VietNamNet Bridge – Is China taking advantage of the protection of underwater heritage to realize its U-shaped line claim in the East Sea?

In case China pursues UNESCO recognition of the Silk Road on the Sea as a world heritage, how will this affect the procedures to deal with China’s files related to the disputed area at the UNESCO World Heritage Committee, and how will this impact the committee’s decision on the dispute?

China’s lobbying

China's vague U-shaped line in the East Sea.

The World Heritage Committee is an intergovernmental committee that is responsible for considering and evaluating world heritage files submitted by the member states. It determines whether the heritage meets the criteria to be recognized as a world heritage in need of protection. The committee currently consists of 21 members, including Vietnam.

Normally, after receiving the files of the member states, the Secretariat will forward the full dossier to the appropriate consulting agency for evaluation. A nomination file will have to go through a process from 1.5 to 2 years (from the date of submission) until it is approved or rejected by the committee.

It is important that the committee’s decision concerning approval of the nomination file is based on the votes of the member states. Currently, of the 21 members of the committee, Vietnam, Malaysia and the Philippines are claimants in the dispute over the Truong Sa (Spratly) Islands. The committee does not include China. Therefore, it will not be easy for China to lobby the committee to approve the decision in its favor to add the Silk Road on the Sea to the World Heritage List.

Is China taking advantage of heritage protection?

As stipulated in Article 11 (3) of the UNESCO Convention in 1972, the recognition of a heritage site to the list of World Heritage needs the consent of the countries concerned and the recognition will not affect the rights of the disputed parties if the heritage is subject to claims or jurisdiction of more than one country.

According to paragraph 135 of the Guidance Documents of the UNESCO Convention 1972, the nomination file for cross-border heritage, if possible, should be prepared and submitted by all member states who own the heritage, complying with the above Article 11 (3). In particular, the Member States concerned should establish a management committee or a similar body to oversee the management of the entire cross-country heritage.

If the Silk Road on the Sea passes through the waters of the Hoang Sa Archipelago (Paracel Islands) (the subject of disputes between Vietnam and China) and Spratly Islands (the subject of disputes between Brunei, Malaysia, the Philippines, China (Taiwan) and Vietnam), China has the obligation to consult with countries concerned in the dispute and is only allowed to submit the heritage file to the World Heritage Committee with the consent of these countries.

However, the Convention does not specify the case in which the heritage is located in the area of dispute of more than one country, and the other parties do not consent that one of the claimants unilaterally file the dossier.

The dispute over the Preah Vihear Temple between Cambodia and Thailand is a typical example of processing nomination files of the Committee for the heritage in the area that is subject to claims of more than one country. The Committee decided to add the temple to the list of World Heritage based on two factors: Firstly, the temple was determined by the International Court of Justice to belong to the sovereignty of Cambodia in 1962 and secondly, Thailand agreed with the recognition of the temple as a world heritage site.

For the disputed area, the Committee encouraged Cambodia to cooperate with Thailand in the protection of heritage values and expressed the wish that in the future the two sides would jointly submit the extended border areas in order to show the full value of the temple and surrounding areas.

Thus, experience shows that to add a heritage to the list of the world heritage, the country that submits the nomination dossier to the UNESCO must prove its sovereignty over the territories where the heritage is located (Article 4 of UNESCO Convention 1972), or while waiting for a final solution, that country must consult and have the consent of the country concerned (Article 11.3).

Similarly, in the process of finding a final solution, China should consult with other countries concerned to prepare and submit the dossier in order to have timely measures to conserve the value of outstanding underwater heritage.

An interesting example is that China combined with Kazakhstan and Kyrgyzstan to prepare and file the heritage dossier to the World Heritage Committee to recognize the Silk Road on Land.

The question is why China, which had precedent in coordination with the countries concerned in the preparation of the profile of a cross-border heritage site, did not carry out the same procedure for the Silk Road on the Sea?

If not for the purpose of protection of underwater cultural heritage, is China taking advantage of the protection of underwater heritage to realize its U-shaped line claim and reinforce its claims in the East Sea?

To be continued…

Nguyen Ngoc Lan - Tran Hoang Yen

* Ms. Nguyen Ngoc Lan is a lecturer at the International Law Faculty of the Vietnam Diplomatic Academy. Yen is currently a PhD student at the Netherlands Institute of Maritime Law, University of Utrecht, the Netherlands. The authors would like to express sincere thanks to Dr. Nguyen Dang Thang for his suggestions in the process of writing this article.

Preah Vihear was the subject of disputes between Cambodia and Thailand. In 1962 the International Court of Justice (ICJ) recognized the sovereignty of Cambodia for the temple. Thailand protested the verdict, arguing that the Court's ruling was inconsistent with the principles of law and justice, and reserved the right of Thailand to reclaim the temple in the future. However, Thailand still complied with the judgment and withdrew its soldiers from the temple. But Thailand said that the Court did not determine the demarcation of the area around the temple and built a fence to separate the temple from the surrounding areas. The ties between the two countries became tense when Cambodia submitted the world heritage dossier for the Preah Vihear temple to the UNESCO in 2007, including the disputed area around the temple.

Thailand protested Cambodia’s dossier and proposed that the two countries file the dossier together under the provisions of Article 11 (3) of the UNESCO Convention 1972 and the Guideline Document. The Thai plan aimed for combined management of the temple, arguing that the Sra Trao waterfall of Thailand is also an integral part of the Preah Vihear temple complex.

While the two sides could not agree on a final solution, Thailand was forced to oppose the submission of Cambodia. However, in 2008, Thailand and Cambodia reached consensus in a joint statement sent to UNESCO, in which Thailand supported the seeking of the UNESCO’s world heritage title for the temple and agreed to continue make demarcation and manage the disputed area. On that basis, UNESCO decided to recognize the Preah Vihear Temple as a world heritage in the 32nd session of the World Heritage Committee.

After the Preah Vihear temple was recognized, the Thai Constitutional Court rejected the validity of the joint statement of Thailand – Cambodia, reasoning that this statement was unconstitutional. This was the direct cause leading to the peak of tension when a large number of Thai troops crossed the border and occupied the territory of Cambodia near the temple. Cambodia then had to submit the case to the International Court of Justice asking the interpretation of the verdict in 1962 and resolve the dispute between the two sites related to the temple and the surrounding area.