The case of Binh Minh 02 ship
The red spot is the position of the Binh Minh 02 ship when
its cable was cut by Chinese ships
Both local and international media on May 27 reported that while a ship of the Vietnam Oil and Gas Group (PetroVietnam), named Binh Minh 02, was conducting seismic surveys at the lot which falls within the country's 200 nautical mile continental shelf on May 26, Chinese vessels cut its exploration cables at a location 120 nautical miles from the Dai Lanh cape in the central province of Phu Yen, Vietnam.
Specifically, in implementing the group's oil and gas exploration and exploitation program for 2011, the PetroVietnam Technical Service Corporation (PTSC), an affiliate of PetroVietnam, dispatched the seismic survey ship Binh Minh 02 to conduct seismic surveys at Lots 125, 126, 148 and 149, which lie within the exclusive economic zone and continental shelf of Vietnam.
The Binh Minh 02 had conducted two previous surveys in those areas, the first in 2010 and the second on March 17, 2011. The surveys had been conducted smoothly and that the Binh Minh 02 had performed its tasks competently.
At 5:05am on May 26, the Binh Minh 02 picked up a strange vessel moving towards the survey area on its radar. Five minutes later, it detected the approach of another two ships. The three ships were subsequently identified as Chinese marine surveillance vessels that had moved into the survey area without warning.
At 5:58am, the Chinese ships crossed through the survey area, only 120 nautical miles from the Dai Lanh cape in the central province of Phu Yen, an area well inside Vietnamese territorial waters, cutting the Binh Minh 02's exploration cables.
The three Chinese vessels had hindered the operations of the Binh Minh 02 and threatened it by saying that the Binh Minh 02 was violating Chinese sovereignty.
The Binh Minh 02 determinedly rejected the Chinese threats, responding that it was operating inside Vietnamese territorial waters.
The Chinese vessels kept up impeding the Binh Minh 02 until leaving the survey area at 9:00am on May 26.
The Binh Minh 02 had to cease operations on May 26, in order to gather damaged equipment for repair. Under instructions from PetroVietnam and PTSC, the Binh Minh 02 repaired its equipment on the spot and resumed its operations by 6:00am of May 27.
A PetroVietnam’s official affirmed that the Chinese vessels had penetrated deep into Vietnam's territorial waters in order to sabotage and hinder PetroVietnam's exploration activities, calling it an extremely perverse action that violated Vietnam's sovereign rights.
The happening of the Binh Minh 02 ship’s case was quite similar to the CGX case in the Atlantic Ocean between Guyana and Suriname, which will be mentioned below:
The CGX case in 2000
Guyana and Suriname are situated on the northeast coast of the South American continent and are separated by the Corentyne River, which flows northwards into the Atlantic Ocean. The coastlines of Guyana and Suriname are adjacent. They meet at or near to the mouth of the Corentyne River and together form a wide and irregular concavity.
While the two countries did not have a clear maritime border, in the late decades of the 20th century, both Guyana and Suriname licensed foreign oil and gas groups to explore oil in the overlap area.
Among the concessions issued by Guyana for oil exploration in the disputed area of the continental shelf was a concession granted in 1998 to CGX Resources Inc. (CGX), a Canadian company.
In 1999, CGX arranged for seismic testing to be performed over the entire concession area, the eastern border of which was a line following an azimuth of N34ºE. On May 11 and 31, 2000, Suriname demanded through diplomatic channels that Guyana cease all oil exploration activities in the disputed area. On the 31st of May, 2000, Suriname ordered CGX to immediately cease all activities beyond the 10º Line. On the 2nd of June, 2000, Guyana responded to Suriname; stating that, according to its position, the maritime boundary between Guyana and Suriname lay along an equidistance line.
On June 3, 2000, two patrol boats from the Surinamese navy approached CGX’s oil rig and drill ship, the C.E. Thornton, which was located at approximately 15.4 miles west of the eastern limit of the concession area. The Surinamese patrol boats ordered the ship and its service vessels to leave the area within twelve hours. The crew members aboard the C.E. Thornton detached the oil rig from the sea floor and withdrew from the concession area. The Surinamese patrol boat 33 followed them throughout their departure. CGX has not since returned to the concession area.
In 2004, Guyana initiated the proceedings on February 24, 2004, under the 1982 United Nations Convention on the Law of the Sea (UNCLS), to clarify the overlap area with Suriname. An Arbitral Tribunal with five famous international lawyers was set up to solve the case. The Arbitral Tribunal made its judgment in Hague on September 17, 2007.
Notably, apart from asking the Arbitral Tribunal to fix the maritime boundary, Guyana accused Suriname for violating its obligations under the UNCLS, the Charter of the United Nations, and general international law to settle disputes by peaceful means, because of its use of armed force against the territorial integrity of Guyana and/or against its nationals, agents, and others lawfully present in maritime areas within the sovereign territory of Guyana or other maritime areas over which Guyana exercises lawful jurisdiction; and that Suriname is under an obligation to provide reparation, in a form and in an amount to be determined, but in any event no less than $33,851,776, for the injury caused by its internationally wrongful acts.
