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Like Philippines, Vietnam mulling legal action over China

Reuters, AP

Vietnamese Prime Minister Nguyen Tan Dung said his government was considering various “defense options” against China, including legal action, following the deployment of a Chinese oil rig to disputed waters in the South China Sea.

Dung’s comments, delivered to reporters as a written statement, are the first time he has suggested Vietnam would take legal measures, a threat that is likely to infuriate Beijing.

“Vietnam is considering various defense options, including legal actions in accordance with international law,” Dung said in an email sent while on a visit to Manila late Wednesday. He did not elaborate on the other options being considered.

“I wish to underscore that Vietnam will resolutely defend its sovereignty and legitimate interests because territorial sovereignty, including sovereignty of its maritime zones and islands, is sacred,” he said.

“Like all countries, Vietnam is considering various defense options, including legal actions in accordance with the international law,” said Dung, who held talks with his Philippine counterpart in Manila that focused on their territorial rifts with China.

He said Vietnam would fiercely defend its territory but would never resort to military action “unless we are forced to take self-defense actions.”

When asked if his country would risk going to war in disputed waters, Dung said his country would never venture into that.

“Military solution? The answer is no,” Dung said in the email. “Vietnam has endured untold suffering and losses from past invasive wars … We are never the first to use military means and would never unilaterally start a military confrontation unless we are forced to take self-defense actions.”

In late March, the Philippines submitted a case to an arbitration tribunal in The Hague, challenging China’s claims to the South China Sea. It was the first time Beijing has been subjected to international legal scrutiny over the waters.

Beijing has refused to participate in the case and warned Manila that its submission would seriously damage ties.

Anti-Chinese violence flared in Vietnam last week after a $1 billion deepwater rig owned by China’s state-run CNOOC oil company was parked 240 km (150 miles) off the coast of Vietnam. Hanoi says the rig is in its 200-nautical mile exclusive economic zone and on its continental shelf. China has said the rig was operating within its waters.

The spat between Vietnam and China is the worst breakdown in shaky but important ties between the two Communist states since a brief border war in 1979.

The move was the latest in a series of confrontations between China and some of its neighbors. Washington has responded with sharpened rhetoric toward Beijing, describing a pattern of “provocative” actions by China.

On Wednesday, Dung said Vietnam and the Philippines were determined to oppose Chinese infringement of their territorial waters, calling on the world to condemn China’s actions in a rare public show of unity against Beijing.

After discussing China’s increasingly assertive behavior in disputed waters, Dung and Aquino read separate statements before journalists at the presidential palace in Manila on Thursday.

The “president and I shared deep concern over the current extremely dangerous situation caused by China’s many actions that violate international law,” Dung said. “The two sides are determined to oppose China’s violations and call on countries and the international community to continue strongly condemning China and demanding China to immediately end the above said violations.”

Aquino did not mention the territorial disputes with China when he and Dung faced journalists but said they discussed how their countries could enhance defense and economic ties, adding that both governments aim to double two-way trade to $3 billion in two years.

“In defense and security, we discussed how we can enhance confidence-building, our defense capabilities and inter-operability in addressing security challenges,” Aquino said.

Manila is seeking a ruling from the Permanent Court of Arbitration to confirm its right to exploit the waters in its exclusive economic zone as allowed under the U.N. Convention on the Law of the Sea. A ruling against China could prompt other claimants to challenge Beijing, experts have said.

At least two Vietnamese diplomats have told reporters that Vietnam might now file its own appeal or join Manila’s legal challenge against China. A senior Philippine government official said that Dung and other Vietnamese officials mentioned that plan to their Philippine counterparts in closed-door meetings Wednesday.

But any ruling would effectively be unenforceable because there is no body under the convention to police such decisions, legal experts said.

China claims about 90 percent of the South China Sea, displaying its reach on official maps with a so-called nine-dash line that stretches deep into the maritime heart of Southeast Asia. The Philippines, Vietnam, Malaysia, Brunei and Taiwan also have claims to parts of the potentially energy-rich waters.

