Diplomatic Note 1958 with Vietnam’s sovereignty over Paracel, Spratly islands

Prime Minister Pham Van Dong’s Diplomatic Note 1958 did not state to give up Vietnam’s sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands.

China has recently slandered the so-called “indisputable sovereignty” over the Paracel and Spratly Islands. China’s interpretation of the Diplomatic Note dated September 14, 1958 by Prime Minister Pham Van Dong as an evidence that Vietnam recognized China’s sovereignty over the Paracel and Spratly Islands is completely one-sided, and it is the distortion of the contents and the meaning of that document, is entirely strange to Vietnam’s legal foundation as well as international law and ignores the objective fact of the historical background at that time.

China’s distortion of the Diplomatic Note 1958 is an act in a series of intentional acts to create excuses and gradually regularize China’s groundless claims of sovereignty over Vietnam’s Paracel and Spratly Islands.

Nui Le Island in the Spratly Archipelago

According to China’s explanation, on September 4, 1958 Chinese Premier Zhou Enlai declared to the world China’s decision regarding the 12 nautical mile territorial waters from mainland China, which also included a map clearly depicting sea borders and sea territories (which also included the two archipelagos Paracel and Spratly or Hoang Sa and Truong Sa of Vietnam).

On September 14, 1958, PM Pham Van Dong representing the Democratic Republic of Vietnam (North Vietnam) sent a Diplomatic Note to his Chinese counterpart, with the full text as bellows:

“We would like to inform you that the Government of the Democratic Republic of Vietnam has noted and support the September 4, 1958 declaration by the People’s Republic of China regarding territorial waters of China.

The government of the Democratic Republic of Vietnam respects this decision and will direct the proper government agencies to respect absolutely the 12 nautical mile territorial waters of China in all dealings with the People’s Republic of China on the sea. We would like to send our sincere regards.”

The above statements of China and the Democratic Republic of Vietnam were made in a complicated and urgent context for China related to the territorial waters under international law and the tension at the Taiwan Strait.

In 1956, the United Nations began organizing international conferences to discuss the Law of the Sea. Some agreements were signed in 1958 but they did not satisfy some countries’ claims of territorial waters.

Since the early 20th century, many countries began paying attention to the huge sources of income from marine natural resources and showing their designs to expand their sovereignty in the sea.

The Diplomatic Note 1958 of the Democratic Republic of Vietnam, signed by PM Pham Van Dong

China, though did not pay attention to the sea in its history, began being interested in expanding and seeking privileges in the sea. It was not a member of the United Nations at that time, but China raised its voice to the international community to solve sea-related issues in the way benefiting itself. In the strategy for the future, competition in the sea and seeking marine natural resources was considered by China.

In fact, as of the early 20th century, China began eyeing on Vietnam’s Paracel and Spratly Islands. Obviously, occupying these archipelagos has part of China’s ambitious strategy on expanding its marine border.

On May 26, 1950, the Korean War broke out. US President Harry S. Truman ordered the 7th Fleet to enter the Taiwan Strait to prevent China’s attack to the islands there. By this action, the US actually protected Taiwan, despite of China’s severe protest. To show its determination to liberate Taiwan, on September 3, 1954, China attacked some islands like Quemoy and Matsu. This is called the First Taiwan Strait Crisis which lasted from August 11, 1954 to May 1 1955.

On August 11, 1954, Chinese PM Zhou Enlai stated to “liberate” Taiwan and China continued artillery attack to the two above islands.

On September 12, 1954 the US Joint Chiefs of Staff recommended the possibility of using nuclear weapons against China.

In 1958, the Second Taiwan Strait Crisis happened. On August 23, 1958, China intensified artillery attacks to Quemoy and Matsu islands. US President Eisenhower sent US warships to protect the logistic route from Taiwan to Quemoy and Matsu islands.

Apart from the above “complicated and urgent” context for China as being analyzed above, according to researcher Hoang Viet from the Southeast Asian Sea Research Foundation, PM Pham Van Dong’s diplomatic note was released in the specific situation and context of the special relations between the Democratic Republic of Vietnam and China at that time – “both comrades and brothers”.

In 1949, Vietnamese soldiers attacked and took Truc Son, which belonged to China’s territory, from other forces and handed it over to the Chinese People’s Liberation Army. In 1957, China took Vietnam’s Bach Long Vi Island from other forces and then handed it over to Vietnam. This fact showed the special relations between the Democratic Republic of Vietnam and China at that time.

Therefore, in the situation that China was facing the threat of being separated, the Second Taiwan Strait Crisis and the intervention of the US navy, China made the declaration on territorial waters, including Taiwan, in order to confirm its marine sovereignty in the urgent situation at the Taiwan Strait. However, China did not forget its long-term plot in the East Sea and added Vietnam’s Hoang Sa and Truong Sa archipelagos to the declaration.

