Vietnamese Position Regarding China’s South China Sea Policy of

“Set Aside Dispute and Pursue Joint Development”

Windy Thi Ngoc Minh Phan

Department of Public Policy and Administration, National Chi Nan University, No.1 Daxue Road, Puli Township,

Nantou County, Taiwan (ROC)

Keywords: South China Sea, East Sea, Vietnam, Joint Development, China’s South China Sea Policy, Set aside Dispute

Abstract: The joint development model has been implemented for a long time in the world, for example, the Svalbard

Treaty of 19 December 1920. Since the treaty was born, so far, in the world, more than 100 joint

development agreements have been signed and implemented. Paragraph 3 of Article 74 of The United

Nations Convention on the Law of the Sea in 1982 stipulate that “Pending agreement, the States concerned,

in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements

of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final

agreement. Such arrangements shall be without prejudice to the final delimitation.” It is an important legal

basis for the formation of joint development agreements between countries. Joint Development has the same

meaning as the "dilution" and "softening" of conflicts and tensions between the countries concerned. Joint

development is, in fact, an appropriate solution that can be applied to the provisional settlement of disputes

in the South China Sea area and is currently under discussion by the parties. Mutual awareness has opened

the prospect and favorable conditions for conducting joint development cooperation activities in the region.

Negotiations on specific issues for the implementation of this option as one of the possible solutions to

conflicts that need to be considered include Vietnam. However, it should be noted that around the issue of

joint development in the South China Sea, the point of view of China is different from that of other

countries. China was the first country to propose joint development in the Spratly Islands area formally, and

so far, seems to follow a policy of “Set aside dispute and pursue joint development” to solve the Spratly

problem. What is interesting in this view is the general premise “sovereignty belongs to China.” Vietnam

and some other disputants cannot accept this standpoint. What do Vietnam government need to do in

implementing the joint development agreement in the South China Sea while maintaining the sovereignty of

the parties to the dispute? This article puts forward some solutions for Vietnam in solving this problem. To

implement the joint development solution in the South China Sea, the first thing that Viet Nam must

mention is the issue of sovereignty of Vietnam. Vietnam will only implement joint development if China

respects Vietnam’s sovereignty over the Paracel Islands and the Spratly Islands as well as its sovereign

rights and jurisdiction over the exclusive economic zone-EEZ and continental shelf adhered to the United

Nations Convention on the Law of the Sea 1982.

1 INTRODUCTION

The joint development model has been implemented

for a long time in the world, for example, the

Svalbard Treaty of 19 December 1920. Since the

treaty was born, so far, in the world, more than 100

joint development agreements have been signed and

implemented. Paragraph 3 of Article 74 of The

United Nations Convention on the Law of the Sea in

1982 stipulate that “Pending agreement, the States

concerned, in a spirit of understanding and

cooperation, shall make every effort to enter into

provisional arrangements of a practical nature and,

during this transitional period, not to jeopardize or

hamper the reaching of the final agreement. Such

arrangements shall be without prejudice to the final

delimitation.” It is an important legal basis for the

formation of joint development agreements between

countries. Joint Development has the same meaning

as the “dilution” and “softening” of conflicts and

tensions between the countries concerned.

This solution may temporarily shelve disputes

that may prolong political-diplomatic relations

200

Phan, W.

Vietnamese Position Regarding China’s South China Sea Policy of “Set Aside Dispute and Pursue Joint Development”.

DOI: 10.5220/0010275100002309

In Proceedings of Airlangga Conference on International Relations (ACIR 2018) - Politics, Economy, and Security in Changing Indo-Paciﬁc Region, pages 200-210

ISBN: 978-989-758-493-0

between countries that limit the state of tensions that

lead to the arms race or lead to armed conflict. In the

post-Cold War, countries in the Asia-Pacific region

have promoted cooperation in the exploitation and

development of joint ocean management

cooperation. These processes have made the

maritime security environment seem more peaceful.

The positive benefit of the joint development model

is that it contributes to building confidence in

reducing disputes and developing economic and

political cooperation for participating countries. On

the other hand, joint development is a temporary

solution that does not affect the final allocation, so it

can also meet the demand for exploiting natural

resources for economic growth (Nguyen, 2013).

Joint development is, in fact, an appropriate

solution that can be applied to the provisional

settlement of disputes in the South China Sea area

and is currently under discussion by the parties.