Many have feared that seething territorial disputes in the resource-rich South China Sea could spark Asia’s next major armed conflict. Brunei, Malaysia and Taiwan also have overlapping territorial claims in the strategic area.

China and the Philippines are in a standoff over another South China Sea reef, the Second Thomas Shoal. Chinese coast guard ships have three times attempted to block Filipino vessels delivering new military personnel and food supplies to Philippine marines keeping watch on the disputed area on board a long-grounded ship.

Chinese maritime surveillance ships took effective control of Scarborough Shoal off the northwestern Philippines after Filipino government vessels withdrew from the disputed fishing ground two years ago. Alarmed by China’s move, the Philippines challenged the legality of Beijing’s vast territorial claims in the South China Sea before an international arbitration tribunal last year.

The Philippines took the legal step after exhausting other peaceful means to resolve its territorial disputes with China, Foreign Secretary Albert del Rosario said.

“I think Vietnam should make an assessment as to whether resorting to legal means is promotive of their national interest,” del Rosario said.

  • Guest

    Historical Fiction: China’s South China Sea Claims

    The
    Spratly Islands—not so long ago known primarily as a rich fishing
    ground—have turned into an international flashpoint as Chinese
    leaders insist with increasing truculence that the islands, rocks,
    and reefs have been, in the words of Premier Wen Jiabao, “China’s
    historical territory since ancient times.” Normally, the
    overlapping territorial claims to sovereignty and maritime boundaries
    ought to be resolved through a combination of customary international
    law, adjudication before the International Court of Justice or the
    International Tribunal for the Law of the Sea, or arbitration under
    Annex VII of the United Nations Convention on the Law of the Sea
    (UNCLOS). While China has ratified UNCLOS, the treaty by and large
    rejects “historically based” claims, which are precisely the type
    Beijing periodically asserts. On September 4, 2012, China’s foreign
    minister, Yang Jiechi, told US Secretary of State Hillary Clinton
    that there is “plenty of historical and jurisprudence evidence to
    show that China has sovereignty over the islands in the South China
    Sea and the adjacent waters.”

    As
    far as the “jurisprudence evidence” is concerned, the vast
    majority of international legal experts have concluded that China’s
    claim to historic title over the South China Sea, implying full
    sovereign authority and consent for other states to transit, is
    invalid. The historical evidence, if anything, is even less
    persuasive. There are several contradictions in China’s use of
    history to justify its claims to islands and reefs in the South China
    Sea, not least of which is its polemical assertion of parallels with
    imperialist expansion by the United States and European powers in the
    eighteenth and nineteenth centuries. Justifying China’s attempts to
    expand its maritime frontiers by claiming islands and reefs far from
    its shores, Jia Qingguo, professor at Beijing University’s School
    of International Studies, argues that China is merely following the
    example set by the West. “The United States has Guam in Asia which
    is very far away from the US and the French have islands in the South
    Pacific, so it is nothing new,” Jia told AFP recently.

    China’s
    claim to the Spratlys on the basis of history runs aground on the
    fact that the region’s past empires did not exercise sovereignty.
    In pre-modern Asia, empires were characterized by undefined,
    unprotected, and often changing frontiers. The notion of suzerainty
    prevailed. Unlike a nation-state, the frontiers of Chinese empires
    were neither carefully drawn nor policed but were more like circles
    or zones, tapering off from the center of civilization to the
    undefined periphery of alien barbarians. More importantly, in its
    territorial disputes with neighboring India, Burma, and Vietnam,
    Beijing always took the position that its land boundaries were never
    defined, demarcated, and delimited. But now, when it comes to
    islands, shoals, and reefs in the South China Sea, Beijing claims
    otherwise. In other words, China’s claim that its land boundaries
    were historically never defined and delimited stands in sharp
    contrast with the stance that China’s maritime boundaries were
    always clearly defined and delimited. Herein lies a basic
    contradiction in the Chinese stand on land and maritime boundaries
    which is untenable. Actually, it is the mid-twentieth-century
    attempts to convert the undefined frontiers of ancient civilizations
    and kingdoms enjoying suzerainty into clearly defined, delimited, and
    demarcated boundaries of modern nation-states exercising sovereignty
    that lie at the center of China’s territorial and maritime disputes
    with neighboring countries. Put simply, sovereignty is a
    post-imperial notion ascribed to nation-states, not ancient empires.

