China is still looking for new arguments to refute the Permanent Court of Arbitration (PCA)’s ruling in 2016. The legal battle in the East Sea is not over yet.
On September 18, China sent a note verbale CML/63/2020 in response to the note verbales of France, the United Kingdom and Germany sent to the United Nations Secretary-General two days earlier expressing the three European countries’ views on the 7 notes that the Chinese mission had proposed for circulation at the UN relating to Malaysia’s submission on continental shelf to the UN Commission on the Limits of the Continental Shelf (CLCS) on December 12, 2009.
Going against international law
In their notes, the three countries emphasized the global nature and consistency of the United Nations Convention on the Law of the Sea (UNCLOS) in establishing a legal framework defining maritime zones and implementing maritime activities worldwide. The notes emphasizes the unified integrity of the Convention on a global scale.
China argues that UNCLOS is not everything. In addition to UNCLOS there is general international law. Paragraph 8 of UNCLOS Preamble notes “matters not regulated by this Convention continue to be governed by the rules and principles of general international law”. This argument was developed by China after the PCA’s ruling 2016 and was formally addressed by Deputy Foreign Minister Luo Zhaohui at the international seminar on “East Sea from the perspective of cooperation” held on Hainan Island on September 2.
The British Navy warship HMS Argyll took part in exercises with the US Navy in the East Sea in January 2019. Photo: US Navy
The September 18 note of the Chinese mission officially added this argument in the East Sea dispute on the UN forum. This note outlines the current negotiations on legal documents for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) to which China actively participates as an example of the development and perfection of UNCLOS.
In fact, UNCLOS is a maritime charter, covering general provisions for all maritime zones and areas of marine activity. The preamble of the Convention on migratory fish in 1995 and the BBNJ negotiation documents from 2018 state that these documents were prepared on the basis of UNCLOS, in the framework of UNCLOS regulations, in accordance with UNCLOS and without prejudice to the rights, powers and obligations of states under UNCLOS.
The waters not beyond the national jurisdiction are determined on the basis of clearly delineating the exclusive economic zones and the continental shelf of the coastal state in accordance with the provisions of UNCLOS. The issues of baseline and the regulations of the islands and land features are already covered by UNCLOS after 9 years of negotiation. UNCLOS is a package solution, requiring consistency in interpretation and application and does not accept exceptions.
China’s note affirms that China has territorial sovereignty and maritime rights established in a long history, with the consistency of successive governments, in accordance with international law including both the United Nations Charter and UNCLOS.
However, China’s White Paper 1980 states that Chinese fishermen were the earliest who discovered, named and managed islands in the East Sea. This goes against international law, which stipulates that only peaceful, continuous and real acts of ownership by the government bring the name of sovereignty.
The perspective of France – UK – Germany
Historically, Chinese governments recognized the southernmost point of Chinese territory as Hainan Island. Until 1909, China had a dispute over the Hoang Sa (Paracel) Islands and until 1935 the name Nansha was still given to the submerged archipelago of Zhongsha. The use of force in Hoang Sa (Paracel) in 1974 and Truong Sa (Spratly Islands) in 1988 was not a measure to create a title of sovereignty confirmed by the UN Charter.
British aircraft carrier HMS Queen Elizabeth is expected to visit the East Sea next year. Photo: Reuters
The September 18 note stated that China appreciates the importance of the provisions of the Convention and the conditions applicable to the drawing of the territorial sea. At the same time, China also believes that the practice established in international law regarding the offshore islands of the coastal state should be respected.
This means that China assumes that there is an international custom to use archipelagic straight baselines for these offshore islands and that the coastal state can both adopt straight baselines according to Article 7, Part II and the archipelagic baseline in accordance with Article 47, part IV of UNCLOS for maximum benefit.
The notes of France – UK – Germany had the opposite view. Part II of the Convention applies to archipelagos and land features of a coastal state. Part IV is applicable only to archipelagic country. There is no legal basis to disobey the relevant provisions of Part II or knowingly apply Part IV to the islands and land features of the coastal state.
China’s argument is based on the 2018 study by the Chinese International Law Association to refute the East Sea ruling. This study cited 19 offshore archipelagos that applied a straight baseline. Of these, France, the UK and Australia are all mentioned (France with the Kerguelen Islands; Guadeloupe and New Caledonia; Australia with Houtman Abrolhos Islands and Furneaux Group; the UK with the Turks, Caicos Islands and the disputed Falkland Islands).
But these countries oppose China applying the archipelagic straight baseline to Hoang Sa Islands and the plan to apply it to the so-called Nanhai Zhudao. These countries’ note is evidence that there is no international practice in applying archipelagic straight baselines to the offshore islands of the coastal state as proposed by China.
The legal war has not come to an end
China’s note does not answer points 4 and 5 of the notes of France – UK – Germany on the status of islands and claims of historic rights. The notes of the three European countries states that land reclamation activities or any form of man-made transformation cannot change the characteristics of a land feature under UNCLOS. The Chinese mission’s note only reiterates that China’s territorial sovereignty and maritime rights in the East Sea will not be harmed under any circumstances due to the illegal ruling on the East Sea.
