Chapter 4: China’s dispute with Vietnam over the Nansha Islands – Solving Disputes for Regional Cooperation and Development in the South China Sea

4

China’s dispute with Vietnam over the Nansha Islands

Abstract:

This chapter discusses China’s disputes with Vietnam over the Nansha Islands. It first introduces Vietnam’s claims to the islands. After an overview of the basis of these claims, the chapter analyses the relevant weaknesses from historical and legal perspectives. The China-Vietnam dispute history is followed by an introduction to their bilateral efforts on conflict management and dispute settlement. Further efforts are needed from both sides to turn the South China Sea from a disputed area to a sea of peace and cooperation.

Key words

China

Vietnam

Nansha Islands dispute

claims

dispute history

conflict management

cooperation

Vietnam is one of the claimants in the SCS disputes. It claims sovereignty in whole over both the Nansha and the Xisha Islands. The focus of this chapter is China’s disputes with Vietnam over the Nansha Islands. The China-Vietnam Nansha dispute relates to the questions of sovereignty, security and economics, and its settlement goes beyond legal terminology and will need more political solution (Farrell, 1992: 400). It poses challenges to their bilateral relations, and demands political wisdom from both sides in order to turn the SCS into a ‘sea of peace, friendship and cooperation’.1

The chapter first analyses the bases of Vietnam’s claims under international law, followed by an assessment from the Chinese perspective. After describing the development of the China-Vietnam dispute from the early 1930s to the present, it discusses bilateral efforts in managing the dispute. The chapter concludes with an insight into the future.

Vietnam’s sovereignty claim over the Nansha Islands and related maritime claims

Claims over the Nansha Islands2

Vietnam claims sovereignty over all the Nansha Islands. Currently, among the six claimants, Vietnam controls the largest number of islands, cays and reefs in this group. It has illegally occupied 29 land features (Wu, 2009: 107).3 Vietnam’s control over this island group has gradually expanded since the mid-1970s, when South Vietnam took control of six features.

Based on official documents, the positions Vietnam has taken may be classified into two periods: before and after North Vietnam (Democratic Republic of Vietnam – DRV) absorbed South Vietnam (Republic of Vietnam – ROV) to establish the Socialist Republic of Vietnam (SRV) in April 1975. In the first period there were distinct differences between the DRV and ROV. While the DRV openly supported China’s sovereignty over the Xisha and Nansha Islands,4 the ROV began to lay claim to the two groups starting at the San Francisco peace conference in 1951. On 7 September 1951 ROV Prime Minister Tran Van Huu issued a statement during the seventh plenary session of the conference that reads in part:

As we must frankly profit from all the opportunities offered to us to stifle the germs of discord, we affirm our right to the Spratly and Paracel Islands, which have always belonged to Vietnam. (Samuels, 1982: 79)

On 1 June 1956 the government of South Vietnam issued a communique reaffirming its sovereignty over the Xisha and Nansha Islands by referring to the San Francisco statement (Dzurek, 1996: 17; Chiu and Park, 1975: 9). In February 1975 the ROV foreign ministry issued the ‘White paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands’, which stated that succession from France is one reason for Vietnam’s claims (ROV Ministry of Foreign Affairs, 1975). It says:

the Cairo Declaration (1943), the Yalta Agreement and the Potsdam Declaration (1945) are the basic documents for postwar territorial settlements.… all sovereign rights must be returned to their legal titular, i.e., Vietnam which, since 1949 had inherited (or rather retaken) all the former French rights over these territories.

This white paper is the first document in which the ROV, and later the united SRV, lists its historical evidence showing its connection with the Nansha Islands.

During the second period, Vietnam made an implicit claim of sovereignty over the Nansha Islands in its statement ‘on the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf’ of 12 May 1977. The relevant provision is paragraph 5, which refers to ‘The islands and archipelagos, forming an integral part of the Vietnamese territory and beyond the Vietnamese territorial sea mentioned in Paragraph 1’ (Socialist Republic of Vietnam, 1977).

After 1977 Vietnam issued several white papers to prove its sovereignty claim over the Nansha Islands had lasted ‘for a long and uninterrupted period of time’ (SRV Ministry of Foreign Affairs, 1981: 6) and was in line with international law. Through these papers, Vietnam claimed it had plenty of historical documents to show that Vietnamese had been in possession of the Xisha and Nansha Islands since a time when no other country had claimed sovereignty over them, and had exercised continuous sovereignty over the two archipelagos ever since (ibid.). The white papers include ‘Vietnam’s sovereignty over the Hoang Sa and Truong Sa archipelagos’, published in September 1979 (SRV Ministry of Foreign Affairs, 1979a), ‘Hoang Sa and Truong Sa Islands, Vietnamese territories’ (SRV Ministry of Foreign Affairs, 1981) and ‘Hoang Sa (Paracel) and Truong Sa (Spratlys) archipelagos and international law’, published in April 1988 (SRV Ministry of Foreign Affairs, 1988).

On 12 November 1982 Vietnam issued its statement ‘on the territorial sea baseline of Viet Nam’, paragraph 4 of which states that ‘The baseline used to measure the width of the territorial waters of the Hoang Sa and Truong Sa Archipelagos will be determined in an ensuing text in conformity with Paragraph 5 of the declaration of May 12, 1977 of the Government of the Socialist Republic of Vietnam’ (Socialist Republic of Vietnam, 1982).

From the 1990s onward Vietnam continued its claim to the Nansha Islands, with the latest one posted on its Foreign Ministry website: ‘Viet Nam has indisputable sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos’ (SRV Ministry of Foreign Affairs, 2012a). In a communication to the UN Division for Ocean Affairs and the Law of the Sea, presented by Vietnam’s Permanent Mission to the United Nations on 3 May 2011, it claims:

Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos are integral parts of Vietnamese territory. Viet Nam has sufficient historical evidence and legal foundation to assert her sovereignty over these two archipelagos. (Commission on the Limits of the Continental Shelf, 2011)

On 21 June 2012 Vietnam’s National Assembly promulgated the Law of the Sea of Vietnam, which came into effect from 1 January 2013. Through this enactment, Vietnam enclosed the Xisha and Nansha Islands in its territory by means of a domestic law (see also Chapter 7). Article 1 defines the scope of the law as:

The law of the sea provides for baseline, the internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, islands, the Paracel and Spratly archipelagos and other archipelagos under sovereignty, sovereign rights and jurisdiction. (Vietnam, 2012)

Claims over the maritime zones

Vietnam is situated on the eastern coast of the Indochina peninsula, and has a land area of 329,556 square kilometres (Ministry of Foreign Affairs, 2012a) and a coastline of 2,828 nm. As such, it has a strong interest in its neighbouring seas, relying on UNCLOS to expand its space for development beyond its narrow strip of land and, as Farrell (1992: 126) observes, create a security buffer zone. Vietnam signed UNCLOS when it was opened for signature in December 1982 and deposited its instruments of ratification on 25 July 1994.

Vietnam has also defined its maritime zones in domestic laws and government statements. It was the first country in the region to claim an EEZ. In its statement of 12 May 1977 Vietnam claims a 200 nm exclusive economic zone covering an area of 210,600 square miles (Valencia, 1994: 217). The same statement also defines 12 nm of territorial sea, and a contiguous zone up to the 24 nm limit measured from the baselines. Vietnam’s continental shelf claim is defined with similar wording as that in UNCLOS:

The continental shelf of the Socialist Republic of Vietnam comprises the seabed and subsoil of the submarine areas that extend beyond the Vietnamese territorial sea throughout the natural prolongation of the Vietnamese land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline used to measure the breadth of the Vietnamese territorial sea where the outer edge of the continental margin does not extend up to that distance. (Socialist Republic of Vietnam, 1977)

To meet its obligation relating to submission of the limits of its outer continental shelf, Vietnam submitted two cases to the CLCS in May 2009. On 6 May 2009 Malaysia and Vietnam made a joint submission to the CLCS relating to a ‘defined area’ in the south of the SCS (Malaysia/ Vietnam, 2009). On 7 May 2009 Vietnam made a partial submission relating to a northern area located in the northwest of the SCS (Vietnam, 2009). China and the Philippines both submitted notes verbale to the United Nations (China, 2009; Philippines, 2009a). Since the submission covers part of the disputed areas in the SCS, technically the CLCS is not entitled to review these cases. It is worth noting here that a map used in many academic papers showing Vietnam’s maritime claims that cover much of the south-central SCS is in fact Vietnam’s petroleum concession block map published in the 1980s. As with the case of the 1887 China- French Treaty line, this map has not been officially ‘disavowed’ by Vietnam (Valencia et al., 1999: 31).

Vietnam’s latest maritime claims in regard to waters in the SCS appear on its Foreign Ministry’s website:

Viet Nam has indisputable sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos, the sovereign rights and jurisdictional rights over her exclusive economic zones and continental shelf in accordance with the UN Convention on the Law of the Sea 1982. (SRV Ministry of Foreign Affairs, 2012b)

Beckman (2011: 15) argues that since Vietnam did not claim an EEZ from any of the features in the SCS, but only from the baselines along the coast of its mainland, it might mean that the SCS islands over which it claims sovereignty only fulfil Article 121(3) of UNCLOS, meaning they are not entitled to more than a 12 nm territorial sea; however, it is unclear whether such an assumption is Vietnam’s official position, since the Vietnamese authorities have made no official statement to that effect.

Bases of sovereignty claims over the Nansha Islands

As Nguyen and Amer (2007: 306) point out, the ‘unified’ SRV relies on documentation from the former ROV to consolidate sovereignty claims over the Nansha Islands. It uses historical records and maps from pre-colonial times and the French colonial period to prove its occupation of the Xisha and Nansha Islands, and claims that effective control has been exercised since the ‘feudal Vietnamese state’ some time during the Nguyen lords’ period. Chinese scholars, analysing Vietnam’s four white papers listing the bases of its sovereignty claims over the Nansha Islands, conclude that these claims have two sources: the first is, as noted by Nguyen and Amer (ibid.), historical evidence of maps and records, and the second is succession from the French sovereignty over the Nansha Islands. The general agreement is that the SRV’s position and bases in regard to sovereignty claims over the Xisha and Nansha Islands are inherited from the ROV. Furthermore, the SRV policy concerning the two island groups clearly indicates Vietnam’s self-perception as an independent state, its relationship with China and its position in Southeast Asia.