Mutual awareness has opened the prospect and

favorable conditions for conducting joint

development cooperation activities in the region.

Negotiations on specific issues for the

implementation of this option as one of the possible

solutions to conflicts that need to be considered

include Vietnam.

However, it should be noted that around the issue

of joint development in the South China Sea, the

point of view of China is different from that of other

countries. China was the first country to propose

joint development in the Spratly Islands area

formally, and so far, seems to follow a policy of “Set

aside dispute and pursue joint development” to solve

the Spratly problem. What is interesting in this view

is the general premise “sovereignty belongs to

China.” Vietnam and some other disputants cannot

accept this standpoint.

What do Vietnam government need to do in

implementing the joint development agreement in

the South China Sea while maintaining the

sovereignty of the parties to the dispute? This article

puts forward some solutions for Vietnam in solving

this problem. To implement the joint development

solution in the South China Sea, the first thing that

Viet Nam must mention is the issue of sovereignty

of Vietnam. Vietnam will only implement joint

development if China respects Vietnam’s

sovereignty over the Paracel Islands and the Spratly

Islands as well as its sovereign rights and

jurisdiction over the exclusive economic zone-EEZ

and continental shelf adhered to the United Nations

Convention on the Law of the Sea 1982.

2 JOINT DEVELOPMENT

The concept of joint development first appeared in

international law in the 1970s. There are various

definitions of joint development in relevant legal

literature. In a broad sense, joint development

agreements can be defined as cooperative efforts

between two or more States for the exploration and

exploitation of mineral resources that straddle a

maritime boundary or are found in areas of

overlapping claims (Becker-Weinberg, 2014).

The concept of joint development contains

several characteristics (Keyuan, 2006

 It is an arrangement between two countries.

 It is usually concerned with an overlapping

maritime area;

 It can be used as a provisional arrangement

pending the settlement of the boundary

delimitation disputes.

 It is designed to develop the mineral resources

in the disputed area jointly.

Under UNCLOS and customary international

law, non-living marine natural resources in the

seabed and subsoil of the territorial sea or

archipelagic water are subject to the sovereignty of

the coastal State. The coastal State exercises

sovereign rights to explore or exploiting such

resources in its exclusive economic zone (EEZ) or

continental shelf, including beyond 200 nm. Despite

these rules being clear and straightforward, legal and

practical problems occur in two particular situations:

first, if an offshore hydrocarbon deposit straddles a

boundary line and, second, if such resources are

found in a maritime area that is claimed by two or

more States. These problems arise mainly in the case

of oil and gas because of the migratory nature of

these resources. To satisfactory solutions for these

problems, States have developed joint development

agreements in their practice, a concept that was first

applied to the management of fisheries6 and also to

the development of onshore resources. Hence, joint

development may be briefly described as a

cooperative effort for the internationalization of

marine natural resources between two or more States

for the exploration and exploitation of offshore

hydrocarbon deposits that straddle a boundary line

or that are found in maritime areas of overlapping

claims (Becker-Weinberg, 2014).

Vietnamese Position Regarding China’s South China Sea Policy of “Set Aside Dispute and Pursue Joint Development”

201

3 THE SITUATION IN THE

SOUTH CHINA SEA

The South China Sea which is hosting as it does 20

disputes, may be viewed as one of the “hot” regions

in the world regarding overlapping maritime claims

(Nguyen, 2017).

The East Sea is a vast ocean stretching from the

west bank of Singapore in Southeast Asia to Taiwan

(Map 3.1), with an area of about 3,939,245 square

kilometers. It includes more than 200 islands, some

submerged with rocks and reefs. It contains a diverse

array of ecosystems and resources, especially

strategic resources such as hydrocarbon energy,

giant oil fields, and seafood-rich fishing grounds.

As maritime transportation developed, with the

cooperation of countries in many geographic areas,

the South China Sea became the shortest arterial

route linking the Pacific Ocean and India. This

bridge facilitated trade between China and India,

between Southeast Asia and the Middle East and

East Asia.

Figure 1 : Map 1 ( https://upload.wikimedia.org/wikipedia/commons/5/53/SouthChinaSea.png)

Map 1 showed that the South China Sea lies in a

unique geographical position, one of the most

important strategic areas in the world, surrounded by

many countries. Based on Map 2, we find a whole

dispute between the six conflicting claimants,

including Vietnam, Malaysia, Philippines, Brunei,

Taiwan, China. Except for Brunei having a narrow

claim and less overlap, all of them had conflicting

claims.