Prime Minister Pham Van Dong’s Diplomatic Note 1958 was released based on the special ties with China at the time the Democratic Republic of Vietnam needed support and assistance from countries in the socialist block and it was a diplomatic behavior showing the support of the Democratic Republic of Vietnam to China in respecting China’s 12 nautical mile territorial waters before complicated developments in the Taiwan Strait.

PM Pham Van Dong spoke support of China in the urgent circumstance when the war was escalating--the US’ 7th Fleet was entering the Taiwan Strait and threatened China.

The contents of the Diplomatic Note 1958 were very cautious, and especially it did not declare to give up Vietnam’s sovereignty over the Paracel and Spratly Islands. The PM of the Democratic Republic of Vietnam understood clearly that the right to make declaration of the national sovereignty belongs to the country’s highest power institution – the National Assembly, and defending sovereignty and territorial integrity is always the top priority of the State and Vietnamese people, especially in the circumstance the Diplomatic Note was issued.

The Diplomatic Note 1958 has two clear contents: The first is the government of the Democratic Republic of Vietnam noted China’s 12 nautical mile territorial waters. The second is the government of the Democratic Republic of Vietnam instructed its state agencies to respect China’s 12 nautical mile territorial waters.

The Diplomatic Note 1958 did not have a single word about territory and sovereignty or name any island. Therefore, the interpretation that Diplomatic Note 1958 declared Vietnam’s abandonment of its sovereignty over the Paracel and Spratly Islands and considers that diplomatic document as the evidence for Vietnam’s recognition of China’s sovereignty over the two archipelagos, which is the distortion of history and has no legal ground.

At the San Francisco conference in 1951, attending countries rejected China’s claims over the Paracel and Spratly Islands. Also at this conference, Vietnam declared its long-standing and continuous sovereignty over the two archipelagoes at the plenary session, without any protest from all attendant countries. It means that since 1951, the international community recognized Vietnam’s historical and legal sovereignty over the Paracel and Spratly Islands. China’s unilateral declaration of sovereignty over the two archipelagoes is invalid under international law.

The Geneva Accords1954, which had China as an official attendant, also recognizes Vietnam’s sovereignty over the Paracel and Spratly Islands. The Accords asked attending countries to respect independence, sovereignty and national unity and territorial integrity of Vietnam. Therefore, China’s statement of sovereignty over the two archipelagos dated September 4, 1958 is invalid under international law.

In the Diplomatic Note 1958, PM Pham Van Dong did not mention the Paracel and Spratly Islands because under the Geneva Accords 1954, the two archipelagos, which are located to the south of the 17 parallel north, were managed by the government of the Republic of Vietnam (South Vietnam). At that time, the government of the Democratic Republic of Vietnam (North Vietnam) did not have the duty or power to exercise sovereignty over the two archipelagoes under the international law.

The Diplomatic Note 1958 obviously only agreed with the legal contents in China’s declaration, which were recognized by the international community based on international law at that time. Part of China’s declaration on September 4, 1958 seriously violated Vietnam’s territorial sovereignty and legal foundations on Vietnam’s sovereignty over the Paracel and Spratly Islands which have been recognized by the international communities many times.

The government of the Democratic Republic of Vietnam in the context of the special ties with China at that time only agreed with China’s 12 nautical mile territorial waters. Other contents that exceeded China’s scope of sovereignty under international conventions were not mentioned as the natural consideration of its invalidity under the international law.

Meanwhile, the government of the Republic of Vietnam (South Vietnam), under the Geneva Accords 1954, continuously performed Vietnam’s long-standing sovereignty over the Paracel and Spratly Islands through state administrative documents and actual performance of sovereignty. The highlight of that is the fierce battle of the Republic of Vietnam against China’s invasion by ships and airplanes to the Paracel Islands in 1974.

In the special historical circumstance as being analyzed above, it is obvious that the PM Pham Van Dong’s Diplomatic Note 1958 simply recognized China’s 12 nautical mile territorial waters. This document, in nature, expressed a political attitude and friendship behavior to China’s declaration of 12 nautical mile territorial waters. It is absurd to slander and distort (as China did) that PM Pham Van Dong, an outstanding personality, signed this document to give up Vietnam’s territory and sovereignty while he and the entire Vietnamese people struggled with all their hearts to win independent and freedom.

Before 1975, the countries and territories involved in the East Sea disputes included China, Taiwan, South Vietnam, and the Philippines. Therefore, declarations made by North Vietnam may be seen as declarations of a third party, which had no effect on the conflict itself.

Supposing that the Democratic Republic of Vietnam (North) and the Republic of Vietnam (South) were one country, then based on international law, this declaration is also invalid. However, some has espoused the doctrine of “estoppel” in order to argue that this declaration has validity and Vietnam cannot go back on its words.

