To explain the reason for its placement of Haiyang Shiyou-981 oil rig inVietnam's sovereign waters, China has cited a 1958 Diplomatic Notewritten by the late Prime Minister Pham Van Dong (the 1958 Note, inshort) as a "proof" of Vietnam's recognition of China's sovereignty overthe Hoang Sa and Truong Sa archipelagoes.
In an interview withthe Vietnam News Agency reporters, Dr. Ta Van Tai – lawyer, formerlecturer and currently researcher at Harvard Law School – said therewere two international legal arguments showing that China's explanationwas absurd.
Declarations of sovereignty
First and foremost,the 1954 Geneva Agreement splitting Vietnam into two parts handed theright of administration of the Hoang Sa and Truong Sa archipelagoessouth of the 17th Parallel (the partition line), over to the thenGovernment of South Vietnam (the Republic of Vietnam) south of thatparallel.
That is why, any actions asserting and exercisingsovereignty over the Hoang Sa and Truong Sa archipelagoes fell under theauthority of the then Republic of Vietnam. That government, as well asits navy, powerfully affirmed Vietnam's sovereignty over the islandsduring and after the 1974 Hoang Sa naval fight between the navy of SouthVietnam - then occupying and administering the archipelagoes - and thatof China that came to attack.
The late Prime Minister Pham VanDong of North Vietnam (the Democratic Republic of Vietnam) had noauthority or intention to make a declaration about the sovereignty ofthe Hoang Sa and Truong Sa archipelagoes, which belonged to the Republicof Vietnam at the time. He only made a declaration that recognisedChina's 12-nautical mile territorial sea claimed by China in ChinesePrime Minister Chou En-lai's declaration.
Even though theaspiration of in the motto "the Vietnamese nation is one, Vietnam isone" was an idealist statement, expressed by many Vietnamese includingHo Chi Minh, the existence of a state is a question of fact, underinternational law.
Therefore, the actual existence of the twostates of Vietnam from 1954 to1975, as the Democratic Republic ofVietnam and the Republic of Vietnam, was in conformity to internationallaw, with the Republic of Vietnam exercising sovereignty over thearchipelagoes during that time.
The Socialist Republic ofVietnam was the state that succeeded to the role as sovereign protectorover that land. This succession was also dealt with by Prime MinisterNguyen Tan Dung in a speech to the National Assembly on November 25,2011. He affirmed that in 1974, China used force to occupy the wholeHoang Sa Archipelago under the "actual administration of the then Saigongovernment, i.e. the government of the Republic of Vietnam. Thegovernment of the Republic of Vietnam raised its voice to protestagainst this attack and proposed the United Nations interfere".
Accordingto the 1933 Montevideo Convention summarising centuries ofcustomary/traditional international law on the issue of the existence ofa state, the Republic of Vietnam was an entity that had all the fourconditions of a state: (a) a stable population, (b) a clear-cutterritory, (c) a government, and (d) the capacity to enter intorelations with other states.
When other countries recognise astate possessing these four qualifications and establish relations withit, it is a political decision, which is added to the four legalstandards. This means that even if a state does not like another stateand does not recognise it, it cannot eliminate the status of that state.
Take Cuba for example. While it is hated and not recognised bythe United States, the US cannot eliminate its statehood. The state ofthe Republic of Vietnam in the 1954-1975 period was recognised byseveral dozen countries. Even The Soviet Union once proposed that thetwo Vietnams be admitted to the United Nations.
However, whethera state is admitted into the UN or not, this is only a political matterand admission or non-admission into the UN is not one of the standardsset for the birth of a state. The Geneva Agreement could not be used toargue that, because it recommended that reunification of the twotemporarily-divided parts of Vietnam be achieved through a generalelection, the Republic of Vietnam did not exist under the sun.Proponents of this idea did not understand the centuries-oldinternational law on birth of a state. They also mixed up the legalstandards for the existence of a state under this law with a politicalarrangement by world powers in the agreement joined by only a fewcountries. In so doing, they had intentionally forgotten the politicalreality that several dozen countries had recognised the birth of theRepublic of Vietnam. They had also forgotten international law in thesense that the small number of countries that signed the GenevaAgreement could not deny the rights of the several dozen countries thatrecognised the Republic of Vietnam.
Prime Minister Nguyen TanDung has said, and in the past, presumably the late Prime Minister PhamVan Dong might also have said implicitly (ambiguity in this case is anart of diplomacy and politics) that there were two states of Vietnamduring the 1954-1975 period.
Such statement does not reduce thevalue of achieving national reunification in 1975-1976, because in worldhistory, many states have been divided into several parts and some werethen reunified again.
For example, Pakistan was divided in twostates, the other being Bangladesh. Sudan was once one state, but nowthere are two states. These states still have their own positions andare recognised among the community of states.