Historical basis

The historical evidence in Vietnam’s white papers includes maps and records of activities in books published or compiled in feudal times.

 Toan Tap Thien Nam Tu Chi Lo Do Thu (Route Map from the Capital to the Four Directions), a Vietnamese atlas compiled and drawn by Do Ba in the seventeenth century. The notes attached to the map of Quang Ngai district, Quang Nam province, refer to ‘an elongated sandbank lying in mid-sea known as the Golden Sandbank’ (SRV Ministry of Foreign Affairs, 1981). Vietnam considers that the ‘Golden Sandbank’ refers to the Xisha as well as the Nansha Islands.

 Dai Nam Nhat Thong Toan Do (The Atlas of Vietnam), completed around 1838. Vietnam explains that in the map ‘No. 1’ refers to ‘Hoang Sa’ (Xisha Islands) and ‘No. 2’ to ‘Van Ly Truong Sa’ (Nansha Islands), and their inclusion in the map of Dai Nam (ancient name for Vietnam) indicates that the Xisha and Nansha Islands are part of Vietnamese territory.

 A map of Vietnam printed in Bishop Jean Louis Taberds Dictionarium Latino-Annamiticum, published in 1838. Vietnam maintains that ‘X’ on the map is part of the Xisha Islands, i.e. the Golden Sandbank, and was marked in the vicinity of the Xisha Islands. This map appeared around the same time as Dai Nam Nhat Thong Toan Do. In Vietnam’s explanation of Bishop Taberd’s map, the ‘Paracels’ are only mentioned in passing (SRV Ministry of Foreign Affairs, 1979a: 34).

 Records in Phu Bien Tap Luc, a book completed in 1776 by scholar Le Qui Don (1726–1784) on the history, geography and administration of Dang Trong (present-day southern Vietnam) under the Nguyen lords (1558–1775). In the book ‘Hoang Sa’ and ‘Dai Truong Sa’ are mentioned when Quang Ngai district is depicted. Vietnam explains that this determines that ‘Hoang Sa’ and ‘Dai Truong Sa’ had belonged to Vietnam:

In Quang Ngai district, off the coast of An Vinh village, Binh Son sub-district, there is an island called Cu Lao Re stretching over 30 dams. The Tu Chinh settlement, as it is called, has been established here and the people there grow beans. It takes half a day by boat to get there. Further off, there are Dai Truong Sa islands where sea products and shipwrecked cargoes are available to be collected by the Hoang Sa detachment. It takes three days and nights to reach there by boat. They are near an area called Bac Hai. (SRV Ministry of Foreign Affairs, 1981: 8, emphasis added)

 Phu Bien Tap Luc, in which ‘Hoang Sa’ was mentioned several times. One example is ‘To the east (of Quang Ngai), there exist sand islands - the Hoang Sa’ (ibid.: 9). Later it was elaborated as follows:

The village of An Vinh, Binh Son sub-district, Quang Ngai district, lies close by the sea. To the northeast of this village, there is a cluster of islands composed of over 130 islets and rocks. It may take a day or just a few watches to sail from one islet to another. (Ibid.: 10, emphasis added)

 Administrative activities under the Nguyen lords (1558–1775) and Nguyen emperors (1802–1884). Activities during the first period were recorded in Phu Bien Tap Luc:

The Nguyens used to form a 70-strong Hoang Sa detachment made up of An Vinh villagers. It was sent on duty in the third month of every year, taking along enough food for six months. The Nguyens also formed Bac Hai teams recruited from among Tu Chinh villagers in Binh Thuan province or the villagers of Canh Duong.

They were sent in boats to Bac Hai, Con Lon island and the isles of Ha Tien to gather shipwrecked valuables as well as turtles, oysters, abalones, sea-cucumbers. These teams were placed under the control of the Hoang Sa detachment commander. (SRV Ministry of Foreign Affairs, 1979a: 11, emphasis added)

From these records, it seems Vietnam intends to show that ‘[u]p to the eighteenth century’ the lords of Nguyen had established a team ‘in charge for the exploitation and administration, as state power, of the Hoang Sa and Truong Sa archipelagos’ (Murphy, 1994/1995: 203, emphasis added; Vietnamnet, 2011). Quoting Le Qui Don, the 1981 white paper noted that Annamite fishermen and salvage crews were not alone in these endeavours; Hainan fishermen from China were also engaged in such activities (Samuels, 1982: 43).

Chronological activities listed in the second period are recorded in Dai Nam Thuc Luc Chinh Bien (1848), including surveying and mapping in ‘Hoang Sa’ in 1815, 1816, 1833, 1834, 1835 and 1836 (SRV Ministry of Foreign Affairs, 1979a: 12).

Vietnam’s historical evidence reveals three things. First, the Vietnamese were not alone in exploiting resources in the Paracels. Chinese fishermen and crew were also involved when Vietnam started activities there. Second, it is during the early nineteenth century that Vietnamese activities were officially approved. Third, Vietnam’s identification of Van-ly Truong Sa with the Spratly Islands is highly questionable (Samuels, 1982: 43).

Succession from France

By the 1884 Treaty of Hue between France and the Nguyen dynasty of Vietnam, the French completed the legal procedure to establish a protectorate over Vietnam (Valencia et al., 1999: 30). France occupied nine of the Nansha Islands from 1933 to 1939. Castan (1998: 96) observes that Vietnam’s sovereignty claims over the Nansha Islands are primarily based on its colonial relationship with France. According to Vietnam’s 1975 white paper:

These rights [referring to Vietnamese rights on the Spratly Islands] had been openly established in the name of Vietnam when the French incorporated the archipelago into Indochina. The French action of 1933 was entirely in conformity with international rule and practice. It was challenged by no one except Japan, who later relinquished all her claims. (ROV Ministry of Foreign Affairs, 1975: 1)

It also states that since 1949 Vietnam has ‘inherited’ all the French rights over the Nansha Islands (ibid.).

The 1975 white paper, and later the 1981 and 1988 white papers, said the French had conducted different activities on behalf of Vietnam to substantiate Vietnam’s sovereignty claim over the territory. When representing Vietnam externally, the French protested against activities carried out in relation to the Nansha Islands by China in 1931 and 1932 and by Japan in 1933 and 1939 to ‘reassert its sovereignty claim’ (ibid.). After 1933 the French also handled administrative activities such as recruiting private citizens as ‘administrative officer’ for Itu Aba and did ‘scientific survey’ in the Nansha Island area (ibid.). It was based on succession to the prior French title that, at the 1951 San Francisco peace conference, the ROV stepped forward to claim the islands (Castan, 1998: 96). When France withdrew from Indochina in 1954, the French authorities transferred the territory of South Vietnam, including the Nansha Islands, to the Saigon administration (SRV Ministry of Foreign Affairs, 1979a: 8).

Rights from the 1951 peace treaty

According to the 1975 white paper, Japan renounced all its rights, titles and claims to the Nansha and Xisha Islands by Article 2(f) of the 1951 San Francisco peace treaty, with Vietnam as the implicit recipient of the rights over the islands. According to Vietnam, although the peace treaty itself does not specify which countries were to recover the specific territories Japan had renounced, further reading of Article 2 shows that each subparagraph is relevant to the rights of one particular country, and subparagraph (f) refers to the rights of Vietnam (ROV Ministry of Foreign Affairs, 1975). Also, the Cairo Declaration (1943) and Potsdam Declaration (1945), the basic post-Second World War documents in relation to territorial settlements, do not contain any provision that contradicts the sovereignty of Vietnam over both archipelagos. Therefore Tran Van Huu, head of the Bao Dai government’s delegation to the San Francisco conference, declared Vietnam’s sovereignty over the Nansha Islands (SRV Ministry of Foreign Affairs, 1981: 16).

Effective occupation

To consolidate its sovereignty claims, Vietnam’s three white papers (1979, 1981 and 1988) listed its activities from some time under the Nguyen lords, through the colonial period during French occupation and up to unification to show it had exercised effective occupation of the Nansha Islands. Vietnam further states that its activities in the islands are ‘effective’, ‘continuous’ and ‘peaceful’ (SRV Ministry of Foreign Affairs, 1988: 4). Activities in the pre-colonial and colonial periods were listed (SRV Ministry of Foreign Affairs, 1981: 5–7). After the 1951 San Francisco peace conference, which was, according to Vietnam, its ‘first opportunity’ to protect its territorial claims over these islands (ROV Ministry of Foreign Affairs, 1975), Vietnam maintained that South Vietnam had sent scientific survey teams to the ‘Spratly and Paracel archipelagos’ (SRV Ministry of Foreign Affairs, 1981: 8); however, no further information regarding these surveys was given.

Weaknesses in Vietnam’s claims

During feudal times, Vietnam sustained a tributary relationship with China until China signed a treaty with France in Tianjin in May 1884 in which it recognised France’s occupation of Vietnam. After France withdrew from the country in 1954, Vietnam was involved in a second Indochina war with the United States until its unification in 1975. The ROV formally claimed sovereignty over the Nansha Islands at the 1951 San Francisco conference. Though the DRV had supported China’s sovereign claims over the Nansha Islands, its position changed in 1974. Since then, the unified SRV has claimed sovereignty over the Xisha and Nansha Islands. However, these claims have obvious flaws.

Lack of accuracy in the interpretation of historical evidence

Confusion over the physical location of the Nansha Islands

Although Vietnam provided historical evidence in the three white papers to assert its title to the Nansha group, the legitimacy of its claims is weakened by its failure to identify and distinguish between the Nansha and Xisha Islands (Joyner, 1999: 61). In the white papers, both island groups are treated generically: one group is not geographically distinguished from the other, and activities in the Xisha Islands are generalised and applied to both islands. This situation compounds the difficulty in assessing the lawfulness and propriety of claims, and raises considerable doubts over the authenticity and accuracy of the historical records. This inaccuracy of location of the Nansha Islands is further reflected in both Chinese and Vietnamese historical documents.

