Vietnam’s claim over oil rig contention lacks legal foundation under UNCLOS

By Sam Bateman Source:Global Times Published: 2014-5-18 20:08:01

Vietnam has launched a strong diplomatic and public relations campaign to support its position in the recent disputes over China's positioning of an oil rig in waters off the Paracel Islands, also known as the Xisha Islands.

It appears to be winning the public relations battle with much global commentary supporting its claim that the rig is illegal and painting the situation as yet another example of China's assertiveness.

However, a closer look at the situation suggests that China may be within its rights with the rig. Undoubtedly, however, it could have handled the situation more diplomatically rather than acting unilaterally in a way that would lead to increased tension.

The rig is about 120 nautical miles east of the Vietnamese coast, and 180 nautical miles south of China's Hainan Island. These are the two nearest mainland points from which an exclusive economic zone (EEZ) and continental shelf can unquestionably be measured.

Equally importantly, however, the rig is about 14 nautical miles from a small island in the Paracel Islands claimed by China and 80 nautical miles from Woody Island, also known as Yongxing Island, a large feature with an area of about 500 hectares occupied by China.

Woody Island is indisputably an island as defined the regime of islands in the 1982 UN Convention on the Law of the Sea (UNCLOS) and thus entitled to an EEZ and continental shelf.

Despite global commentary that suggests otherwise, a negotiated maritime boundary in this area would likely place the rig within China's EEZ even if reduced weight was given to China's claimed insular features.

Vietnam claims that because the rig is closer to its mainland coast than to China's and well inside 200 nautical miles of its coast, it lies within its EEZ and on its continental shelf. Superficially this argument may appear attractive but geographical proximity alone is not an unequivocal basis for claiming sovereignty or sovereign rights.

Vietnam's current claim is seriously weakened by North Vietnam's recognition of Chinese sovereignty over the Paracel Islands in 1958 and its lack of protest between 1958 and 1975. A number of governments, including the US, have explicitly or implicitly recognized Chinese sovereignty over some or all of the islands.

China took Woody Island after WWII. North Vietnamese occupation of that large feature could have significantly affected US operations against North Vietnam during the Vietnam War.

The US has urged the claimant countries to exercise care and restraint. Against the historical background of US acceptance of China's sovereignty over Woody Island, it would be hypocritical now for Washington to make any stronger statement that might be seen as supportive of Vietnam's position.

Previous incidents around the Paracel Islands mainly related to fisheries management issues. Undoubtedly Vietnam can make a strong case that its fishermen have traditionally fished in these waters - in much the same way as China claims traditional rights for its fishermen elsewhere in the South China Sea.

Vietnam may well have been better off to agree to China's sovereignty over the Paracel Islands in return for China conceding traditional fishing rights in the area to Vietnamese fishermen and agreeing to pursue the joint development of marine resources in the waters between the islands and the coast of Vietnam.

Unfortunately, however, the two countries have probably passed the point of no return in being able to reach such a negotiated settlement.

Hard-line positions by all the parties to the sovereignty disputes in the South China Sea are short-sighted and will inevitably lead to increased tensions and regional instability.

There will be losers in this approach when potentially all could be winners if the parties accepted the need for functional cooperation in managing the sea and its resources.

The geographical reality is that straight line maritime boundaries will be impossible to achieve in some parts of the sea. The irony of the current situation is that functional cooperation is not just something that would be nice to have but is an actual obligation under Part IX of UNCLOS covering semi-enclosed waters such as the South China Sea.

That obligation has been forgotten while countries continue to assert their unilateral sovereignty claims and risk a "win-lose" outcome.

The author is a senior fellow in the maritime security program at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University. He is a former Australian naval commodore with research interests in regimes for good order at sea. The article previously appeared on RSIS

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