Editor's note: In recent weeks, there have been many new developments relating to Bien Dong (the East Vietnam Sea), particularly the circulation of notes verbales by several states — including Malaysia, China, the Philippines and Vietnam — at the United Nations. In this context, Dr. Nguyen Ba Son, president of the Viet Nam Society of International Law (VSIL) gave Tuoi Tre (Youth) newspaper an interview to discuss the legal implications of these actions, as well as give his opinion on what should be done to maintain peace, stability and to promote peaceful settlement of disputes and cooperation in the Sea.

Reporter: Thank you, Mr. President, for giving this interview. In the recent weeks, we have witnessed many new developments relating to Bien Dong, in particular the circulation of notes verbales by several states at the United Nations, seizing the attention of the public opinion. In your capacity as president of VSIL, what are your evaluations of these developments from the perspectives of international law?

Dr. Nguyen Ba Son: It is noticeable that the situation in Bien Dong always attracts the attention of the public opinion, not only in the coastal states of the Sea but also in countries outside the region. The complicated developments in relation to Bien Dong, as well as territorial and jurisdictional claims of coastal states have continually been updated by the media in Vietnam and elsewhere, being a hot topic for commentaries at different venues, including on the social sites.

What seizes the attention of international law researchers and practitioners are the recent notes verbales, circulated by Malaysia, China, the Philippines and Vietnam at the United Nations.

This series of notes was initiated by Malaysia’s Note No. HA 59/12, dated December 12, 2019, referring to Malaysia’s Submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding its extended continental shelf in Bien Dong. On the same day, China addressed its Note No. CML/14/2019 to the Secretary-General of the United Nations to protest Malaysia’s Submission. On March 6, 2020, the Philippines sent Note No. 000191-2020 to protest China’s claims in its Note No. CML/14/2019 and Note No. 000192-2020 to protest Malaysia’s Submission. On March 22, 2020, China again sent Note No. CML/11/2020 to protest the Philippines’ claims.

On April 22, 2020, at the request of the Permanent Mission of Vietnam to the United Nations, the Secretary-General of the UN circulated Note No. 22/HC-2020 of Vietnam to protest China’s claims in relation to Bien Dong in its two Notes CML/14/2019 and CML/11/2020. On April 10, 2020, the Permanent Mission of Vietnam to the United Nations also sent to the Secretary-General of the UN Note No. 24/HC-2020 referring to Malaysia’s Note of December 12, 2019 and Note No. 25/HC-2020 referring to the Philippine Notes of March 6, 2020.

It should be highlighted that member states attach significance to affirming and defending their positions at the United Nations — the most important multilateral organization in the world. The content of the above-mentioned notes verbales shows the states’ concerns on legal issues and their efforts to “employ” international law to defend their interests.

Reporter: Please explain the international legal implications of the Notes circulated by Vietnam at the United Nations, in particular its Note No. 22/HC-2020.

Dr. Nguyen Ba Son: It is a normal diplomatic practice at the United Nations that member states send notes verbales or other instruments to the Secretary-General of the UN and request him or her to circulate to all UN member states. Just on the issue of Bien Dong, Vietnam has sent dozens of notes or letters for the circulation to all member states at the United Nations.

From the angles of international law, the expression of states’ views in protest against or in support for the positions of other states emanates from certain principles of international law. In the international legal theory and customs, there exists an important rule relating to territory and boundary, which is called “acquiescence”.

As interpreted by the International Court of Justice (ICJ), acquiescence means an indirect recognition by a state of another state’s unilateral act, which is considered by the other state as the consent of the state giving the indirect recognition. In the Malaysia/Singapore case, the ICJ gave further explanations to the acquiescence rule by saying that the silence of a state in face of an act or a position of another state that required the former’s reaction had the same legal meaning as the expressed consent with or protest against such act or position.

The above-mentioned notes of China, Malaysia and the Philippines, to certain extents, demonstrate claims relating to Vietnam’s territory and maritime jurisdiction. Vietnam, therefore, must express its official positions by sending its diplomatic notes to the UN Sec-Gen. The absence of these diplomatic notes could be interpreted as Vietnam’s acquiescence in the claims of those states, following the ruling of the ICJ in the Malaysia/Singapore case.