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Via map 2, we can see the overlapping about the

claim of South China Sea presently of all concerned

countries. For example, the red line represents

China's claim that partially covered the entire South

China Sea. In particular, this claim to Vietnam's

nearly total conflict, including the Paracels and

Spratlys, entered China's territory, becoming the

region's most considerable sea dispute. On the other

hand, the claim of Vietnam to Malaysia has a rather

substantial interference, the interference range

mainly in Spratlys; the interference lies in the claim

area of China. Also, the overlapping claims in the

broad area take place on the Spratly Islands,

becoming islands of disputes that may trigger

tensions. Philippine claims are like overlapping

sections. Thus, the great importance and serenity of

the South China Sea cover the underlying tension

that arises from claims and counter-claims of

territorial overlap to these regions and points. The

history of longstanding conflicts in the region left

behind the legacy of conflicts and tensions in the sea

that threaten peace in the region.

Figure 2: Map 2

Vietnamese Position Regarding China’s South China Sea Policy of “Set Aside Dispute and Pursue Joint Development”

203

Table 1: A historical chronology of historical events related to the Paracels and Spratlys in Vietnam

Time Event

1931 China delegates the right to exploit the Hoang Sa archipelago to Anglo Chinoise Development Company.

France objected by claiming the historical and geographical rights of the An Nam nation (Vietnam’s name at

this time

)

in this territor

1932 France

osed to brin

this case to the International Court China o

osed this

osal

1933 The Vietnam official declaration of

1937 France undertook to study the feasibility of constructing marine and airborne structures on Paracel islands

and built a li

hthouse on Paracel island.

1938 France established a regular presence in the Paracel islands and sent a guard unit to the islands. According to

the Decree dated June 15, 1938, Jules Brevies - the Governor of Indochina, established an administrative

enc

on the Paracel islands.

1939 On May 5, Jules Brevies revised the previous decree. On 04-04, the French Government issued a statement

rotestin

the Ja

anese

overnment's control over the S

ratl

Islands.

1946 France sent a reconnaissance team to Spratly islands and Paracel islands, but only garrisoned for a few

months.

China landed on the Woody Island of Paracel islands in November 1946 and Itu Aba of Spratly islands in

December 1946

1947 On January 17, the government of the Republic of China sent troops to Woody island of Paracel islands

again. The French government protested and sent a division to put a military post in the Paracel Islands. In

negotiating, the French Government requested this problem must be sent to the International Arbitration

Tribunal.

The Republic of China government rejected the proposal. On December 1, Mr. Chiang Kai-shek signed an

ordinance naming Paracel islands and placing them in Chinese territory.

1949 The establishment of the People's Republic of China regime has dramatically altered the international

environment of the dispute.

During this time, the office clerk of Bao Dai - the king of Vietnam currently, at a press conference in Saigon,

ublicl

reaffirmed Vietnam's ri

hts over the Paracel Islands.

1950 The Government of France officially transferred control over the Paracels to the Bao Dai government. At

this point, it appears that there is no military presence in the Spratly Islands. The authorities of the Republic

of China moved to Taiwan, and they were forced to withdraw from Woody Island in April and Itu Aba

Island in Ma

1951 On July 15, the President of the Philippines, Mr. Quirino claimed many islands on the Spratly Islands.

Announced on the draft peace treaty with Japan, on August 15, Mr. Chou Enlai affirmed “the longstanding

rights” of China over the Paracel and Spratly Islands.

On November 24, Xinhua News Agency disputed France's rights and ambitions of the Philippines and

unequivocally affirmed China's right.

On September 7, Spokesman of the Bao Dai government at the San Francisco conference confirmed

Vietnam’s soverei

over Paracel and S

ratl

islands. No dele

ates commented on this statement.

1956 On March 15, 1956, a Filipino Thomas Cloma and his companions landed on some of the Spratly Islands,

claiming 33 islands in a 65,000-square mile area, and naming it Kalayaan (English name is Freedom). This

behavior was based on the argument for the right of detection and occupation. However, the Ambassador of

Taiwan in Manila reaffirmed Republic of China's rights from the 15th century. After that, a unit was sent to

the Itu Aba Island of the Spratly Islands and has been maintained since then until now.

