First posted on UNCLOSforum.wordpress.com on July 3, 2014
Too many empty noises, too much sorcery, for this 2-paragraph letter from PM Phạm Văn Đồng to PM Zhou En Lai on Sept. 14, 1858.
China threw it onto the Internet, crowning it as Công Hàm. I am not sure what Công Hàm really means, but it sounds important and mysterious. Someone translated the name into Diplomatic Note.
And the Chinese, masters in the art of smoke blowing, said the Công Hàm meant that Prime Minister Phạm Văn Đồng agreed to China’s sovereignty over the Paracels and the Spratlys.
Unfortunately, a bunch of anti-commie overseas Vietnamese picked it up after the Chinese, and advertised the letter as Công Hàm Bán Nước (Công Hàm to sell the country). So, the letter became famous, thanks to Chinese propaganda.
But indeed, all the scholars I know (including the non-lawyer scholars) agree that the letter said only one simple thing, that Prime Minister PVĐ agreed to the 12-mile territorial sea adopted by the Chinese in 1958.
I wrote the following imaginary trial between Counsel for China (Cch), Counsel for Vietnam (Cvn) and a five-judge arbitration panel, talking mainly through one judge (J), to show what PM PVĐ intended to write in his letter.
I also added the red titles to help our readers follow the legal theories.
Trần Đình Hoành
Cch: Your honors, I would like you to turn to exhibit A-101. That is the English copy of a diplomatic note from Vietnam Prime Minister Pham Van Dong to China Prime Minister Zhou En Lai on September 14, 1958. Exhibit A-102 behind that is a copy of the Vietnamese original.
Dear Comrade Prime Minister,
The government of the Democratic Republic of Vietnam recognizes and agrees to the declaration, of September 4, 1958, of the government of the Socialist Republic of China, deciding on the territorial sea of China.
The government of the Democratic Republic of Vietnam respects that decision and will direct the responsible state organs to strictly respect the 12-mile territorial sea of China, in all relations with the People’s republic of China on the surface of the sea.
We resptecfully send you our sincere regards.
Hanoi September 14, 1958
Phạm Văn Đồng
The Democratic Republic of Vietnam
J: Thank you, counsel. Why do you call this a diplomatic note?
Cch: Because it is a diplomatic note, your honor.
J: Counsel, I know what a diplomatic note is. Diplomatic corps at Embassies and other diplomatic missions use them. This document looks like a letter written by Prime Minister Pham Van Dong. Is there any reason why we should not call this document “letter”?
Cch: No, your honor.
J: Why don’t we eliminate the confusion and call this document “letter”, do you agree with me counsel?
Cch: Yes, your honor. I will call it “letter”.
J: [Talking to the other four judges] The rest of the panel agree with me?
Other 4 Judges: Yes.
J: OK, so far we’ve had a good start. Please continue, counsel. What do you want us to do with this letter?
Cch: Your honor, that letter proves that Vietnam agreed that China had sovereignty over the Paracels and the Spratlys.
J: I don’t see anything in this letter about Paracels or Spratlys.
Cch: May I direct your honors’ attention to exhibit A-103. That is the “Declaration on China’s Territorial Sea” dated September 4, 1958. Prime Minister Pham Van Dong’s letter was to respond to that Declaration. Paragraph 4 of the Declaration specifically mentions “the Hsisha Islands” which are the Paracels, and “the Nansha Islands” which are the Spratlys.
China declaration on territorial sea 1958
J: Yes, I see.
Cch: You see, the first paragraph of Mr. Dong’s letter says clearly: “The government of the Democratic Republic of Vietnam recognizes and agrees to the declaration, of September 4, 1958, of the government of the Socialist Republic of China, deciding on the territorial sea of China”.
J: So what kind of conclusion you want to draw from that?
Cch: That Vietnam agreed that The Paracels and the Spratlys belonged to China.
J: I see. Counsel for Vietnam. What would you like to say about that?
Cvn: Thank you, your honor. And thank you, Counsel for China. May I remind us that our task here today is not to insert our own thinking into PM Pham Van Dong’s letter. Our task is to look for Prime Minister Dong’s intention in the letter. What was his intention? What did he really want to say with his letter?
Since Mr. Dong is no longer around to explain his letter, the first rule we must do is to find Mr. Dong’s intention within the four corners of his letter.
Within the four corners of his letter we don’t see anything about Paracels or Spratlys, do we?
Incorporation by reference
Now, if we, as Counsel for China wishes, use incorporation by reference, to incorporate China’s Declaration on Territorial Sea into PM Dong’s letter, we see in a host of things in the Declaration: the 12-mile territorial sea, the straight-baseline method and the “islands of Chinese inland waters”, the prohibition against foreign vessels and aircraft” in territorial sea and the space above it; Taiwan and the Penghu island groups, the Tungsha group (which is the Pratas), the Hsisha group (which is the Paracels), the Nansha group (which is the Spratlys), and the Chungsha group (which is the Macclesfield Bank and Scarborough Shoal).