According to international law, there is no other legal bar that creates obligation for those who make unilateral declaration other than “estoppel”. Estoppel is a principle in which a country cannot say or do in contrast to what was said or done before. In other words, “one cannot at the same time blow hot and cold.” However, estoppel does not mean that a country is obligated to whatever it declares.

The estoppel doctrine had its beginning in English law, and was later brought into international law. The main purpose is to prevent countries from benefitting from its dishonest actions, and hurting other countries. Therefore, estoppel must meet the following criteria:

1. The declaration or action must be taken by a representative of a country in a clear and unequivocal manner.

2. The country that claims “estoppel” must prove that based on that declaration or action; there are actions or inactions being carried out by that country which constitutes “reliance”, as is called in English and American law.

3. The country claiming “estoppel” also has to prove that based on the declaration of the other country, it has suffered damage, or that the other country has benefitted when making that declaration.

4. Some judgments demand that this declaration must be made in a continuous manner over time.

In addition, if the declaration has the characteristic of a promise, which means that the country declares that it will or will not do something, it must have true intention of wanting to be obligated by that promise, and truly wants to execute that promise.

The estoppel doctrine has many precedents in international courts and countries who have made certain declarations have found to not be obligated to follow them because not all the conditions are met.

Applying these criteria of estoppel to the declaration of the Democratic Republic of Vietnam, we can see that conditions 2 and 3 are missing. In the years 1956, 1958, and 1965, China did not have any attitude or make any changes in its attitude based on North Vietnam’s declaration. China also cannot prove that it suffered damage for relying on that declaration. North Vietnam did not benefit in any way from making that declaration.

At that time, Vietnam and China saw themselves as close comrades and friends. The declaration made by PM Pham Van Dong was based on that friendship. Moreover, the wording of the declaration does not clearly and unequivocally affirm Chinese ownership of the Paracel and Spratly Islands. The letter only states: “The government of the Democratic Republic of Vietnam respects this decision (the decision to determine the 12 nautical mile territorial waters of China), and will direct the proper government agencies to respect absolutely the 12 nautical mile territorial waters of China…”

The declaration of PM Pham Van Dong may also be understood as a unilateral promise, a declaration of intention. In fact, this is a promise to respect the decision of China in its determination of sea territories, and a promise to order national agencies to respect Chinese territories.

If it is a mere promise, then it is even more difficult to obligate a country to follow that promise. The International Court has provided one more condition to make a promise obligatory: the true intention of the country making that promise. That is, whether that country really wants to be obligated to its promise or not. In order to determine this intention, the court examines every event surrounding the declaration, to see in what context and circumstances was the declaration made. Moreover, if the court sees that the country can obligate itself through signing agreements with the other country, then the declaration is not needed, and the court will conclude that the country making the declaration does not truly want to be obligated to that declaration. Therefore, the declaration does not have an obligatory characteristic.

In this case, when PM Pham Van Dong declared that Vietnam will respect Chinese sea territories, he did not intend to speak of ownership of the Paracel and Spratly Islands. He made this declaration in urgent circumstances, in which the war with the United States was escalating. The American 7th Fleet was carrying out activities in the Taiwan Strait threatening China. He had to immediately voice support of China in order to counter against American threat.

Estoppel doctrine is only applied if we consider North Vietnam and The Socialist Republic of Vietnam as one; and even France during the colonial period, and the Republic of Vietnam (South Vietnam) as the same entity as the present Vietnam. If we consider the Democratic Republic of Vietnam (North Vietnam) as a separate country, then estoppel cannot be applied because, as stated above, the declaration will be seen as a declaration made by a country that does not have authority over territories being disputed. Therefore, if Vietnam is seen as one single entity from history until the present, then the declarations made by North Vietnam are only statements that carry political meaning during wartimes, compared to the attitude and viewpoint of Vietnam in general from the 17th century until the present.

In summary, the declaration that we are analyzing is missing many factors that allow for estoppel to be applied. The factors of reliance and intention are very significant. If the reliance factor does not exist in order to limit the application of estoppel, countries will be prevented in making their foreign policies. They will be forced to follow out-dated ways to execute their foreign policies. When conditions change, the foreign policy of the other country changes, the foreign policy of this country must also change. It is normal for countries to be friends one moment and then turn into enemies the next.

As for unilateral promises without true intention of following, they are no more than empty promises, similar to those of politicians and candidates in political elections. In the international arena, the principle of sovereignty is very important. Outside international procedures and the articles of Jus Congens, there is no law that obligates a country contrary to its wishes, when it is not causing damage to another country. Therefore, the intention of the country has a decisive role in determining obligation of a unilateral promise.

While carrying out its plot to occupy the East Sea, China has many times distorted historical documents to intentionally mislead Chinese people and the international community of this issue to benefit itself. However, historical evidence of truth under the light of international law, China’s distortion shows its plot and tricks in the process to swallow the East Sea.