Vietnam’s Note No. 22/HC-2020 is in response to China’s Notes of 12 December 2019 and 23 March 2020 at the United Nations. In these two notes, China reiterated its claims that severely violated Vietnam’s sovereignty, sovereign rights and jurisdiction in Bien Dong and clearly ran counter to international law, in particular the United Nations Convention on the Law of the Sea adopted in 1982 (UNCLOS).

Those were claims of territorial sovereignty over all the offshore archipelagos/islands in Bien Dong, including the Hoang Sa and Truong Sa Islands of Vietnam; of full maritime entitlements for the whole of those offshore archipelagos/islands; of “historic rights” in most of Bien Dong. Furthermore, in those two notes China stated that its claims were “in accordance with international law and relevant practices” and “known to the international community”. China also requested the UN Sec-Gen to circulate its notes to all UN member states.

All those baseless and unlawful claims, intentionally coated with legal justification and publicized at the United Nations by China, constitute a typical circumstance that requires reactions from interested states, if they do not want to be assumed that they give acquiescence to those claims of China. Therefore, Vietnam’s Notes, addressed to the UN to reject China’s unlawful claims in Bien Dong, are prompted by international law and practices.

Vietnamese off-shore fishing vessels are seen near Ly Son Island off Quang Ngai Province, Vietnam. Photo: Viet Hung / Tuoi Tre

Reporter: Please comment on the content of Vietnam’s Note No. 22/HC-2020

Dr. Nguyen Ba Son: As I have mentioned, Note No. 22/HC-2020 is Vietnam’s response to China’s positions expressed in its two Notes CML/14/2019 dated December 12, 2019 and CML/11/2020 dated March 23, 2020. The first and most important point in Note No. 22/HC-2020 is that Vietnam rejects all claims made by China in its Notes regarding territorial sovereignty and maritime entitlements in Bien Dong.

Note No. 22/HC-2020 reaffirms Vietnam’s consistent position that “Vietnam has ample historical evidence and legal basis to affirm its sovereignty over the Hoang Sa (Paracel) Islands and the Truong Sa (Spratly) Islands in accordance with international law”.

The Note states that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the sole legal basis for and defines in a comprehensive and exhaustive manner the scope of the respective maritime entitlements of the coastal states in Bien Dong. This position of Vietnam is opposite to and rejecting China’s views that there exist customary international rules outside the UNCLOS, which govern the determination of maritime entitlements as between China and Vietnam. It is undeniable that States Parties to the UNCLOS, including China and Vietnam, have the obligation to respect and fully implement the UNCLOS.

Finally, the Note presents a clear interpretation and application of the relevant provisions of the UNCLOS to the offshore geographical features in Bien Dong, consisting of three main points: i) the maritime entitlements of the high-tide elevations in the Hoang Sa Islands and the Truong Sa Islands must be determined in accordance with article 121 (3) of the UNCLOS, meaning that they are rocks which cannot sustain human habitation or an economic life of their own and they are not entitled to an EEZ and continental shelf; ii) the baselines of the groups of islands in Bien Dong, including the Hoang Sa Islands and the Truong Sa Islands, cannot be drawn by joining the outermost points of their respective outermost features, meaning that the use of the archipelagic state baselines or the straight baselines  around the outermost features of those island groups to form a single unit and to claim full maritime entitlements for such single unit is not in accordance with the UNCLOS; iii) low-tide elevations or submerged features are not capable of appropriation and do not generate entitlements to any maritime zones; this means that the illegal occupation of and the land reclamation and island-building activities at the LTE or submerged features cannot change their legal status as provided by the UNCLOS.

These positions of Vietnam fully conform with international law as first confirmed by the ICJ in the Qatar/Bahrain case (2001) and then reaffirmed by the ICJ in the Malaysia/Singapore case (2008) and the Nicaragua/Colombia case (2012) or the Arbitral Tribunal in the South China Sea case (2016).