In its adjudication made on September 17, 2007, the Arbitral Tribunal said that the expulsion from the disputed area of the CGX oil rig and drill ship C.E. Thornton by Suriname on June 3, 2000 constituted a threat of the use of force in breach of the UNCLS, the UN Charter, and general international law; However, Guyana’s request for an order precluding Suriname from making further threats of force and Guyana’s claim for compensation are rejected.
Both Guyana and Suriname violated their obligations under Articles 74(3) and 83(3) of the UNCLS to make every effort to enter into provisional arrangements of a practical nature, and to make every effort not to jeopardize or hamper the reaching of a final delimitation agreement.
The Arbitral Tribunal also analyzed the influences of seismic surveys to the sea.
“The Tribunal is of the view that unilateral acts which do not cause a physical change to the marine environment would generally fall into the second class. However, acts that do cause physical change would have to be undertaken pursuant to an agreement between the parties to be permissible, as they may hamper or jeopardize the reaching of a final agreement on delimitation. A distinction is therefore to be made between activities of the kind that lead to a permanent physical change, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration,” the adjudication said.
It seems that the CGX is similar to the Binh Minh 02 ship’s case, so the adjudication of the Arbitral Tribunal in the Guyana-Suriname case can be applied to the Binh Minh 02 ship case. But, it is different.
What is different?
The China marine surveillance ship coded 84 enters Vietnam territorial waters on May 26, 2011.
It is important to understand the contexts of the CGX and Binh Minh 02 cases. The CGX happened in the area of dispute between Guyana and Suriname, due to the coastlines of Guyana and Suriname are adjacent, under the UNCLS, their territorial waters are overlapped.
This originates from the principle “land rules the sea”, the major principle in defining territorial waters under international law. It means that wherever the coast of a country runs, the country has its territorial waters there. This principle may be illustrated by “figure” and “shadow”. Without real figure (coast), there will have no shadow (territorial waters).
With its geography (see the map), China cannot claim its territorial waters under the UNCLS at the area where the Binh Minh 02 ship’s case happened, which is up to 340 miles away from China’s Hainan Island.
Even if China argued that its extended continental shelf is over 200 miles, this argument is contrary to the principle that the claim of continental shelf of over 200 miles must not overlap the territorial waters within 200 miles from the baseline of other countries.
In a legal precedent made in 1985 for the dispute between Libya and Malta, the arbitral tribunal rejected Libya’s argument that the boundary needs to conform to geological criteria and said that the distance criterion – 200 nautical miles – is more valuable.
The position of the Binh Minh 02 ship, in every method, is defined to belong to Vietnam’s continental shelf under the UNCLS.
However, different from the case between Guyana and Suriname, there are islands in the East Sea, particularly Hoang Sa and Truong Sa archipelagos. Hoang Sa is the dispute between Vietnam and China and Truong Sa is the dispute among five countries, including Brunei, Malaysia, the Philippines, China and Vietnam.
China may think that they can claim territorial waters based on these islands, but according to the UNCLS, an island cannot have larger territorial waters than coast. In this case, the position of the Binh Minh 02 ship still belongs to Vietnam’s continental shelf.
Generally, there are no grounds in the modern international law on the sea for China to claim the area where the Binh Minh 02 ship was operating on May 26, 2011.
The so-called “nine-dotted line”
With a diplomatic note dated May 7, 2009, to the UN Secretary General objecting to a Vietnamese submission to a UN commission on its outer limits of the continental shelf, China also included a map stating its ‘nine-dash line’ claims over the East Sea.
The Chinese note asserted that “China has indisputable sovereignty over the islands in the South China Sea (or the East Sea) and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters, as well as the seabed and subsoil thereof.”
The dotted line – drawn in the East Sea on the Chinese map – is referred to as the ‘nine-dash line’ (since it is defined by nine dashes) or alternatively as the ‘U-shaped line.’ International scholars have used both terms when they commented on this demarcation of China’s claims to over 80 percent of the East Sea. The line was drawn very close to the coast of several countries, including Vietnam, Indonesia, Malaysia, Brunei and the Philippines.
An original 11-dotted line map was first drawn by the Chinese Kuomintang government in 1947. Its successor, the government of the People’s Republic of China, later altered it by deleting two dashes in the Gulf of Tonkin off Vietnam’s northern coast.
China’s note dated May 7, 2009, is evidently the first diplomatic statement in the last 60 years of China’s official stance regarding the international legal significance of the nine-dash line. It is also the first time China has formally introduced the nine-dash line map to the world.
Until May, China had never issued any official declaration on the international or national legal significance of this line, notwithstanding that it is often drawn on Chinese maps.
Basic legal documents issued by China, like its 1958 Declaration on China's Territorial Sea, the 1992 Declaration of the People's Republic of China on the Territorial Sea and the Contiguous Zone, the 1996 Declaration of the People's Republic of China on the Baselines of the Territorial Sea, and the 1998 Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf did not mention this nine-dash line claim.
Moreover, Chinese scholars participating in numerous international conferences, such as the annual Workshop on Managing Potential Conflicts in the East Sea since 1991, offered different and even divided explanations of what the dotted line means.
