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Nguyen Huu Thong
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On the Matter of Law & Order in Southeast Asian Sea
(Attorney at Law Nguyen Huu Thong)
Editorial Note: Attorney at Law Nguyen Huu Thong, President of the Vietnamese Lawyers Association, Inc. in San Jose, recently sent to leaders of South East Asian governments a letter to urge them to submit the matter South East Asian Sea conflict to an international tribunal. Following is his letter to President Fidel Ramos of the Philippines.
San Jose, July 14, 1995

c/o Philippine Consulate General
447 Sutter Street, Sixth Floor San Francisco, CA 94108
RE: Law and Order in Southeast Asian Sea.

Dear Mr. President:

On behalf of the California Vietnamese Lawyers Association, I would like to submit for your consideration on the Spratly conflict.
Eight years ago there was a minor naval battle between China and Vietnam in the Spratly Islands. China’s declaration of sovereignty over the Paracels and the Spratlys and their occupation by Chinese navy have sparked conflict with Vietnam and the Philippines.
Recently, the incidents at Mischief Reef, Half Moon Shoal, Sabina Shoal and Jackson Bank on the Philippine continental shelf have threatened the security of the area and the freedom of navigation in the South China Sea.
At Vanguard Bank Called Tu Chinh of Wanan Bei, China and Vietnam are claiming a potentially oil rich tract that China awarded to Crestone Corporation three years ago. That tract lies on Vietnam’s continental shelf about 160 nautical miles southeast of Ho chi Minh City.

The Spratly Islands, east of the disputed Crestone contract area, are contested by a number of countries including China, Vietnam, the Philippines, Malaysia, Brunei and Taiwan.
The "U Shaped" area of Nan Hai (South Sea) known as the "Dragon Tongue" claimed by China as "Hainan Special Administration District" encompasses 80% of the South China Sea, eastward to the Philippines, westward to Vietnam and southward to Malaysia, Brunei and Indonesia, the farthest spot having a distance of 1,100 nautical miles (2000 Km) from mainland China. By doing so, China has considered the South China Sea as its "internal waters", the same way as the Roman Empire called the Mediterranean Sea "Mare Nostrum" (our sea).

By international law, pursuant to Article 57 of the United Nations Convention on the Law of the Sea (1982) (LOS Convention), all coastal states, have been granted exclusive fishing rights in the Exclusive Economic Zone extending 200 nautical miles from shore.

Article 76 of the LOS Convention gives coastal states exclusive rights to drill for oil and gas in the continent shelf up to 350 nautical miles from their coasts. The continental shelf comprises the sea bed and subsoil of the submarine areas that extend throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines. For those coastal states who have not-declared a continental shelf of up to 200 nautical miles from the baselines, they are entitled to it ab initio, ipso facto and ipso jure under customary international law, and the 1982 Law of the Sea Convention to which they are signatories (See the Libya/ Malta Continental Shelf Case, ICJ Report 1985, 13). These are the cases of the Philippines, Indonesia, Singapore, Malaysia, Brunei and China (Vietnam has declared its continental shelf of 200 nautical miles from the baselines in 1982).
That 200-nautical miles continental shelf is called the Legal Continental Shelf.

Article 77 of the LOS Convention gives sovereign and exclusive rights to the coastal states over the continental shelf:
1. The, coastal State exercises sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.
2. These rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend on occupation, or on any express proclamation.

Concerning the drilling on the continental shelf, Article 81 of the LOS Convention provides that "the coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes".
The Rule Pacta sunt servanda applies for the observance of treaties.
Article 26 of the Vienna Convention on the Law of Treaties (1969) declares that "every treaty in force is binding upon the parties to it and must be performed by them in good faith".
The United Nations International Law Commission in its commentaries to this rule, characterized it as a "fundamental principle of the law of treaties, perhaps the most important principle of international law". (See 1966 Report on the I.L.C. reproduced in 61 Am. Int’l L. 248 at 334)(1967).

According to the rule of supremacy of international law, the rights and obligations-which a state has international law are, on the international plane, superior to any rights or duties it may have under its domestic law. Article 27 of the Vienna Convention provides that "a party may not invoke the provisions of its internal law as justification for its failure to: perform a treaty". That failure to perform would continue a breach of international law requesting remedies with provisional measures in case the urgency of the of the situation required it.
Therefore, China should not invoke its domestic Law of the Sea promulgated in 1992 to encroach upon the Vietnamese and Philippine Continental Shelves and the whole Spratly and Paracel archipelagoes. These violations of the law of the sea should be submitted to the International Court of justice or the International Tribunal For the Law of the Sea for the resolution of disputes in case the parties do not reach an agreement by negotiation and conciliation. The International Court Tribunal has jurisdiction over the matters relating to the interpretation or application of the LOS Convention. Until December 1984, the Convention was signed by 159 states. It has come into force on November 16. 1994 after its ratification by 60 states.
On July 29, 1994, the United States signed the Agreement Relating to the Implementation of Part XI of the LOS Convention. Last October, President Bill Clinton transmitted a letter to the U.S. Senate asking its consent to accession to the LOS Convention.
The settlement of these disputes by peaceful means such as negotiation. conciliation and judicial proceed 9 would keep Southeast Asia from becoming another Middle East. With the rule of law taking the place of the use of force, Southeast Asia may soon experience a period of peace, stability, cooperation and prosperity.
I would like to seize this opportunity to propose that you change the name "South China Sea" to "Southeast Asian Sea'. The appellation of South Sea (Nan Hai) is good only for China; the East Sea (Bien Dong) applies only to Vietnam. As for Singapore, Indonesia, Malaysia and Brunei, it should called North Sea; and for the Philippines, the correct name be West Sea.
Furthermore,, the name South China Sea could be interpreted erroneously as the Sea of China in the South.
Let us give to Caesar what belongs to Caesar, and give Southeast Asian Sea to the Southeast Asian countries.
Thank you for your attention to this matter,

Yours sincerely,
For the California Vietnamese Lawyers Association
The President,
Attorney at Law