DSpace at VNU: Managing Vietnam''s maritime boundary disputes

DSpace at VNU: Managing Vietnam''''s maritime boundary disputes tài liệu, giáo án, bài giảng , luận văn, luận án, đồ án, bà...

This article was downloaded by: [Pennsylvania State University] On: 17 June 2012, At: 14:40 Publisher: Taylor & Francis Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Ocean Development & International Law Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uodl20 Managing Vietnam's Maritime Boundary Disputes a Nguyen Hong Thao & Ramses Amer b a Professor Faculty of Law, Vietnam National University, Hanoi, Vietnam b Senior Lecturer Department of Political Science, Umea University, Umea, Sweden Available online: 24 Aug 2007 To cite this article: Nguyen Hong Thao & Ramses Amer (2007): Managing Vietnam's Maritime Boundary Disputes, Ocean Development & International Law, 38:3, 305-324 To link to this article: http://dx.doi.org/10.1080/00908320701530482 PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: http://www.tandfonline.com/page/terms-and-conditions This article may be used for research, teaching, and private study purposes Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date The accuracy of any instructions, formulae, and drug doses should be independently verified with primary sources The publisher shall not be liable for any loss, actions, claims, proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material Ocean Development & International Law, 38:305–324, 2007 Copyright © Taylor & Francis Group, LLC ISSN: 0090-8320 print / 1521-0642 online DOI: 10.1080/00908320701530482 Managing Vietnam’s Maritime Boundary Disputes Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 NGUYEN HONG THAO Professor Faculty of Law Vietnam National University Hanoi, Vietnam RAMSES AMER Senior Lecturer Department of Political Science Umea University Umea, Sweden This article examines the progress made in managing Vietnam’s maritime boundary disputes and analyzes the challenges that lie ahead relating to unsettled disputes The continuity and change in Vietnam’s approach to dispute a settlement and the difficulties in managing the unresolved maritime disputes are assessed Vietnam has made considerable progress in managing its maritime disputes; however, continued efforts are needed to address the unresolved disputes Keywords boundary, Gulf of Thailand, Gulf of Tonkin, maritime disputes, Spratly archipelago, Vietnam Purpose and Structure The main purpose of this article is to analyze and assess the progress made in managing the maritime disputes between Vietnam and its neighboring countries This is done through a process that has three sections The first encompasses the identification of the scope and basis of the claims of Vietnam and of its neighboring countries The second section involves the identification of the maritime disputes with Vietnam through an overview of the agreements reached thus far between Vietnam and its neighbors and through an overview Received July 2006; accepted 24 August 2006 This study draws on earlier and ongoing research carried out by the two authors on an individual basis on Vietnam’s maritime disputes as well as the as on other aspects of the developments in the South China Sea A travel grant from the Swedish School of Advanced Asia-Pacific Studies (SSAAPS) made a working visit by Professor Amer to Vietnam possible in March 2006, during which an earlier version of this manuscript was discussed The views expressed are the personal views of the two authors For an earlier study encompassing Vietnam’s land border disputes, see Ramses Amer and Nguyen Hong Thao, “The Management of Vietnam’s Border Disputes: What Impact on Its Sovereignty and Regional Integration?,” Contemporary Southeast Asia, 27(3), (December 2005), pp 429–452 Address correspondence to Associate Professor Ramses Amer, Department of Political Science, Umea University, SE-901Umea, Sweden E-mail: ramses.amer@pol.umu.se or thaonh@vista.gov.vn 305 306 N H Thao and R Amer of the unsettled disputes The third section provides an analysis of the agreements reached and the remaining dispute situations from both a legal and political perspective, with a look at identifying strategies for management and models for settlement of disputes Vietnam’s Maritime Claims through a Comparative Perspective Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 In this section, the basis and extent of Vietnam’s ocean claims and the claims of its neighboring countries in the South China Sea proper as well as in the Gulf of Thailand and the Gulf of Tonkin are outlined.1 It should be noted that although the claims and arguments presented have been formulated and used by the various countries, in some cases, their specific extent has not been outlined on maps Further, in some cases, earlier governments formulated the claims displayed on maps Vietnam2 Vietnam claims sovereignty over the Paracel archipelago (Hoang Sa in Vietnamese) and Spratly archipelago (Truong Sa in Vietnamese) It has claimed an exclusive economic zone (EEZ) of 200 nautical miles and the adjacent continental shelf in the South China Sea (East Sea—Bien Dong in Vietnamese) on the basis of natural prolongation The Government Statement on the Territorial Sea, the Zone Contiguous, the Economic Exclusive Zone, and the Continental Shelf of Vietnam of 12 May 1977 and the Government Statement on the Baselines of Vietnam of 12 November 1982 outline the extent of Vietnamese claims to maritime areas in the South China Sea Vietnam also has claimed an EEZ and continental shelf areas in the Gulf of Thailand and the Gulf of Tonkin Vietnam currently controls more then 20 islands, cays, and reefs in the Spratly archipelago The control over features in the Spratly archipelago has gradually been increasing since the mid-1970s when Vietnam had permanent troops on seven of the features Vietnam has no physical control of any island, cay, or reef in the Paracel archipelago, which has been fully under China’s control since 1974, when the Chinese Navy took control over the islands from the then Republic of Vietnam (ROV) (South) Vietnam’s sovereignty claims to the Paracel and Spratly archipelagos in the South China Sea are based on historical records and maps from precolonial time and from the French colonial period Vietnam maintains the position that the “Feudal Vietnamese State” had effectively controlled the two archipelagos since the 17th Century The “unified” Vietnam relies on documentation from the former ROV to substantiate its claims.3 The Vietnamese sovereignty claim to island features in the Gulf of Thailand also seems to be historical Regarding ocean areas, Vietnam has increasingly been arguing in terms of modern international law—that is, the 1982 United Nations Convention on Law of the Sea (UNCLOS)4 —to substantiate its claims to EEZ and continental shelf areas in the South China Sea proper, the Gulf of Thailand, and the Gulf of Tonkin Brunei Darussalam5 Brunei Darussalam claims an EEZ and the natural prolongation of its adjacent continental shelf in the southern part of the South China Sea Brunei claims sovereignty over Louisa Reef in the Spratly archipelago, which is, however, currently under Malaysian control Brunei relies on the UNCLOS to sustain its claims to EEZ and continental shelf areas in the South China Sea The claim to the Louisa Reef appears to be based on the fact that it is located within the continental shelf area claimed by Brunei Vietnam’s Maritime Boundary Disputes 307 Cambodia6 Cambodia has sovereignty claims to islands, cays, and reefs in the Gulf of Thailand and controls some of these features The extent of Cambodia’s claims has gradually been defined since the late 1960s Through a Government Statement on 31 July 1982, Cambodia has defined its claim to 12 nautical miles of territorial sea, 24 nautical miles of contiguous zone, and a 200 nautical miles of EEZ Cambodia is not a party to the UNCLOS.7 Nevertheless, Cambodia argues that UNCLOS supports its claims to EEZ and continental shelf areas in the Gulf of Thailand The basis of the sovereignty claims to land features in the Gulf seems to be historical Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 China8 China,9 alongside Taiwan, has the most extensive claims in the South China Sea China claims sovereignty over the Paracel archipelago (Xisha in Chinese) and the Spratly archipelago (Nansha in Chinese), as well as the Pratas Islands As shown on official Chinese maps, China claims the major parts of the South China Sea as “historical waters” in a U-shaped area marked by the so-called dotted lines southward to the east of the Vietnamese coastline, turning eastward to the northeast of the Indonesian controlled Natuna Islands, and to the north of the Malaysian state of Sarawak, and then turning northeastward along the coast of Brunei Darussalam and the Malaysian state of Sabah, and finally northward to the west of the Philippines China also claims an EEZ and the natural prolongation of the continental shelf in the Gulf of Tonkin China controls the whole Paracel archipelago In 1956, China took control of the eastern part of the Paracels and took control of the western part by force in 1974 China gained its first foothold in the Spratly archipelago in 1988 Since then, China has expanded its control over islands and reefs in the Spratly area It is estimated that China currently controls ten islands, cays, and reefs in the Spratlys The Pratas Islands are under Taiwanese control China’s claims in the South China Sea seem to be based on historical records and maps, which