South China Sea Issues and

Human Rights in Vietnam

Emeritus Professor Carlyle A. Thayer Presentation to

the 23rd National Conference of the
Vietnamese Community in Australia,
Dapto Ribbonwood Centre,
Dapto, NSW, June 11, 2016

Part 1 South China Sea Issues:

Australia and Vietnam

Claimant
States:

China/Taiwan
Vietnam
Philippines
Malaysia
Brunei
[Indonesia]

UN Convention on the Law of the Sea

Constitution of the Worlds Oceans

Does not deal with sovereignty issues
Compulsory dispute settlement
Semi-enclosed Sea - Duty to Cooperate
Provisional arrangements of a practical nature
Maritime zones and features
Sovereign jurisdiction

UNCLOS
Land dominates the
sea maritime zones
Baselines
Internal waters
Territorial Sea
Contiguous Zone
Exclusive Economic
Zone (EEZ)
Continental Shelf
High Seas
International
waters

ASEAN-China Declaration on Conduct

of Parties in the South China Sea 2002
5. The Parties undertake to exercise selfrestraint in the conduct of activities that
would complicate or escalate disputes and
affect peace and stability including, among
others, refraining from action of inhabiting on
the presently uninhabited islands, reefs,
shoals, cays, and other features and to handle
their differences in a constructive manner.

Cooperative Activities Under the DOC

a. marine environmental protection;
b. marine scientific research;
c. safety of navigation and communication at
sea;
d. search and rescue operation; and
e. combating transnational crime, including
but not limited to trafficking in illicit drugs,
piracy and armed robbery at sea, and illegal
traffic in arms.

Declaration on Conduct of Parties in

the South China Sea (DOC)
10. The Parties concerned reaffirm that
the adoption of a code of conduct in the
South China Sea would further promote
peace and stability in the region and
agree to work, on the basis of consensus,
towards the eventual attainment of this
objective.

Chinas
Nine-dash line
(ng li
b)

All the islands

and adjacent
waters
Historic rights
No basis in
international
law

China cannot claim sovereignty on artificial islands built on a low tide elevation.

Mischief Reef/ Vnh Khn LTE

Subi Reef/ Xu Bi (LTE)

China cannot claim sovereignty over artificial islands built on a low tide
elevation. Artificial islands do not change the legal status of such features.

Subi Reef/ Xu Bi LTE

Fiery Cross Reef/ Ch Thp R

Land Reclamation 1970-2015

China is not just catching up
Land Area

China
5 other
claimants

Lighthouse on
Cuarteron ( Chu
Vin/Huayang) Reef,
October 9, 2015
China uses civil
infrastructure to claim
sovereignty

Two New Lighthouses

Mischief and Fiery Cross Reefs

Permanent Court of Arbitration

Arbitral Tribunal

China cannot opt out of UNCLOS compulsory dispute settlement

mechanisms over entitlements.

Philippines Claim Against China,

January 2013
China has made excessive maritime claims
Determine legal status of islands, rocks and
low tide elevations and submerged banks
occupied by China
China is interfering with its lawful rights within
and beyond its EEZ and continental shelf
Declare 9-dash line illegal in international law

Philippines Claims Against China

Entitlements

Low Tide Elevations

Mischief Reef
Subi Reef
Gaven Reef
Hughes Reef (+
McKennan Reef)

Rocks
Johnson South Reef
Cuarteron Reef
Fiery Cross Reef
Scarborough Shoal
Chinese activities in
the Philippines EEZ

China refuses to clarify its claims because this would undermine its 9dash line claim to the South China Sea.

Permanent Court of Arbitration

Arbitral Tribunal
Does it have jurisdiction?
Does the Philippines claim have legal merit?
Tribunal can hear a case even if one party
refuses to attend
Position Paper of the Government of the
Peoples Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration
Initiated by the Republic of the Philippines
China submitted this Paper to the Arbitral Tribunal

Chinas Position Paper

on the South China Sea (2014)
Chinese activities in the South China Sea
date back to over 2,000 years ago. China
was the first country to discover, name,
explore and exploit the resources of the
South China Sea Islands and the first to
continuously exercise sovereign powers
over them.
China cannot explain how it lost its so-called sovereign powers because
there were no Chinese officials on features in the South China Sea.

