"VĂN HÓA ONLINE-CALIFORNIA" THỨ HAI 05 SEP 2016
LTS: Trong ba ngày Hội thảo Quốc tế 16 - 18/8/2016 về tình hình Biển Đông tại khách sạn InterContinental thành phố biển Nha Trang, do thời gian thảo luận rất ít và rất đông phóng viên trong nước tham dự, Văn Hóa gặp được các các quí vị: Tiến sĩ Phạm Đăng Phước, Hiệu trưởng trường Đại học Phạm Văn Đồng và Tiến sĩ Trang Sĩ Trung, Hiệu trưởng trường Đại học Nha Trang - đồng trưởng ban tổ chức; Tiến sĩ Trần Công Trục, Tiến sĩ Nguyễn Chu Hồi, Tiến sĩ Nguyễn Quí Bính , Tiến sĩ Ngô Hữu Phước đến từ Hà Nội, Tiến sĩ Nguyễn Mạnh Hùng đến từ Hoa Thịnh Đốn, Tiến sĩ Ngô Vĩnh Long đến từ Đại học Maine Hoa Kỳ ...
Gs Ngô Vĩnh Long và nhà báo Lý Kiến Trúc trong ngày hội thảo Nha Trang.
Dưới đây là nguyên văn bài tham luận của Gs Ngô Vĩnh Long và hình ảnh cuộc trao đổi giữa Gs Long với nguyên Chủ tịch Trương Tấn Sang sau hội thảo. (tin riêng của Văn Hóa)
Sau ngày bế mạc Hội thảo Quốc tế tại Nha Trang, hôm 19 tháng 8, 2016, Gs Ngô Vĩnh Long đã có cuộc gặp gỡ riêng với nguyên Chủ tịch nước Trương Tấn Sang từ 4:30 chiều đến gần 10 giờ tối để trao đổi với ông Sang về nhiều vấn đề, trong đó hồ sơ Biển Đông là một vấn đề chính.
Trao đổi với Văn Hóa, Gs Long cho biết cuộc gặp gỡ với Ct Sang chưa mang lại nhiều ý kiến cụ thể về bài toán phức tạp Biển Đông; điều đó khiến Gs Long nhận thấy quan điểm của VN tỏ ra vẫn còn rất lừng chừng - tuy nhiên, có thể là VN đang ở trong tình trạng "nhìn" và "đợi" những diễn biến chưa thể lường hết được trong bối cảnh quan hệ quốc tế hiện nay. (lkt)
Ảnh tư liệu của VH - nguồn từ VP/TTS&NVL.
By Ngô Vĩnh Long
Legal bases for moving forward
The ruling of the Permanent Court of Arbitration in The Hague on the case made by the Philippines against China’s South China Sea (SCS) claims has provided a number of legal bases for the coastal countries in Southeast Asia to move forward on several fronts. The road ahead, however, is still treacherous and possibly threatened by crouching tigers (臥虎wó hú), hidden dragons (藏龍 cáng lóng), and raging bulls (憤怒的公牛fènnù de gōngniú).
In light of this situation, it is necessary to review briefly below some of the legal bases provided by the PCA ruling in order to see areas in which the coastal Southeast Asian countries could move forward together in the interests of all parties involved.
First, the PCA ruling unequivocally reaffirms the status of the EEZs, and the resources therein, of the coastal countries according to UNCLOS. It states specifically [Press Release-English, pp. 1-2] that “…to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention.” Furthermore, the “Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.” For the reasons stated, it is in the mutual interests of the coastal SEA countries to abide by this ruling and to cooperate in the common defense of each other’s EEZs against threats and encroachments.
The second ruling of the PCA has to do with “entitlements to maritime areas and the status of features” in the Spratlys. Since this has implications beyond the disputes between China and the Philippines as well as beyond the Spratly area itself, an extensive quote from the English press release (p.2) is necessary here as a basis for further discussion [emphases added]:
Features that are above water at high tide generate an entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide do not. The Tribunal noted that the reefs have been heavily modified by land reclamation and construction, recalled that the Convention classifies features on their natural condition, and relied on historical materials in evaluating the features. The Tribunal then considered whether any of the features claimed by China could generate maritime zones beyond 12 nautical miles. Under the Convention, islands generate an exclusive economic zone of 200 nautical miles and a continental shelf, but “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The Tribunal concluded that this provision depends upon the objective capacity of a feature, in its natural condition, to sustain either a stable community of people or economic activity that is not dependent on outside resources or purely extractive in nature. The Tribunal noted that the current presence of official personnel on many of the features is dependent on outside support and not reflective of the capacity of the features. The Tribunal found historical evidence to be more relevant and noted that the Spratly Islands were historically used by small groups of fishermen and that several Japanese fishing and guano mining enterprises were attempted. The Tribunal concluded that such transient use does not constitute inhabitation by a stable community and that all of the historical economic activity had been extractive. Accordingly, the Tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones. The Tribunal also held that the Spratly Islands cannot generate maritime zones collectively as a unit. Having found that none of the features claimed by China was capable of generating an exclusive economic zone, the Tribunal found that it could—without delimiting a boundary—declare that certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China.