are used to sustain two kinds of claims First, it is argued that they show that China discovered the island groups in the South China Sea; and second, it is argued that they show how Chinese people occupied the islands and developed them More recently, China has also been arguing in terms of modern international law—UNCLOS—to substantiate its claims to water and continental shelf areas in the South China Sea Indonesia10 Indonesia controls the Anambas, Badas, Natuna, and Tambelan Islands Indonesia also claims an EEZ and the continental shelf extending into the South China Sea proper to the north of the Anambas Islands and to the north and east of the Natuna Islands Indonesia regards itself as an archipelagic state and therefore considers the water areas within the straight baselines joining “appropriate” points of the outermost islands of the Indonesian archipelago as archipelagic waters Indonesia’s claims to a territorial sea, EEZ, and continental shelf are measured from the archipelagic baselines that link the outermost islands of the Indonesian archipelago Indonesian’s use of the archipelagic principle and claims to territorial sea, EEZ, and continental shelf areas in the South China Sea are based on UNCLOS 308 N H Thao and R Amer Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Malaysia11 Malaysia claims sovereignty over the southern part of the Spratly archipelago Malaysia also claims an EEZ and the natural prolongation of the continental shelf in the South China Sea off the east coast of Peninsular Malaysia and off the coasts of the states of Sabah and Sarawak on the island of Kalimantan (Borneo) Malaysia similarly claims an EEZ and the natural prolongation of the continental shelf in the Gulf of Thailand off the northeast coast of Peninsular Malaysia The extent of Malaysia’s claims has gradually been defined since the 1960s Malaysia publicized the extent of its territorial sea (12 nautical miles) and of its continental shelf claims through two maps in December 1979 Malaysia proclaimed its 200 nautical miles EEZ in April 2003 The 1979 maps display the extent of Malaysia’s claims on the southern part of the Spratly archipelago Currently, Malaysia controls at least five islands and reefs in the Spratly archipelago, with Swallow Reef being the first, claimed in June 1983 Malaysia argues in terms of the 1982 UNCLOS to sustain its claims to EEZ and continental shelf areas in the South China Sea The claim to the islands controlled by it in the Spratlys appears to be based on the fact that these features are located within the continental shelf area claimed by Malaysia The Philippines12 The Philippines claim sovereignty over almost the entire Spratly archipelago (Kalayaan Island Group [KIG] is the terminology used in the Philippines), with the exception of the Spratly Island itself, Royal Charlotte Reef, Swallow Reef, and Louisa Reef The formal annexation of the western Spratlys as part of the Philippines was announced in June 1978 through Presidential Order Number 1596 The Philippines also claims an EEZ and the natural prolongation of the continental shelf in the South China Sea to the west of the country The Philippines control nine islands, cays, and reefs in the Spratly archipelago The Philippines first took control of five islands, cays, and reefs in the early 1970s and has since expanded its control The Philippines regards itself as an archipelagic state and, as a result, claims that its EEZ and continental shelf areas are measured from the outermost islands of the Filipino archipelago Thus far, however, it is not clear how the maritime zones will be drawn around the KIG that is claimed by the Philippines The claims to sovereignty over the major part of the Spratly archipelago are based on discovery, adjacency, and effective occupation To support its views on the applicability of the archipelagic principle and claims to EEZ and continental shelf areas in the South China Sea, the Philippines relies on the 1982 UNCLOS Taiwan13 Taiwan pursues the same claims as China in the South China Sea.14 It can be argued that both China and Taiwan are pursuing a “Chinese” claim Taiwan claims sovereignty over the Paracel and Spratly archipelagos, as well as the Pratas Islands Taiwan also claims the major parts of the sea areas of the South China Sea as “historical waters,” relying on the U-shaped area outlined on the Chinese maps described previously Taiwan controls Itu Aban Island in the Spratly archipelago and the Pratas Islands Taiwan does not control any island, cay, or reef in the Paracel archipelago Vietnam’s Maritime Boundary Disputes 309 Like Mainland China, Taiwan’s claims in the South China Sea are based on historical title of discovery by Chinese fishermen In more recent times, Taiwan has increasingly relied on the 1982 UNCLOS to substantiate its claims to water and continental shelf areas in the South China Sea Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Thailand15 Thailand has sovereignty claims to islands, cays, and reefs in the Gulf of Thailand and controls most of the features that it claims Thailand also pursues a continental shelf claim in the Gulf of Thailand The claim to the northern part of the Gulf, i.e., the Bight of Thailand, established by a Royal Proclamation in 1959, is a historic rights claim The extent of Thailand’s claims in the Gulf of Thailand has gradually been defined since the early 1970s Thailand argues in terms of historic rights and the 1958 Geneva Convention on the Continental Shelf16 to sustain its claims Thailand is not party to the 1982 UNCLOS, however, this has not prevented Thailand from using the 1982 UNCLOS to sustain its claim in necessary cases Vietnam’s Maritime Disputes While Vietnam’s maritime disputes can be studied from various perspectives, here the focus is on the current status of the disputes (i.e., are the disputes settled or not) The agreements reached between Vietnam and neighboring countries solving or relating to areas of overlapping claims will be listed, followed by a section that overviews Vietnam’s remaining maritime disputes Agreements The following are the agreements that have been reached between Vietnam and neighboring countries relating to areas of overlapping claims Ĺ Vietnam and the then People’s Republic of Kampuchea (PRK) signed an agreement on “historic waters” on July 1982.17 A Treaty on the Principles for the Settlement of Border Problems between Cambodia and Vietnam and an agreement on border regulations was signed on 20 July 1983 in Phnom Penh.18 On 27 December 1985, the Treaty on the Delimitation of the Vietnam-Kampuchea Frontier was signed by the two countries and ratified by the Council of the State of Vietnam on 30 January 1986 and by the National Assembly of the PRK on February 1986.19 Finally, on 10 October 2005, the two countries signed a Supplementary Treaty to the 1985 Treaty.20 Ĺ Between Malaysia and Vietnam, an agreement was reached on June 1992 to engage in joint development in areas of overlapping claims to continental shelf areas in the Gulf of Thailand to the southwest of Vietnam and to the east-northeast off the east coast of Peninsular Malaysia.21 Ĺ Thailand and Vietnam reached an agreement delimiting their continental shelf and EEZ boundaries in a disputed area in the Gulf of Thailand to the southwest of Vietnam and to the northeast of Thailand on August 1997.22 Ĺ China and Vietnam signed the Agreement on the Delimitation of the Territorial Waters, Exclusive Economic Zones and Continental Shelves in the Gulf of Tonkin on 25 December 2000,23 which resolved their maritime boundary disputes in the Gulf On the same day, the two countries signed an agreement on fishery cooperation in the 310 N H Thao and R Amer Gulf of Tonkin.24 On 29 April 2004, the Supplementary Protocol to the Agreement on Fishery cooperation in the Tonkin Gulf and the regulations on preservation and management of the living resources in the Common Fishery Zone in the Gulf of Tonkin were signed.25 Ĺ Indonesia and Vietnam signed an agreement on the delimitation of their continental shelf boundary in and area to the North of the Natuna Islands on 11 June 2003.26 Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Conflict Situations Some political factions and parties within Cambodia have opposed the agreements between Vietnam and Cambodia that were signed in the 1980s New bilateral talks on the status of the borders between the two states have been initiated to reach a solution to the remaining disputed issues.27 The October 2005 Supplementary Treaty to the 1985 Treaty only relates to the land border and not to the maritime issues between the two countries.28 This raises the issue of to what extent the 1980s border agreements related to maritime issues The 1982 agreement on “historic waters” stands out as the most pertinent respecting maritime disputes The 1982 agreement defined “historic waters” as being located between the coast of Kien Giang Province, Phu Quoc Island, and the Tho Chu islands on the Vietnamese side and the coast of Kampot Province and the Poulo Wai islands on the Cambodian side The agreement stipulated that the two countries would hold, “at a suitable time,” negotiations to determine the maritime frontier in the “historic waters.”29 Pending such a settlement, the two countries would continue to regard the Br´evi´e Line that was drawn in 1939 as the diving line for the islands within the “historic waters” and the exploitation of the zone would be decided by “common agreement.”30 The 1985 Treaty on the Delimitation of the Vietnam-Kampuchea Frontier related