First, the translation of the Phu Bien Tap Luc in Vietnam’s white papers of earlier days is different from that provided recently on Vietnam’s official news websites. For example, Vietnamnet (2011) posted an article entitled ‘Historical documents on Vietnam’s sovereignty over Paracel and Spratly Islands’, in which Dai Truong Sa was explained to include both the Paracels and the Spratlys, and its location seems to be moved further east, as the journey there is described as taking a ‘few watches to [a] few days’.5 The description in the white papers, in contrast, is ‘a day or a few watches’.

Second, in Vietnam’s historical documents ‘Truong Sa’ should refer to Vietnam’s coastal islands rather than China’s Nansha Islands, which are located much further away to the east. The name of Truong Sa appears in many other Vietnamese historical documents, such as the Hong Duc Atlas (洪德版) compiled during the rule of Le Thanh Tong (14701497); Volume 2 of Dai Viet su ky thoan thu (大越史记全书), compiled by Ngo Si Lien in 1479; Volume 3 of Kham Dinh Viet Su Thong Giam Cuang Muc (钦定越史通鉴纲), first compiled by Phan Thanh Gial (1798–1867); and Dai Nam Nhat Thong Chi (大南一统, History of Unified Dai Nam), compiled by the National Institute of History during the Nguyen dynasty (1802–1945). However, based on the description of the travel route to Truong Sa, some Chinese scholars6 conclude that the Truong Sa in these Vietnamese documents is different from present-day Vietnam’s claimed ‘Truong Sa’ (Nansha Islands). The location of ‘Truong Sa’ at that time should be islands scattered off the coast from Vietnam’s port of Hue to Danang.

Third, Jean Louis Taberd’s reference points to a different location. Based on his Note on Geography of Cochinchina provided in Vietnam’s white papers, Chinese scholars conclude that according to Taberd’s description of the location of ‘the Paracels islands’ (stretching to north latitude 11° and east longitude 107° from Paris, i.e. current 109°10’ east from Greenwich), these islands should be along Vietnam’s coast, because the location of today’s Xisha Islands is latitude 15°47’ north and longitude 111°10´–112°15´ east and the Nansha Islands are even further away. The Knowfar Institute for Strategic & Defence Studies (2007) further infers that most probably Taberd’s ‘Paracels’ refers to Pulou Cecir de Terre, eight nautical miles northeast of Lagan Point, because Taberd’s description of the Paracels’ situation is similar to that of Pulou Cecir de Terre.

Confusion over the location administered by ‘Hoang Sa detachment/brigades’

In Vietnam’s white papers, activities of ‘Hoang Sa detachment/brigades’ are interpreted to mean that Vietnam has ‘exercised effectively, continuously and peacefully its sovereignty over the two archipelagos’. Examples are descriptions in Phu Bien Tap Luc (1776) (SRV Ministry of Foreign Affairs, 1981: 11) and Dai Nam Thuc Luc Tien Bien (1884) (SRV Ministry of Foreign Affairs, 1988: 5). However, as Dzurek (1996: 13) observes: ‘Most of Vietnam’s 18th and 19th century historical evidence relates to the Bai Cat Vang islands, which Vietnam maintains included both the Hoang Sa [Paracel] islands and the Truong Sa [Spratly] islands.’

Dzurek further notes that due to the 400 km distance between the Nansha and Xisha Islands, it would be unusual to use one name for both places. Furthermore, Vietnam claims that surveys and mapping expeditions were carried out in both island groups; however, the facts show that these activities had clearly focused on the Xisha Islands. It thus seems unfounded to use activities of the Hoang Sa detachments to prove Vietnam’s effective occupation of the Nansha Islands from ‘long ago in history’.

Another fact to note, as indicated in Chapter 2, is that the Vietnamese were not alone in activities involving exploration and exploitation. Chinese fishermen and crews started such activities long before the Vietnamese did.

Invalidity of succession from France

It was on 13 April 1930 that the French navy first invaded the Nansha Islands from Vietnam, occupying Nanwei Island (Spratly Island). The French formal notice of annexation of this group appeared in the Official Journal on 25 July 1933. This was the starting point at which France began to claim sovereignty over the Nansha Islands. However, the Chinese Qing government’s formal annexation of this island group happened 24 years earlier, when the Qing empire sent a fleet of three warships to inspect the SCS and naval officers hoisted the Chinese Yellow Dragon flag and set up stone tablets to reassert Chinese sovereignty. This French official act of annexation happened long after Chinese fishermen started continual fishing activities in the sea area, as indicated in Chapter 2.

On 4 August 1933 the Chinese government protested strongly against the French occupation. In its first diplomatic note to the French embassy in Nanjing, China declared it would ‘reserve all its rights’ before providing formal confirmation of the locations of the nine islands in the Nansha group (Chao, 1989/1990: 77–81). Chiu and Park (1975: 18) argue that since the French government admitted that Chinese fishermen had lived there, according to international law and custom the islands of which the French claimed ‘discovery’ should belong to the nation of the inhabitants – in this case, China. However, despite China’s legitimate title to the islands, the French stayed on until they were driven out by the Japanese in 1939.

By relying on the 1949 Arbitration Concerning Buraimi and the Common Frontier between Abu Dhabi and Saudi Arabia case, Chao (1989/1990: 81) further argues that under no circumstances should such a short interlude of conquest by France give validity to its authority over the Nansha Islands. France did not take any ‘more final and decisive sovereign action’ to frustrate the Chinese rights and make its occupation of the islands valid under international law.

Also, on 13 April 1939 the French ambassador to Tokyo delivered a note to the Japanese government protesting against the notification that the government of Taiwan, then under Japanese rule, had placed the Nansha Islands under the administration of Kaohsiung county in Taiwan on 30 March 1939. France further proposed to submit the case for arbitration, but this was dismissed by Japan (ibid.: 82–3).

In August 1945 Japan surrendered to the Allied powers. In late 1946 China took over the Xisha and Nansha Islands, and neither France nor Vietnam protested. Similarly, neither country protested when China renamed the islands in 1947 and included them in its 1952 peace treaty with Japan. Their silence led Chiu and Park (1975: 18–19) to conclude that France obviously ‘relinquished its sovereignty over the two island groups after 1945 even if France’s occupation of the Spratlys in 1933 is valid’. In addition, neither of the two countries took any action to substantiate its sovereignty claims when China stationed no garrison on the Nansha Islands from 1950 to 1956.

Further still, the French charge daffaires in Manila stated on 9 June 1956 that the French annexation of the Spratlys in 1933 was never ceded to Vietnam (Samuels, 1982: 84; Cordner, 1994: 66).

In conclusion, France did not establish valid sovereignty over the Nansha Islands in the 1930s. Neither the French nor the Japanese could legally establish title to the Xisha and Nansha Islands on the bases of terra nullius, ‘discovery’ or legal occupation. As established in Chapter 2, China has convincing evidence to demonstrate that it was the first to discover the four island groups in the SCS and the Chinese state and its people have continued to consolidate its title through various activities, such as settling on the features and fishing in the surrounding sea areas. These happened long before the illegal French and Japanese occupations during the 1930s. Thus France’s physical occupation and Japan’s subsequent takeover cannot establish validity under modern international law (Shen, 1997: 51).

Although Vietnam had stepped forward to claim the islands based on succession to the prior French title, it is doubtful whether France had actual title to which Vietnam could succeed (Castan, 1998: 96). Furthermore, even if validity were proven, the legal consequence of non-action from 1945 to 1956 would lead to relinquishment of France’s claim (Chiu and Park, 1975: 19). Since Vietnam could not inherit a sovereignty claim to islands over which France itself had no sovereignty, Vietnam cannot base its claim to the Nansha Islands on the principle of succession from France (Murphy, 1994/1995: 198).

Lack of comprehensive interpretation of the relevant peace treaties

In the ROV’s 1975 white paper, in a position reiterated by the three white papers issued by the SRV after unification, Vietnam claims that under the 1951 San Francisco peace treaty Japan was obliged to renounce its rights over the two groups of the Xisha and Nansha Islands. Article 2(f) states: ‘Japan renounces all right, title, and claim to the Spratlys [Nansha] Islands and to the Paracel [Xisha] Islands.’7

According to Vietnam, based on the interpretation of Article 2(a)–(e), Article 2(f) implies that the recipient of sovereignty over the Xisha and Nansha groups should be Vietnam. It further stated that its representative at the San Francisco peace conference had reaffirmed Vietnam’s sovereignty over the Paracel and Spratly Islands and no participating country had protested. However, neither the PRC nor the ROC was invited to the peace conference (Chiu and Park, 1975: 14).

The Vietnamese interpretation has overlooked several factors. First, the San Francisco peace treaty is only one of a series of international documents dealing with Japan renouncing the land it had stolen since the beginning of the First World War in 1914. Attention should also be given to relevant bilateral documents to which Japan is a party. The sovereignty issue of the Nansha Islands should be interpreted by considering the interrelated documents in totality, including the 1943 Cairo Declaration, the 1945 Potsdam Declaration, the 1945 Instrument of Surrender by Japan, the 1951 San Francisco peace treaty, the 1952 Treaty of Peace between the Republic of China and Japan8 (the Taiwan-Japan Treaty) and the 1972 Joint Communique of the Government of Japan and the Government of the People’s Republic of China.

One of the purposes of the Cairo Declaration is to ensure that all the territories ‘Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China’ (emphasis added). The non-exhaustive list in the declaration intends to make Japan return to China all the territories it had ‘stolen’ from the country. Article 8 of the Potsdam Declaration reaffirms the content of the Cairo Declaration. Cordner (1994: 69) believed that both the 1951 San Francisco peace treaty and the 1952 Taiwan-Japan Treaty offered ‘ideal opportunities to allocate sovereign ownership’, including sovereignty over the Nansha Islands.

Article 2 of the 1952 Taiwan-Japan Treaty reads:

It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951, Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu [the Pescadores] as well as the Spratlys [Nansha] Islands and the Paracel [Hsisha] Islands.