In October, the Taiwanese Navy intervened in place against Thomas Cloma. In January 1956, the South

Vietnamese government brought the armed forces to replace French units in the Paracel Islands.

However, then, China's army landed in the eastern part of the Paracels. On May 29, Beijing reaffirmed its

rights. On May 31, the Chinese government announced that it would not tolerate any acts of infringement of

the rights of the People's Republic of China on the Spratly Islands. On June 1, the South Vietnamese

government's Foreign Minister, Vu Van Mau, reaffirmed Vietnam's rights over the two archipelagos. Later,

France reiterated to the French the rights that France had in 1933. Following this statement, a South

Vietnamese naval unit landed on the main island of the Spratly Islands, erected a beer and scissors. The

Taiwanese

overnment stron

osed the behavior of the South Vietnamese

overnment.

1958 On September 4, the Government of the People's Republic of China issued a declaration defining the width

of the territorial sea to 12 nautical miles.

On 14-9, the note of the Prime Minister of the Democratic Republic of Vietnam (Southern Vietnam) on the

roval of the declaration of China.

1971 The Philippines occupied several islands on the Spratly Islands. Taiwan returned to the Spratly Islands and

established a continuous presence on the Itu Aba island.

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After the incident that Taiwan fired on several Philippine fishing boats, Philippine requested Taiwan to

withdraw from Itu Aba Island and occupy the Nanshan Island, Northeast Cay island, Loaita island, Thitu

island. On July 13, the Foreign Minister of Saigon (Southern Vietnam), in Manila, recalled Vietnam's

claims. On July 17, Xinhua News Agency condemned the Philippines and repeated China's claims to the

archipelago.

1974 On January 15, China sent troops to the western islands of the Paracel Islands that were previously occupied

by Southern Vietnam's government. In the following days, they supported this action with a vigorous naval

deployment.

On 18 January, the Ambassador of Taiwan in Saigon, in a diplomatic note, reaffirmed the claim of the

Republic of China.

Through the diplomatic message sent to the signatories of the Paris Agreement, on March 2-3, Southern

Vietnam's government reiterated its recognized territorial integrity.

On July 2, the South Vietnamese government at the 3rd Sea Law Conference accused China of using force to

occupy the Paracel islands and assert that the Paracels and Spratlys are Vietnamese. Then, Saigon took

action for the reinforcements in the S

ratl

Islands. The Phili

ines o

osed this move.

1975 On May 5, 1975, the Northern Vietnam's Navy regained control of the islands of the Spratly Islands from the

Saigon Army (Southern Vietnam).

On September 10, China sent a note to Vietnam, stressing that two archipelagoes are always the territory of

China.

1977 Vietnam issued the first statement on the baselines for establishing the territorial waters, the contiguous

zone, the exclusive economic zone and the continental shelf.

1978 Philippines issued the Presidential Decree No. 1599, which uses the Filipino name Kalayaan to refer to the

Spratly Islands and asserts that the Spratly Islands are legally not of any country, but due to its proximity, the

vital importance of security, essential needs, useful occupation and control, the Philippines has established

legal sovereignty over the a

chipelago.

1979 Malaysia published a map of the continental shelf, including three islands of the Spratly Islands. Malaysia

claimed the Spratly Islands are territorially based on the extension of the continental shelf. In an ordinance in

February, the Philippines claimed almost all the Spratly Islands in its archipelago.

In March 1979, the Ministry of Foreign Affairs of Vietnam released a Memorandum of Understanding on

the Vietnam-China border, including 9 accusing China of illegally occupying the Paracel Islands of Vietnam

on 19 and 20 January 1974.

In July 1979, the Chinese Foreign Ministry published a paper to prove that Vietnam had recognized China's

soverei

over these two archi

ela

os.

1982 In June, Xinhua reportedly established a significant port in Hao Sa Taiwan decided to place the Paracel

islands and Spratly islands under their jurisdiction. At the same time, the Kaohsiung City government

approved a three-year plan to build ports and settle in Itu Aba island.

On November 12, Vietnam stated baselines to calculate the breadth of the territorial sea.

1983 Malaysia occupied and formally proclaimed rights to the Swallow Reef island of Spratly Islands. They

said that Swallow Reef Island has long been a part of Malaysian territory. The Vietnamese Foreign

Ministry objected to Malaysia's actions and protested all Malaysian rights to the islands claimed by

Malaysia as part of its territory.