primarily to the land border issues, but the “historical waters” are also mentioned in the 1985 Treaty.31 Overlapping maritime claims between Vietnam and Cambodia in the Gulf of Thailand remain unresolved China’s claims to “historical waters” in the South China Sea proper overlaps with the claims to EEZ and continental shelf areas of Vietnam China’s sovereignty claim to the Paracel archipelago is also disputed by Vietnam China’s sovereignty claim to the whole Spratly archipelago is another dispute with Vietnam that is bilateral for those areas not claimed by other Southeast Asian countries and a major multilateral dispute for those areas also claimed by Brunei, Malaysia, and the Philippines Taiwan’s claims in the South China Sea area overlap with the claims of Vietnam Taiwan is pursuing similar claims with China in the South China Sea However, Vietnam does not recognise Taiwan, except as a province of China (the one-China policy) and thus, no formal diplomatic relations exist between Vietnam and Taiwan In the context of this article, the Taiwanese presence in any of the areas in which it has a claim is viewed as creating a maritime dispute between Taiwan and Vietnam, although it could be argued that Vietnam is facing a single “Chinese” claim There is no Taiwanese presence in the Paracel archipelago; therefore, the overlapping sovereignty claims by Taiwan and Vietnam to the archipelago are not regarded as a dispute in the context of this article Taiwan and Vietnam’s overlapping claims in the Gulf of Tonkin are also not classified as a conflict situation since Taiwan does not have a presence in the area The situation in the Spratly archipelago is different since both Vietnam and Taiwan control several islands, cays, and reefs, there is a conflict situation between Taiwan and Vietnam Taiwan’s extensive claim to “historical waters” in the South China Sea proper overlaps with claims made by Vietnam, causing a bilateral dispute between the two parties Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary Disputes 311 Because of overlapping sovereignty claims to the whole or parts of the Spratly archipelago, there is a multilateral conflict situation involving Brunei Darussalam, China, Malaysia, the Philippines, Taiwan, and Vietnam In the Gulf of Thailand, the maritime boundary dispute between Thailand and Vietnam has been resolved32 and the bilateral disputes between Malaysia and Thailand and between Malaysia and Vietnam, respectively, have been handled through joint development agreements.33 However, these three countries have yet to resolve a trilateral overlapping claim in one area of the Gulf of Thailand Furthermore, Cambodia and Vietnam have overlapping claims in other parts of the Gulf of Thailand To summarize, Vietnam is involved in two multilateral dispute situations First, the Spratly conflict that involves overlapping sovereignty claims to the whole or parts of the Spratly archipelago from five other claimants, and second, the trilateral dispute in the Gulf of Thailand that involves Malaysia and Thailand Vietnam is involved in bilateral disputes with the following countries: Brunei (Spratly), Cambodia (Gulf of Thailand), China (South China Sea), Malaysia (Spratly), the Philippines (Spratly), and Taiwan (Spratly) Analyzing the Management of Vietnam’s Maritime Disputes Vietnam’s first agreements on maritime disputes were those with the then PRK in 1982, 1983, and 1985 The Cambodian conflict (1979–1991) prevented discussions from taking place on maritime issues between Vietnam and its other neighbors, except for Indonesia There were significant changes in the 1990s A joint development agreement (JDA) was reached with Malaysia in 1992 in an area of bilateral dispute in the Gulf of Thailand In 1995, Vietnam and the Philippines agreed on a “code of conduct” to be observed by the two countries in the South China Sea.34 The negotiations between Vietnam and Thailand eventually resulted in the agreement on maritime boundaries of 1997, which concerned areas in the Gulf of Thailand The JDA reached with Malaysia in 1992 has proven to be a more flexible model of joint development than the Thailand-Malaysia 1979 model Malaysia and Vietnam agreed to nominate Petroliam Nasional Berhad (PETRONAS) and Vietnam Oil and Gas Corporation (PETROVIETNAM), respectively, to undertake the exploration and exploitation of petroleum in the “Defined Area” and to enter into appropriate commercial arrangements Four years after the conclusion of the commercial arrangement (29 July 1997), the first petroleum was extracted from the field Bunga Kekwa.35 The 1997 Thailand-Vietnam agreement was the first in the region to use a single line for delimiting both the continental shelf and EEZ It was Vietnam’s first agreement on maritime delimitation.36 It was also the first settlement of a maritime dispute in the region after the entry into force in 1994 of the 1982 UNCLOS Notable progress during the 1990s was the initiation of trilateral talks between Vietnam, Malaysia, and Thailand regarding an area of the Gulf of Thailand where the claims of the three countries overlap These talks were made possibly by the maritime boundary agreement between Vietnam and Thailand in 1997.37 Regarding Taiwan, in recent years Vietnam has made official statements criticizing Taiwanese activities in the Spratlys near the “Banthan” reef38 as well as on Itu Aban, which Taiwan controls.39 Since Vietnam adheres to the “one-China policy,” Vietnam cannot enter into official talks with Taiwan on the overlapping maritime claims of the two parties In the following years, the full normalization of relations between Vietnam and China in November 1991 had fluctuating levels of tension concerning territorial disputes.40 Sharp Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 312 N H Thao and R Amer differences were expressed regarding all the territorial disputes; i.e., the overlapping claims to the Paracel and Spratly archipelagos, to water and continental shelf areas in the South China Sea, and in the Gulf of Tonkin Differences on oil exploration in the South China Sea and the signing of contracts with foreign companies for exploration were prevalent during April–June 1994, April–May 1996, and March–April 1997 In 1998 there was no extended period of tension on the maritime disputes, although there were shorter periods noted in the South China Sea in April, May, July, and September.41 To cope with the fluctuating level of tension on maritime disputes, the two countries developed a system of talks at the expert, government, and high levels Talks at the expert level were initiated in October 1992 The talks at the government level began in August 1993, with the twelfth round of talks held in December 2005.42 The first achievement of these talks was the signing of an agreement on 19 October 1993 on the principles for handling the Gulf of Tonkin dispute.43 They also agreed to set up a joint working group at the expert level specific to the Gulf of Tonkin The joint working group on the Gulf of Tonkin met 17 times—from March 1994 until the signing of the Agreement on the Demarcation of Waters, Exclusive Economic Zones and Continental Shelves in the Gulf of Tonkin in December 2000.44 Talks at the expert level on the disputes in the South China Sea proper, the so-called sea issues, were initiated in November 1995, and the tenth round of talks was held in June 2005.45 The 2000 Gulf of Tonkin Agreement46 entered into force on 30 June 2004, when the two countries exchanged documents ratifying the agreement in Hanoi.47 The ratification and entry into force of the agreement was made possible by the completion of the talks on the Supplementary Protocol to the Agreement of Fishery Cooperation, which was signed on the same day as the boundary agreement in December 2000.48 Agreeing on the Protocol was a prerequisite to the ratification of the maritime boundary agreement At the tenth round of government-level talks held in Hanoi in January 2004, it was reported that the two sides had “appreciated” the progress made in the settlement of technical issues on the fishery issues Further, the two sides “showed their determination to complete the subsequent work in order to put the Agreement on Delineation and the Agreement on Fishery Co-operation in the Tonkin Gulf into reality in the first half of 2004.”49 The progress in the talks on the Supplementary Protocol on Fishing was publicly displayed in reports from the ninth round of talks at the vice-ministerial level on the issue held in Hanoi on 21–24 February 2004.50 The Agreement on the Additional Protocol was signed in Beijing on 29 April 200451 and entered into force at the same time as the boundary agreement on 30 June 2004.52 The negotiations on the Gulf of Tonkin centred on how to reach an agreement on a mutually acceptable framework or model for dividing the Gulf A core issue was which principle should be used to divide the Gulf In this context, the islands’ impact was of crucial importance, in particular, Vietnam’s Bach Long Vi Island The first question was whether Bach Long Vi Island qualified as an island according to the relevant provisions of the 1982 UNCLOS If it did, as argued by Vietnam, then it was entitled to an EEZ that would impact on a line of equidistance China had an interest in minimizing the impact that Bach Long Vi Island would have on any delimitation This could be accomplished by either arguing that Bach Long Vi was not an island in accordance with the provisions of 1982 UNCLOS (and as a result only entitled to a 12 mile territorial sea) or by arguing