According to Chao (1989/1990: 88), the nature of the 1952 Taiwan-Japan Treaty indicated that title to the renounced islands, including the Xisha and Nansha Islands, was to be handed over to China. While the 1951 peace treaty listed clearly five categories of sovereignty issues, the 1952 Taiwan-Japan Treaty only mentioned land features in Article 2(b)9 and 2(f),10 which implies that both countries consider the sovereignty of the Xisha and Nansha Islands as a bilateral issue. As Japan handed over sovereignty of Taiwan and Penghu to China based on Article 2(a), the sovereignty for the Nansha and Xisha Islands listed in Article 2(f) should also be handed over to the same signatory, i.e. China. The 1952 treaty and the bilateral process leading to it show Japan’s tacit recognition of China’s claims over the two SCS island groups. Article 3 of the 1972 China-Japan Joint Communique reaffirmed Japan’s compliance with Article 8 of the Potsdam Declaration in which Taiwan and Penghu were returned to China. Samuels (1982: 80) concluded that through the two bilateral treaties Japan, as a defeated nation in the Second World War and the occupier of the Nansha and Xisha Islands, recognised China’s sovereignty over the two groups.

Second, at the San Francisco conference Andrei Gromyko, leader of the Soviet delegation, recognised that these islands were China’s ‘inalienable territory’ (Chao, 1989/1990: 88). Although China and Taiwan were not present at the conference, before the conference on 15 August 1951 Chinese Premier Zhou Enlai remarked:

The draft (of San Francisco Peace) deliberately makes an arrangement so that Japan was deprived of all its rights to the Nansha Islands and Xisha Islands but avoids mentioning the issue of sovereignty return. In fact, just like the Nansha Islands, Zhongsha Islands and Dongsha Islands, both Xisha Islands and Nanwei Dao (Spratly Island) have long been China’s territory. They were once occupied by Japan during imperial Japan’s invasion of China; however, after Japan’s surrender, the Chinese government took back the islands. (Wu, 2001: 45)

Third, two scholars noted that at the 1951 San Francisco conference the US delegation may have allowed China to assume sovereignty over the Xisha and Nansha Islands if the Nationalist government had not retreated to Taiwan (Buszynski and Sazlan, 2007: 144). Therefore, to prevent Communist China from regaining its ‘lost’ sovereignty, power politics had played a role in sovereignty reallocation after the Second World War.

No respect for the principle of estoppel

Before unification, the DRV recognised China’s sovereignty over the four island groups in the South China Sea. On 15 June 1956, during a meeting with China’s chargé daffaires ad interim to the DRV, Li Zhimin, Vietnamese Vice Foreign Minister Ung Van Khiem stated that ‘according to Vietnam’s materials, from a historical perspective, Xisha Islands and Nansha Islands should be part of Chinese territory’ (Shen, 1997: 53; Beijing Review, 1979a: 20).

On 4 September 1958, by its declaration on the territorial sea, China clearly stated its territorial sovereignty over the Dongsha, Xisha, Zhongsha and Nansha Islands (Chapter 3). On 14 September 1958 DRV Premier Pham Van Dong stated in a note to Premier Zhou Enlai that ‘the Government of the Democratic Republic of Viet Nam recognizes and supports the declaration of the People’s Republic of China on China’s territorial sea made on September 4, 1958’ and that ‘the Government of the Democratic Republic of Viet Nam respects this decision’ (Beijing Review, 1979a: 20; Shen, 1997: 54).

In a statement of 9 May 1965 on the US president’s designation of the ‘combat zone’ for US armed forces in Vietnam, the Vietnamese government expressed recognition of China’s sovereignty over the Xisha Islands: ‘U.S. President Lyndon Johnson designated the whole of Viet Nam, and the adjacent waters which extend roughly 100 nm from the coast of Viet Nam and part of the territorial waters of the People’s Republic of China in its Xisha Islands as “combat zone” of the United States armed forces’ (Beijing Review, 1979b: 25).

In the 1970s, before unification, the DRV had adhered to this position. After the ROV incorporated the Nansha Islands into its local government in September 1973 and later occupied five of the islands, it started awarding oil concessions in the sea area around the Nansha group to foreign companies. The DRV issued strong protests against the ROV’s actions (Samuels, 1982: 99).

Vietnamese official maps published before 1975 referred to the Xisha and Nansha Islands by their Chinese names, and supplied notes to show they belonged to China. These include world maps drawn and published by the Mapping Department under the General Staff of the Vietnam People’s Army in 1960, which clearly marked, in the Vietnamese language, ‘Xisha Islands (China)’ and ‘Nansha Islands (China)’; the maps published by the Vietnamese Department of Cartography in May 1964; and the world maps printed in May 1972 and the second edition of the world political maps printed in March 1974, both by the Vietnamese National Survey and Drawing Bureau and both showing the Xisha and Nansha Islands in their Chinese names in the Vietnamese language. The fact that these two groups were never called ‘Hoang Sa’ or ‘Truong Sa’ Islands, as they are now named by the Vietnamese authorities, shows Vietnam’s recognition of China’s sovereignty over the islands (Beijing Review, 1979b: 25–6).

During a meeting with China’s Vice-Premier Li Xiannian on 10 June 1977, Vietnam’s Premier Pham Van Dong explained that Vietnam’s recognition of China’s sovereignty over the two islands groups had to be viewed in light of the special period of war against ‘the U.S. imperialism’ (Beijing Review, 1979a: 21). Li promptly pointed out that ‘this explanation was not convincing because the territorial question between our two states should be dealt with seriously; war cannot justify a different interpretation’. Li further stated that there was no war going on in Vietnam when, on 14 September 1958, Pham Van Dong acknowledged in his note to Premier Zhou Enlai that the Xisha and Nansha Islands were Chinese territory (ibid.). After 1979 Vietnam provided a new explanation to the 1958 note, claiming that it was simply a ‘goodwill’ gesture to a fraternal country and if ‘some errors’ were made in textbooks and maps, they should not be attributed to the government. The Chinese responded by saying that ‘this explanation is hardly credible’ and territorial sovereignty is not ‘bartered away’ (Farrell, 1992: 419).

In conclusion, the DRV clearly recognised China’s sovereignty over the four SCS island groups up until its unification, through repeated declarations and in official documents. According to the principle of estoppel in international law, analysed in Chapter 3, this recognition is effective and the Vietnamese government has the duty to respect ‘the title of the other party’ (China). The change of position by North Vietnam (later unified Vietnam) since 1974 violates the principle of estoppel under international law. The later explanation of its previous position is invalid and against international legal principles with regard to territorial sovereignty.

The Vietnamese historical ownership claim appears weak for several reasons. First, significant gaps in sovereign control are apparent before and during the French occupation of Vietnam. No consistent evidence supports the concept of ‘effective control, administration and governance’ of sovereign territory. Second, France specifically stated that its annexation of the Nansha Islands in 1933 was never ceded to Vietnam. Third, the DRV’s support for Chinese sovereignty claims against the ROV in 1956 and 1958, followed by a reversal of that position in 1975, further weakens the Vietnamese historical case. The current government of Vietnam is a successor to the DRV government, not the ROV; therefore the DRV’s previous confession to the Chinese government in 1956 would be binding. Fourth, Vietnam’s activities in and around the Nansha Islands should be viewed in comparison with activities carried out by other countries. As analysed in Chapter 2, China can provide even earlier evidence of its connection with the islands, and its historical evidence is comparatively stronger than Vietnam’s in accuracy, content and geographic scope.

Notwithstanding these deficiencies in its historical case, Vietnam has occupied many features in the Nansha Islands since 1973, and this creates difficulties for China in the settlement of a territorial dispute which troubles these two countries in good times and bad.

History of the China-Vietnam dispute over the Nansha Islands

The crux of maritime disputes between China and Vietnam is this Nansha issue. More details of the origin and development of the issue will help us understand the nature of the problem. The China-Vietnam dispute over the Nansha Islands can trace its root to the French colonial rule over Vietnam. It was the French visit to some Nansha features in the 1930s that triggered the bilateral sovereignty dispute over the islands, which lasts well into the twenty-first century. The dispute has evolved through three periods.

The colonial period (1932–1954)

On 15 June 1932 the governor-general of the French colonial authority in Vietnam announced a decree to incorporate the ‘Paracels’ into Thua Thien province – the ‘Delegation des Paracels’. In the meantime it lodged a protest with the Chinese legation in Paris against Guangdong provincial government’s opening of the Paracels for guano mining (Samuels, 1982: 61). The Chinese government lodged a strong protest on 29 September 1932 against the false French claim, based on Article 3 of the 1887 Sino- French Treaty on the delimitation of the frontier, which reads:

As far as the islands in the sea are concerned, the red line drawn by the officials of the two countries responsible for delineating the boundary shall be extended southward from the eastern hill-top of Chagushe [Wangzhu in Chinese] and constitutes the dividing line. The islands lying east of this line shall belong to China. The islands of Jiutousan (Gotho in Vietnamese) and other small islands west of this line shall belong to Vietnam. (Zou, 1999b: 238)

China argued that since both Xisha and Nansha Islands are located at the far east end of the dividing line, i.e. ‘the red line…, extended southward from the eastern hill-top of Chagushe’, the sovereignty of these islands should belong to China. The French did not rebut China’s position (Chang, 1991: 411).

On 25 July 1933 France announced in its official journal that it had occupied nine islets in the South China Sea and placed them under its sovereignty. This is the first time France officially claimed sovereignty over the Nansha Islands. However, it also acknowledged that when the occupation took place, the only people found on the islands were Chinese (Chiu and Park, 1975: 12).

On 26 July 1933 China’s Foreign Ministry publicly affirmed Chinese sovereignty of the islands: ‘The coral islands between the Philippines and Annam are inhabited only by Chinese fishermen, and are internationally recognized as Chinese territories’ (Dzurek, 1996: 10).

On 4 August the ROC government notified the French government that, pending a thorough investigation of the matter, it ‘reserves its rights with respect to the said French occupation’ (Chiu and Park, 1975: 12; Chang, 1991: 410).