Point 4 of the Chinese note states that China is trying to resolve disputes in the East Sea through friendly consultations with countries concerned directly. China and ASEAN are committed to the full and effective implementation of the Declaration on the Conduct of the Parties in the East Sea (DOC).
However, the reality shows that the DOC has failed to promote the effect of refraining from the use of force and threatening to use force, not preventing expansion of occupation and land reclamation activities. The failure of the DOC forced countries to find a new code of conduct (COC), but the negotiation was still very difficult as fishing vessels of Vietnam and the Philippines were always in distress, oil and gas exploration and exploitation activities within 200 nautical miles from the coast of coastal countries were always at stake.
In the war of diplomatic notes, which started from Malaysia’s submission in December 2019, 23 notes and official letters have been submitted so far (China – 8, the Philippines – 2, Malaysia – 3, Vietnam – 3; Indonesia – 2, US – 1, Australia – 1, France – UK – Germany – 3).
Brunei and a number of other countries also issued statements demonstrating their stance. Most countries support the PCA’s East Sea ruling that rejects the claim of historic rights, does not allow land features in Truong Sa to have a territorial water larger than 12 nautical miles and not to apply archipelagic baselines for the Spratlys as a unified unit.
As more and more countries take a common stance, this may produce an erga omnes (towards all) effect. China is still looking for new arguments to refute the PCA ruling as well as to have a new interpretation of the provisions of UNCLOS. The legal battle in the East Sea is not over yet.
Nguyen Hong Thao
Environmental impact asessment of investment projects highlighted at NA discussion
Deputies at the 14th National Assembly debated a number of contents of the draft revised Law on Environmental Protection, including the classification of projects basing on impact to the environment,
the authority of environmental effect assessment, and the issuance of licence for waste release.
Chairman of the NA Committee for Science, Technology and Environment Phan Xuan Dung (Photo: VNA)
According to Chairman of the NA Committee for Science, Technology and Environment Phan Xuan Dung, in order to minimise the risk of environmental pollution from investment projects, the bill has two new contents on policies in sorting out the projects basing on their environmental impact, and the integration and promotion of green economic models, circulation economy, low-carbon economy in building and implementation of strategies, plans, programmes, and projects.
The bill also adjusts contents related to the responsibility in directing the response to environmental incidents of central and local agencies as well as the State management responsibility of ministries, sectors, localities, professional organisations as well as relevant individuals, he said.
Regarding the coherence of the bill with other relevant laws, many deputies pointed out that there are still overlapping and incoherence between the bill and other legal documents comprising contents related to environmental protection, including the Law on Biodiversity, Law on Water Resources, Law on Public Investment.
This may affect the efficiency of State management in environmental protection, they said, stressing the need to continue reviewing and adjusting the bill to avoid confrontation with other laws that were issued after 2014.
Regarding the issuance of environmental licences, many deputies agreed with the option of using a single environmental licence instead of seven, including the admission of wastewater to irrigation work.
Nguyen Thi Mai Hoa, a representative from the Mekong Delta province of Dong Thap, said that the simplification of the procedures will save time for enterprises. However, she stressed the need to design a tight procedure and strengthen inspection in the field.
Meanwhile, Thai Binh deputy Pham Van Tuan proposed that it is necessary to classify investment projects basing on environmental impact levels, taking it as a foundation to define the list of projects with risk of posing negative impact to the environment, thus ensuring the coherence of relevant laws.
Tuan pointed to the need to clarify the criteria for the classification, thus placing the projects to four groups of risks in four levels.
Over the regulations defining the projects subjected to environmental impact assessment to suit relevant laws, Dung said that the NA Standing Committee has prepared two options. In the first one, all projects must conduct the assessment, while in the other, only those with high risk of causing negative impact to the environmental are subjected to the assessment, he said./.
Legislators debate draft revised Law on Environmental Protection
NA deputies on October 24 said that there should be clearer and more detailed regulations on responsibilities and obligations of organisations, production and business establishments, and individuals in paying fees and taxes on environmental protection.
Giving their comments on the draft Law on Environmental Protection (revised) during the fifth day of the 14th National Assembly (NA)’s 10th sitting held virtually, lawmakers said the amount of money collected to invest in environmental protection is very little.
They attributed the situation to the absence of an appropriate mechanism to mobilise the participation and contribution of organisations and individuals to the protection of the environment, and regulations on the responsibility and obligations of fee payers for environmental protection.
The mechanism for infrastructure investment is mainly based on the voluntary spirit and support of businesses, and there are no specific regulations and legally binding mechanisms, said Vice Chairman of Hai Ha district People’s Committee Tran Viet Dung.
The NA should immediately issue guidance after the law takes effect so as to avoid overlapping tasks, other NA deputies said.