that its impact on an equidistance line should be minimized and possibly disregarded.53 It would have been difficult for China to argue that Bach Long Vi was not an island since China had controlled the Island earlier and had claimed that the Island was inhabited before it was handed over to Vietnam in the late 1950s.54 An assessment of the coordinates that were agreed on as the maritime boundary in the 2000 agreement indicates that the impact Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary Disputes 313 of Bach Long Vi was not “valued” fully in the delimitation, it was partly “valued” as it was given a quarter of impact; i.e., 15 nautical miles from the Island.55 Another complicating factor of the Gulf of Tonkin negotiations was the status of the Sino-French Agreement of 1887 Vietnam would probably have favored using the line in the 1887 agreement to delimit the Gulf of Tonkin, since the line would be to its advantage China would have opposed and argued that the 1887 agreement was only intended to determine the administrative control over the islands in the Gulf and did not apply to the water and seabed in the Gulf.56 In the 2000 agreement, both sides eventually agreed that if the 1887 Sino-French Agreement was brought up during the negotiations, it would not have an impact on the delimitation of maritime zones in the Gulf of Tonkin The maritime boundary in the Gulf of Tonkin established in the 2000 agreement is a line of equidistance, albeit significantly modified, as a result of sorting out differences related to how islands should impact on the delimitation, in particular Bach Long Vi Island.57 The Sino-Vietnamese Agreement in the Gulf of Tonkin reaffirms the Vietnamese position of using a single line for both the continental shelf and an EEZ in an area of less than 400 nautical miles between opposite coasts The agreement is also relevant from the perspectives of the effects of coastal and outlying islands (e.g., Bach Long Vi), in its role in low-tide elevations in delimitation, regarding the issue of the outlet of a boundary river, and in the question of the use of a closing line in the Gulf of Tonkin.58 The 2000 Agreement on Fishery Co-operation is an example of a double-step solution for settling fishing disputes and delimiting EEZs The EEZ was divided but the application of the fisheries regime was delayed to minimize the economic dislocation of states In the case of the Gulf of Tonkin, the regime of EEZ in regards to fisheries will be applied after four years for the Transitory Fishery Zone and after 15 years for the Common Fishery Zone.59 A shooting incident that led to the death of at least eight Vietnamese persons in the Gulf of Tonkin in January 2005 highlighted the need to enhance the collaboration between the countries in managing the situation in the Common Fishery Zone.60 This process is underway, as was indicated in the Joint Communiqu´e issued in connection with President Tran Duc Luong’s visit to China in July 2005, in which it is stated that the two countries would “exert joint efforts to ensure marine security and order in fishery development” in the Gulf.61 Furthermore, they agreed to “conduct joint patrol between the two countries’ naval forces.” On 28 April 2006, the first joint patrol exercise by the Chinese and Vietnamese navies demonstrated this commitment.62 Following the entry into force of Gulf of Tonkin maritime boundary agreement and the fisheries cooperation agreement, the two countries initiated expert-level talks on the delimitation of the area outside the entrance of the Gulf of Tonkin The first meeting of the expert-level working group was held in January 2006 in Hanoi.63 The expert-level meetings on the “maritime issues” (South China Sea) have not made much progress, partly due to disagreement on what issues should be on the agenda, with Vietnam pushing for the inclusion of the issue of the Paracels, and China insisting that this issue should not be on the agenda Nevertheless, the level of tension on the disputes in the South China Sea have been reducing considerably since 1999—a trend that has continued into the 2000s.64 Despite the lack of progress in the expert-level talks, high-level talks have resulted in agreements on increasingly sophisticated principles for the behavior of the two countries in the South China Sea that is designed to avoid actions that could provoke tension and to minimize tension if a dispute does arise.65 In the context of the multilateral dispute on the Spratly archipelago and the broader issue of the situation in the South China Sea, Vietnam is actively involved in the ASEAN Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 314 N H Thao and R Amer China dialogue The most tangible outcome has been the signing of the Declaration on the Conduct of Parties in the South China Sea on November 2002,66 during the eighth ASEAN Summit in Phnom Penh, Cambodia The Declaration on Conduct is seen as an important step in the process of establishing a “code of conduct” in the South China Sea The parties are trying to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by the sovereign states that are directly concerned, in accordance with universally recognized principles of international law, including the 1982 UNCLOS.67 In this context, the agreement on seismic surveying in the South China Sea between the Chinese National Offshore Oil Company (CNOOC) and the Philippines National Oil Company (PNOC) on September 2004 is of importance.68 The area of seismic survey covers some parts of the Spratly archipelago Vietnam officially stated that the agreement was concluded without consulting other interested parties Vietnam “requested” that China and the Philippines inform Vietnam about the content of the agreement Vietnam also reiterated its sovereignty claims to both the Spratly and Paracel archipelagos Finally, Vietnam called on all other signatories to join Vietnam in “strictly implementing” the 2002 Declaration on Conduct.69 In 2005, there were further developments First, on March it was announced by the Department of Foreign Affairs of the Philippines that the Maritime and Ocean Affairs Center, Department of Foreign Affairs of the Philippines would host the third Philippines-Vietnam Joint Oceanographic Marina Scientific Expedition in the South China Sea (JOMSRE-SCS III) on 6–9 April 2005.70 On 11 March, the Spokesman of China’s Ministry of Foreign Affairs, in response to a question on China’s views on the reports that Vietnam and the Philippines would conduct “joint marine research” in the South China Sea, expressed “concern” about the joint marine research and that China and “relevant parties” would follow the “principles enshrined in the Declaration on the Declaration on Conduct of parties in the South China Sea” in their marine research.71 Second, on 14 March the Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea was signed between the CNOOC, PETROVIETNAM, and the PNOC The agreement term is three years It was expressed that the signing of the agreement “would not undermine the basic position held by the Government of each party on the South China Sea issue.” However, the parties indicated their “resolve to transform the South China Sea into an area of peace, stability, cooperation and development.”72 In the 1990s, no breakthroughs in negotiations occurred between Indonesia and Vietnam on maritime disputes The two countries could not capitalize on their traditionally good bilateral relationship Furthermore, the impact of the Asian financial crisis on Indonesia brought other more pressing needs to the agenda of Indonesia leaders While no progress was made in negotiations on maritime disputes, stability was maintained This state of affairs continued to prevail into the early 2000s,73 until a breakthrough was made leading to the agreement of June 2003 that settled the maritime dispute relating to overlapping continental shelf claims between the two countries in the vicinity of the Natuna Islands.74 The agreement and its details have not yet been made public On a less positive note, the 1990s saw the re-emergence of border issues in Vietnam’s relations with Cambodia The renewal of talks on the border issues in the late 1990s did not lead to any agreement As noted previously, the status of the border agreements reached in the 1980s were put in doubt by the Cambodian side, but by the late 1990s they seem to have accepted them as the basis for further talks In 2000, a Vietnam official stated that an agreement would be reached by the end of that year.75 However, this did not materialize, Vietnam’s Maritime Boundary Disputes 315 and talks became sporadic Eventually, the two countries managed to make progress in talks on the land border disputes and reached an agreement on a Supplementary Treaty that was finalized on 10 October 2005 Further negotiations must be conducted to settle the maritime disputes between the two countries The progress in dealing with the land border has created more favorable conditions to address the maritime issues between the two countries Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Patterns of Conflict Management The resolution of the Cambodian conflict in October 1991 was a watershed in the management of Vietnamese maritime disputes with the other Southeast Asian countries Since the settlement of the Cambodian conflict, Vietnam has agreed on a JDA with Malaysia in areas of overlapping claims in the Gulf of Thailand in 1992 Vietnam and Thailand agreed on maritime boundaries between the two countries in the Gulf of Thailand in 1997 The agreements