The French continued activities in the Nansha Islands, provoking further reaction. On 29 September 1933 the Chinese government protested by referring to the 1887 Sino-French Treaty and claimed sovereignty over the Nansha Islands primarily on the ground that there were Chinese residing on them (Dzurek, 1996: 10; Chiu and Park, 1975: 12). Additional protests followed. However, this did not stop France from taking further steps to consolidate its control. On 21 December the French governor of Cochinchina incorporated the Nansha Islands into Ba Ria province (Dzurek, 1996: 10).

On 20 March 1934 China again instructed its legation in Paris to deliver a note to France to refute arguments stated in the French note of 27 September 1933 to the Chinese legation. This time France did not respond, and apparently suspended its claim for several years. Without any notice, in early July 1938 the French took advantage of China’s preoccupation with resisting large-scale Japanese invasion, which started in July 1937, and occupied the Xisha Islands. The Chinese ambassador to France, V.K. Wellington Koo, immediately protested against this (Chiu and Park, 1975: 12; Chang, 1991: 410; Cordner, 1994: 64).

Then a new factor intervened. On 30 March 1939 Japan’s Office of Taiwan Governor-General announced in the Japanese official gazette that the Shinna Gunto (Japan’s new name for the Xisha and Nansha Islands) was placed under the jurisdiction of Kaohsiung Chou (county) of Taiwan (Chiu and Park, 1975: 12).

On 26 August 1945 Japan surrendered to the Allies. By order of the supreme Allied commander, all Japanese-held territory north of Da Nan and the Xisha Islands came under Chinese jurisdiction (ibid.: 13; Samuels, 1982: 75). The Chinese authority ordered all Japanese forces to withdraw from the Xisha and Nansha Islands and report to the Hainan Island port of Yulin (Samuels, ibid.).

In October 1946 the French battleship Chevreud was reported to have landed crews on Nanwei Dao (Spratly Island) and Taiping Dao (Itu Aba). Although its officers placed a stone marker on Itu Aba, the French neither occupied Itu Aba nor declared formal sovereignty over the Nansha Islands (ibid.: 76). China protested against the French action, and the two countries conducted talks, though inconclusive, on the dispute (Dzurek, 1996: 10).

Prompted by French interests in the Xisha and Nansha Islands, it was argued that the Chinese Nationalist authorities should send a force to take formal possession of both island groups (Samuels, 1982: 76). In November 1946 Chinese authorities sent a naval contingent, with officials from the Ministry of Internal Affairs and Guangdong provincial government, to take over the features (Chiu and Park, 1975: 13–14). Two of the four ships, Taiping and Chongye, moved on to the Nansha Islands to take Itu Aba (Samuels, 1982: 76). The officials surveyed each of the major features. Garrison forces were subsequently stationed on several Xisha and Nansha islets. Administratively, they were supposed to be governed by Guangdong province. On 15 March 1947 the government ordered the islands to be placed ‘temporarily under the administration of the Navy’ (Chiu and Park, 1975: 13–14).

On 1 December 1947 the Chinese Ministry of Internal Affairs issued names of the 172 islands of the four island groups in the SCS (Wu, 2009: 34). On 12 December the Chinese navy patrolled Itu Aba and was reported to have erected markers on Itu Aba, Spratly Island and West York Island (Dzurek, 1996: 10). France did not formally protest against the events of December 1947; it seems its direct interest in the island atolls ended with the emergence of the new state of Vietnam (Samuels, 1982: 77). However, the French short-term claims and occupation of the Nansha Islands sowed seeds for Vietnam’s future claims over these groups, started in 1951 by South Vietnam and in 1975 by North (and unified) Vietnam.

Period of the ‘two Vietnams’ (1954–1975)

During this period the two ‘Vietnams’ took different approaches to the issue of the Nansha Islands. The ROV started claiming sovereignty over the group based on historical evidence as well as succession from the colonial French. Meanwhile the DRV openly recognised China’s sovereignty over the Xisha and Nansha Islands and made several official statements to this effect, until shortly before the unification of Vietnam. Thus at this time the challenge to China’s sovereignty over the Nansha Islands came mainly from South Vietnam.

When France officially ceded control of the Xisha Islands to Vietnam on 15 October 1950, the Nansha Islands were not handed over. By inference, however, Vietnam claimed that it acquired the French entitlement to the Nansha group at the 1951 San Francisco peace conference (ibid.). Vietnam asserted that its official claim of sovereignty over the islands was uncontested and virtually unnoticed at the conference (Murphy, 1994/1995: 193). However, as noted earlier, the then Chinese foreign minister, Zhou Enlai, responded to the San Francisco peace treaty by declaring China’s sovereignty over the Nansha Islands (Beijing Review, 1979b: 23).

Following the Cloma incident in which the Philippines laid claim to the Nansha group (see Chapter 5), the summer of 1956 witnessed multiple protests against Manila. In late May and early June South Vietnam reiterated its claim of sovereignty over the Nansha Islands. On 1 June 1956 South Vietnam issued a statement ‘recalling the Vietnamese rights’ (ROV Ministry of Foreign Affairs, 1975: 3). Two weeks later ROV Foreign Minister Vu Van Mau reaffirmed this claim by ‘recalling Vietnam’s position at the 1951 San Francisco Peace Conference’ (ibid.). Beijing issued a protest through the Xinhua News Agency, declaring that the Cloma claim of discovery was sheer ‘nonsense’ (Samuels, 1982: 84). Taiwan also made official protests (see Chapter 2). The North Vietnamese government contested South Vietnam’s claim by supporting China’s claims to sovereignty over the islands (Murphy, 1994/1995: 193).

A South Vietnamese cruiser, Tuy Dong, sailed to the Nansha Islands in August 1956 and reached Nanwei Island. This happened after the second but before the third Chinese naval patrol of the area, and was seen to be the start of an active Vietnamese presence on the southwestern edges of this group (Samuels, 1982: 85–6). On 22 October South Vietnam assigned the Nansha Islands to Phuoc Tuy province by Decree No. 143/ NV (Chiu and Park, 1975: 9).

Between 1960 and 1967 South Vietnamese cruisers sailed on numerous occasions to Amboyna Cay, Thitu Island, Loaita Island, Shuangzi Reef and 11 other Nansha features to carry out surveys and mapping operations. After destroying Chinese stone tablets and buildings on the islands, Vietnamese crew members erected their own tablets to claim sovereignty over the islands (ROV Ministry of Foreign Affairs, 1975; Shen, 1997: 52).

On 20 April 1971 South Vietnam reaffirmed that the Nansha group were Vietnam’s territory, in response to Malaysia’s claim of sovereignty over some islands in the archipelago (SRV Ministry of Foreign Affairs, 1979a: 17). At a press conference on 13 July 1971, South Vietnam repeated its claim to the group. After surveying some islands in May 1973, Vietnam’s Institute of Agricultural Research conducted an investigation of Namyit Island in July the same year (Vietnamnet, 2011; Shen, 1997: 52). On 6 September 1973, by its fourth decree on the issue since 1956, South Vietnam placed 11 islets in the Nansha group under the jurisdiction of Phuoc Tuy province (Chiu and Park, 1975: 9).

Over the next three months Vietnamese troops were deployed to Nanwei Island and five other islands were occupied, with headquarters on the Tizard Bank (Samuels, 1982: 99). This direct challenge to Chinese claims was carried out on the recommendation of the National Petroleum Board ‘to preempt the continental shelf between the Spratlys and the Vietnamese mainland’ (Farrell, 1992: 230). The PRC issued a strong warning in January 1974 by regaining control over the Crescent group in the Paracels (Cordner, 1994: 64).

After Hanoi and the Viet Cong made strong verbal attacks on the concession awards, South Vietnam accused the North of being a ‘traitorous clique, which invites elephants to trample on their ancestors’ tombs’ (Samuels, 1982: 99; Farrell, 1992: 415). Later, North Vietnam was careful in stating that these were ‘extremely complex historical disputes and must be settled through negotiations’ (Farrell, ibid.: 416). Such a statement shows that at this point North Vietnam started to break from previous explicit or implicit recognition of Chinese sovereignty over the Xisha and Nansha Islands (Samuels, 1982: 102).

The 1974 battle between China and the ROV in the Xisha Islands prompted South Vietnam to take control of six islands in the Nansha group, beginning on 22 January 1974 and reinforcing its positions by air and sea convoy throughout February (ibid.; Shen, 1997: 53). On 4 February 1974 Beijing warned that it would not tolerate Saigon’s encroachments on Chinese territory in the Nansha Islands (Samuels, 1982: 102). Saigon issued its own protests against Taipei on 5 February 1974. Taipei also took action after the Philippines was reported to have taken two islands. On 14 February a four-vessel flotilla sailed to the Nansha Islands. On the same day Saigon issued a stern warning:

To friends and foes alike… as long as one single island [in the Paracels and Spratlys] is forcibly occupied by another country, the government and people of the republic [of Vietnam] will continue their struggle to recover their legitimate rights. (Ibid.: 104)

Taipei responded with an official statement to the effect that if Vietnamese troops attempted to land on the island, its troops on Taiping Island were allowed to ‘talk them out to minimize casualties on both sides’ (ibid.: 106).

In February 1975 South Vietnam issued a white paper, its first official document to claim sovereignty over the Nansha and Xisha Islands (Shen, 1997: 53).

Dispute with North Vietnam and later with the SRV

North Vietnam started changing its position on the Nansha sovereignty issue in 1974, shortly before unification. Reunification in 1975 strengthened Vietnam’s confidence in dealing with China. It repudiated the earlier recognition of Chinese sovereignty and moved to occupy 13 of the Nansha Islands, precipitating an open breach with China (Joyner, 1999;Buszynski and Sazlan, 2007: 146). The dispute between North Vietnam (later unified Vietnam) and China can be identified as having four stages.

Phase 1: From simmering to open dispute (pre-1975)

As noted, before the fall of the ROV in April 1975 the DRV had officially recognised China’s sovereignty over the Nansha Islands. However, scholars (including Dzurek, 1996: 19; Howell and Morrow, 1974: 127) observed that Hanoi had second thoughts about its acquiescence to China’s claim. When the Saigon government fell, Hanoi’s forces immediately (between 11 and 29 April 1975) occupied all six features previously held by ROV troops, and went on to make a formal territorial claim over the Nansha Islands (Samuels, 1982: 107; Beijing Review, 1979a: 21; Dzurek, 1996: 19).