The Note reflects the consistency in Vietnam’s positions on territorial sovereignty and maritime entitlements in accordance with international law. Vietnam does not claim sovereignty over submerged features and states that submerged features are not subjects for appropriation and do not enjoy any maritime entitlements of their own. The consistency in Vietnam’s positions has been manifested over a long period of time, through the Statement made by the Vietnamese National Assembly when ratifying the UNCLOS in 1994 (attached to the Ratification Instrument), the Notes of Vietnam at the UN in 1998 and 2014 regarding China’s baselines, as well as its Notes at the UN in 1998, 2009, 2012 and 2014 rejecting China’s so-called “historic rights” in Bien Dong.

Again, I would like to conclude that Vietnam’s positions, reflected in its Note No. 22/HC-2020 to the UN, fully conform with international law as upheld by international courts and tribunal in the above-mentioned cases.

Dr. Nguyen Ba Son, president of the Viet Nam Society of International Law, is seen in this file photo. Photo: Mai Vinh / Tuoi Tre

Reporter: Please assess the Notes of Malaysia and the Philippines, as well as the Notes of Vietnam in response to the Malaysian and Philippine Notes. Are they also relating to the acquiescence rule that you mentioned above?

Dr. Nguyen Ba Son: As I have said, the Malaysian and Philippine Notes, to certain extents, relate to Vietnam’s territory and maritime entitlements. We, therefore, need to express our positions through diplomatic notes.

On December 12, 2019, Malaysia sent Note No. HA59/12  to the UN Sec-Gen to notify its Submission to the CLCS on the outer limits of Malaysia’s remaining extended continental shelf in the northern part of Bien Dong. Following the Joint Submission with Vietnam in 2009, Malaysia affirmed that it implemented the obligation under article 76 (8) of the UNCLOS.

Vietnam’s Note No. 24/HC-2020 on April 10, 2020 is aimed at reserving its lawful rights and interests relating to the issues mentioned in the above Malaysian Note. Based on the provisions of article 76 (10) and Annex II (on maritime delimitation) of the UNCLOS, Vietnam reminded that “the actions of the CLCS shall not prejudice matters relating to the delimitation of boundaries between States with opposite or adjacent coasts”. This implies that in case there is an overlapping area between the extended continental shelf of Vietnam and Malaysia, the lawful rights and interests of Vietnam must be respected.

Note No. 24/HC-2020 also recalls the Joint Submission by Vietnam and Malaysia of May 6, 2009 concerning the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured in the southern part of the East Vietnam Sea (South China Sea) and its Partial Submission of May 7, 2009 concerning the limits of the continental shelf beyond 200 nautical miles from its baseline from which the breadth of its territorial sea is measured in the northern part of Bien Dong. In this regard, Vietnam reserves its rights to submit information on the limits of its continental shelf beyond 200 nautical miles from its baselines from which the breadth of its territorial sea is measured in other areas in Bien Dong.

Note No. 25/HC-2020 on April 10, 2020 referred to the two Notes sent to the UN Sec-Gen by the Philippines on March 6, 2020 and only made reservations to Vietnam’s sovereignty over the Hoang Sa and the Truong Sa Islands, as well as Vietnam’s rights to its maritime zones as established in accordance with the UNCLOS. The objective of this Note was to pre-empt any possible implications that may arise from the Philippine claims of sovereignty and maritime jurisdiction over the area called “the Kalayaan island group”. The Note did not touch upon the legal positions relating to maritime entitlement definition on the basis of the Arbitral Award of 2016 on the South China Sea case in the Philippine notes. Considering the legal positions Vietnam expressed in its Note No. 22/HC-2020, it could be observed that Vietnam supports the interpretation and application of the UNCLOS by the Arbitral Tribunal in the related issues.

China’s illegal land reclamation on the Phu Lam (Woody) Island in Vietnam’s Hoang Sa (Paracel) archipelago is evident in this satellite image taken in March 2019. Photo: Google Earth

Reporter: On April 17, 2020, the Permanent Mission of China to the UN sent Note CML/42/2020 to oppose Vietnam’s Note No. 22/HC-2020 and Vietnam’s two notes of April 10, 2020. Do you have any comment on China’s Note of April 17, 2020?

Dr. Nguyen Ba Son: In my view, there is nothing new in the Note of China on April 17, 2020. China only repeated its erroneous information and arguments, to which Vietnam has, for many times, rejected with evidence and arguments very well received and supported by the international community.