with Thailand have paved the way for talks between Vietnam, Thailand, and Malaysia on the area of the Gulf of Thailand where the claims of the three countries overlap Furthermore, the 1995 agreement with the Philippines on a “code of conduct” to be observed in the South China Sea is notable after the resolution of the Cambodian conflict In the case of the management of the maritime issues between China and Vietnam, the normalization of bilateral relations in 1991 facilitated the management of the disputes However, the most interesting feature is that the full normalization took place without resolving the maritime issues This can best be understood in light of the major efforts that both countries have made in managing and resolving the maritime issues since full normalization As noted previously, full normalization of relations between China and Vietnam would not have been possible in 1991 if resolving the maritime issues had been a precondition for such a normalization.76 Overall, Vietnam has made considerable progress in managing and resolving its maritime boundary disputes Some bilateral disputes remain unresolved but they are managed through various measures such as JDA, code of conduct, and talks The multilateral dispute over the Spratlys is more complicated, but Vietnam has made most progress in its bilateral talks with the Philippines and China Vietnam also contributes to the policy of ASEAN on the South China Sea situation and the Association’s attempts to promote peace and stability in the area Differences are likely to persist, such as those between Vietnam and China on the Paracels and areas to the east of the Vietnamese coast and the west of the Spratlys However, both sides have made considerable progress in containing tension in recent years and have agreed on a number of measures to avoid and manage possible sources of tension.77 The progress made and the success in concluding numerous agreements and understandings with neighboring countries demonstrate the active role of Vietnam and its determination to deal with its maritime disputes through negotiations Of course, the agreements with China, Indonesia, Malaysia, the Philippines, and Thailand have been reached because these countries also have opted to pursue policies promoting negotiations on their maritime disputes Thus, the peaceful management of Vietnam’s maritime disputes is a result of the common interest between Vietnam and its neighboring countries to pursue such policies It also reflects the vast improvement of overall relations between Vietnam and China, as well as between Vietnam and the member states of ASEAN during the 1990s Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 316 N H Thao and R Amer Despite positive developments, the remaining disputes are a challenge Vietnam and Cambodia must strive even harder to settle their maritime disputes Between Vietnam and China there is a need to fully implement the agreements reached regarding the Tonkin Gulf There is also a need to pursue and complete the talks on the delimitation of the area beyond the entrance of the Gulf of Tonkin They must also maintain the joint control of activities in the Common Fishery Zone to avoid a reoccurrence of the shooting incident that led to the death of at least eight Vietnamese persons in January 2005 Furthermore, Vietnam and China must continue bilateral talks on “sea issues” (South China Sea) and continue to strive for management of potential tension in the area and refrain from action that might cause tension This has been the prevailing trend since 1999; however, on a few occasions, actions have prompted official complaints by the other side.78 The management of such incidents and the avoidance of the actions that cause them are vital not only for bilateral relations but for the overall stability in the South China Sea area Vietnam and Indonesia need to complete the ratification process of the 2003 maritime agreement Vietnam must also continue to pursue the talks with Malaysia and Thailand on the area of trilateral dispute in the Gulf of Thailand to achieve a solution that is acceptable to all three parties Finally, Vietnam and other concerned parties must continue to contribute to the peaceful management of the multilateral dispute over the Spratly archipelago ASEAN and China’s adoption of the 2002 Declaration on Conduct for the South China Sea is a positive step in terms of conflict management, but further efforts are needed Vietnam and other concerned parties should play active and constructive roles in such efforts Notes Studies dealing with the overall situations in the South China Sea, the Gulf of Thailand, and regional maritime boundary issues include: Bob Catley and Malmur Keliat, Spratlys: The Dispute in the South China Sea (Aldershot, Brookfield, Singapore, and Sydney: Ashsgate 1997); K T John Chao, “South China Sea: Boundary Problems Relating to the Nansha and Hsisha Islands,” Chinese Yearbook of International Law and Affairs, Vol (1989–1990), pp 66–156; Monique Chemillier-Gendreau, ´ La Souverainet´e sur les archipels Paracels et Spratleys (Paris: L’Edition Harmattan, 1996); Jorge R Coquia, “Maritime Boundary Problems in the South China Sea,” University of British Columbia Law Review, Vol 24, (1990), pp 117–125; Cooperative Monitoring in the South China Sea: Satellite Imagery, Confidence-Building Measures, and the Spratly Islands Disputes, edited by John C Baker ´ Den´ec´e, G´eostrat´egie and David G Wiencek (Westport, Connecticut and London: Praeger, 2002); Eric de la Mer de Chine M´eridionale et des basins maritimes adjacents (Paris and Montr´eal: L’Harmattan, 1999); Daniel J Dzurek, “The Spratly Islands Dispute: Who’s On First?,” Maritime Briefing Vol 2, No (Durham: International Boundaries Research Unit, University of Durham, 1996); Alex G Oude Elferink, “The Islands in the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?,” Ocean Development and International Law, Vol 32, (2001), pp 169–190; Fishing in Troubled Waters Proceedings of an Academic Conference on Territorial Claims in the South China Sea, edited by R D Hill, Norman G Owen, and E V Roberts, Centre of Asian Studies Occasional Papers and Monographs, No 97 (Hong Kong: Centre of Asian Studies, University of Hong Kong, 1991); Xavier Furtado, “International Law and the Dispute Over the Spratly Islands: Whither UNCLOS?,” Contemporary Southeast Asia, Vol 21, (1999), pp 386–404; Marius Gjetnes, “The Spratlys: Are They Rocks or Islands?,” Ocean Development and International Law, Vol 32, (2001), pp 191–204; B.A Hamzah, “Jurisdictional Issues and Conflicting Claims in the Spratlys” Foreign Relations Journal, Vol V, No (March 1990), pp 1–26; Christopher C Joyner, “The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy and Geo-politics in the South China Sea,” International Journal of Marine and Coastal Law, Vol 13 (1998), pp 193–236; Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South-East Asia (Singapore, Oxford, and New York: Oxford Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary Disputes 317 University Press, 1987); Victor Prescott, Limits of National Claims in The South China Sea (London: ASEAN Academic Press 1999); Victor Prescott, The Gulf of Thailand (Kuala Lumpur: Maritime Institute of Malaysia [MIMA], 1998); “Special Issue: The South China Sea Territorial Disputes,” edited by Eric Hyer, American Asian Review, Vol XII, No (Winter 1994), pp 1–209; and War or Peace in the South China Sea?, edited by Timo Kivimăaki (Copenhagen: NIAS Press, Nordic Institute of Asian Studies, 2002) See: Le Vietnam et la mer, ouvrage coordonn´e par Monique Chemillier-Gendreau (Travaux du colloque organis´e les 16 et 17 juin 2000 par l’Association d’Amiti´e Franco-Vietnamienne) (Paris: Les Indes Savantes, 2002); Luu Van Loi The Sino-Vietnamese Difference on the Hoang Sa and Truong Sa Archipelagoes (Hanoi: The Gioi Publisher, 1996); Nguyen Hong Thao, Le Vietnam et ses diff´erends maritimes dans la mer de Bien Dong (Mer de Chine m´eridionale) (Paris: Edition A P´edone, 2004); The Hoang Sa and Truong Sa Archipelagoes and International Law (Hanoi: Ministry of Foreign Affairs, Socialist Republic of Vietnam, April 1988); The Hoang Sa and Truong Sa Archipelagoes (Paracels and Spratly), Dossier II, (Ministry of Foreign Affairs, Socialist Republic of Vietnam, Hanoi, 1985); The Hoang Sa and Truong Sa Archipelagoes (Paracels and Spratly), Dossier I, published by Vietnam Courier (Hanoi, 1981); and The Hoang Sa and Truong Sa Archipelagoes Vietnamese Territories (Hanoi: Ministry of Foreign Affairs, Socialist Republic of Vietnam, 1981) The Geneva Agreements that ended to so-called first Indochina conflict in 1954 stipulated that Vietnam was to be temporarily divided into two zones, north and south of the 17th parallel The two archipelagoes, located south of the 17th parallel, would be under the administration of the Republic of Vietnam One of the key studies on the historical documentation used to sustain Vietnam’s claims to the Paracel and Spratly archipelagoes is Vo Long Te, Les archipels de Hoang-Sa et de Truong-Sa selon les anciens ouvrages vietnamiens d’histoire et de g´eographie (Saigon: Minist`ere de la culture, de l’´education et de la jeunesse, 1974) 1833 U.N.T.S 397 See supra note See supra note The reason given as to why Cambodia is not a party to the 1982 UNCLOS is that Cambodia does not have the capacity to translate the text of the 1982 UNCLOS, which is a requirement for submission to the National Assembly (Interview by Nguyen Hong Thao with Mr Var Kimhong, Superior Minister, President of the Cambodia