The law should also pay attention to the use of renewable energy sources, resolutely deal low-capacity hydropower plants thatw affect the forest environment, result in floods, and worsen climate change, they stressed, adding that projects at risk of causing harm to the environment should be carefully examined and verified./. VNA
PM praises intelligence department for ‘strong solidarity’ to win
HÀ NỘI — Prime Minister Nguyễn Xuân Phúc on Friday granted the first-class National Defence Medal to the General Department of Military Intelligence under the Ministry of National Defence to mark its 75th founding anniversary (October 25).
The PM praised the department for fulfilling its responsibilities as a strategic intelligence agency of the Party, the State, the Central Military Commission and the Ministry of National Defence, inheriting the tradition of “being strong, resilient, independent, creative, smart and solidarity to win”.
The unit has inherited and brought into full play the intelligence tradition of its predecessors, learning from global intelligence experience and summarising many valuable experiences through practical activities, deeply absorbed with the teachings of late President Hồ Chí Minh, he said.
To continue its glorious tradition and carry out its tasks, the department’s staff must preserve the special trust and love given by the Party, State and the Army, he said.
Defence intelligence officers need to understand and apply the Party’s directions on military-defence missions to continue to perform well its role as a strategic intelligence agency, he said.
He urged the department to streamline its apparatus to operate a compact, strong, professional, effective and functional system and build a contingent of intelligence officers with political bravery, strategic vision and professional knowledge to take on missions.
The PM believed that with its glorious history and tradition of 75 years along with its existing strengths, the General Department of Military Intelligence would continue to grow and complete all assigned tasks, becoming a key force, living up to the trust of the Party, State, Army and people.
On October 25, 1945, the defence intelligence room under the General Staff of the Vietnam People’s Army was established. Since then, October 25 has become the traditional day of the national defence intelligence force.
The defence intelligence force made contributions to the national liberation in the wars against French colonialism and American imperialism as well as national construction and protection.
The department was honoured to receive the title of Hero of the People’s Armed Forces in the Đổi Mới (renewal) period, the Gold Star Medal, Hồ Chí Minh medals, the first-class independence medal, first-class military merits medals and the first-class national defence medal, among others.
Deputies call for greater access to information on HIV-infected people
HÀ NỘI — The majority of lawmakers agreed that the amended Law on HIV/AIDS Prevention and Control should increase the number of people who can access information on HIV-infected people at a National Assembly discussion on Friday.
Deputies said doing so would ensure proper treatment, payment of medical examination and treatment costs and prevent infection of those who take care of and treat the patients.
According to Phạm Văn Hòa, a deputy from Đồng Tháp Province, greater information access was essential to prevent infection among parents, wives or caregivers.
However, he underlined the necessity to ensure the confidentiality of information on HIV-infected people so they would not face stigma.
Deputy Triệu Thanh Dung from Cao Bằng Province said adding more people who can access information might negatively impact HIV-infected people.
She cited the results of a survey conducted by the Ministry of Health on 1,800 HIV-infected people which showed 27.8 per cent of them disagreed with this provision due to their fear of information disclosure.
“The wishes and aspiration of people living with HIV/AIDS should be given priority to create the best conditions for treating and caring for them,” Dung said.
Regarding the fund for the treatment and care of HIV/AIDS-infected people, she said it was not necessary to maintain the fund due to a number of limitations relating to its performance.
The fund has mobilised just more than VNĐ5.7 billion (US$ 245,000) over the past 12 years, Dung said.
The main purpose of the fund is to help infected people access HIV/AIDS treatment or care for those in the latter stages of the disease. However, in recent years, its activities have mainly been giving gifts, milk and buying health insurance cards for children with HIV/AIDS aged from six to 15, she said.
Most deputies agreed with amending and supplementing the law.
They said the law should be amended to strengthen the protection and care for people’s health, overcoming the shortcomings of the current law and meeting the requirement of HIV/AIDS prevention and control work.
Many deputies said some provisions of the law were no longer consistent with current practices. There were also conflicts between some related laws on the treatment and care of infected people.
Those shortcomings should be revised soon to ensure consistency and improve the effectiveness of law enforcement, they said.
Presenting a report on the draft law, Acting Minister of Health Nguyễn Thanh Long said Việt Nam has recorded remarkable results in HIV/AIDS prevention and control.
Việt Nam is one of four countries with the best HIV/AIDS treatment in the world along with Germany, the UK and Switzerland, he said.
The country has kept the community HIV infection rate below 0.3 per cent.
According to the United States Agency for International Development (USAID), since 2000 the country has deployed preventive measures to stop 400,000 people from being infected with HIV and 150,000 received treatment that stopped them dying from AIDS.
Viet Nam has a rate of HIV-infected people receiving antiretroviral (ARV) treatment with a viral load below the inhibitory threshold reaching 96 per cent, contributing to reducing community HIV infection.
Long said despite positive results in HIV/AIDS prevention and control, some shortcomings remain.
The current law still has many limitations, with no specific regulation on who is entitled to access information about HIV-infected people. It failed to create an adequate legal corridor for HIV/AIDS epidemic surveillance and access with a view to providing timely support and treatment for infected people.
He said the revision of the law aimed at realising the target of basically putting an end to the disease by 2030. —
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