At the second Asia-Pacific Aviation Conference, China released two maps of the sea border that border most

of the South China Sea.

1984 In June, the 2nd Conference of the 6th Chinese National Congress approved the establishment of the Hainan

administrative area comprising both the Xisha and Nansha Islands (i.e., the Paracel and Spratly Islands) in

Guan

don

rovince of China

1988 In April 1988, China occupied six groups of islands and reefs following a clash with the Vietnamese navy,

including the Fiery Cross Reef, Cuarteron Reef (London Reef), Gaven Reef, Hughes Reef, Johnson Reef

(Johnson South Reef), Subi Reef.

In April, the Philippine government elected a mayor for a captured island town in the Spratly Islands.

Malaysia's Foreign Minister insisted that the Swallow Reef, Mariveles Reef, Ardasier Reef and Louisa Reef

are located on Malaysia's continental shelf.

1989 In May, China occupied an additional small island and then placed the sovereign stele on the islands and

reefs captured in the Spratly Islands.

In August, Vietnam completed the construction of a service-economic-scientific-technical cluster on the

ratl

Islands

1992 On February 25, 1992, China adopted the Territorial and Contiguous Land Law, asserting its ownership of

the Paracel and Spratly islands and much of the South China Sea. In this law, China has the right to use force

to impose its sovereignty over islands as well as claimed territorial waters.

In Ma

1992, China si

ned an a

reement with a small American com

called Crestone Ener

Vietnamese Position Regarding China’s South China Sea Policy of “Set Aside Dispute and Pursue Joint Development”

205

Corporation to explore and exploit oil and gas in the Vanguard Bank on the Vietnamese continental shelf.

On May 10, a spokesman of the Chinese Ministry of Foreign Affairs reacted negatively by saying that the

Blue Dragon area is near the Nansha Islands. The agreement between the American Oil Company and

Vietnam in Blue Dra

on bank was ille

al.

1996 “On 15 May 1996, China took a new step forward by unilaterally drawing straight baselines (from which the

breadth of the territorial sea is measured) around the Paracel islands. China’s establishment of these

baselines around the Paracel archipelago seriously violates the territorial integrity of Vietnam. Putting aside

the issue of territorial sovereignty, China’s drawing of the baselines for the Hoang Sa archipelago is not in

conformity with the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).”

(Nguyen, 2001)

2007 China approved the establishment of the administrative district of Sansha County in Hainan Province, which

directly manages three archipelagos, including the Paracels and the Spratlys.

This action led to protests against China in Vietnam. The Vietnamese Foreign Ministry has formally

opposed China's doing.

2009 On March 10, President of Philippines, Mr. Arroyo signed the Act No. 9522 on the new baseline (the old

baseline in 1968), which managed the Spratly Islands and the Scarborough Shoal. China, Taiwan, and

Vietnam protested.

On May 6, Malaysia and Vietnam submitted a joint report to the continental shelf extending south of the

South China Sea to the Commission on the Limits of the Continental Shelf - CLCS.

On May 7, China sent the Diplomatic note CML/17/2009 and CML/18/2009 to the General Secretary of the

United Nations, which included a map of the Nine-dash line (Vietnamese calls cow tongue line).

On May 8, Vietnam and Malaysia sent a Diplomatic Note to the United Nations to protest China. On July 8,

Indonesia which is a non-dispute submitted to the United Nations, concludes that China’s Nine-dash line has

no legal basis. On August 4, the Philippines officially sent a note to the General Secretary of the United

Nations that they opposed the report on the extended continental shelf of Vietnam in the north and Vietnam

and Mala

sia in the south. Vietnam and Mala

sia o

ose the Phili

ines's Di

lomatic note.

2011 On April 5, the permanent mission of the Philippines in the United Nations sent a note to protest the

Diplomatic Note on 7 May 2009 of China. In particular, the Philippines does not accept the content about

China's indisputable sovereignty over the islands in the South

China Sea and adjacent waters, as well as

sovereign and jurisdictional rights over waters, the

seabed, and its subsoil.

On April 10, the Chinese Foreign Ministry said

that the Philippine Note Verbal was unacceptable.

Of the four notes to the United Nations against

China's Note of 7 May 2009, China only sent a letter

replying to the Philippines's note to the United

Nation Secretary- General, Mr. Ban Ki Moon

On April 14, China sent a note to protest to the

Philippines's note vigorously. This note stressed that

The Philippine occupation of several islands and

reefs of the Nansha Islands as well as other related

acts constitute a violation of China's territorial

sovereignty.