Australia and South China Sea

Australia does not take a position on
competing claims in the South China Sea, but
has a legitimate interest in the maintenance of
peace and stability, respect for international
law, unimpeded trade and freedom of
navigation.
Australia urges parties to exercise restraint,
refrain from provocative actions that could
escalate the situation and take steps to ease
tensions. (DFAT May 14, 2014)

Australia and South China Sea

We call on governments to clarify and pursue
territorial claims and accompanying maritime
rights in accordance with international law,
including the Convention on the Law of the
Sea (UNCLOS).
We encourage China and ASEAN member
countries to make early progress on a
substantive code of conduct for the South
China Sea (DFAT May 14, 2014)

Australia and
Freedom of Navigation May 11, 2016
"We (President Obama) ...
talked about security issues
in our region and confirmed
our strong commitment to
freedom of navigation
throughout the region and
the importance of any
territorial disputes being
resolved peacefully and in
accordance with
international law," Turnbull
said (May 11, 2016).
No show at Shangri-La
Dialogue 2016 a missed
opportunity

Part 2 The Political Situation in Vietnam:

Human Rights and Democracy

Father Nguyn Vn L
Released on May 20, 2016 on Eve of President
Obamas Visit to Vietnam

United States Lifts Arms Embargo

As will all our defense partners, sales will need to still

meet strict requirements, including those related to
human rights President Obama, May 23, 2016

Obama Meets Some Representatives of Civil Society in

Vietnam Other Prevented from Attending, May 24, 2016

this is an area [human rights] where we still have differences.

Theres been modest progress on some of the areas that weve
identified as a concern.

Modest Progress
Joint Statement on Comprehensive
Partnership (June 2013)
United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment,
UN Special Rapporteur on Freedom of Religion or
Belief

Church registrations increased

Law on Marriage
same sex partnerships no longer criminalised

Some Progress:
Secretary John Kerry May 24, 2016
Last year they released a number of
prisoners. They had about 160, I think; 60 or
so were released. There had been increased
freedom of worship. The church has been
recognized. Handicapped efforts have been
recognized. So theres some progress.
Right of workers to organize unions under the
Trans-Pacific Partnership agreement

Constitution Amended (January 2014)

Clauses on:
Human rights (Article 3)
Freedom of religion (Article 24)
Free speech, press, access to
information, assembly, association and
demonstrations (Article 25)
- to be prescribed by law.

Legislation (November 2014)

Penal Code
Criminal Procedure Code
Law on Custody and Temporary
Detention
Civil Code and Civil Procedure Code
More positively addressed the rights of
Vietnamese citizens United States

7 Human Rights Activists Sentenced

in March 2016 After Party Congress

Nguyn Hu Vinh [Anh Ba Sm (Brother Gossip/Talking

Nonsense)], Nguyn Th Minh Thy were sentenced to five and
three years, respectively, for abusing democratic freedoms (Article
258 Penal Code) on March 23, 2016.

inh Tt Thng
Sentenced March 24, 2016
The Peoples Court of Thanh Hoa convicted the 73year-old anti-corruption campaigner inh Tt Thng
and sentenced him to seven months and 11 days in
prison for violating article 258. The indictment said
that he continuously sent letters to denounce,
slander, insult and offend the individual honor,
dignity and prestige of a number of leaders from the
central level, from Thanh Hoa province and from the
Party cell, the Peoples Committee and the Police of
Tho Xuan district.

Nguyn Ngc Gi tn tht

Nguyn nh Ngc (March 30, 2016)

Sentenced to 4 years in prison under Article 88 of Penal Code.

Ng Th Minh c, Nguyn Th Tr and Nguyn

Th B Hai Sentenced March 30, 2016

Sentenced under Article 88 for conducting propaganda against the state.

Trn Hunh Duy Thc:

'Hunger Strike Until Death (May 2016)

Sentenced to 16 years in prison for attempting to overthrow the state, Article 79.

Mass Fish Poisoning in Central Vietnam

(April-May 2016)

500 People Detained in May 2016

Fish need clean water, citizens need transparency

National Assembly Elections

May 22, 2016
Vietnam Fatherland Front sets quotas (896
candidates)
Pre-selection of candidates by Fatherland Front
Centrally and affiliated based nominations includes
carefully selected non-party members (quota 20-50)
Self-nomination
Three-gates register, pre-selection at work and at
home neighbourhood

Record Number of Independents denied

Number of candidates/constituency restricted

Organisation

Survey

Ranking

World Economic Forum

Global Competitiveness
Report 2011-12 (-2)

68 out of
144

World Bank

Ease of Doing Business

Report, 2015 (-3)

90 out of
189

United Nations Development

Programme

Human Development Index

2015 (+12)

116 out of
188

Transparency International

Corruption Perceptions
Index 2015 (no change)

112 out of
167

Heritage Foundation/The Wall

Street Journal

Index of Economic Freedom 131 out of

2015 (+5)
166

Reporters Without Borders

Worldwide Press Freedom

Index 2015 (-3)

175 out of
180

South China Sea Issues:

Australia and Vietnam
and The Political Situation in Vietnam:
Human Rights and Democracy

Email: carlthayer@webone.com.au
Publications: Scribd.com