No legal effect
Aunilateral declaration such as the official letter by the late PrimeMinister Pham Van Dong has no international legal effect. Ininternational law, it is impossible to try to apply the "Estoppel"theory to this case in Vietnam. The Estoppel theory is from the domesticlaw of a number of states and stipulates that "once something is said,it cannot be withdrawn". This theory is not applicable in internationallaw in the same way as it is applied in domestic law, because there arevery strict conditions. Therefore it is impossible to consider aunilateral statement as inevitably binding under international law. Thiswas stated by an international court in judging a case involving thecontinental shelf between Germany and Denmark/Holland.
Accordingto another legal case, when considering the significance of a unilateraldeclaration, the international court must strictly interpret the"intention" of the declarer. According to the decision of theInternational Court of Justice in "Nuclear Tests Case, Australia &New Zealand versus France, 1974 I.C.J. 253", "When states makestatements by which their freedom of action is to be limited, arestrictive interpretation is called for....The sole relevant questionis whether the language employed in any given declaration does reveal aclear intention...The Court must form its own view of the meaning andscope intended by the author of a unilateral declaration, and cannot bebound by the view expressed by another state which is in no way a partyto the text."
According to the standards of the ruling in thatlegal case, the intention of the late Prime Minister Pham Van Dong inthe 1958 diplomatic note should be considered within the framework ofthe his role under the 1946 Constitution. As provided by thatConstitution, the Government consists of the President, Vice-Presidentand the cabinet (Article 44). In the cabinet, there is the PrimeMinister (Article 44). The President, on behalf of the country (Article49, clause a), signs a treaty with another country (Article 49, clauseh), binding Vietnam to such important things as sovereignty over land,including the concession of land. The President's signed treaty to makethat land concession had to be ratified by the National Assembly, thesupreme organ of power (Articles 22 and 23).
The Prime Ministercannot go beyond his role, according to the principle of the theorycalled "ultra vires" (going beyond authority).
The officialletter of the late Prime Minister only intended to give diplomaticsupport to China on the 12- nautical mile territorial sea which Chinawas anxious to declare in opposition to the then (1958) threat from theUS with its seventh fleet in the Taiwan Strait. Kinmen and Matsu islandsin the strait were occupied by the Taiwanese army with strong USsupport.
Moreover, the intention of the late Prime Minister PhamVan Dong cannot be inferred as relating to land concessions, becauseChina demanded all the Hoang Sa and Truong Sa archipelagoes, but manyreefs/islands are claimed by a number of Southeast Asian countries,which he could not represent. China cannot use the words of Dong tooppose the other Southeast Asian countries.
According to the said"Nuclear Tests" case, the international court finds it unnecessary tohear China's subjective and self-interested explanation.-VNA
In an interview withthe Vietnam News Agency reporters, Dr. Ta Van Tai – lawyer, formerlecturer and currently researcher at Harvard Law School – said therewere two international legal arguments showing that China's explanationwas absurd.
Declarations of sovereignty
First and foremost,the 1954 Geneva Agreement splitting Vietnam into two parts handed theright of administration of the Hoang Sa and Truong Sa archipelagoessouth of the 17th Parallel (the partition line), over to the thenGovernment of South Vietnam (the Republic of Vietnam) south of thatparallel.
That is why, any actions asserting and exercisingsovereignty over the Hoang Sa and Truong Sa archipelagoes fell under theauthority of the then Republic of Vietnam. That government, as well asits navy, powerfully affirmed Vietnam's sovereignty over the islandsduring and after the 1974 Hoang Sa naval fight between the navy of SouthVietnam - then occupying and administering the archipelagoes - and thatof China that came to attack.
The late Prime Minister Pham VanDong of North Vietnam (the Democratic Republic of Vietnam) had noauthority or intention to make a declaration about the sovereignty ofthe Hoang Sa and Truong Sa archipelagoes, which belonged to the Republicof Vietnam at the time. He only made a declaration that recognisedChina's 12-nautical mile territorial sea claimed by China in ChinesePrime Minister Chou En-lai's declaration.
Even though theaspiration of in the motto "the Vietnamese nation is one, Vietnam isone" was an idealist statement, expressed by many Vietnamese includingHo Chi Minh, the existence of a state is a question of fact, underinternational law.
Therefore, the actual existence of the twostates of Vietnam from 1954 to1975, as the Democratic Republic ofVietnam and the Republic of Vietnam, was in conformity to internationallaw, with the Republic of Vietnam exercising sovereignty over thearchipelagoes during that time.
The Socialist Republic ofVietnam was the state that succeeded to the role as sovereign protectorover that land. This succession was also dealt with by Prime MinisterNguyen Tan Dung in a speech to the National Assembly on November 25,2011. He affirmed that in 1974, China used force to occupy the wholeHoang Sa Archipelago under the "actual administration of the then Saigongovernment, i.e. the government of the Republic of Vietnam. Thegovernment of the Republic of Vietnam raised its voice to protestagainst this attack and proposed the United Nations interfere".