However, I need to comment on a shameless fabrication of fact by China when it said that from 1975 “Vietnam sent troops to invade and illegally occupy some islands and reefs of China’s Nansha Qundao” (the Truong Sa Islands of Vietnam) and it “demands that Vietnam withdraw all the crews and facilities from [those] islands and reefs”.

The historical truth is at least since the 17th century, the Nguyen Lords had exercised the sovereignty of Vietnam over the  Hoang Sa and the Truong Sa Islands through the dispatches of the Bac Hai-Hoang Sa teams to exploit these islands. In the following periods, the Nguyen Emperors ordered naval units to carry out map drawing and implanting of sovereignty marks on these islands. During the colonial times, France administered these two islands on behalf of Vietnam. In 1954, the Government of the Republic of Vietnam assumed the administration over these two islands in accordance with the 1954 Geneva Agreement. In 1975, the Government of the Socialist Republic of Vietnam took over the administration of the Truong Sa Islands and has continued to exercise Vietnam’s sovereignty over the islands since then. The exercise of Vietnam’s sovereignty over the Truong Sa Islands in 1975 and afterwards is fully in accordance with international law and has not been protested by other states, including the People’s Republic of China. How that could be described as “illegal occupation”!

Vietnam’s peaceful and effective administration of the Hoang Sa and Truong Sa Islands has also been recognized by the international community. For instance, in 1949, the World Meteorological Organization registered three meteorological stations operated by Vietnam on offshore islands in Bien Dong, one of which was the Hoang Sa Station under register No. 48860. Thus, not only Vietnam’s sovereignty was established and recognized, but the name Hoang Sa was included in official documents of the inter-governmental organizations.

Contrary to the peaceful exercise of sovereignty by Vietnam over the Hoang Sa and Truong Sa Islands, China used force in 1974 and 1988 to seize some islands or features in the Hoang Sa and Truong Sa Islands of Vietnam. These were acts of absolute violation of international law. China’s illegal occupation of and its activities of island-building and militarization in these features of the Hoang Sa and Truong Sa Islands prove to be the real causes of tension in Bien Dong, threatening regional peace and stability.

Reporter: What would you comment on China’s recent notification of the establishment of two administrative districts in the Hoang Sa Islands and the Truong Sa Islands in light of international law?

Dr. Nguyen Ba Son: According to the press, on April 18, 2020, the Chinese Government approved of the establishment of two administrative units at district level under the so-called Sansha City, illegally established by China in 2012. These new districts were named “the Xisha District” (the Hoang Sa Islands of Vietnam) and “the Nansha District” (the Truong Sa Islands of Vietnam).

It should be underlined that the establishment of administrative units in the territory of another state is an illegal act, violating both international and national laws.

The authority to establish administrative units in a territory emanates from the state sovereignty over that territory. Vietnam has ample historical evidence and legal basis to affirm its sovereignty over the Hoang Sa (Paracel) Islands and the Truong Sa (Spratly) Islands for many centuries. Long before China illustrated these islands in their maps, the Vietnamese authorities had included the Hoang Sa Islands and the Truong Sa Islands in the provinces under their administration.

Decree No. 10 of Bao Dai Emperor, issued on March 30, 1938, provided: “Considering that the islands and islets of Hoang Sa had belonged to the sovereignty of Vietnam for a long time and during the previous dynasties, those islands were placed within the administrative sphere of Nam Ngai Province [Quang Ngai Province at present]. This arrangement remained the same until Duc The To Cao Emperor’s reign, because all voyages to these islands proceeded from the ports of Nam Ngai Province”.

After France’s war of aggression in Vietnam and the signing of the Pact of Patenôtre in 1884, as the successor of the Nguyen Dynasty to govern in Vietnam, the French Colonial Administration established the Hoang Sa District (by Decree 156-SC on June 15, 1932) and annexed the Truong Sa Islands into Ba Ria Province (by Decree 4702-CP on December 21, 1933).