Later, in May 1979, China published observations on the development of China-Vietnam relations in this period (Beijing Review, 1979b), saying that after the 1973 armistice in Vietnam, and especially since 1974, noticeable changes had taken place on the issue of the Sino-Vietnamese boundary. According to Hoang Tung, member of the Communist Party of Vietnam (CPV) Central Committee, after the war ceased ‘it is no longer so vital’ for the country to follow a policy of friendship with China, and the Vietnamese openly asserted that in dealing with China ‘we have begun to lean more and more towards the U.S.S.R.’ (ibid.: 20). Although there was no open confrontation just after the fall of Saigon, Hanoi’s actions over the Nansha Islands and the open rhetoric of Vietnam’s leadership showed signs of upcoming tensions.

Phase 2: Open verbal challenges (1975–1977)

The first indication of tension relating to border disputes after the end of the Vietnam War came during a visit to China by Le Duan, CPV secretary-general, in September 1975. For the first time in discussions between the two sides, Le Duan officially raised the issue of sovereignty over the Xisha and Nansha Islands. The visit ended without a joint communique, usually issued for such meetings (Amer, 2002: 6). As preparations were made for the formal unification of North and South Vietnam in 1976, Hanoi published a map of the new DRV that include both the Nansha and Xisha Islands in Vietnam’s territory (Samuels, 1982: 108; Dzurek, 1996: 19).

Another open challenge by Vietnam to China’s sovereignty claim was its senior officials’ attempt to deny its previous recognition. In mid-1977, returning home after a Europe trip, Vietnam’s Premier Pham Van Dong stopped over in Beijing. On 10 June 1977 he held talks with China’s Vice Premier Li Xiannian to exchange views on issues concerning the two countries. Li pointed out the change of North Vietnam’s stance on sovereignty over the Nansha Islands and expressed China’s hope that Vietnam kept its original position on this question (Beijing Review, 1979a: 21). As mentioned, Pham tried to explain that Vietnam’s previous recognition of China’s sovereignty was due to wartime necessity.

Phase 3: Escalation of conflicts (1978–1990)

Starting from early 1978, Vietnam intensified its occupation of the land features in the Nansha Islands and commenced oil exploitation, which escalated the disputes. In March and April 1978 Vietnam invaded and occupied the Grierson Reef (Ranqing Shazhou), Central Reef (Zhong Jiao) and Pearson Reef (Bisheng Jiao) in the Nansha group (Shen, 1997: 55).11 In July the Vietnamese government and Japanese companies signed a cooperation agreement for the exploration and exploitation of oil and natural gas resources on and around the Nansha Islands (ibid.).

After the China-Vietnam border conflicts in early 1979, territorial conflicts became increasingly publicised. The disputes involved not only the land border, which was the scene of military activities, but also the Nansha Islands (Amer, 2002: 7).

To elaborate China’s views over these border disputes, including the Xisha and Nansha sovereignty issue, Beijing Review published a series of articles on 25 May 1979. These include a speech delivered on 12 May 1979 by Han Nianlong, head of the Chinese government delegation at the fourth plenary meeting of the China-Vietnam negotiations at the vice-foreign minister level, and two commentaries by the Xinhua News Agency. An excerpt from Han’s speech clearly indicates China’s stand on the Xisha and Nansha dispute:

As regards the Xisha and Nansha Islands, I have already cited many hard facts to show that the Vietnamese side had before 1974 explicitly recognized the Chinese Government’s sovereignty over these two island groups. Our demand is that the Vietnamese side revert to its previous position of recognizing this fact and respect China’s sovereignty over these two islands groups and withdraw all its personnel from those islands in the Nansha Group which it has occupied. (Beijing Review, 1979b: 19)

On 4 October 1979 Vietnam issued a white paper entitled ‘The truth about Vietnam-China relations over the last 30 years’ (SRV Ministry of Foreign Affairs, 1979b). The white paper accused China of ‘sacrificing the interests of the Indochinese peoples to ensure China’s security in the South, to carry out the design of controlling Vietnam and Indochina’. By referring to feudal history, the white paper also showed Vietnam’s deep mistrust of China’s strategic intention: ‘The Chinese leaders attempted to get hold of Viet Nam and then of the whole Indochinese peninsula, and later on, to use Indochina as a springboard for expansion to SouthEast Asia.’

In response, China’s Peoples Daily and Xinhua News Agency published a series of commentaries from mid-November. In China’s view, the white paper is ‘a confession of the Vietnamese authorities’ complete betrayal of Sino-Vietnamese friendship’ and the ‘comradeship-plus-fraternity’ (Peoples Daily and Xinhua News Agency, 1979: 3). The articles listed the facts and communications between the old leaderships of the two countries to show that ‘without (China’s) assistance’, Vietnam could not have won independence from France (ibid.: 15–16) and ‘Viet Nam could not have won the revolution without China’ (ibid.: 27).

Escalation of mistrust brought the sovereignty dispute over the Nansha Islands into the 1980s. At the closing session of the third UNCLOS in December 1982 Vietnam’s head of delegation Le Kim Chung denounced China’s occupation of the Xisha Islands and its ‘open threat to annex’ the Nansha group, and China denounced Vietnam’s ‘expansionist ambitions’ in a written reply (Farrell, 1992: 418). In February 1987 Vietnam occupied the Barque Canada Reef, which includes the South and North Rocks (Shen, 1997: 56). In May 1987 Chinese naval vessels patrolled the Nansha Islands area (Shen, 2002: 149).

As of early 1988, Vietnam began intensifying its occupation of the Nansha features. In January it occupied West Reef (Xi Jiao) (Shen, 1997: 56), which triggered reaction from China. In February 1988 China built a ferry and a heliport on Fiery Cross Reef (Yongshu Jiao). Under the UNESCO plan (see Chapter 3) and with UNESCO’s support, China also built a maritime observation station on the islands (Shen, 2002: 149). At the same time, Vietnam went further to occupy Ladd Reef (Riji Jiao), Tennent Reef (Wumie Jiao), East Reef (Dong Jiao) and Great Discovery Reef (Daxiao Jiao) (Shen, 1997: 56). On 12 February 1988 a spokesman of China’s Ministry of Foreign Affairs remarked that China’s regular patrols and other operations conducted on some of the Nansha Islands and in their surrounding waters were matters entirely within China’s sovereign rights, and Vietnam had no right to interfere (Shen, 2002: 149). The intensified actions and counteractions led to clashes on 14 March 1988.

According to China, a Chinese survey team landed on Fiery Cross Reef to set up an observation post. Early on 14 March three Vietnamese ships arrived and landed troops on the reef. When China demanded that they leave, the Vietnamese opened fire. Chinese ships returned fire. According to Vietnam, three Chinese warships landed troops on Fiery Cross, removed Vietnam’s flag and planted China’s flag. When the Vietnamese asked the Chinese to leave, the Chinese troops and ships opened fire (Dzurek, 1996: 22). The clash on Fiery Cross was seen as a result of Vietnamese attempts to stop China from erecting structures on the reef, and led to casualties on both sides (Farrell, 1992: 422; Dzurek, 1996: 23–5). However, Vietnam did not stop occupying more features; by 20 March Cornwallis South Reef (Nanhua Jiao), Collins Reef (Guihan Jiao), Lansdowne Reef (Qiong Jiao) and Alison Reef (Liumen Jiao) were under its control (Shen, 1997: 56). In April 1988 Vietnam had garrisons stationed on Petley Reef (Bolan Jiao) and South Reef (Nanluo Jiao) (ibid.).

On 12 May 1988 China proposed negotiations with Vietnam, at the same time repeating its demand for withdrawal of Vietnamese forces (Dzurek, 1996: 22). Nevertheless, between June and July 1989 Vietnam continued to occupy Prince of Wales Bank (Guangya Jiao), Bombay Castle (Pengbo Dao) and Vanguard Bank (Wan’an Tan) (Shen, 1997: 56).

Phase 4: Consolidation of the status quo (1991- present)

After normalisation of relations in 1991, this bilateral dispute over the sovereignty of the Nansha Islands took on new forms.

First, both countries have attempted to explore resources in overlapping sea areas, the jurisdiction over which might stem from either land ownership claims or historical rights. Energy demand could be the main reason that drove these oil exploitation ventures in a sea area of overlapping claims. Second, both countries moved to consolidate administrative control by landing troops on their occupied features, issuing promotional photographs of the features, laying down marker stones and plaques and erecting lighthouses. Each new occupation was accompanied by public relations fanfare, reiterated claims of sovereignty over the entire Nansha Islands and counterclaims by the other side (Murphy, 1994/1995: 195). Third, there is increasing nationalist sentiment in both countries, calling for protection of the sacred land sovereignty of the Nansha Islands. The governments are under pressure to take a tougher position, hence more vigorous action against perceived ‘harassment’ by the counterparty. Fourth, China’s swift rise in economic and military power brings a new dimension to the sovereignty issue. Increasingly, the world is speculating if and how China will leverage its increased military strength to resolve the SCS issue with its neighbours.

Recent moves by Vietnam seem to indicate that its strategy against China is to turn the SCS dispute into a regional or international issue, especially concerning maritime claims (instead of sovereignty over land features). There are general concerns over the uncertainties that could be generated by these tactics. Since 1992 oil exploration and exploitation have augmented tensions between the two countries.

In May 1992 China signed an oil-gas exploration agreement with a US company, Crestone Energy Corporation. The agreement refers to Wan’an Bei WAB-21, a 10,000-square-mile area in the SCS (Amer, 2002: 9); much of the area encompassed by the concession is in or near the Nansha Islands, and its western boundary lies 84 miles off the coast of Vietnam (Murphy, 1994/1995: 196). Vietnam reacted negatively and claimed that the area was located on its continental shelf (Joyner, 1999: 68). Valencia et al. (1999: 27) cite a report by Dzurek to Crestone Energy on ‘Conflicting claims to Wan’an Bei, WAB-21, Oct. 1, 1992’; Dzurek argues that China’s right to the resources of this region is based on the EEZ that could be generated by the Nansha Islands, which China claims. In signing the agreement, China assured Crestone that it would defend American exploration crews. Crestone publicly estimated that oil reserves lying under the concession were over 1 billion barrels (Murphy, 1994/1995: 196).