But PM Dong’s letter did not mention any of these, except for one thing: the 12-mile territory. Doesn’t that say something very clearly to us?
The specific governs the general
May I point out to the Court that the Declaration on China’s Territorial Sea is not a letter. It is a document by the Government of China in general, without the signature of anyone in particular, sent to the entire world in general, without any particular addressee. But PM Dong’s letter is a specific document, written by a specific person (PM Dong) to a specific person (PM Zhou).
A well-known rule of document interpretation is “the specific governs the general”. In this case, the specific is PM Dong’s letter. That letter governs the Declaration. If the letter mentions one thing and leaves out other things, then that was what PM Dong’s intention in the letter.
Now, if we read PM’s letter again carefully, we will see that the Prime Minister not only ignored the many things mentioned in the Declaration but he specifically mentioned one thing: the 12 mile territorial sea.
PM Dong letter has only 2 paragraphs. In the first paragraph he mentioned in general “the territorial sea of China”: “The government of the Democratic Republic of Vietnam recognizes and agrees to the declaration, of September 4, 1958, of the government of the Socialist Republic of China, deciding on the territorial sea of China”.
In the second paragraph, the PM specifically mentioned “the 12 mile territorial sea of China”: “The government of the Democratic Republic of Vietnam respects that decision and will direct the responsible state organs to strictly respect the 12-mile territorial sea of China, in all relations with the People’s republic of China on the surface of the sea.”
The specific governs the general. The second paragraph governs the first paragraph, meaning, the 12-mile territorial sea was the point of PM Dong’s letter.
Expressio unius est exclusio alterius (Expression of one is the exclusion of the other)
Moreover, another well-known rule of interpretation is Expressio unius est exclusio alterius (Expression of one is the exclusion of the other). As I have mentioned before, the Declaration mentions a host of things—the 12-mile breadth, the straight baselines, the mainland and the inland islands, Taiwan and five groups of islands including the Paracels and Spratlys.
PM Dong’s letter mentions only one things—the 12-mile territorial sea.
The mention of 12-mile territorial sea clearly means the PM wanted to exclude all other things.
I think all these rules that aid us in construing PM Dong’s letter, namely looking for the PM’s intention in the letter, are sufficient for us to draw the conclusion that the PM wanted to leave everything out of his letter save one thing—the 12-mile territorial sea.
J: Counsel, if we go along with your line of analysis, do you have any explanation as to why PM Dong left out everything except the 12-mile territorial sea issue?
Cvn: Thank you for asking that question, your honor. Another rule of interpreting a document is looking at its surrounding circumstances. I am happy to go in the historical circumstances surrounding the letter in 1958 to show PM’s intention in writing his letter.
A part of that history may be seen right on China’s declaration on territorial sea itself, Exh. A-103.
The Declaration has 4 paragraphs:
– Paragraph 1 is about the 12 mile territorial sea.
– Paragraph 2 is about the method of straight baselines, and a list of islands “inside the baseline” which were “islands of the Chinese inland waters”.
– Paragraph 3 prohibits foreign vessels for military use and aircrafts to enter China’s territorial sea. This paragraph is very interesting, we will get back to it shortly.
– Paragraph 4 talks about Taiwan and Penghu islands, Tungsha islands (which is the Pratas), Hsisha Islands (which are the Paracels), Chungsha Islands (which are Macclesfield Bank and Scarborough Shoal), and Nansha Islands (which are the Spratlys).
All these island groups in Paragraph 4 of the Declaration were, and still are, in dispute with other countries: Taiwan, Penghu, and the Pratas were, and still are, controlled by Taiwan. The Paracels were claimed totally and occupied partially by Vietnam and China, via the government of the Republic of Vietnam, until China used force to grab it from the hand of the Republic of Vietnam in 1974. The Spratlys were, and still are, claimed totally and occupied partially by Vietnam, Philippines and China. The Macclesfield Bank adn Scarborough Shoal were, and still are, claimed wholly and occupied partially by China and Philippines.
In sum, China knew that it was in dispute with his neighbors about Taiwan and all these island groups in paragraph 4 of the Declaration.
Land territory v. territorial sea
The interesting point is that the prohibition of paragraph 3 comes before paragraph 4.
Paragraph 3 provides: “No foreign vessels of military use and no aircraft may enter China’s territorial sea and the air space above it without the permission of the Government of the People’s Republic of China.”
