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By Le Minh Phieu and Duong Danh Huy
Translated from Vietnamese by Tony Le
17 September 2008
Original article on Le Minh Phieu's Blog:
Article published on BBC
Despite China’s strong protest, ExxonMobil will continue to collaborate with Vietnam to explore oil in the Eastern Sea. And even though the United States declares that it does not lean to any one side in the Paracel-Spratly dispute, the US Ambassador and the Deputy Secretary of State, in his recent visit to Vietnam, affirmed that the areas in which ExxonMobil is collaborating with Vietnam rightfully belonged under Vietnam’s sovereignty. These actions are not without reason. Vietnam has enough legal basis to assert sovereignty over the Tu Chinh – Vung May and the Nam Con Son Basin areas, while China’s dispute over these areas are completely without basis.
Undisputable sovereignty of Vietnam according to international law
Many people mistakenly believe that the protests by China to the oil exploration efforts in the above areas involve the dispute of sovereignty over the Paracel and Spratly Islands. Nonetheless, according to international law, even if the Paracel and Spratly Islands legally belonged to China, it remains that the Tu Chinh – Vung May and Con Son Basin areas lying to the north of the Indonesian border belong under Vietnam’s sovereignty.
According to Article 57 and 76 of UNCLOS, countries bordering the sea are entitled to an Exclusive Economic Zone stretching a maximum of 200 nautical miles from the basesline and the continental shelf; if the geological situation on the ocean floor allows, then this zone may be extended to a maximum of 350 nautical miles, or 100 nautical miles from a depth of 2500 meters.
UNCLOS also stipulates that in the case of dispute, in which there is an overlap of the EEZ between two countries, then this dispute must be resolved equitably (Article 74 and 83).
When judging maritime disputes, the International Court of Justice usually draws a line in the middle of the two countries as a test. After that, the Court determines whether the territory awarded to each party is proportional to the length of the disputed shoreline or not.
In drawing the EEZ and continental shelf, maritime law does not take into consideration small islands far from the mainland, as well as those that cannot support human settlement and an independent economic life. This principle is stated in Item 3 of Article 121 of UNCLOS, and has been applied in cases including the North Sea, Lybia vs. Malta, the Gulf of Maine, and Guinea vs. Guinea-Bisseau.
One can see that the entire Tu Chinh – Vung May and Nam Con Son Basin to the north of the Indonesian and Malaysian border lie completely in Vietnam’s 200- nautical mile EEZ or in Vietnam’s continental shelf (See Map 2). Therefore, based on Article 57 and 76 of UNCLOS, these areas naturally belong to Vietnam.
Except for China, the countries of Malaysia, Philippines and Indonesia do not have disputes with Vietnam in the areas of Tu Chinh – Vung May and Nam Con Son Basin. Brunei has a dispute over a small section of the Tu Chinh – Vung May area, but does not involve lots 133 and 134. Therefore, these Southeast Asian countries, while involved in the Spratly dispute, still respect UNCLOS and do not wish to violate Vietnam’s EEZ or continental shelf.
China’s notorious demands
In 1992, China signed a contract with Crestone to explore oil in the Tu Chinh – Vung May area. In 1994, China protested Vietnam’s contract with Mobil to explore oil in the Thanh Long area. In 2007, China pressured BP to stop its activities in the two regions of Moc Tinh and Hai Thach. (The areas of Thanh Long, Moc Tinh, Hai Thach lie in the Nam Con Son Basin).
This year, China tried to pressure ExxonMobil to cease its contract with Vietnam to explore oil in the Nam Con Son Basin.
Nevertheless, judged from international law, these demands are completely without basis.
All the islands in the Spratly archipelago are below 0.5 square km in area, and in themselves cannot support human settlement and independent economic life. According to cited legal principles, these islands are not entitled to EEZ and continental shelf. They are only entitled to a maximum territorial sea of 12 nautical miles (Article 121, Item 2 and 3 of UNCLOS).
Map 3 indicates that the 12-nautical mile territorial sea of all the Spratly islands lie outside the Tu Chinh – Vung May and Nam Con Son Basin areas. Therefore, the sovereignty dispute over the Spratly Islands does not give China the legal rights to dispute this area.
Moreover, this area lies on Vietnam’s side of the half-way line between the Vietnam shoreline and the islands in the Spratlys that lie above water during high tide (Map 3). Picture 1 also indicates that this area lies on Vietnam’s continental shelf, and does not involve the Spratlys’ continental shelf whatsoever.
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In order to protect Vietnam’s territorial integrity, it is imperative that Vietnam needs to have a strong control and implementation of sovereignty over the Tu Chinh – Vung May and Nam Con Son Basin areas. If China successfully invades this area, it will set a dangerous precedence for all other areas that lie within Vietnam’s 200 EEZ in the Eastern Sea.
Moreover, there should be no confusion between maritime areas that clearly belong to Vietnam, including the above mentioned areas, and the Paracel – Spratly dispute. China cannot take advantage of the Paracel – Spratly dispute as an excuse to invade these areas of Vietnam, as well as claiming 75% of the Eastern Sea.
Map 1: Tu Chinh – Vung May and Nam Con Son Basin.
Thanh Long Area lies in lot 05-1B. Moc Tinh area lies in lot 05-3. Hai Thanh area lies in lot 05-2. Lan Tay, Lan Do areas lie in lot 06-1. The black dotted line is the “cow tongue” line drawn by China.
Map 2: Vietnam’s 200 Exclusive Economic Zone
Note: The black circles represent 12-nautical mile territorial sea belonging to the islands of the Paracels and Spratlys. “The cow tongue” line drawn by China goes deep into the 200 nautical mile EEZ from Vietnam’s shoreline. Based on the map of PetroVietnam.
Map 3: Tu Chinh – Vung May areas lie outside the 12 nautical miles of the islands of the Spratly archipelago.
The Thanh Long, Moc Tinh, Hai Thanh, Lan Tay, Lan Do areas lie to the Vietnam’s side of the line between Vietnam and the Spratlys.
Picture 1: The contintental shelf of the Nam Con Son Basin belong to Vietnam’s Continental shelf, unrelated to that of the Spratlys.
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