Along the course of our history, there have been several administrative allocations by the following governments in Vietnam with regard to the Hoang Sa and the Truong Sa Islands. For instance, in 1938 Hoang Sa was taken from Quang Ngai Province and annexed to Thua Thien Province; in 1961, Hoang Sa was taken from Thua Thien Province and put as a commune in the administrative sphere of Hoa Vang District in Quang Nam Province and named as Dinh Hai Commune; in 1982, Hoang Sa Islands became a district under Quang Nam-Da Nang Province; in 1996, Hoang Sa was annexed to Da Nang City under the central government.

With regards to the Truong Sa Islands, in 1956, they were annexed to Phuoc Tuy Province; in 1982 they were put under Dong Nai Province and then annexed into Phu Khanh Province; in 1989, Truong Sa Islands became a district of Khanh Hoa Province and in 2007 there was a decision to define the administrative limits of communes and towns within Truong Sa District and to establish the Town of Truong Sa, the Communes of Song Tu Tay and Sinh Ton, and more.

The administrative allocations of the Hoang Sa and the Truong Sa Islands have been part of Vietnam’s peaceful and effective exercise of sovereignty over these two islands in accordance with international law. The White Books on Vietnam’s Sovereignty over the Hoang Sa and the Truong Sa Islands, published in 1975, 1979, 1981 and 1988, provided undisputable evidence.

Since at least the 17th century, Hoang Sa and Truong Sa fell under the sovereignty of Vietnam and have been administrative units of the independent and sovereign State of Vietnam. China’s use of force to invade the Hoang Sa Islands in 1974, some features of the Truong Sa Islands in 1988, and its activities to turn these low-tide and submerged features into artificial islands from 2014 to 2018 cannot bring about a sovereign title to China over those islands. Therefore, China’s establishment of the “Xisha District” and the “Nansha District” is in violation of international law, invalid and would certainly be denounced and criticized by the international communities.

Not only the spokesperson of the Ministry of Foreign Affairs of Vietnam, but also the related local authorities protested against the establishment of the so-called Sansha City in 2012, as well as the announcement of the two new districts of Xisha and Nansha at present. It should be highlighted that since 2012, the Vietnamese competent authorities always expressed clear positions regarding any Chinese moves in relation to the so-called Sansha City and its subordinate units.

Reporter: In your view, what should be done to protect the lawful rights and legitimate interests of Vietnam, to maintain peace, stability and to promote peaceful settlement of disputes and cooperation in Bien Dong?

Dr. Nguyen Ba Son: On April 21, 2020, the spokesperson of the Ministry of Foreign Affairs of Vietnam made a clear statement on the positions of Vietnam, as follows: “Vietnam sincerely wishes that the lawful and legitimate rights and interests of States, as provided for by the UNCLOS, be respected; the related parties are under the obligation to observe international law, including the 1982 UN Convention on the Law of the Sea, showing their commitment to the development of the friendly relationship between States, to peace, stability and cooperation in Bien Dong, in the region and throughout the world”.

In the above statement, we can see that the State of the Socialist Republic of Vietnam attributes importance to peace, stability and cooperation, aspires to promote the friendship with China and other coastal states of Bien Dong and upholds the role of international law in settling disputes and managing the situation in Bien Dong.

Being a lawyer, I wish to offer a few ideas of my own:

According to the provisions of the UNCLOS, the coastal states of Bien Dong enjoys many rights and interests. At the same time, other states are also entitled to certain rights, as to navigation, overflight, submarine cables and pipelines, scientific research, and more. Therefore, the issue of Bien Dong does not solely relate to Vietnam or the countries around the Sea. The maintenance of peace, security and safe maritime and air navigations, as well as opportunities to exploit the resources in Bien Dong should be the shared interest of the international community.

Vietnam’s consistent position is to settle all disputes with other countries by peaceful means in accordance with international law. Article 4 paragraph 3 of the Law on the Sea of Vietnam in 2012 prescribes: “The State will settle all disputes concerning the sea and islands between Vietnam and other countries by peaceful means, in accordance with the 1982 UN Convention on the Law of the Sea, international law and practices”.

Accordingly, Vietnam so far sets priority in conducting negotiations with related states to settle differences and disputes over maritime zones and islands. It has been recognized by international scholars and proved by international practices that negotiation is the most effective and common dispute settlement mean.

