Analyzing the Diplomatic Note of Pham Van Dong

(Translated with some omissions by L.D.)

Situation:

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).

Prime Minister Pham Van Dong representing the Democratic Republic of Vietnam (North Vietnam) affirmed this declaration from China regarding Chinese ownership of the archipelagos in the Eastern Sea (South China Sea). The diplomatic note was written on September 14 and was publicized on Nhan Dan newspaper on September 22, 1958.

The content of the letter is as follows:

We would like to inform you so that you may be clear 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.


Analysis in Modern Journal:

The above declaration is not valid because before 1975, the Democratic Republic of Vietnam (North Vietnam) did not control these islands. At that time, these islands were under the control of the Republic of Vietnam (South Vietnam) who always asserted Vietnamese sovereignty over these two archipelagos. The Revolutionary Government of the Republic of Vietnam also made no declaration that jeopardized this sovereignty. According to the lawyer and author Monique Chemillier-Gendreau:
“In this context, declarations or any viewpoints given by the North Vietnamese government is not effective when it comes to sovereignty. This was not a government that had authority over these archipelagos. One may not renounce what one has no authority over….”

A second reason from a legal perspective is that at that time North Vietnam was not a party in the conflict. Before 1975, the countries and territories involved in the conflict 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 continous 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 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, American Fleet 7 was carrying out activites on the Taiwan Strait threatening China. He had to immediately voice support of China in order to counter against American threat.

The 1965 declaration of the Democratic Republic of Vietnam was in the same manner. The motivation for that declaration was an urgent situation of danger in Vietnam. This is a declaration that has political not legal characteristics.

Even the condition of making declaration continuously and over time is not satisfied when it comes to the three declarations of North Vietnam. 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 three declarations made by North Vietam 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 politicans 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.