On 3-5 May, the Vietnamese delegation to the

United Nations sent a letter to the United Nations'

Department of Oceans and Laws, asserting

Vietnam's absolute sovereignty over the two

archipelagos: Paracel and Spratly.

By the end of July, the ASEAN has implemented

the DOC (Declaration on the Conduct of Parties in

the South China Sea) with China but is still at the

level of a political document. Moreover, the target

audience is just around the Spratly Islands, measures

deployed solely for cooperative exploitation or

scientific research. The main issue of the South

China Sea dispute is not directly mentioned.

In the Paracel Islands, China claims that it is a

territory under Chinese sovereignty, which is

different from ASEAN's understanding that it is also

subject to dispute. However, with the recent

achievements in implementing the DOC to a COC

(The Code of Conduct for the South China Sea), it

can be seen as an appropriate transition in the

context of tense competition.

The dispute in the South China Sea has been

going on for a very long time since the dispute arose

so far, with no official solution. This has become a

standard feature in the maritime disputes, which

contain significant strategic positions and vast

reserves of resources combined with the

participation of powerful nations. Example: Pinnacle

Islands (Diaoyu Islands) dispute between China and

Japan; Sovereignty disputes over the Arctic Sea

between the five countries: United States, Nigeria,

Denmark, and Canada; ...

The stance of nations is almost unchanged. As

the importance of the South China Sea is rising, the

evolution of disputes tends to increase in number

and the time gap is decreasing gradually. This

reflects the status quo that is being pushed up to the

stress level for various reasons.

Countries have been trying to consolidate their

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206

holdings. The expansion of China's claims widens

the scope of the dispute. In particular, where the

significant geographic location of the defense

strategy and where resource exploration entails

conflicting parties. Also, disputed geographic areas

containing sovereignty-based elements that contain

additional conflicting elements invoked by United

Nations Convention on Law of the Sea - UNCLOS

are disputed by the parties. Therefore, the

complexity of the dispute is greatly enhanced by the

existence of two different legal aspects on the same

subject matter.

The resistance of the states to the firm claims is

increasingly intense and drastic both regarding

diplomacy and military, Vietnam, China, and the

Philippines are the most influential performers. In

that sense, diplomacy has become a place of intense

struggle. On how to implement the solution, before

2013, the parties have not yet resolved to cooperate

on the legal status of the South China Sea based on

the Law of the Sea1982, which is understood only

through unilateral declarations.

Over time, China has become one of the most

disputed countries in the region, with affirmative

actions that tend to squeeze the rest. This has caused

the South China Sea dispute to tend to form two

opposite sides: China and ASEAN. This division is

not yet present in the dispute resolution role as

ASEAN has not yet demonstrated its unification;

Looking at the objections of China's views in Table

1 shows the fragmentation between the disputed

ASEAN states.

4 THE CONCEPT OF "SETTING

ASIDE DISPUTE AND PURSUE

JOINT DEVELOPMENT."

The concept of "setting aside dispute and pursuing

joint development" has the following four elements.

The first point is “The sovereignty of the

territories concerned belongs to China.” Given

"setting aside dispute and pursue joint development"

, Mr. Deng Xiaoping put forward a premise that

China has indisputable sovereignty over the Nansha

Islands, both Spratly islands, and Paracel islands. In

February 1984, he declared a claim to the Spratly: It

is a territory of China ... they have many times

China's claim to sovereignty over whether the

sovereign states belong to China. He further stated

that sovereignty is not a matter that can be discussed

and with the issue of their sovereignty, there are no

concessions.

The second point is respecting the truth and

putting aside the dispute. China maintains that the

Pinnacle Island, the Spratly Islands, are an

indispensable part of Chinese territory. However,

because of the changes of the times, although the

Nansha archipelago is the territory of China from the

ancient times, but now the main islands of Nansha

(Spratly) have been controlled by the four countries,

five parties and the sea are divided by 6 nations, 7

parties and tends to expand, making the South China

Sea the largest disputed area in the world. So China

showed that “When conditions are not ripe to bring

about an exact solution to the territorial dispute,

discussion on the issue of sovereignty may be

postponed so that the dispute is set aside. To set

aside dispute does not mean giving up sovereignty.

It is to leave the dispute aside for the time being.”