Border Commission in Hanoi in February 2006) See: Lee Lai To, China and the South China Sea Dialogues (Westport and London: Praeger, 1999); Li Jinming and Li Dexia, “The Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Development and International Law, Vol 34, (2003), pp 287–295; Lo Chi-kin, China’s Policy Towards Territorial Disputes: The Case of the South China Sea Islands (London and New York: Routledge, 1989); Sheng Lijun; China’s Policy Towards the Spratly Islands in the 1990s, Working Paper, No 287 (Canberra: Strategic and Defence Studies Centre, The Australian National University, June 1995); Shen Jianming; “International Law Rule and Historical Evidence Supporting China’s Title to the South China Sea Islands,” Hastings International and Comparative Law Review, Vol 2, (1997), pp 1–75; Mark J Valencia, China and the South China Sea Disputes, Adelphi Paper, No 298 (Oxford: Oxford University Press and the International Institute for Strategic Studies (IISS), 1995); Peter Kien-Hong Yu, “The Chinese (Broken) U-Shaped Line in the South China Sea: Points, Lines, Zones,” Contemporary Southeast Asia, Vol 25, (2005), pp 405–430; and Zou Keyuan, “Chinese Traditional Maritime Boundary Line in the South China Sea: Legal Implications for the Spratly Islands Dispute,” EAI Background Brief , No 14 (7 May 1998) (Singapore: East Asian Institute, National University of Singapore) For a broader study on China’s maritime law, see Zou Keyuan, China’s Marine Legal System and the Law of the Sea, (Leiden: Martinus Nijhoff Publishers, 2005) In the context of this article, China is used as synonymous to the Peoples Republic of China 10 See: Vivian L Forbes, Indonesia’s Maritime Boundaries, Malaysian Institute of Maritime Affairs Monograph (Kuala Lumpur: MIMA, 1995); and Dino Patti Djalal, The Geopolitics of Indonesia’s Maritime Territorial Policy (Jakarta: Centre for Strategic and International Studies, 1996) See also supra note Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 318 N H Thao and R Amer 11 In addition to the material in supra note 1, see Mark J Valencia, Malaysia and the Law of the Sea: The Foreign Policy Issues, the Options and their Implications (Kuala Lumpur: Institute of Strategic and International Studies [ISIS Malaysia], 1991) 12 In addition to the material in supra note 1, see: Hermogenes C Fernandez, The Philippine 200-Mile Economic Zone: Sources of Possible Cooperation or Disputes with Other Countries, Series One Monograph, No (October 1982) (Makati, Metro Manila: Development Academy of the Philippine Press, for the Secretariat to the Cabinet Committee on the Law of the Sea Treaty); Noel M Novicio, The South China Sea Dispute in Philippine Foreign Policy: Problems, Challenges and Prospects, IDSS Monograph No (Singapore: Institute for Defence and Strategic Studies, Nanyang Technological Institute, 2003); Primer on the South China Sea (Pasay City, Metro Manila: Foreign Service Institute, 1999); The Kalayaan Islands, Series 1, Monograph No 4, (Manila: The Development Academy of the Philippine Press, Prepared by the Ministry of Defence, for the Secretariat to the Committee on the Law of the Sea Treaty, October 1982); The Philippines and the South China Sea Islands: Overview and Documents, CIRSS Papers, No (December 1993) (Pasay City, Metro Manila: Center for International Relations and Strategic Studies, Foreign Service Institute); and The South China Sea Disputes Philippine Perspectives, edited by Aileen San Pablo-Baviera, (Quezon City: The Philippine-China Development Resource Center and the Philippine Association for Chinese Studies, 1992) 13 See: Sun Kuan-Ming, “Policy of the Republic of China towards the South China Sea: Recent Developments,” Marine Policy, Vol 19 (1995), pp 401–409; Song Yann-huei, “Codes of Conduct in the South China Sea and Taiwan’s Stand,” Marine Policy, Vol 24 (2000), pp 449–459; and Song Yann-huei, Managing Potential Conflicts in the South China Sea: Taiwan’s Perspective (Singapore: World Scientific and Singapore University Press, 1999) 14 For a detailed comparison between China’s and Taiwan’s claims and policies, see Chen Hurng-yu, “A Comparison Between Taipei and Peking in their Policies and Concepts Regarding the South China Sea,” Issues and Studies, Vol 29 (1993), pp 22–58 15 See supra note 16 499 U.N.T.S 311 17 For the text of the Agreement of July 1982, see: British Broadcasting Corporation, Summary of World Broadcasts, Part Three, Far East 7074 A3/7-8 (10 July 1982) (hereafter BBC/FE) The text of the Agreement has also been reproduced in an English language version as “Appendix 2” in Kittichaisaree, supra note 1, pp 180–181, and in T L McDorman, “Cambodia-Vietnam” in International Maritime Boundaries, Vol III, edited by J I Charney and L M Alexander (The Hague: Martinus Nijhoff, 1998), pp 2364–2365 18 BBC/FE/7393 A3/1 (23 July 1983) See also Quang Nghia, “Vietnam-Kampuchea Border Issue Settled,” Vietnam Courier, No (1986), pp 8–9 19 For reports from Vietnam and the PRK announcing the signing of the Treaty and details, see BBC/FE/8143 A3/1–3 (30 December 1985) See also Nghia, supra note 18, pp 8–9 20 “PM Khai holds talks with Cambodian counterpart,” from the website of the Ministry of Foreign Affairs of Vietnam, available at www.mofa.gov.vn/en/nr040807104143/nr040807105001/ ns05101140825 (accessed on 26 July 2005) 21 Text of the Agreement is available in T L McDorman, “Malaysia-Vietnam,” Charney and Alexander, supra note 17, pp 2341–2344 See the website of the Ministry of Foreign Affairs of Malaysia at www.kln.gov.my/ See also: Ramses Amer, “Vietnam and Its Neighbours: The Border Dispute Dimension,” Contemporary Southeast Asia, Vol 17 (1995), p 306; Nguyen Hong Thao, “Joint Development in the Gulf of Thailand,” Boundary and Security Bulletin, Vol 7, No (Autumn 1999), pp 79–88; and Nguyen Hong Thao, “Les d´elimitations maritimes concernant le Vietnam: accords conclus et n´egociations en cours,” Chemillier-Gendreau, supra note 2, pp 53–56 22 Text of the Agreement is available in T L McDorman, “Thailand-Vietnam,” International Maritime Boundaries, Vol IV, edited by J I Charney and R W Smith, (The Hague: Martinus Nijhoff, 2002), pp 2692–2694 See also: Nguyen Hong Thao, “Vietnam’s First Maritime Boundary Agreement,” Boundary and Security Bulletin, Vol 5, No (Autumn 1997), pp 74–79; Nguyen Hong Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary Disputes 319 Thao, “Vietnam and Thailand Settle Maritime Disputes in the Gulf of Thailand,” The MIMA Bulletin, Vol 2/98 (1998), pp 7–10; and Nguyen, Les d´elimitations, supra note 21, p 51–53 23 The Agreement on the Demarcation of Waters, Exclusive Economic Zones, and Continental Shelves in the Bac Bo (Tonkin) Gulf (name used in Vietnamese sources at the time of signing) was officially signed on 25 December 2000 in Beijing See “Viet Nam, China sign joint statement for comprehensive cooperation” (25 December 2000), from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn:8080/ ./6279f8d7fcf98966c7269c10028184c? (accessed on 28 December 2000) See also “China, Viet Nam Sign Agreements,” Beijing Review, Vol 44, No (11 January 2001), pp 9–10 This Chinese source refers the two Agreements as relating to the “Beibu Bay,” i.e., the Gulf of Tonkin The full text of the agreement has been reproduced in three recent studies: Zou Keyuan, “The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin,” Ocean Development and International Law, Vol 34 (2005), pp 22–24; Nguyen Hong Thao, “Maritime Delimitation and Fishery Cooperation in the Tonkin Gulf,” Ocean Development and International Law, Vol 34 (2005), pp 41–44; and T L McDorman, “People’s Republic of China-Vietnam,” in International Maritime Boundaries, Vol V, edited by D A Colson and R W Smith, (Leiden: Martinus Nijhoff, 2005), pp 3755–3758 24 For details on the fishery agreement, see text reproduced in Thao, supra note 23, pp 35–41 For an earlier study, see Zou Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf of Tonkin,” International Journal of Marine and Coastal Law, Vol 17 (2002), pp 127–148 For broader studies on both agreements, see: Thao, Les d´elimitations, supra note 21, pp 67–74; Nguyen Hong Thao, “The Gulf of Tonkin: A Case Study of Dispute Settlement,” in Management and Resolution of Inter-State Conflicts in Southeast Asia, edited by Kamarulzaman Askandar (Penang: Southeast Asian Conflict Studies Network, 2003), pp 207–214; Thao, supra note 23, pp 25–44; and Zou, supra note 23, pp 13–24 25 “Viet Nam, China ink deal on fisheries in Tonkin Gulf” (1 May 2004), from the website of the Vietnam News Agency, at vietnamnews.vnagency.com.vn/2004–04/30/Stories/07.htm (accessed on May 2004) See also “Protocol on China-Vietnam agreement on fishery cooperation in Beibu bay signed,” from the website of the People’s Daily Online (English version), at english.people.com.cn/2004004/30/eng20040424 142001.html (accessed on October 2004) 26 For information about the recent Vietnam-Indonesia agreement, see: “Vietnam-Indonesia boundary agreement benefits regional stability,” in News Bulletin, No 1306 (27 June 2003) (English language bulletin), from the website of Nhan Dan, at www.nhandan.org.vn/english/20030627/ index.html, and www.nhandan.org.vn/english/20030627/bai-news3.html (accessed on 22 December 2003) 27 During the 1990s, there were periods of deep tension relating to the border issues between Cambodia and Vietnam For details on the on-going talks and the periods of tension, see Ramses Amer, “The Border Conflicts Between Cambodia and Vietnam,” Boundary and Security Bulletin, Vol 5, No (Summer 1997), pp 80–91; and