Why did China announce its 12-mile territorial sea (paragraph 1) and name its mainland and “inland islands” (paragraph 2), then announce the prohibition in its territorial sea (paragraph 3), and finally name the Taiwan and others 5 island groups—including the Paracels and the Spratlys—after the prohibition, like an after-thought, an extra tail?
Would that be the evidence that China was very unsure about its sovereignty over these groups of islands, the validity of its claims over these territories and, therefore territorial seas, and its ability to exercise those claims over those groups of islands?
I will respectfully leave it for the Court to make its own judgment. My own answer is yes, to all these questions.
The man issue over Taiwan and other the island groups in Paragraph 4 of China’s declaration is land territory, not really territorial sea. And this Exhibit A-103, Declaration on China’s Territorial Sea, is about territorial sea.
Land territory and territorial sea are two different creatures all together.
China knew that difference and kept all those island groups in one place—paragraph 4 of the Declaration. And PM Dong, of course, understood the issues involving land territory over the Paracels and the Spratlys, and he made a wise decision not to address land territory issues in a Declaration on China’s Territorial Sea.
And avoid he did.
Historical Circumstances (continuing)
Another part of history is not apparent in China’s Declaration but related directly to the major events leading to the unfortunate Vietnam War that we all are familiar with. We have Exh. A-104 “Historial circumstances of PM Pham van Dong’s letter in 1958” for the Court in our Exhibit Book.
Briefly speaking, the Geneva Agreement of 1954 between France and the Democratic Republic of Vietnam temporarily divided Vietnam into 2 parts at the 17th parallel. North of the 17th parallel was the Democratic Republic of Vietnam, which we shall call “North Vietnam” for short, south of the parallel was the Republic of Vietnam, which we shall call “South Vietnam”.
[ This is “Agreement to End Hostilities in Vietnam”, signed on July 20, 1954 between France and The Democratic Republic of Vietnam, available at https://www.mtholyoke.edu/acad/intrel/genevacc.htm ]
The Final Declaration of The Geneva Conference said: This temporary division was to end all the hostilities and “should not in any way be interpreted as constituting a political or territorial boundary”. A general election to unite the country under one government was set for sometime in July 1956.
[See The Final Declaration of The Geneva Conference: On Restoring Peace in Indochina, July 21, 1954, Sec. 6-8, available at http://www.fordham.edu/halsall/mod/1954-geneva-indochina.html ]
South Vietnam was in charge of the Paracels and the Spratlys because both these groups are south of the 17th parallel.
The general election set for July 1956 never took place because the South, and supposedly its ally, the US, did not agree to hold the election.
After many failed attempts to convince South Vietnam to hold an election to unite the country, the possibility of a North South war started looming on the horizon. On one side, North Vietnam wanted a united and independent country, an aspiration since the War for Independence against the French. On the other side, South Vietnam appeared wanting to keep the 17th parallel as permanent divide.
North Vietnam had then 2 big allies—Soviet Union and China.
That was the political background in 1958 when PM Dong wrote his letter. He had four reasons not to mention the Paracels and the Spratlys in his letter:
- He needed to maintain a strong front for the imminent war and wouldn’t want create a crack in that front by arguing with an ally over territorial sea.
- North Vietnam indeed had no control over the Paracels and the Spratlys, because they are south of 17th parallel.
- The real issue involving the Paracels and the Spratlys was land territory, not territorial sea. There was no need to confuse the issue by saying anything related to these two groups when responding to Declaration on China’s Territorial Sea.
- South Vietnam was administering and managing these two groups of islands and would automatically defend against any outside claim or invasion anyway.
Your honors, I think the historical circumstances explained very well why PM Pham Van Dong chose to omit everything in this letter to Prime Minister Zhou En Lai in 1958, except one single issue: the 12-mile territorial sea.
The Prime Minister not The Country
One small issue I need to address here is that China tends to equate PM’s Dong two-paragraph letter to PM Zhou En Lai as the Country of Vietnam’s decision.
China’s Declaration came out on the 4th of September, 1958. Ten days later, September 14, 1958, PM Dong’s sent his letter to PM Zhou.
Obviously, 10 days were not enough time to ask for advice from a small number of the government Ministries and Departments, not to mention the procedures to gain the consent of the highest authority of the country. To give away territory or territorial sea would demand the consent of the highest authority of the country, which is the National Assembly.
So I suggest we call PM’s Dong letter as PM’s Dong letter.
May I respectfully remind the Court that we are not here to insert our own intention into PM Dong’s letter. We are here to determine PM Pham Van Dong’s intention in his letter to PM Zhou En Lai in 1958. From the rules of document interpretation to historical circumstances, we have seen a consistent pattern of conclusions: PM Pham Van Dong expressed, and did intend to express, only one issue in his letter, that was the 12-mile breadth of territorial sea announced by China.
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