The third argument is for mutually beneficial

cooperation. “The territories under dispute may be

developed in a joint way”

. The Spratly islands

located in the international maritime linkage linking

the Pacific Ocean and the Indian Ocean, which is the

corridor of East Asia and Oceania not only has

abundant biological resources but is also rich in

petroleum resources. Currently exploring eight oil

reservoirs of about 30 billion tons is considered “the

second Persian Gulf.” The Chinese government

emphasizes that the Spratly Islands are Chinese

territory but that, to safeguard peace, the region that

promotes development cooperation may first put

aside disputes and jointly operate on the same

principle. Beneficial benefits for mutual benefit.

This is conducive to the friendly relationship

between China and its neighbors, which is

conducive to the peace and stability of the Asia-

Pacific region in the interests of peace and

development in the world.

The fourth point is toward a peaceful future.

“The purpose of joint development is to enhance

mutual understanding through cooperation and

create conditions for the eventual resolution of

territorial ownership”

. The purpose of joint

development is to build a peaceful future through

cooperation that enhances understanding and

ultimately facilitates the proper resolution of

sovereignty issues by peaceful means. Mr. Deng

Xiaoping pointed out: In the international arena, it is

best to apply a peaceful means of solving disputes.

He also emphasized: Considering the relationship

between countries should primarily work from the

strategic interests of the country itself. He believes

that to persevere in this way will find a solution to

the whole. He believes that we will finally find a

good solution. If this generation cannot solve it, the

Vietnamese Position Regarding China’s South China Sea Policy of “Set Aside Dispute and Pursue Joint Development”

207

next generation will be more intelligent and can find

a solution.

At the international conference on " South China

Sea: strengthening cooperation for security and

development in the region"

in Hanoi on 26-27

November 2009, Professor Ji Guoxing of Shanghai

Jiaotong University, former director of the Asia-

Pacific Department at the Shanghai Institutes for

International Studies, reiterated China's policy of

“Set aside dispute and pursue joint development”.

Professor Ji proposed that the parties to the dispute

must first agree on a common framework for the

exploitation of the entire South China Sea.

He concluded by proposing that Vietnam and

China discuss the possibility of jointly exploiting the

Vanguard Bank, which is almost entirely within the

200-nautical mile exclusive economic zone from its

undisputed territory

. Vietnam does not belong to

the Spratly Islands, which are in a state of a

sovereignty dispute. At a press conference in Hanoi

on January 6, 2010, Chinese ambassador Sun

Guoxiang also proposed the policy of "setting aside

disputes": "China's top leaders have put forward a

constructive initiative that is to put aside disputes

and to pursue joint development"

he said, adding

that Vietnam and China should shelve the war and

wait for a suitable condition.

Based on the essential and concrete content of

the view "Set aside dispute and pursue joint

development," we can see that the contents of this

view inherit the basic theories of joint exploitation

on the world and its features of Chinese. What is

remarkable in this view is that the first point of

sovereignty belongs to China. China claims to

exploit the Spratly waters based on Chinese

sovereignty over the islands. This is something that

Vietnam and other disputants cannot accept. China

affirms its

sovereignty without referring to the sovereignty

of Vietnam and other claimants in the South China

Sea.

Besides, China's policy of "Set aside dispute and

pursue joint development," does not include the

Paracel islands where, according to Vietnam, China

occupied illegally. China claims that "It is known to

all that China has indisputable sovereignty over the

Xisha Islands and its adjacent islets. China and

Vietnam have no dispute over this issue. The routine

training of the Chinese navy is an ordinary activity

within Chinese waters under China's sovereignty.

Vietnam's protest is groundless.”

Thus, Vietnam cannot unconditionally accept

China's policy of "Set aside dispute and pursue joint

development" with such preposterous sovereignty

claims!

China's policy of "Set aside dispute and pursue

joint development" is in line with international law

and practice as a provisional solution to complex

disputes as disputed in some areas of the South

China Sea. The key issue, however, is that China

only wants to "Set aside dispute and pursue joint

development" on the continental shelf that Vietnam

and other coastal states enjoy legally in accordance

with the international law. Thus, China claims that

there is no international legal basis and it is difficult

for any nation in the region.

Joint development is, in fact, an appropriate

solution that can be applied to the settlement of

disputes in some areas of the South China Sea and

the involvement of relevant countries. Negotiations

on specific issues for the implementation of this

option as one of the possible solutions to conflicts

that need to be considered include Vietnam.