There is a very important question that has remained unanswered by Chinese scholars and the Chinese State itself: how were the exact locations of each dash established?
No document, be it official or unofficial, accounts for this.
The first and most common argument Chinese scholars have clung to when explaining the dotted lines drawn on the Eastern Sea map, is that the claim must be considered under the international laws existing when the map was drawn. With this argument, China has dismissed reference to the UNCLOS as a way to evaluate the legality of its claim.
At the time the original 11-dotted line was drawn in 1947, the International Law of the Sea stipulated that the territorial waters of a country extended three nautical miles from the low tide mark. Outside the territorial waters of each country were international waters, a realm in which every country could enjoy the freedom of the high seas.
Until 1958, different governments of China all recognized, or at least did not publicly object to, the three-mile sea limit rule. Thus, even according to the international laws then current, China’s claims over 80 percent of East Sea cannot be considered legal.
Dr. Hasjim Djalal, a prominent Indonesian sea law expert, wrote: “It is inconceivable that in 1947, when general international law still recognized only a three mile territorial sea limit, that China would claim the entire South China Sea.” (Djalal, H. South China Sea Island Disputes. The Raffes Bulletin of Zoology, Supplement No.8/2000).
The same conclusion can only be drawn about the claims of “sovereignty and jurisdiction” over 80 percent of the East Sea stated in China’s May 7, 2009 note, because in 1947, coastal countries had no rights to expand their sovereignty outside their territorial waters. It needs to be emphasized that the International Law of Sea includes the “seabed and subsoil thereof” inside the territorial waters. Thus, China cannot demand the sovereignty and jurisdiction over the large sea located in its dotted line.
The second argument offered by Chinese scholars to account for the dotted line, is that because the line was drawn in 1947, 62 years ago, China can say the sea area located in the line is its “historic” territory.
It needs to remembered that participating countries at the 3rd UN Conference on The Law of the Sea were at odds over incorporating references, regulations and definitions regarding ‘historic waters’ into the 1982 UN Convention on the Law of the Sea. From deliberations at the workshop, however, it can be concluded that the criteria necessary to declare historical sovereignty over territory are that the claim has to be made public; the claiming country has to exercise sovereignty over the area efficiently, continuously, and peacefully for a long period of time; and the claim must be recognized by the other countries involved.
International law has never recognized the demands made by China in relation to the East Sea. Putting that aside for a moment, let’s consider objectively if China can meet the aforesaid criteria.
Firstly, maritime, oil, and fishing activities of all countries inside and outside the East Sea faced no obstruction from the Chinese side until the 1990s. It is thus easy to understand why people have doubted that China can meet the criterion of exercising real sovereignty in a continual and peaceful manner, for a long period of time, or even since 1947.
Secondly, countries in the region have refused to recognize what China calls its “historic rights”. On the contrary, they have worked out their own regulations on the waters and signed joint treaties on overlapping waters and on cooperative activity in the East Sea despite objections from China and other disputes about sovereignty over archipelagoes in the East Sea.
Thirdly, the nine-dashed line China drew on the map attached with the May 7, 2009 note fails to meet the criteria of sovereignty and jurisdiction over the waters inside the line, as stipulated by the 1982 Convention on the Law of the Sea on the Exclusive Economic Zone and the Continental Shelf.
In a study called “Competing Claims of Vietnam and China in the Vanguard Bank and the Blue Dragon Areas of the South China Sea”, US lawyer Brice M. Claget wrote: “China's claim to ‘historic’ sovereignty and title to virtually the entire South China Sea and/or its seabed and subsoil, is contrary to the entire development of the modern international law of the sea, and cannot be taken seriously as a matter of law.” (Journal Oil and Gas Law & Taxation Review, vol. 13 issue 10 10-1995 và vol. 13 issue 11 11-1995).
Thus, from the perspective of international law, the nine-dash line claim of China has no scientific grounds, no legal value and is utterly unacceptable.
Returning to the CGX case – conclusion
The legal context of the CGX and the Binh Minh 02 ship cases are different. The area where the Binh Minh 02 case occurred is completely in Vietnam’s continental shelf. China cannot have any claim for this area under the UNCLS.
The relations between Guyana and Suriname are similar to the relations between Vietnam and China. It sources from the supreme principle, which guarantees the stability of the world order: the principle of quality.
The “equality and mutual benefit” is the last principle in the Five Principles of Peaceful Coexistence which was initiated by China. These principles are also confirmed in the mutual relations between Vietnam and China.
Guyana, Suriname, Vietnam and China are all members of the UNCLS, so they have the same rights as well as duties. As China doesn’t accept means for the settlement of disputes of the UNCLS, Vietnam can’t bring this case to an international arbitration agency like the case of Guyana and Suriname. The two countries will have to negotiate, perhaps under the assistance of the Conciliation Committee under the UNCLS.
If China thinks that it has a “right” to the area where the Binh Minh 02 ship operated, it must obey its duties under the international law, including the UNCLS and the UN Charter, as the principle of goodwill is meaningful and helpful for maintain stability in international relations. In these terms, the legal precedent in the Guyana – Suriname case will be the “standard” for China’s behaviors.