Ramses Amer, “Expanding ASEAN’s Conflict Management Framework in Southeast Asia: The Border Dispute Dimension,” Asian Journal of Political Science, Vol (1998), pp 47–48 28 Nguyen Hong Thao and Hoang Hai Oanh, “Legal Aspects of the Supplementary Treaty to the 1985 Treaty on Boundary Delimitation between Vietnam and Cambodia,” Vietnam Law & Legal Forum, Vol 12, No 137 (January 2006), pp 17–20 29 Cambodia-Vietnam Historic Waters Agreement, supra note 17, Article 30 It is noted that the “full text” of the 1982 Historic Waters Agreement, supra note 17, transmitted by the official Cambodian News Agency (SPK) on July 1982 omitted the sentence: “Patrolling and surveillance in these historical waters will be jointly conducted by the two sides,” which is in Article of the version published by Vietnam News Agency and reproduced in Kittichaisaree, supra note 1, pp 180–181 and T L McDorman, supra note 17 See BBC/FE/7074 A3/8, 7076/A3/7 (13 July 1982) 31 See supra note 24 32 See the Thailand-Vietnam Maritime Boundary Agreement, supra note 22 Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 320 N H Thao and R Amer 33 See the Malaysian-Vietnam Joint Development Agreement, supra note 21, and the 1979 Malaysia-Thailand Joint Development Agreement, reprinted in Kittichaisaree, supra note 1, pp 189–192 34 See Amer, “Expanding ASEAN,” supra note 27, p 46 35 For a more detailed analysis, see Thao, supra note 2, pp 99–108 and Thao, “Joint Development,” supra note 21, p 79–88 36 For more detailed analyses, see: Thao, supra note 2, and 107–108; Nguyen Hong Thao, “Le premier accord de d´elimitation des fronti`eres maritimes du Vietnam,” Annuaire du droit de la mer, Tome I (Paris: Edition A P´edone et Institut du droit e´ conomique de la mer Monaco, 1996), pp 259–273, and Thao, Vietnam’s First, supra note 22, pp 74–78 37 See Ramses Amer, “Conflict Management within the Association of Southeast Asian Nations (ASEAN): Assessing the Adoption of the ‘Rules of Procedure of the High Council of the Treaty of Amity and Cooperation in Southeast Asia’”, in Askandar, supra note 24, pp 117–118 38 Vietnam officially expressed its displeasure with Taiwanese activities in the Spratly archipelago on “Banthan” reef in both 2003 and 2004 On 31 October 2003, in response to a question by the Vietnamese radio, Voice of Vietnam, the spokesperson of Vietnam’s Ministry of Foreign Affairs criticized Taiwan, demanded that they stop all activities, and reiterated Vietnam’s sovereignty claims to both the Spratly and Paracel archipelagos “Answer by MOFA’s Spokesperson, Mr Le Dzung, to correspondents on October 31st, 2003,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn:8080/Web%server/Press.nsf/3d74812854f020948025688 (accessed 19 July 2004) On 30 March 2004, Vietnam once again criticized Taiwan, demanded that they stop all activities, and reiterated Vietnam’s sovereignty claims to both the Spratly and Paracel archipelagos “Vietnam objects to Taiwan’s construction in Truong Sa archipelago,” from the website of Nhan Dan, at www.nhandan.org.vn/english/20040331/index.html and www.nhandan.org.vn/english/20040331/bai-news1.html (accessed on April 2004) See also “Vietnam expresses its strong protest to violation of Vietnam’s territorial sovereignty over Truong Sa, Answer to Correspondent by Mr Le Dzung, The Spokesman of the Vietnamese Ministry of Foreign Affairs on 1st April 2004,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/en/tt baochi/pbnfn/ns041116144203 (accessed on August 2006) 39 Vietnam officially expressed its displeasure with Taiwanese activities on Itu Aban Island in late December 2005 On 29 December 2005, in response to a question, the spokesperson of Vietnam’s Ministry of Foreign Affairs criticized Taiwan and stated that Taiwan’s plans to construct a runway on Itu Aban constitutes a violation of Vietnam’s sovereignty claims to both the Spratly and Paracel archipelagos “Taiwan’s construction of a runway on Ba Binh Island (Itu-Aban) constitutes a severe violation of Vietnam’s sovereignty, Answer to Correspondents by Mr Le Dzung, The Spokesman of the Vietnamese Ministry of Foreign Affairs on 29th December 2005,” from the website of the Ministry of Foreign Affairs of Vietnam, at http://www.mofa.gov.vn/en/tt baochi/pbnfn/ns051229163816 (accessed on August 2006) 40 For more detailed analyses of the normalization process and the way in which the territorial disputes were addressed during this process, see: Ramses Amer, The Sino-Vietnamese Approach to Managing Boundary Disputes, Maritime Briefing, Vol 3, No (Durham: International Boundaries Research Unit, University of Durham, 2002); and Ramses Amer, “Assessing Sino-Vietnamese Relations through the Management of Contentious Issues,” Contemporary Southeast Asia, Vol 26 (2004), pp 327–328 For a broader analysis of the normalization process, see: Ramses Amer, “Sino-Vietnamese Normalization in the Light of the Crisis of the Late 1970s,” Pacific Affairs, Vol 67 (1994), pp 365–366, 376–382; and Ramses Amer, “Sino-Vietnamese Relations: Past, Present and Future” in Vietnamese Foreign Policy in Transition, edited by Carlyle A Thayer and Ramses Amer (Singapore: Institute for Southeast Asian Studies and New York: St Martin’s Press, 1999), pp 73–74, 105–108 41 For details about the actions causing the periods of tension, see Amer, The Sino-Vietnamese Approach, supra note 40, pp 8–26 42 The twelfth round of talks was held in Hanoi on 8–10 December 2005 See “Viet Nam, China to complete landmark demarcation in 2008,” from the website of the Ministry of Foreign Affairs Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary Disputes 321 of Vietnam, at www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns051212154021 (accessed on January 2006) 43 Thao, supra note 36, at p 111 44 For details about the talks and the context in which they took place, see Amer, The SinoVietnamese Approach, supra note 40, pp 11–34, 50–58 See also Amer, “Assessing Sino-Vietnamese,” supra note 40, pp 331–333 45 The tenth round of talks on “sea issues” was held in Beijing on 21 and 23 June 2005 “Vietnam and Chinese experts hold talks on sea issues,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/en/nr04087104143/nr040807105001/ns050627151155 (accessed on 24 July 2005) 46 Gulf of Tonkin Maritime Boundary Agreement, supra note 23 47 “Vietnam, China exchange documents ratifying Tonkin Gulf demarcation agreement,” from the website of Nhan Dan, at www.nhandan.org.vn/english/news/010704/domestic vietnamchina.htm (accessed on 19 July 2004) See also: “Two China-Vietnam Beibu Gulf agreements take effect,” from the website of the People’s Daily Online (English version), at english.people.com.cn/200407/01/eng20040701 148157.html (accessed on October 2004) 48 Supplementary Protocol to the Fisheries Agreement, supra note 25 49 The tenth round of government-level talks were held in Hanoi on January 2004 See: “Vietnam, China hold border talks and political exchanges,” News Bulletin, No 1500–1501 (10–11 January 2004) (English language bulletin), from the website of Nhan Dan, at www.mofa.gov.vn/en/nr04087104143/nr040807105001/ns050627151155 (accessed on 24 July 2005) 50 “Vietnam China continue fishing co-operation talks,” News Bulletin, No 1546 (25 February 2004) (Section on Economy) (English language bulletin), from the website of Nhan Dan, at www.nhandan.org.vn/english/20040225/economy.html (accessed on 15 September 2004) 51 See supra note 30 52 For details, see: “Two China-Vietnam,” supra note 47 See also “VN—China Gulf Pact to Enhance Relations,” Vietnam Law & Legal Forum, Vol 10, No 118 (June 2004), pp 8–10 For an early analysis of the implications of the entry into force of the two agreements, see Nguyen Hong Thao, “The New Legal Order in the Tonkin Gulf,” Vietnam Law & Legal Forum, Vol 10, No 119 (July 2004), pp 9–15, 19 53 The legal terminology used in this context is derived from Zou Keyuan, “Maritime Boundary Delimitation in the Gulf of Tonkin,” Ocean Development and International Law, Vol 30 (1999), p 246 Information pertaining to possible impact of Bach Long Vi Island on boundary delimitation is also derived from Keyuan, pp 245–247 54 Ibid., pp 245–246, 253 55 Thao, “The Gulf of Tonkin,” supra note 24, pp 210–213 56 For an argument along similar lines with a parallel being drawn to the Br´evi´e Line drawn in 1939 in the Gulf of Thailand, see Keyuan, supra note 53, pp 238–240 57 For more detailed analyses, see: Thao, “The Gulf of Tonkin,” supra note 24, pp 207–214; Thao, supra note 23, pp 25–44; and Zou, supra note 23, pp 13–24 58 For more details, see Thao, supra note 23, pp 28–30 59 For more details, see ibid., pp 30–32 60 In January 2005, Vietnam’s Ministry of Foreign Affairs issued official statements in reaction to the shooting and killing of Vietnamese fishermen in the Gulf of Tonkin The first statement was made in response to a question by a journalist on 13 January 2005, Mr Le Dzung, spokesperson of the Ministry stated that Chinese vessels had shot dead nine Vietnamese fishermen, injured “many” others, and damaged their equipment Furthermore, Vietnam had requested China to take “active measures” to prevent and put an end to such activities, as well as to carry out an investigation and “severely punish the killers.” “Concerning the fact that the Chinese vessels shot to dead Vietnamese Fishermen,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/tt baochi/pbnfn/ns050120164827 (accessed on 22 March 2005) Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 322 N H Thao and R Amer In another statement by Le Dzung on 20 January, he specified that the incident