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2019-09-10  |  BY Lei Xiaolu

Bilateral Talks: The Best and Only Option for China and Vietnam to Resolve South China Sea Disputes

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Recently, the US, European Union (EU) and other non-regional powers have voiced “concern” over reports of China’s “continuing interference with Vietnam’s longstanding oil and gas activities in Vietnam’s Exclusive Economic Zone (EEZ).” They argued that “China’s actions undermine regional peace and security… and demonstrated China’s disregard for the rights of countries to undertake economic activities in their EEZs” in accordance with the United Nations Convention on the Law of the Sea (hereinafter referred to as the Convention). Therefore, they have called upon all countries to comply with the Convention and respect the South China Sea arbitration ruling in 2016. The EU even asserted that those parties concerned could, if necessary, resort to such third-party dispute settlements as mediation or arbitration. The one-sided stance and actions to stir up trouble into an escalation from the EU and the US get neither China nor Vietnam anywhere toward a dispute settlement or relief of tension, but might even complicate the situation at sea.

 

I. Tension around Vanguard Bank: Originating from Vietnam’s Unilateral Oil and Gas Activities


Disputes over Vanguard Bank arose from Vietnam’s unilateral oil and gas activities against relevant obligations prescribed in the Convention, which was followed by illegal interference with operations of China’s Haiyang Dizhi-8 (Ocean Geology No. 8), a domestic marine research vessel.


As we all know, Vanguard Bank is neither the undisputed Vietnam’s EEZ nor continental shelf as Hanoi or such countries outside the region have claimed. Instead, China has asserted sovereignty over Vanguard Bank and its adjacent waters, sovereign rights and jurisdiction over its relevant waters. On July 12, 2016, the Chinese government announced the Statement of the Government of the People’s Republic of China on China's Territorial Sovereignty and Maritime Rights and Interests in the South China Sea, reiterating its sovereignty over the South China Sea Islands including Pratas Islands, Paracel Islands, Zhongsha Islands and Spratly Islands, entitled to territorial seas, EEZs and continental shelves, and reaffirming its historic rights in the South China Sea. According to the Convention and international law in general, “archipelago” not only refers to the islands, but also involves the “interconnecting waters and other natural features which are so closely interrelated.” Clearly, the Vanguard Bank constitutes an integrated part of Spratly Islands. Alternatively, the area is within the 200nm of the Spratly Island (Nanwei Island) of China. Therefore, the  waters where Vietnam conducted gas and oil activities while Haiyang Dizhi-8 was operating are where China claims sovereignty, sovereign rights and jurisdiction as a sovereign state. It is  a disputed area between China and Vietnam as an overlapped EEZ and continental shelf claims.


Vietnam, who conducted unilateral oil and gas activities around Vanguard Bank, fringed on China’s sovereignty, sovereign rights and jurisdiction. Even if it is regarded as the disputed waters, Vietnam’s actions still violated particular stipulations in the Convention in terms of obligations of parties concerned over disputed waters. Pursuant to Article 74 and Article 83 of the Convention, countries “shall make every effort to enter into provisional arrangements of a practical nature” and “not to jeopardize or hamper the reaching of the final agreement.” In terms of international justice and arbitration cases, those unilateral activities that would cause “permanent change to the physical marine environment,” especially substantial “exploitation of oil and gas reserves,” shall be taken as a breach of the abovementioned obligations in the Convention.


Therefore, it is not that difficult to straighten out the ins and outs regarding the disputes over Vanguard Bank. It is Vietnam’s unilateral activities against international law that lit the fuse and led to an escalation. By contrast, China was self-controlled, and its actions also are consistent with the Convention and general international law.

 

II. The Only Option for Both Sides: Face-to-Face Bilateral Talks between China and Vietnam for Dispute Settlement or Tension Relief


All experience has shown that the third party’s involvement would only strike a raw nerve on disputing parties and complicate the South China Sea row, which does no good to a dispute resolution. That is why the two parties need to shelve out their differences and have direct bilateral talks for the best resolution.


