Malaysia’s recent submission to the Commission on the Limits of the Continental Shelf has triggered a note-verbale debate between claimants in the South China Sea. After China and the Philippines, Vietnam is the latest to join the debate with a note to protest not only Malaysia’s claims, but China’s as well.
Vietnam’s note verbale, dated March 30, 2020, concisely explains Vietnam’s positions in legal terms which are compatible with the key findings of the 2016 South China Sea arbitration award. The note objects to China’s historic rights in the South China Sea and any other maritime claims that exceed the limits provided in the United Nations Convention on the Law of the Sea (UNCLOS). It also opposes the “four shas” doctrine, a Chinese endeavor to claim maritime zones from four groups of islands in the South China Sea as if they were each a single entity. But most interestingly, the note seems to indicate, for the first time, an official Vietnamese position on the legal status of all high-tide features in both the Spratly and Paracel Islands.
Vietnam’s Positions in the Note Verbale
The language of the note suggests that Vietnam believes no high-tide features in the Paracel and Spratly Islands are eligible to generate an exclusive economic zone (EEZ) or continental shelf. In comparison to Vietnam’s previous notes and statements that usually refer to “international law, including UNCLOS” in general, the note verbale cites a specific rule: “The maritime entitlement of each high-tide feature in the Hoang Sa [Paracel] Islands and the Truong Sa [Spratly] Islands shall be determined in accordance with Article 121(3) of UNCLOS[…]”
Article 121 provides two principles to delimit maritime entitlements of “islands.” Article 121(2) specifies that an island enjoys a territorial sea, a contiguous zone, an EEZ, and a continental shelf. But article 121(3) provides that a “rock,” defined as an island that cannot sustain human habitation or economic life of its own, shall have no EEZ or continental shelf. Vietnam’s note verbale explicitly refers to the latter principle and its phrasing does not leave room for exceptions.
Vietnam also takes the opportunity to reject the drawing of straight baselines around the Paracel or Spratly Islands. The note states: “[T]he baselines of the groups of islands in the East Sea, including the Hoang Sa Islands and Truong Sa Islands, cannot be drawn by joining the outermost points of their perspective outermost features.”
China is of the view that each group of islands in the South China Sea should be enclosed within a system of archipelagic or straight baselines drawn by joining the outermost points of the group. The waters within would then be internal waters of China and the island group as a whole would generate a territorial sea, EEZ, and continental shelf from those baselines. China’s Note Verbale No. CML/11/2020 and numerous previous instruments state that China has maritime entitlements to a territorial sea, EEZ and continental shelf based on the Spratly Islands as a whole. Note Verbale CML/14/2019 indicates that “Nanhai Zhudao” consists of four groups of islands each forming a single unit entitled to generate maritime zones. Recently, a group of Chinese scholars have argued that customary international law allows the delimitation of maritime entitlements from offshore archipelagos of continental states, a position known to international scholars as China’s “Four Shas” doctrine. However, as shown in the South China Sea arbitration, the application of straight or archipelagic baselines in that fashion is incompatible with UNCLOS.
Vietnam’s objection is formulated in a generalized language that applies to any use of those baselines whether in the Paracel Islands, the Spratly Islands, or any other constituent group of the “Four Shas”. Moreover, from the outset, Vietnam’s note verbale asserts that UNCLOS is the sole legal basis for defining maritime entitlements. This assertion is probably aimed at rejecting the notion that customary international law exists in parallel with UNCLOS.
Finally, Vietnam also objects to China’s claim to historic rights as well as any other maritime claim not based on UNCLOS. The tribunal in the South China Sea arbitration found that China’s claims to historic rights, as embodied in its laws, statements, and the nine-dash-line, are contrary to the convention.
Implications for the Disputes
Like a missing piece of a jigsaw puzzle, Vietnam’s note verbale has elucidated Vietnam’s claims in the South China Sea. It is now readily apparent that Vietnam and China hold distinctively opposing opinions with respect to the interpretation and application of UNCLOS provisions, with the positions of Vietnam being heavily colored by the reasonings and findings in the South China Sea arbitration award. With regard to the dispute between Vietnam and the Philippines, the two countries now share a number of common views regarding the legal status of features in the Spratly Islands even while their dispute over the sovereignty of the islands remains.
Furthermore, Vietnam’s position suggesting that the Paracel and Spratly Islands cannot generate EEZs or continental shelves would mean that a portion of the South China Sea is an area of high seas. In the high sea, all states exercise and enjoy freedoms under the conditions laid down by UNCLOS and other rules of international law. The implications of Vietnam’s positions, therefore, deserve the attention of all states, both within and without the region.