China’s Crestone oil deal triggered immediate reaction from Vietnam, which entered into a contract with Norwegian company Nopec to conduct a seismic survey in an area that overlaps with the concession area China had granted to Crestone (Valencia et al., 1999: 31). At the farewell to the visiting Chinese Prime Minister Li Peng in December 1992, Vietnam Foreign Minister Nguyen Manh Cam said Hanoi had non-negotiable sovereignty over the Vanguard area and all claimants of the nearby Nansha Islands should settle their disputes through dialogue. About this time, British Petroleum (BP) spudded Lan Do 1 well in Vietnam Block 06, near the Crestone concession at WAB-21 (Dzurek, 1996: 27).

In 1993 the PRC and Vietnam made progress on other disputes, but tensions heightened in the Nansha Islands. On 5 May 1993 China sent a seismic survey vessel into part of the WAB-21 concession area which Vietnam leased to BP and Norway’s Statoil Vietnam. Although a Chinese Foreign Ministry official said that ‘the seismic operations conducted by the Chinese survey vessel in the waters off the Nansha Islands are regular scientific exploration activities’ (Gao, 1994: 350), Vietnam intensified its contacts with foreign companies. Following the US relaxation of its trade embargo against Vietnam in early 1993, foreign oil companies began to show strong interest in obtaining deals to explore Vietnamese waters, including two tracts close to the Crestone concession, Dai Hung and Thanh Long (ibid.). In October Vietnam invited oil companies to bid for nine offshore blocks, including contract areas near China’s Crestone area. PetroVietnam chairman Ho Si Thoang stated that this was not in a disputed area and the Nansha Islands were not entitled to an EEZ (Dzurek, 1996: 27). Gao (1994) observed that one of Vietnam’s intentions in courting foreign companies, and US oil companies in particular, was to gain ‘implicit diplomatic insurance against China’.

In 1994 China and Vietnam continued to use foreign oil companies as ‘designated hitters’ in the Nansha Islands and Gulf of Tonkin. In February China was reported to have warned Conoco to stop negotiating with PetroVietnam on areas overlapping with Crestone’s contract area (Dzurek, 1996: 29). In April Vietnam lodged official protests against seismological surveys carried out by Crestone in an area referred to as the Tu Chinh coral reef (Amer, 2002: 11). On 19 April, when Mobil signed a production-sharing contract with PetroVietnam for Block 5-1b (Blue Dragon), China was reported to be planning to drill a well in the same area. Crestone planned a seismic survey of WAB-21 before drilling started later in the year. On 20 April Vietnam protested against the Crestone plans. China reiterated its sovereignty over the Nansha Islands, but expressed hope that negotiations on territorial disputes would progress based on mutually agreed principles (Dzurek, 1996: 29).

In May-June 1994 the China-Vietnam row over the Vanguard Bank continued. In June Vietnam moved an oil-rig into the area. However, a serious confrontation was avoided, although verbal threatening rhetoric prompted concerns that contracted oil exploration activities might trigger open hostilities between China and Vietnam (Joyner, 1999: 689). On 16 June a spokesman of the Chinese Ministry of Foreign Affairs demanded ‘once again’ that Vietnam stopped its ‘acts of infringement’ on China’s sovereignty, and reasserted China’s ‘indisputable’ sovereignty over the Nansha Islands and their adjacent waters (Amer, 2002: 12–15). He claimed that Vietnam’s repeated harassment of the scientific surveys and fishing activities of Chinese vessels in the area had violated Chinese sovereignty and put China’s lawful contract with Crestone in serious jeopardy. On 17 June Vietnam responded by refuting the Chinese claim that the Vanguard Bank was part of the Nansha Islands and condemning China’s contract with Crestone as having violated the principles of international law and practice. It went on to say that the Vanguard Bank area was within Vietnam’s EEZ and continental shelf, and called on China not to make statements or conduct activities that violate Vietnam’s ‘undeniable’ sovereignty over Vanguard Bank (ibid.). The same pattern of verbal exchanges continued in early 1995 (Dzurek, 1996: 37).

In April 1996 disputes erupted following the signing of a contract between PetroVietnam and a US company, Conoco Vietnam Exploration and Production BG, for the exploration and exploitation of Vietnamese Blocks 133 and 134, which overlay the western portion of Crestone’s WAB-21 block. Vietnam insisted that these blocks were located within its continental shelf and the area was ‘completely’ under Vietnam’s sovereignty and jurisdiction. China viewed the contract as an encroachment on its sovereignty and maritime rights and interests, and reiterated its ‘indisputable’ sovereignty over the Nansha Islands (Amer, 2002: 17–18; Dzurek, 1996: 42).

In December 1996 American oil company Banken Oscar acquired Crestone Energy Corporation, and the Crestone contract on Wan’an Bei oil blocks was transferred to Banken Oscar. On 5 December a spokesperson of the Vietnamese Foreign Ministry replied to a question regarding the transfer, saying the Vanguard area was ‘conclusively’ within Vietnam’s continental shelf, and stating further that the move was a violation of Vietnam’s sovereignty. On 20 May 1997 Vietnam protested against the operation of a Chinese vessel, Discovery 08; China stated the following day that it had ‘indisputable’ sovereignty over the Nansha Islands and their surrounding waters, and the presence of Chinese ships was for normal and legitimate activities. Similar incidents occurred again in autumn 1998 (Amer, 2002: 23–5).

Following these tensions over the Vanguard oil blocks between 1992 and 1998, negotiations between China and Vietnam over their land borders and the Gulf of Tonkin achieved substantial progress. No similar incidents were officially reported until 2007.

In 2007 and 2008 Vietnam was reported to be concluding deals with international oil companies ExxonMobil and BP Conoco Phillips in disputed waters around the Nansha Islands, against which China strongly protested. Pressures were reportedly exerted on companies to stop joint exploitation activities with Vietnam. In August 2008 Vietnam signed an agreement with ExxonMobil on oil cooperation.

Again, in 2011, tension over resources near Vanguard Bank increased. On 26 May and 8 June Vietnam’s oil exploration in the overlapping area in Vanguard Bank was met with strong reaction from China, whose patrol boats cut the cables of Vietnam’s seismic vessel Binh Minh in a first instance and Viking II in the second (Raine, 2011: 74–5). Another round of diplomatic rows occurred in late May and early June. In Vietnam there were more than a dozen demonstrations against China and live-ammunition military exercises were conducted near the Vietnamese coast (Zhi et al., 2011; Zaobao, 2011). Although the tension was defused through management by the two countries, the potential for further clashes will continue to haunt them.

Besides resource exploration and exploitation, Vietnam carried out administrative and construction operations to consolidate its occupation of the Nansha Islands. On 19 July 1992 Vietnam started building a small fishing harbour on Dao Truong Sa (Nanwei Dao/Spratly Island) to provide its ships fishing in the islands with port facilities such as gasoline and ‘other services’ (Wu, 2005: 111). On 7 August 1993 Vietnam exempted export duty for fishing in the Nansha Islands (Dzurek, 1996: 27). In September 1993 a three-year tax holiday was given to companies and individuals willing to invest in and export sea products from the islands (Gao, 1994: 350). In April 2006 VinaPhone Mobile Company of Vietnam cooperated with the Vietnamese navy to construct a ground satellite receiving station to provide communication services for mobile phones.

Since 2008 has Vietnam been electing ‘National Assembly deputies’ and ‘People’s Council representatives’ for the Nansha Islands, the latest election being held in May 2011. Such actions drew protests from China. On 10 May 2011 a spokesperson of China’s Ministry of Foreign Affairs declared that China had indisputable sovereignty and Vietnam’s actions were ‘illegal’, ‘invalid’ and ‘not in line with the spirit’ of the DOC (Ministry of Foreign Affairs, 2011a).

On 6 May 2009 Malaysia and Vietnam made a joint submission to the CLCS relating to a ‘defined area’ in the south of the SCS. On 7 May 2009 Vietnam made a partial submission relating to the ‘North Area’, which is located in the northwest of the SCS (Vietnam, 2009; see Chapter 1). China protested against both submissions.

Based on its behaviour in handling disputes with China, Vietnam appeared to align its interests with ASEAN and other external countries, thus regionalising or internationalising the disputes.

Since the summit of November 1991, relations between China and Vietnam have been characterised by two contradicting trends: a positive trend, with expanding contacts and cooperation in many fields, and a negative trend, with continued territorial disputes. Generally, the positive trend prevailed throughout the period; however, amicability was occasionally interrupted by tensions caused by border disputes, especially those in the SCS area.

Based on the history of the bilateral Nansha sovereignty dispute, further observations in regard to Vietnam’s actions in the Nansha Islands can be made. First, upon unification Vietnam immediately made sovereignty claims over the islands because of security concerns and its need for development. Second, Vietnam had taken various state actions to consolidate its claims, including public propaganda, occupation of more features, diplomatic protests, administrative measures, resource exploitation and military exercises. These activities could create tension in bilateral relations. However, since 1974, especially after bilateral relations normalised in 1991, there have been mutual efforts to manage the SCS disputes.

Bilateral efforts on dispute settlement and future challenges

Following normalisation of relations between China and Vietnam in November 1991, serious maritime disputes, i.e. overlapping claims to the Xisha and Nansha Islands, and to water and continental shelf areas in the SCS and the Gulf of Tonkin, have fuelled tension.

To manage their disputes, China and Vietnam have formalised a highly structured and extensive mechanism of talks and discussions. From top to bottom, the system consists of four tiers: high-level talks between presidents, prime ministers and secretaries-general of the Communist Parties from China and Vietnam; foreign minister talks; government-level talks involving deputy or vice ministers; and expert-level talks. While each tier has its unique function in bilateral dispute management, every tier contributes to the success of the entire system.

High-level talks are key guidance for both countries in managing bilateral relations, including contentious issues such as the Nansha dispute. As former Vietnam Vice Foreign Minister Vu Khoan observes, China-Vietnam relations are complicated and state actions should be rational – ‘the heart must be hot but the head must be cold’ (Vietnamnet, 2012).

