-vung-dac-quyen-kinh-te-va-them-luc-dia-cua-viet-nam.html

[5] Article 57 of the UNCLOS: The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured

[6] Article 76 of the UNCLOS: The continental shelf shall not extend beyond 350 nautical miles from the baselines

[7] Article 58; 77.2 of the UNCLOS

[8] Article 36 of the Statute of the International Court of Justice

[9] Article 9, Appendix VII of the UNCLOS

[10] Article 288 of the UNCLOS

[11] Article 282 of the UNCLOS

[12] Article 280 of the UNCLOS

[13] Article 53 of Law on the Sea of Vietnam


DISCLAIMER

This LBN newsletter are NOT legal advice. Readers are advised to retain a qualified lawyer, should they wish to seek legal advice. VCI Legal are certainly among those and happy to be retained, yet VCI Legal is not to be hold responsible should any reader choose to interpret/apply the regulations after reading this LBN without engaging a qualified lawyer.