Accordingto the 1933 Montevideo Convention summarising centuries ofcustomary/traditional international law on the issue of the existence ofa state, the Republic of Vietnam was an entity that had all the fourconditions of a state: (a) a stable population, (b) a clear-cutterritory, (c) a government, and (d) the capacity to enter intorelations with other states.
When other countries recognise astate possessing these four qualifications and establish relations withit, it is a political decision, which is added to the four legalstandards. This means that even if a state does not like another stateand does not recognise it, it cannot eliminate the status of that state.
Take Cuba for example. While it is hated and not recognised bythe United States, the US cannot eliminate its statehood. The state ofthe Republic of Vietnam in the 1954-1975 period was recognised byseveral dozen countries. Even The Soviet Union once proposed that thetwo Vietnams be admitted to the United Nations.
However, whethera state is admitted into the UN or not, this is only a political matterand admission or non-admission into the UN is not one of the standardsset for the birth of a state. The Geneva Agreement could not be used toargue that, because it recommended that reunification of the twotemporarily-divided parts of Vietnam be achieved through a generalelection, the Republic of Vietnam did not exist under the sun.Proponents of this idea did not understand the centuries-oldinternational law on birth of a state. They also mixed up the legalstandards for the existence of a state under this law with a politicalarrangement by world powers in the agreement joined by only a fewcountries. In so doing, they had intentionally forgotten the politicalreality that several dozen countries had recognised the birth of theRepublic of Vietnam. They had also forgotten international law in thesense that the small number of countries that signed the GenevaAgreement could not deny the rights of the several dozen countries thatrecognised the Republic of Vietnam.
Prime Minister Nguyen TanDung has said, and in the past, presumably the late Prime Minister PhamVan Dong might also have said implicitly (ambiguity in this case is anart of diplomacy and politics) that there were two states of Vietnamduring the 1954-1975 period.
Such statement does not reduce thevalue of achieving national reunification in 1975-1976, because in worldhistory, many states have been divided into several parts and some werethen reunified again.
For example, Pakistan was divided in twostates, the other being Bangladesh. Sudan was once one state, but nowthere are two states. These states still have their own positions andare recognised among the community of states.
No legal effect
Aunilateral declaration such as the official letter by the late PrimeMinister Pham Van Dong has no international legal effect. Ininternational law, it is impossible to try to apply the "Estoppel"theory to this case in Vietnam. The Estoppel theory is from the domesticlaw of a number of states and stipulates that "once something is said,it cannot be withdrawn". This theory is not applicable in internationallaw in the same way as it is applied in domestic law, because there arevery strict conditions. Therefore it is impossible to consider aunilateral statement as inevitably binding under international law. Thiswas stated by an international court in judging a case involving thecontinental shelf between Germany and Denmark/Holland.
Accordingto another legal case, when considering the significance of a unilateraldeclaration, the international court must strictly interpret the"intention" of the declarer. According to the decision of theInternational Court of Justice in "Nuclear Tests Case, Australia &New Zealand versus France, 1974 I.C.J. 253", "When states makestatements by which their freedom of action is to be limited, arestrictive interpretation is called for....The sole relevant questionis whether the language employed in any given declaration does reveal aclear intention...The Court must form its own view of the meaning andscope intended by the author of a unilateral declaration, and cannot bebound by the view expressed by another state which is in no way a partyto the text."
According to the standards of the ruling in thatlegal case, the intention of the late Prime Minister Pham Van Dong inthe 1958 diplomatic note should be considered within the framework ofthe his role under the 1946 Constitution. As provided by thatConstitution, the Government consists of the President, Vice-Presidentand the cabinet (Article 44). In the cabinet, there is the PrimeMinister (Article 44). The President, on behalf of the country (Article49, clause a), signs a treaty with another country (Article 49, clauseh), binding Vietnam to such important things as sovereignty over land,including the concession of land. The President's signed treaty to makethat land concession had to be ratified by the National Assembly, thesupreme organ of power (Articles 22 and 23).
The Prime Ministercannot go beyond his role, according to the principle of the theorycalled "ultra vires" (going beyond authority).
The officialletter of the late Prime Minister only intended to give diplomaticsupport to China on the 12- nautical mile territorial sea which Chinawas anxious to declare in opposition to the then (1958) threat from theUS with its seventh fleet in the Taiwan Strait. Kinmen and Matsu islandsin the strait were occupied by the Taiwanese army with strong USsupport.
Moreover, the intention of the late Prime Minister PhamVan Dong cannot be inferred as relating to land concessions, becauseChina demanded all the Hoang Sa and Truong Sa archipelagoes, but manyreefs/islands are claimed by a number of Southeast Asian countries,which he could not represent. China cannot use the words of Dong tooppose the other Southeast Asian countries.
According to the said"Nuclear Tests" case, the international court finds it unnecessary tohear China's subjective and self-interested explanation.-VNA