    China’s
    present borders largely reflect the frontiers established during the
    spectacular episode of eighteenth-century Qing (Manchu) expansionism,
    which over time hardened into fixed national boundaries following the
    imposition of the Westphalian nation-state system over Asia in the
    nineteenth and twentieth centuries. Official Chinese history today
    often distorts this complex history, however, claiming that Mongols,
    Tibetans, Manchus, and Hans were all Chinese, when in fact the
    Great Wall was built by the Chinese dynasties to keep out the
    northern Mongol and Manchu tribes that repeatedly overran Han China;
    the wall actually represented the Han Chinese empire’s outer
    security perimeter. While most historians see the onslaught of the
    Mongol hordes led by Genghis Khan in the early 1200s as an
    apocalyptic event that threatened the very survival of ancient
    civilizations in India, Persia, and other nations (China chief among
    them), the Chinese have consciously promoted the myth that he was
    actually “Chinese,” and therefore all areas that the Mongols (the
    Yuan dynasty) had once occupied or conquered (such as Tibet and much
    of Central and Inner Asia) belong to China. China’s claims on
    Taiwan and in the South China Sea are also based on the grounds that
    both were parts of the Manchu empire. (Actually, in the Manchu or
    Qing dynasty maps, it is Hainan Island, not the Paracel and Spratly
    Islands, that is depicted as China’s southern-most border.) In this
    version of history, any territory conquered by “Chinese” in the
    past remains immutably so, no matter when the conquest may have
    occurred.

    Such
    writing and rewriting of history from a nationalistic perspective to
    promote national unity and regime legitimacy has been accorded the
    highest priority by China’s rulers, both Nationalists and
    Communists. The Chinese Communist Party leadership consciously
    conducts itself as the heir to China’s imperial legacy, often
    employing the symbolism and rhetoric of empire. From primary-school
    textbooks to television historical dramas, the state-controlled
    information system has force-fed generations of Chinese a diet of
    imperial China’s grandeur. As the Australian Sinologist Geremie
    Barmé points out, “For decades Chinese education and propaganda
    have emphasized the role of history in the fate of the Chinese
    nation-state?.?.?.?While Marxism-Leninism and Mao Thought
    have been abandoned in all but name, the role of history in China’s
    future remains steadfast.” So much so that history has been refined
    as an instrument of statecraft (also known as “cartographic
    aggression”) by state-controlled research institutions, media, and
    education bodies.

    China
    uses folklore, myths, and legends, as well as history, to bolster
    greater territorial and maritime claims. Chinese textbooks preach the
    notion of the Middle Kingdom as being the oldest and most advanced
    civilization that was at the very center of the universe, surrounded
    by lesser, partially Sinicized states in East and Southeast Asia that
    must constantly bow and pay their respects. China’s version of
    history often deliberately blurs the distinction between what was no
    more than hegemonic influence, tributary relationships, suzerainty,
    and actual control. Subscribing to the notion that those who have
    mastered the past control their present and chart their own futures,
    Beijing has always placed a very high value on “the history card”
    (often a revisionist interpretation of history) in its diplomatic
    efforts to achieve foreign policy objectives, especially to extract
    territorial and diplomatic concessions from other countries. Almost
    every contiguous state has, at one time or another, felt the force of
    Chinese arms—Mongolia, Tibet, Burma, Korea, Russia, India, Vietnam,
    the Philippines, and Taiwan—and been a subject of China’s
    revisionist history. As Martin Jacques notes in When
    China Rules the World,
    “Imperial Sinocentrism shapes and underpins modern Chinese
    nationalism.”