Since normalising bilateral relations, the top leadership of both countries have exchanged visits regularly. During these talks the leaders set the tune for the development of future relations. In November 1991 Vietnam’s Secretary-General Do Muoi headed a delegation to Beijing. A joint communique was signed, point 5 of which involved territorial disputes and emphasised the importance of ‘maintaining] peace and tranquility’ (Amer, 2002: 7). When China’s Premier Li Peng visited Vietnam in late 1992, he and his Vietnamese counterpart Vo Van Kiet agreed to settle their disputes peacefully and upgrade the level and pace of the settlement process (Valencia et al., 1999: 90).

During the exchange visit by China’s Party Secretary-General Jiang Zemin to Vietnam in November 1994, Jiang and Do Muoi signed a communique in which the two sides ‘reaffirmed’ that they would pursue peaceful negotiations to solve their boundary and territorial issues, and pending the settlement of the territorial disputes they would refrain from taking actions which would ‘complicate or enlarge the disputes’ and from using or threatening to use force. Between 1996 and 1999 such exchanges continued every year. A high-level visit to China by Vietnam’s Party Secretary-General Le Kha Pieu from 25 February to 2 March 1999 provided the opportunity for the leaders to discuss border issues. A joint declaration was issued on 27 February, section 3 of which is about border issues. The two countries agreed to maintain the existing negotiation mechanism on sea issues with the aim of finding a ‘basic long-term solution’ through negotiations (Amer, 2002: 26–7).

Further exchanges took place in 2011 when Vietnam’s Party Secretary- General Nguyen Phu Trong visited Beijing in October and China’s Vice President Xi Jinping visited Vietnam in December. The key outcome of the first visit was the signing of a six-point agreement on the guiding principles for negotiation of sea-related issues between the two countries. The countries also signed a joint statement during the summit, in which both sides expressed their ‘political will and determination to settle disputes via friendship negotiation and talks in order to maintain peace and stability’ in the SCS (Li and Amer, 2012: 101; Nhan Dan, 2011). The return visit by Xi was seen to be setting the tone for China-Vietnam relations in the future, as reports speculated that Xi would head the next generation of Chinese leadership.

Vietnam’s President Truong Tan Sang paid a state visit to China on 19–21 June 2013, during which he met with Chinese Vice President Xi. Both sides emphasised their determination to settle the South China Sea issues by political means and not taking unilateral actions which may complicate the issues. China also expressed its willingness to make further efforts together with Vietnam on negotiations over the delimitation as well as joint development in the sea area beyond the mouth of Beibu Bay (Ministry of Foreign Affairs, 2013c). At the end of the visit, China and Vietnam signed a joint communique in which sea-related issues were given greater attention (Ministry of Foreign Affairs, 2013d).

Expert-level talks were initiated in October 1992; until the end of 1995 these focused on the Gulf of Tonkin. Talks on the disputes in the SCS proper were initiated in November 1995. The eleventh round of talks was held in July 2006. In 2012 another expert-level mechanism was initiated for discussing cooperation on low-sensitive issues at sea. The first meeting was convened in Beijing on 29–30 May 2012, and experts exchanged views on cooperation in the fields of marine environmental protection, marine scientific research, search and rescue, and disaster prevention (Ministry of Foreign Affairs, 2012e).

Government-level talks started in August 1993, with the last round being held in April 2011. The first achievement was the signing of an agreement on 19 October 1993 on the principles for handling the Gulf of Tonkin disputes. The talks also agreed to set up a joint working group at the expert level specific to the Gulf of Tonkin. In April 2011 China’s Deputy Foreign Minister Zhang Zhijun visited Hanoi and agreed with his Vietnamese counterpart to sign an agreement as soon as possible on the fundamental principles guiding the settlement of sea-related differences and relevant issues through peaceful negotiations (SRV Ministry of Foreign Affairs, 2011).

After the tensions in late May and June 2011, talks were initiated to agree on the basic principles for settling ‘sea-related issues’. The Agreement on Basic Principles Guiding the Settlement of Sea-Related Issues was signed in Beijing on 11 October 2011, on the occasion of CPV Secretary-General Nguyen Phu Trong’s visit to China. This agreement has bolstered the regimes for managing sea-related issues and disputes through a de facto bilateral ‘code of conduct’. The summit of October 2011 signals a renewed high-level push for better management of sea-related issues after a three-year break, and the combination of Nguyen’s visit to China and the signing of the basic principles creates more favourable conditions for managing and defusing tensions between China and Vietnam in the SCS.

A joint working group was set up to deal with particular issues. In regard to negotiation on delimitation of the Gulf of Tonkin, the group met 17 times between March 1994 and 2000 before finally reaching agreement. In January 2006 another joint working group was created to commence negotiations on delimitation and joint development issues in the mouth of the Gulf of Tonkin. Its last round of talks was held in 2009. Talks renewed in May 2012 in Hanoi, counting as the first round of talks of another joint working group, and the third round was held in May 2013.

Systematic and integrated consultations within and between the various tiers enabled the two countries finally to make breakthroughs in their bilateral maritime dispute management in 2000. On 25 December 2000 both signed the Agreement on the Delimitation of the Territorial Seas, Exclusive Economic Zones and Continental Shelves in the Beibu Gulf and the Agreement on Fishery Cooperation in the Beibu Gulf.12 Both agreements became effective on 1 July 2004. The boundary line in the Gulf of Tonkin is China’s first maritime boundary with its neighbouring countries and the first China-Vietnam maritime boundary (Zou, 2005: 48–9). The agreements allow both countries to exploit nonliving resources and regulate fishing in the gulf (Amer and Nguyen, 2005: 440). The successful signing of these two agreements and the subsequent cooperation in enforcing orders through bilateral mechanisms, such as a joint fishery committee and joint patrol, have created a cooperative atmosphere (Li and Chen, 2011) and will provide invaluable experience for resolving disputes in other parts of the SCS, including the Nansha Islands.

Although bilateral efforts have seen to promise progress in dispute resolution, as exemplified by the delimitation agreement in 2000 and the guiding principles in 2011, challenges still remain. Little progress has been achieved with regard to settlement of the disputes in the SCS proper, i.e. the competing sovereignty claims to the Xisha and Nansha Islands, as well as the overlapping claims to waters and continental shelf areas to the east of the Vietnamese coast. Although expert-level talks have been initiated, the two parties have yet to agree on which disputes to include on the agenda. Vietnam has been pushing for the Xisha Islands to be included alongside the Nansha Islands, whereas China only wants to discuss the latter.

Conclusion

The China-Vietnam sovereignty dispute over the Nansha Islands is a sensitive and complicated issue. First, the size of their overlapped claims is the largest compared to the areas disputed with other claimants. Second, the dispute concerns sovereignty over land features, which is considered inviolable by citizens in both countries, no matter how tiny the features are. Any perceived compromise will meet strong domestic opposition. Third, the resolution of such sovereignty disputes will, to varying degrees, affect the maritime delimitation in different areas. Fourth, the perceived ‘gains’ and ‘losses’ of the maritime domain will affect each country’s perception of national security in the region, including national defence, energy security and development capacity. Vietnam’s claim over the Xisha Islands that China fully controls is another thorny issue to consider.

Since the normalisation of bilateral relations in 1991, efforts from both countries have led to the resolution of their land border disputes as well as maritime delimitation in the Gulf of Tonkin. Trade across the land border has been growing rapidly, for example, at an average annual increase of 20 per cent from 2006 to 2011.13 Fishing in the Gulf of Tonkin has been carried out under the guidance of the China- Vietnam Joint Fishery Committee established in 2004. Good fences make good neighbours. Experience in resolving these boundary disputes and mechanisms set up to manage conflicts have been effective and will contribute to future dispute management. However, disputes over the Nansha Islands and their neighbouring sea areas have frequently led to tension in bilateral relations. Recent events reflect both negative and positive developments in the situation, but final resolution of the Nansha dispute remains distant. The governments of both China and Vietnam must bring their wisdom to bear on the sovereignty issues, and find technical solutions to ‘put aside (sovereignty) disputes and pursue joint development’. Cooperation in other areas such as marine environmental protection and marine resources management is a confidence-building move which is conducive to friendly bilateral relations, as well as peace and stability in the SCS region.


1This is a Chinese official expression frequently used in relation to handling maritime disputes with its neighbouring countries in the East China Sea and SCS

2As noted in Chapter 1, Vietnam claims the Xisha and Nansha Islands in the SCS, and uses ‘archipelagos’ or ‘islands’ when referring to these two groups. In Vietnamese Hoang Sa refers to the Xisha Islands and Truong Sa to the Nansha Islands.

3The number is quoted as 29 in the literature by Chinese researchers, for example in research by China’s Oceanographic Administration in 2003.

4All relevant official statements from North Vietnam are discussed later in this chapter.

5The relevant part states: ‘Binh Son District of Quang Ngai Prefecture includes the coastal commune of An Vinh. Offshore to the northeast of An Vinh are many islands and approximately 130 mountains separated by waters which can take from a few watches to a few days to travel across’ (emphasis added).

6The Chinese scholars include Han Zhenhua, Dai Kelai and Li Jinming. See Briefing of Vietnam’s Claims over the Paracels and Spratlys (Yuenan Dui Xisha Qundao, Nansha Qundao de Zhuzhang Xianjie); available at http://forum.defence.org.cn/archiver/?tid-18273.html (accessed: 2 February 2012).

7Treaty of Peace with Japan; available at: www.taiwandocuments.org/sanfrancisco01.htm (accessed: 6 February 2012).

8Treaty of Peace between the Republic of China and Japan; available at: www.taiwandocuments.org/index.htm (accessed: 23 February 2012).

9Article 2(b) reads, ‘Japan renounces all right, title and claim to Formosa and the Pescadores.’

10Article 2(f) reads, ‘Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.’

11All names are adjusted in accordance with three sources: Hancox and Prescott (1995), Samuels (1982) and Zhang et al. (2003).

12

1. Gulf of Tonkin in English.

13See http://english.vov.vn/Home/Boosting-VietnamChina-border-trade/ 201111/132512.vov (accessed: 17 February 2012).