China disregards the law, demanding the preservation of Vietnamese heritage

China's actions once again demonstrate the contempt for international law of a country considered a major power in the world.

With the ambition to monopolize the East Sea, China is currently constantly promoting actions to strengthen its claims in the East Sea. One of the most recent moves of this country is the plan to register the Maritime Silk Road with UNESCO and propose to recognize it as a world cultural heritage of China.

In parallel with submitting the application to UNESCO, China also announced that it will excavate shipwrecks around the Hoang Sa and Quan Anh islands of Vietnam’s Hoang Sa archipelago within the next two years. At the same time, the country has also planned a conservation program on Huu Nhat and Da Bac islands of the Hoang Sa archipelago since the beginning of this year.

Hoang Sa Island belongs to the Crescent cluster in Vietnam's Hoang Sa archipelago. Photo: Google Earth/ TNO

In fact, the rights and obligations of countries in protecting and preserving underwater cultural heritage are clearly and specifically stipulated in a number of important international treaties, the most important of which are the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982), the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage (UNESCO Convention 1972) and the 2001 UNESCO Convention on Underwater Cultural Heritage (UNESCO Convention 2001).

Demanding the preservation of all Vietnamese heritage

Firstly, it should be noted that currently neither Vietnam nor China is a member of the 2001 UNESCO Convention, so this Convention is not binding on either country. Therefore, in this case, only the 1982 UNCLOS and the 1972 UNESCO Convention will apply.

The 1972 UNESCO Convention sets out the obligation to verify, preserve and maintain cultural heritage within its territory. China's inclusion of antiquities and heritages located in the waters of the Hoang Sa and Truong Sa archipelagos under Vietnam's sovereignty in its conservation programs and its proposal to UNESCO to include them in the World Heritage List is completely inconsistent with the spirit of the 1972 UNESCO Convention.

The 1982 UNCLOS Convention places a general obligation on all states to “protect marine archaeological and historical objects” and to “cooperate to this end”. This provision applies to all areas of the seabed, regardless of their legal status.

In addition, the Convention also provides more specific provisions applicable to two maritime zones, the contiguous zone and the seabed area beyond the jurisdiction of a State, called the Area. Accordingly, in the contiguous zone, the Convention allows States to exercise all necessary control to prevent and punish the removal of archaeological and historical objects from the seabed in this zone. In the Area, the Convention stipulates that all archaeological or historical objects must be preserved or used for the benefit of mankind as a whole.

For other maritime zones, in particular, in internal waters and territorial seas where the coastal State has full sovereignty, the domestic laws of that State shall apply to regulate the excavation and use of relics. In the exclusive economic zone and continental shelf, the excavation, use or conservation of heritage in the exclusive economic zone and continental shelf are not mentioned in the Convention. However, it should be noted that, although the coastal State has sovereign rights, i.e. the right to priority in exploiting and using the "natural resources" in these two maritime zones, this term does not include archaeological and historical relics.

Therefore, most scholars agree that the freedom of the high seas regime will apply to actions related to these relics. In that case, the legitimate interests of all parties concerned must be taken into account in accordance with the spirit of Article 59 of UNCLOS 1982, according to which conflicts of interests between coastal states and other states will be resolved on the basis of equity and relevant circumstances, taking into account the interests of the parties as well as the international community.

Currently, according to the statements of Chinese officials, the Maritime Silk Road that China intends to submit to UNESCO includes the sea areas of the Hoang Sa and Truong Sa archipelagos under Vietnam's sovereignty. Therefore, according to the provisions of UNCLOS 1982, China does not have the right to unilaterally excavate antiquities, carry out conservation programs as proposed or request UNESCO to recognize them as world heritage.

China has no right to monopolize relics

Regardless of the maritime area in which the artifacts and heritage are located, the most important obligation that UNCLOS 1982 places on member states is the obligation to cooperate in protecting underwater cultural heritage. This is a mandatory legal obligation, according to which when a state refuses or ignores the requests or proposals of other states to protect and preserve underwater heritage, that state will be subject to international legal responsibility.

These provisions indicate that states cannot take any unilateral action regarding underwater archaeological and cultural relics. On the contrary, scholars have asserted that the claims and interests of other states must be taken into account in the process of preserving or using these heritages.

The 2001 UNESCO Convention (although not binding on Vietnam and China) also clearly stipulates and emphasizes the obligation to cooperate, notify and consult with relevant countries. This further affirms the general spirit of international law regarding the salvage and exploitation of underwater heritage, which is to promote the spirit of cooperation between parties.

Thus, it can be seen that regardless of the legal status of the sea areas that China plans to excavate or of the Silk Road that China plans to submit to UNESCO, international law clearly shows that China does not have the right to monopolize the relics and carry out these activities unilaterally.

Furthermore, it is noteworthy that the area that China requested UNESCO to recognize as a heritage site and intends to carry out a conservation program is a disputed sea area with other neighboring countries, including Vietnam. In the disputed area, UNCLOS 1982 stipulates that the parties have the obligation to negotiate and, if possible, apply provisional measures to avoid changing the status quo.

Furthermore, Article 300 of the Convention also imposes on States the obligation to apply the Convention in good faith and not to abuse their rights and freedoms under the Convention. China’s actions as above clearly go against these requirements, once again demonstrating the disregard for international law by a country considered a major power in the world.

According to VTC.new