However, to implement the joint development

solution in the South China Sea, the first thing that

Viet Nam must mention is the issue of sovereignty

of Vietnam. Vietnam will only conduct joint

development on the basis that China respects

Vietnam's sovereignty over the Paracel and Spratly

archipelagos as well as Vietnam's exclusive

economic zone - EEZ and continental shelf under of

The United Nations Convention on the Law of the

Sea in 1982.

5 SOME SUGGESTIONS FOR

VIETNAM

Firstly, the negotiation, signing, and implementation

of cooperation agreements for development should

thoroughly grasp the principle of respect for

Vietnam's sovereignty over Spratly and Paracel

islands and other islands in accordance with the

provisions of international law; especially within

200 nautical miles of Vietnam's exclusive economic

zone and continental shelf under the 1982 United

Nations Convention on the Law of the Sea.

Secondly, the signing of joint development

agreement should adhere to the fundamental

principles of the 1982 United Nations Convention on

the Law of the Sea.

Thirdly, the content of development cooperation

should be detailed on all issues related to

development cooperation areas such as determining

the scope of cooperation, the profit sharing ratio, the

management model, the regulations on the rights and

obligations of the construction and use of

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environmental information exchange equipment.

The experience of these issues can be seen from the

Agreement between Senegal and Guinea Bissau;

1993 Agreement between the Government of

Australia and the Government of the Republic of

Indonesia relating to Cooperation in Fisheries;

Maritime

Delimitation Treaty between Jamaica and the

Republic of Colombia1993 ... At the same time, the

agreement must stipulate provisions to ensure that:

in the cooperative area, the parties have the right and

equitable interest in exploring the exploitation of

benefits from the construction and management of

the facilities for the exploitation of research. Each

activity ensures the participation of all stakeholders

in carrying out their responsibilities. For joint

development agreements, they should be taken to

preserve fish species and other living resources.

Fourth, the rights and obligations of the parties to

the treaty on joint development should state the

rights and obligations of each of the cooperative

areas. In the fishery sector, in addition to catching

standards, it is necessary to regulate the number of

fishing vessels per year.

Fifth, for the jurisdiction of the parties to the

agreement on joint development, there should be

detailed provisions on the rights and obligations of

the parties in the implementation of their jurisdiction

with the exploitation of resources on the

cooperation. The principle of "joint exercise of

jurisdiction" should be considered in any case to be

a just principle which ensures the long-term co-

operation of the parties. Also, the agreement should

provide for the competence of States in maritime

security and safety to facilitate safe and secure

maritime operations.

Sixth, the development of a regional joint

development model can be developed under the co-

management model which was applied in the

Agreement between Senegal and Guinea Bissau and

many co-operation agreements as Japanese-China

Fishery Coordination Association in Agreement on

Fisheries between the People's Republic of China

and Japan, 11 November 1997, the Japan-Republic

of Korea Joint Fisheries Commission in Agreement

Between Japan and the Republic of Korea

Concerning Fisheries on 28th November 1998, Sino-

Vietnamese Agreement on Fishery Cooperation in

the Vietnam and China Fishery Agreement in 2000

... This model must have a clear hierarchy of

functions and responsibilities of each agency and the

specialized agencies responsible for each of the

issues.

Seventh, the financial terms must be explicitly

specified because the primary objective of countries

is economic. The parties of joint development

agreement should be based on the principle of equity

to share financial interests and obligations. Member

States will be entitled to surplus/deficit in the

amount used.

The eighth issue is that the subject of applicable

law and dispute resolution will be agreed upon by

the two sides. However, it is necessary to strictly

adhere to the principles prescribed by international

law, considering the specific conditions of each

region where joint development agreement takes

place.

Ninth, about the validity of the joint development

agreement. A treaty on co-development requires this

document to be valid from the time it is approved by

the competent authority of each party and ceases to

be useful when the parties have reached agreement

in its determination. Treaties for joint development

in the South China Sea should also be "open" to

amendment and supplement by bargaining

procedures. This is a simple rule that facilitates the

suitable modification.

6 CONCLUSION

Joint development is the need and the suitable

solution, which could nowadays be applied in

settlement of disputes within some areas in the East

Sea. However, Vietnam must be extraordinarily

cautious and recognize China's ambition behind the

policy of "setting aside disputes and pursue joint

development.”

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