. Specifically, the Tribunal (p. 10 of the Press release) declares:
Having found that Mischief Reef, Second Thomas Shoal and Reed Bank are submerged at high tide, form part of the exclusive economic zone and continental shelf of the Philippines, and are not overlapped by any possible entitlement of China, the Tribunal concluded that the Convention is clear in allocating sovereign rights to the Philippines with respect to sea areas in its exclusive economic zone. The Tribunal found as a matter of fact that China had (a) interfered with Philippine petroleum exploration at Reed Bank, (b) purported to prohibit fishing by Philippine vessels within the Philippines’ exclusive economic zone, (c) protected and failed to prevent Chinese fishermen from fishing within the Philippines’ exclusive economic zone at Mischief Reef and Second Thomas Shoal, and (d) constructed installations and artificial islands at Mischief Reef without the authorization of the Philippines. The Tribunal therefore concluded that China had violated the Philippines’ sovereign rights with respect to its exclusive economic zone and continental shelf.
In light of the above, it could be reasonably stated that other submerged features that are within the EEZ and continental shelves of the Philippines and other coastal SEA states belong to each of them respectively and not to outside claimants. Hence consultations and/or negotiations should be made to resolve claims with respect to rocks that are in the EEZ of another country. In this connection, the SEA states could perhaps cooperate in the effort of defining and classifying features in the Spratlys according to the definitions stated by UNCLOS (submerged features at high tide and rocks) as the PCA has performed for some of them. One example mentioned in the Press Release (p.9) says “… the Tribunal concluded that all of the high-tide features in the Spratly Islands (including, for example, Itu Aba, Thitu, West York Island, Spratly Island, North-East Cay, South-West Cay) are legally ‘rocks’ that do not generate an exclusive economic zone or continental shelf.” They are entitled to at most 12 nautical mile territorial sea each, given that they do not overlap with territorial sea of other rocks. But the areas beyond are international waters.
Another example provided by the PCA shows “that Subi Reef, Gaven Reef (South), Hughes Reef, Mischief Reef, and Second Thomas Shoal, are low-tide elevations, within the meaning of Article 13 of the Convention,” [p. 473 of the Award] and hence generate no entitlement to maritime zones of their own. Hence, one cannot build on low-tide elevations or submerged rocks, reefs and shoals in order to claim 12 nautical mile territorial sea around them. In fact, one can only declare “safety zones” of only 500 meters around installations built on such low-tide features within one’s own EEZs as defined by Article 60 of UNCLOS on “Artificial islands, installations and structures in the exclusive economic zone” and Article 260 on “Safety zones.”
The first example has important implications since Itu Aba, which is the largest feature not only in the Spratlys but also larger than any in the Paracels, is defined only as a rock then the same definition could be extended to the features in the Paracel archipelago. On the basis of the PCA ruling Vietnam itself could perhaps make China an offer to negotiate a bilateral code of conduct in the Paracel area before the sovereignty issue is settled. If China refuses, then Vietnam could ask the PCA to make a ruling on the characteristics of the features in the Paracel group as it has done in the Spratlys. Vietnam could also bring China to the Permanent Court of Arbitration, the International Court of Justice and other relevant legal institutions as well as the court of public opinion for all the harms that China has inflicted on Vietnamese fishermen in violation of UNCLOS and the PCA recent ruling.
Coastal SEA nations should cooperate with one another in rallying international support on this issue since China has used its occupation of the Paracels to claim an EEZ as well as to have established the Sansha prefecture on it expressly for administering and controlling the South China Sea. As a result, peace and security in the area have been threatened by China’s increasing aggressive activities in the last decade or so.
For the time being a common effort by the Southeast Asian coastal states to come up with a clear account of the features in the Spratlys, identifying high tide and low tide ones, would make it easier for them to agree on the sovereignty of the structures claimed. In general the claimants should take the high road with regard to low tide features and not try to split hair with hatchets, thereby possibly allowing disputes to be intensified to the detriments of all. One possible solution that would benefit all people, including those outside Southeast Asia, is for the coastal SEA states to declare all low tide areas in the open sea as maritime environmental reserves that could be used for scientific researches and experiments.
The status of low tide and high tide features that are in the EEZs of each coastal state should already be clear according to the PCA ruling. Hence states with conflicting claims should try to resolve them amicably through consultations and negotiations according to the spirit of the law. Big states think that they could get away with being defiant, but small states should be brilliant.
To this end, perhaps Vietnam and the Philippines should consult each other on the status of the following features (by coordinates from north to south) since they seem to be in the EEZ of the Philippines: Petly Reef (coordinates 10.41/114.58, Sand Cay (10.37/114.48), Namyit Island (10.18/114.37), Discovery Great Reef (10.05/113.85), Sin Cowe Island (9.89/114.33), Sin Cowe East Island (9.87/114.47), (Lansdowne Reef - 9.78/114.37), Collins Reef (9.77/114.26), Pearson Reef (8.96/113.68), Tennent Reef (8.86/114.65), Alison Reef (8.82/113.98), and Cornwallis South Reef (8.72/114.18). Likewise, Vietnam and Malaysia could start talking with each other on the status of the following features that are in the EEZ of Malaysia: Barque Canada Reef (8.18/113.31), Amboyna Cay (7.89/112.92). In this connection it might be wise to reconsider the claims of sovereignty for rocks in another country’s EEZ that have never been actually occupied and/or administered.
Southeast Asian coastal states could take the initiatives on the issues mentioned above among themselves without having to wait for ASEAN to act as a group or for it to come up, along with China, with a COC (Code of Conducts) in the South China Sea. However, after having made a concerted effort on the above issues the SEA coastal states could then be in a better position to rally diplomatic and international support for their common positions as well as for compliance to the PCA ruling and international laws./