    If
    the idea of national sovereignty goes back to seventeenth-century
    Europe and the system that originated with the Treaty of Westphalia,
    the idea of maritime sovereignty is largely a mid-twentieth-century
    American concoction China has seized upon to extend its maritime
    frontiers. As Jacques notes, “The idea of maritime sovereignty is a
    relatively recent invention, dating from 1945 when the United States
    declared that it intended to exercise sovereignty over its
    territorial waters.” In fact, the UN’s Law of the Sea agreement
    represented the most prominent international effort to apply the
    land-based notion of sovereignty to the maritime domain
    worldwide—although, importantly, it rejects the idea of
    justification by historical right. Thus although Beijing claims
    around eighty percent of the South China Sea as its “historic
    waters” (and is now seeking to elevate this claim to a “core
    interest” akin with its claims on Taiwan and Tibet), China has,
    historically speaking, about as much right to claim the South China
    Sea as Mexico has to claim the Gulf of Mexico for its exclusive use,
    or Iran the Persian Gulf, or India the Indian Ocean.

    Ancient
    empires either won control over territories through aggression,
    annexation, or assimilation or lost them to rivals who possessed
    superior firepower or statecraft. Territorial expansion and
    contraction was the norm, determined by the strength or weakness of a
    kingdom or empire. The very idea of “sacred lands” is ahistorical
    because control of territory was based on who grabbed or stole what
    last from whom. The frontiers of the Qin, Han, Tang, Song, and Ming
    dynasties waxed and waned throughout history. A strong and powerful
    imperial China, much like czarist Russia, was expansionist in Inner
    Asia and Indochina as opportunity arose and strength allowed. The
    gradual expansion over the centuries under the non-Chinese Mongol and
    Manchu dynasties extended imperial China’s control over Tibet and
    parts of Central Asia (now Xinjiang), Taiwan, and Southeast Asia.
    Modern China is, in fact, an “empire-state” masquerading as a
    nation-state.

    If
    China’s claims are justified on the basis of history, then so are
    the historical claims of Vietnamese and Filipinos based on their
    histories. Students of Asian history know, for instance, that Malay
    peoples related to today’s Filipinos have a better claim to Taiwan
    than Beijing does. Taiwan was originally settled by people of
    Malay-Polynesian descent—ancestors of the present-day aborigine
    groups—who populated the low-lying coastal plains. In the words of
    noted Asia-watcher Philip Bowring, writing last year in the South
    China Morning Post,
    “The fact that China has a long record of written history does not
    invalidate other nations’ histories as illustrated by artifacts,
    language, lineage and genetic affinities, the evidence of trade and
    travel.” Unless one subscribes to the notion of Chinese
    exceptionalism, imperial China’s “historical claims” are as
    valid as those of other kingdoms and empires in Southeast and South
    Asia. China laying claim to the Mongol and Manchu empires’ colonial
    possessions would be equivalent to India laying claim to Afghanistan,
    Bangladesh, Burma, Malaysia (Srivijaya), Nepal, Pakistan, and Sri
    Lanka on the grounds that they were all parts of either the Maurya,
    Chola, or the Moghul and the British Indian empires.

    China’s
    claims in the South China Sea are also a major shift from its
    longstanding geopolitical orientation to continental power. In
    claiming a strong maritime tradition, China makes much of the
    early-fifteenth-century expeditions of Zheng He to the Indian Ocean
    and Africa. But, as Bowring points out, “Chinese were actually
    latecomers to navigation beyond coastal waters. For centuries, the
    masters of the oceans were the Malayo-Polynesian peoples who
    colonized much of the world, from Taiwan to New Zealand and Hawaii to
    the south and east, and to Madagascar in the west. Bronze vessels
    were being traded with Palawan, just south of Scarborough, at the
    time of Confucius. When Chinese Buddhist pilgrims like Faxian went to
    Sri Lanka and India in the fifth century, they went in ships owned
    and operated by Malay peoples. Ships from what is now the Philippines
    traded with Funan, a state in what is now southern Vietnam, a
    thousand years before the Yuan dynasty.”