We, however, cannot deny the instances in which negotiation cannot progress, due to opposite and irreconcilable positions of the disputed parties in interpreting international law. In this case, states are entitled to consider other peaceful means, provided by the UNCLOS, the United Nations Charter, such as: mediation, conciliation, international courts or arbitral tribunals to get an objective opinion of a neutral third party, which could serve as the basis for the disputed parties to modify their legal positions.

By our assessment of the above-mentioned notes verbales, it is clear that the disputes relating to Bien Dong originate from stark differences in understanding, interpreting and applying international law by the disputed parties. The use of a third-party mechanism to assist in overcoming the different legal positions between parties is normal and reasonable. The opinions of the third-party mechanism could help the disputed parties to better understand the lawful and legitimate rights and interests of each other, thus more sustainable cooperation or solutions could be agreed upon by the disputed parties.

There is a view that the issues of sovereignty or territory in Bien Dong are too sensitive to be submitted to a third-party mechanism. But I am of the view that state sovereignty or national territory is not just brought about by subjective will. It must be established in accordance with international law. From this perspective, many of the disputes over sovereignty and territory are, in nature, disputes over legal views, including the interpretation and application of the international legal norms and principles. So the settlement of disputes by a third party procedure or mechanism does not create an addition or a loss of territory or sovereignty for a party; it only helps the disputed parties to define properly the limits of their respective sovereignty or territory in accordance with international law.

An objective and equitable legal opinion of a third-party mechanism may not only help the disputed parties in Bien Dong to settle their disputes, but would also be of value to other countries, because of the vital significance of the Sea to the international community.

The disputes in Bien Dong can only be settled by peaceful means, because that is the only venue to achieve sustainable solutions to the existing complicated problems and disputes between the related parties, creating a common legal basis for the parties to cooperate and deal with the issues of their concern. A state may decide to use force or superior strength to enforce its unilateral claims on the ground in spite of other states’ protests, such behavior is nothing but a violation of the obligation to peacefully settle international disputes and can never help to achieve a long-term and thorough solution to any dispute.

I need to caution against conflating the use of third-party mechanism in dispute settlement to the extent of considering this as a magical stick. We all know that in international law there is no organ above the states that will enforce the compliance by states of the awards or recommendations of the third party mechanism. State compliance is based on its voluntary consent. That does not mean international law lacks binding effects. The binding effects come from the state’s consent to be bound by international treaties, the correlation of power and interests in international affairs, the common aspiration to maintain a stable and equal international order and a peaceful world without wars… Up till now, most states have chosen to comply with the decisions of the third party mechanism that had jurisdiction to consider their disputes.

In searching for the applicable third-party mechanism for dispute settlement, we need to pay attention to the types of disputes. Disputes relating to the interpretation and application of the provisions of the UNCLOS between the States Parties to the Convention can be settled by the means and procedures provided in the Convention, because when states ratified the Convention, they gave their consent to its provisions, including the dispute settlement procedures under Part XV.

There are, however, some exceptions and limitations as regards:  i) disputes relating to marine scientific research and fisheries under Article 297; or ii) as provided by Article 298, disputes relating to boundary delimitation of the territorial sea, the exclusive economic zone and the continental shelf, historic titles, military activities, some of law-enforcement activities, or disputes which are under the mandates of the UN Security Council as entrusted by the UN Charter could be excluded by means of a statement made to that effect by States upon ratification (China had such a statement in 2006). Disputes relating to territorial sovereignty cannot be settled by the procedures under the UNCLOS. These disputes can only be considered by a third-party mechanism with the consent of the disputed parties. Efforts by States to bring territorial sovereignty disputes to the dispute settlement mechanism under the UNCLOS so far have not been successful.

We should also note that the use of legal means, such as mediation, conciliation, international judiciary or arbitration, is not a simple business. As we learned from the South China Sea Arbitration, the Philippines had spent a lot of efforts and financial resources to be able to present their strong and persuasive arguments and thousands of pages of supporting documents to help the Arbitral Tribunal reach its historic Award.

So we are required to do many things to be prepared, such as a strong team of lawyers and specialists of international law, a complete collection of historical evidence and legal arguments (to the best possible extent) and a good proceeding strategy.