had occurred on January and that apart from the nine deaths and the injured, China had captured “a number” of Vietnamese fishermen He reiterated earlier Vietnamese demands He also demanded that the Vietnamese who were being held be allowed to return to Vietnam, that Vietnamese officials be allowed to visit the injured and detained fishermen, and that a meeting be held by the Sino-Vietnamese Joint Fishery Committee to discuss measures to stabilize the situation “Chinese coast guards’ killing of innocent Vietnamese fishermen violates international law,” 20 January 2005, from the website of Nhan Dan, at www.nhandan.com.vn/englisg/news/200105/china.htm (accessed on 11 March 2005) China had a diametrically different view on the course of events On 18 January, in response to a question relating to the events of January, the spokesperson of China’s Ministry for Foreign Affairs, Mr Kong Quan, stated that several Chinese fishing boats had been “robbed and shot at by three unidentified armed ships.” This occurred on the Chinese side in the Gulf of Tonkin When China dispatched “police ships,” they were shot at and this compelled the Chinese maritime police to “take necessary actions,” which resulted in the death of “several armed robbers”—one “pirating” ship and eight “robbers” were captured and their weapons confiscated During interrogations, the captured “robbers” had disclosed that they were Vietnamese and confessed to carrying out the robberies Finally, he stated that China was ready to collaborate with Vietnam to both take “concretely effective measures” and strengthen cooperation in “combating the maritime crimes” to jointly safeguard security and stability in the Gulf of Tonkin “Foreign Ministry Spokesman Kong Quan’s Comment on the Case of Armed Robbery in the Beibu Gulf” (18 January 2005), from the website of the Ministry of Foreign Affairs of the People’s Republic of China, at www.fmprc.gov.cn/eng/xwfw/s2510/2535/t180157.htm (accessed on 22 March 2005) 61 “Vietnam and China issue joint statement,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns050726144049 (accessed on 26 July 2005) 62 “Vietnam, China make first joint navy patrol,” from the website of the Communist Party of Vietnam, at http://www.cpv.org.vn/details e.asp?topic=68&subtopic=167&leader topic= 282&id=BT3040634973 (accessed on August 2006) See also “Vietnam, China make first joint navy patrol,” Shanghai Daily (29 April 2006); reproduced on the website of the China Internet Information Center, at www.china.org.cn/english/2006/Apr/167254.htm (accessed on August 2006) 63 “Vietnam and China hold talks on sea delineation,” from the website of Nhan Dan, at http://www.nhandan.com.vn/engligs/news/200106/domestic vnandchin.htm (accessed on 23 January 2006) and, “Viet Nam, China meet for talks on shared sea border,” from the website of Vietnam News Agency, at (accessed on 22 January 2006) 64 The most detailed study on the management on the territorial disputes between China and Vietnam is Amer, The Sino-Vietnamese Approach, supra note 40 65 See: the Joint Declaration of 27 February 1999, issued in the connection with the visit to China by the then Secretary General of the Communist Party, Le Kha Phieu, reproduced in Vietnam Law & Legal Forum, Vol 5, No 54 (February 1999), p 13; the Joint Statement for comprehensive cooperation signed on 25 December 2000 by the two Foreign Ministers of the two countries, “Joint Viet Nam-China Statement for Comprehensive Cooperation (take two),” Vietnam News Agency (VNA) (26 December 2000), from the website of the Vietnam News Agency, at www.vnagency.com.vn/Asp/Redanewse4.asp?FileN=frac2612.004 (accessed on 27 December 2000); and the Joint Communiqu´e of October 2004, issued in connection with the visit of China’s Prime Minister Wen Jiabao to Vietnam, “China and Vietnam Issues a Joint Communiqu´e, October 2004,” from the website of the Ministry of Foreign Affairs of the People’s Republic of China, at www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2792/2793/t163759.htm (accessed on 22 March 2005) 66 The Declaration on Conduct is reproduced in Nguyen Hong Thao, “The Declaration on the Conduct of Parties in the South China Sea: A Note,” Ocean Development and International Law Vol 34 (2003), pp 282–285 Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary Disputes 323 67 Nguyen Hong Thao, “Declaration on Parties’ Conduct in South China Sea (the East Sea)—A Step towards the Establishment of the Code of Conduct for the Region,” Vietnam Law & Legal Forum, Vol 9, No 99 (November 2002), pp 19–21 68 The official announcement of the agreement was made by the Philippines on September 2004 “RP-China Agreement on Joint Marine Seismic Undertaking in the Sea Constitutional—Rumulo/DFA hails PGMA’s Successful State Visit to China; Signed Agreements to boost Trade and Investment between RP and China,” SAF-AGR-524–04 (September 2004), Press Release, Department of Foreign Affairs, from the website of the Department of Foreign Affairs, at www.dfagov.ph/news/pr/pr2004/sep/pr524.htm (accessed on 29 April 2004) 69 Vietnam’s reaction to the agreement between China and the Philippines came on September 2004 in response to a question raised by a correspondent of Agence France Press to the spokesperson of the Ministry of Foreign Affairs of Vietnam “Answer to Correspondent by Mr Le Dzung, The Spokesman of the Vietnamese Ministry of Foreign Affairs on 9th September 2004,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/ en/tt baochi/pbnfn/ns041028222202 (accessed on 29 September 2004) 70 Information derived from “DFA-MOAC to host Third Joint Scientific Research Expedition in the South China Sea,” SAF-AGR-133–05 (07 March 2005), Press Release, Department for Foreign Affairs, from the website of the Department of Foreign Affairs, at www.dfa.gov.ph/news/pr/pr2005/mar/pr133.htm (accessed on 17 March 2005) The Vietnamese counterpart was the Academy of Science and Technology of Vietnam, see “Information on Vietnam-Philippines joint scientific expedition in April 2005 in the East Sea Answer to Correspondent By Mr Le Dzung, the Spokesman of the Vietnamese Ministry of Foreign Affairs on 15th March 2005,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/ tt baochi/pbnfn/ns050315170200/ (accessed on 17 March 2005) 71 Information derived from “Foreign Ministry Spokesman Kong Quan’s Comment on Philippines-Vietnamese Joint Marine Research in the South China Sea, 2005/03/11,” from the website of the Ministry of Foreign Affairs of the People’s Republic of China, at www.fmprc.gov.cn/eng/xwfw/s2510/t186844.htm (accessed on 11 March 2005) 72 Information derived from: “Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea Answer to Correspondent By Mr Le Dzung, the Spokesman of the Vietnamese Ministry of Foreign Affairs on 14th March 2005,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/tt baochi/ pbnfn/ns050314164241/ (accessed on 22 March 2005) 73 For details on the nature of the disputes and talks up to 2000, see Thao, “Les delimitations,” supra note 21, pp 56–58 74 See supra note 26 75 “Vietnam, Cambodia meet on border issues,” News Bulletin, No.344 (1 November 2000) (English language bulletin), from the website of Nhan Dan, at www.nhandan.org.vn/ english/20001101/index.html and www.nhandan.org.vn/english/20001101/bai-news1.html (accessed on 15 December 2000); and “Viet Nam, Cambodia to solve border issue this year, affirms Vietnamese Deputy Prime Minister” (3 November 2000), from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn:8080/ ./302e3aad9ebfd3c7c725698c000552b2? (accessed on 20 December 2000) 76 For more detailed analyses of the normalization process and the way in which the maritime disputes were addressed during this process, see the references listed in supra note 40 77 Amer, The Sino-Vietnamese Approach, supra note 40, pp 45–46 78 The most recent source of tension has been the activities carried out by China in areas of the South China Sea that Vietnam considers to be part of its continental shelf According to Vietnam, China dispatched the “KANTAN3” and an oil drilling platform to start operation on 19 November 2004 Vietnam officially requested China not to dispatch the oil-drilling platform “Nanhai 215 Vessel has hauled oil drilling platform KANTAN of China to the continental shelf of Vietnam,” from the website of the Ministry of Foreign Affairs of Vietnam, at www.mofa.gov.vn/tt baochi/pbnfn/ns041119160109 (accessed on 22 March 2005) 324 N H Thao and R Amer Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 China refuted the Vietnamese request, stating that the oil exploration was taking place within China’s “territorial waters.” “China rejects Vietnam’s request to cease oil exploration,” from the website of the China Daily, at www2.chinadaily.com.cn/english/doc/12004–11/23/content 394139.htm (accessed on 10 January 2005) For the few incidents between 1999 and 2003, see: Amer, “Assessing Sino-Vietnamese,” supra note 40, pp 333–335; and Amer, The Sino-Vietnamese Approach, supra note 40, pp 26–36  ... coordinates that were agreed on as the maritime boundary in the 2000 agreement indicates that the impact Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary. .. of the maritime issues between China and Vietnam, the normalization of bilateral relations in 1991 facilitated the management of the disputes However, the most interesting feature is that the... and Maritime Boundary Delimitation in South-East Asia (Singapore, Oxford, and New York: Oxford Downloaded by [Pennsylvania State University] at 14:40 17 June 2012 Vietnam’s Maritime Boundary Disputes