    And
    finally, China’s so-called “historic claims” to the South China
    Sea are actually not “centuries old.” They only go back to 1947,
    when Chiang Kai-shek’s nationalist government drew the so-called
    “eleven-dash line” on Chinese maps of the South China Sea,
    enclosing the Spratly Islands and other chains that the ruling
    Kuomintang party declared were now under Chinese sovereignty. Chiang
    himself, saying he saw German fascism as a model for China, was
    fascinated by the Nazi concept of an expanded Lebensraum (“living
    space”) for the Chinese nation. He did not have the opportunity to
    be expansionist himself because the Japanese put him on the
    defensive, but cartographers of the nationalist regime drew the
    U-shape of eleven dashes in an attempt to enlarge China’s “living
    space” in the South China Sea. Following the victory of the Chinese
    Communist Party in the civil war in 1949, the People’s Republic of
    China adopted this cartographic coup, revising Chiang’s notion into
    a “nine-dash line” after erasing two dashes in the Gulf of Tonkin
    in 1953.

    Since
    the end of the Second World War, China has been redrawing its maps,
    redefining borders, manufacturing historical evidence, using force to
    create new territorial realities, renaming islands, and seeking to
    impose its version of history on the waters of the region. The
    passage of domestic legislation in 1992, “Law on the Territorial
    Waters and Their Contiguous Areas,” which claimed four-fifths of
    the South China Sea, was followed by armed skirmishes with the
    Philippines and Vietnamese navies throughout the 1990s. More
    recently, the dispatch of large numbers of Chinese fishing boats and
    maritime surveillance vessels to the disputed waters in what is
    tantamount to a “people’s war on the high seas” has further
    heightened tensions. To quote commentator Sujit Dutta, “China’s
    unmitigated irredentism [is] based on the?.?.?.?theory that
    the periphery must be occupied in order to secure the core. [This] is
    an essentially imperial notion that was internalized by the Chinese
    nationalists—both Kuomintang and Communist. The [current] regime’s
    attempts to reach its imagined geographical frontiers often with
    little historical basis have had and continue to have highly
    destabilizing strategic consequences.”

    One
    reason Southeast Asians find it difficult to accept Chinese
    territorial claims is that they carry with them an assertion of Han
    racial superiority over other Asian races and empires. Says Jay
    Batongbacal of the University of the Philippines law school:
    “Intuitively, acceptance of the nine-dash line is a corresponding
    denial of the very identity and history of the ancestors of the
    Vietnamese, Filipinos, and Malays; it is practically a modern revival
    of China’s denigration of non-Chinese as ‘barbarians’ not
    entitled to equal respect and dignity as peoples.”

    Empires
    and kingdoms never exercised sovereignty. If historical claims had
    any validity then Mongolia could claim all of Asia simply because it
    once conquered the lands of the continent. There is absolutely no
    historical basis to support either of the dash-line claims,
    especially considering that the territories of Chinese empires were
    never as carefully delimited as nation-states, but rather existed as
    zones of influence tapering away from a civilized center. This is the
    position contemporary China took starting in the 1960s, while
    negotiating its land boundaries with several of its neighboring
    countries. But this is not the position it takes today in the
    cartographic, diplomatic, and low-intensity military skirmishes to
    define its maritime borders. The continued reinterpretation of
    history to advance contemporary political, territorial, and maritime
    claims, coupled with the Communist leadership’s ability to turn
    “nationalistic eruptions” on and off like a tap during moments of
    tension with the United States, Japan, South Korea, India, Vietnam,
    and the Philippines, makes it difficult for Beijing to reassure
    neighbors that its “peaceful rise” is wholly peaceful. Since
    there are six claimants to various atolls, islands, rocks, and oil
    deposits in the South China Sea, the Spratly Islands disputes are, by
    definition, multilateral disputes requiring international
    arbitration. But Beijing has insisted that these disputes are
    bilateral in order to place its opponents between the anvil of its
    revisionist history and the hammer of its growing military power.