The South China Sea arbitration ruling is a typical cautionary tale since it does not end with a peaceful dispute settlement but a heavy toll on Sino-Philippines relations and regional stability, resulting in an inevitable failure. Given the unique historical context and realistic challenges of the South China Sea dispute, there is not too much experience to draw from and the application of international law also encounters unprecedented obstacles. For example, other countries and regions do not have a history as long as the regional countries of and around China. The regime and state practice in the region is sui generis. To address these problems, it requires all parties to explore solutions that both respect history and serve the interests of all in their consistent cooperation and practices on dispute settlement for enriching international law practices and promoting the development of international law. Mechanically copying the so-called experience of other countries without full knowledge of and respect for related regional and national history will only lead to a misinterpretation of the spirit and implications of international law, which harms both the rule of international law and the regional peace and stability. The lesson is still new. It is worth learning from it.


In fact, China and Vietnam have shared similar position in dispute settlements. They both choose bilateral talks as the only way to resolve differences and have been committed to addressing disputes through bilateral negotiations. In 1994 when Vietnam enacted the Convention, it declared “its position to settle those disputes relating to territorial claims as well as other disputes in the Eastern Sea through peaceful negotiations in the spirit of equality, mutual respect and understanding, and with due respect of international law.” In 2000, the two countries drew the boundary of the Gulf of Tonkin, which marks the first maritime boundary between China and its surrounding countries. In the same year, China and Vietnam signed the Agreement on the Delimitation of the Tonkin Gulf and the Vietnam-China Fisheries Cooperation Agreement. They also signed the Declaration on the Conduct of Parties in the South China Sea where both sides pledged to settle disputes through bilateral talks. Similar commitments have also been repeated in the following joint declarations and agreements, and have constituted an obligation beyond political commitment. In 2011, the two parties signed the Agreement on Basic Principles Guiding the Settlement of Sea-related Issues Between the People’s Republic of China and the Socialist Republic of Vietnam, where they agreed “to resolve the maritime disputes between China and Vietnam through friendly talks. If other countries are involved, they will negotiate with all of those concerned.” It is clear that bilateral talks have become their common choice and also the only solution to settle differences and maintain regional peace and stability.

 

III. Half the Work, Twice the Effect: Clearing Away Obstacles and Warding Off Disservices of Non-regional Interference


Since the 1980s, the Chinese government has proposed such important principles and policies as “shelving differences and seeking joint development.” Decades of practices have proved that coastal states of the South China Sea have enough will, ability and intelligence to settle disputes and promote pragmatic cooperation for regional stability, development and prosperity in the long run. Since the South China Sea arbitration ruling, with the joint efforts of China and ASEAN states, the present South China Sea situation has become more peaceful and stable, with tensions being mitigated and promising signs evident. Under the full implementation of the Declaration on the Conduct of Parties in the South China Sea, they have proactively negotiated with each other and made great strides in regulating Code of Conduct in the South China Sea. On August 29, 2019, at Philippine President Rodrigo Duterte’s much-touted meeting with China’s President Xi Jinping, the two leaders announced the establishment of the Intergovernmental Joint Steering Committee and Inter-enterprise Working Group on Oil and Gas Cooperation to promote joint development and make substantial progress as soon as possible. These achievements are made without any inference of outside countries. Therefore, states around the South China Sea should have confidence and patience for a peaceful, proper and sustainable dispute settlement and build trust in each other. It is not uncommon that the tension escalates because of external interference. Outside powers that intend to intervene in erupted disputes are no different from the fox that guards the henhouse.


Respecting the wills and efforts of regional states, maintaining the peace and stable development of the South China Sea, and deepening cooperation in a wider area in the South China Sea show where the future goes. Countries outside the region should see the determination and ability of their counterparts in the South China Sea and foster a favorable atmosphere for regional countries to manage maritime dispute settlements and promote pragmatic cooperation.

Lei Xiaolu

Associate Professor, China Institute of Boundary and Ocean Studies, Wuhan University

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