Some legal aspects of the drilling rig incident
in the South China Sea in 20141
Pham Lan Dung2
1. The positioning of the drilling rig and justifications by China in thelight of international law.
In May 2014, China deployed the drilling rig HYSY 981 in the EEZ ofVietnam. The first location on 2 May 2014 is 15o29’58” North Lat –111o12’06” East Long, which is 130 nm from the coast of Vietnam, 119 nm
from Vietnam’s base point (Ly Son Island), 17 nm from Triton Island of
Paracel Islands of Vietnam 3 (Zhongjian Island of Xisha Islands claimed by
China), about 180 nm from Hainan Island of China.4 The second location on 27
May 2014 is 15o33’38” North Lat – 111o34’62” East Long, which is about 23
nm from the first location, 150 nm from the Vietnam’s base point (Ly Son
Island), 25 nm from Triton Island, 5 about 190 nm from Hainan Island of
China.6
Vietnam asserted that the locations were within Vietnam’s exclusive
economic zone (EEZ) and continental shelf, thus immediately protested
through diplomatic channels.

One of the first questions being asked byobservers was why Vietnam did not make its protest any earlier but only on 2
May 2014? It is obvious that the drilling rig, escorted by nearly 60 ships weremoving all the way to the location during at least a week before it finallystopped and started to position itself. However, in accordance with the United
Nations Convention on the Law of the Sea (UNCLOS), in EEZs coastal states
1

The views and opinions expressed in this paper are those of the author and do not necessarily reflect
the official policy or position of any institutions of Vietnam.
2
The paper was written by Dr. Pham Lan Dung with contributions from Mr. Tran Huu Duy Minh and
Ms. Nguyen Ngoc Lan – lecturers of the International Law Faculty, Diplomatic Academy of Vietnam.
3
Remarks by Foreign Ministry Spokesman Le Hai Binh on 4th May 2014, available at:
http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns140505232230.
4
Ernest Z. Bower and Gregory B. Poling, ‘China-Vietnam Tensions High over Drilling Rig in
Disputed Waters’ (2014) http://www.csis.org/publication/critical-questions-china-vietnam-tensionshigh-over-drilling-rig-disputed-waters accessed 4th October 2014.
5
Remarks by Foreign Ministry Spokesman Le Hai Binh on 27th May 2014, available at:
http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns140527221322.
6
Measured by Mr. Tran Huu Duy Minh - the lecturer of the International Law Faculty at the
Diplomatic Academy of Vietnam.

have sovereign rights for the purpose of economic exploitation and explorationof natural resources of the zones. The freedom of navigation has beenpreserved for other states in EEZs. The question of possible violation of the
UNCLOS, therefore, can only be raised at the time the drilling rig started its
installation (establishing its fixed position) in the EEZ of Vietnam.
In the justification for its action, on 12 May China’s MOFA
Spokespersons stated that the rig is (i) carrying out “normal operation within
China’s territorial sea” and (ii) operating “in the water south to the Zhongjian
Island.”7 One of China’s official statements also stipulates that the location is“totally within the waters off China’s Xisha Islands.”8 China’s arguments basedon Triton/Zhongjian Island and Paracel/Xisha Islands have been difficult to be
proved under UNCLOS.
As related to the “territorial sea” argument, first it is obvious that thelocation of the rig is 17 nm from Triton Island, which is, in accordance with
UNCLOS, outside any legitimate 12-nm territorial sea. Second, sovereignty
over the Paracels is now still under dispute between China and Vietnam.
China’s invasion of the islands by force in 1974 is unlawful and cannot
generate legitimate title for China over these islands.
As related to the “water south to the Zhongjian Island” argument, again,
the first question is the one of sovereignty as mentioned above. Second,
Triton/Zhongjian island can hardly be considered suitable for human habitation
or able to have an economic life of its own to satisfy as an island, entitled for
EEZ and continental shelf within the meaning of Article 121(1) UNCLOS.
Similarly, the location is not within the scope of EEZ and CS of any feature of
Paracels that can satisfy the requirements of an island within the meaning of
Article 121(1). Third, even if Triton has contiguous zone, which is not likely as
explained above, China still has no right to drill or explore oil as the contiguous
7

Remarks by Foreign Ministry Spokesperson Hua Chunying in Regular Press Conference on May 12,
2014, available at:
http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1155154.shtml.
8Remarks by Chinese Foreign Ministry Spokesperson Hua Chunying in the Regular Press Conference
on 6th May 2014, available at:
http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1153131.shtml.

zone is for custom, sanitary, finance or migration purposes, not for exploration
or exploitation of natural resources as clearly stated under Article 33 of
UNCLOS.
The argument that the location is “totally within the waters off China’s
Xisha Islands” seems to be based on China’s claim of a 200nm EEZ9 from anarchipelagic baseline around the Paracel islands,10 which is obviously not in
conformity with UNCLOS. Article 47 of the Convention allows archipelagic
baselines to be used only by archipelagic states, not to mention that thearchipelagic baselines used by China do not meet the strict conditions set out inthe said article.
So far, these have been the only explanations officially provided by
China for the placement of the rig. Since all the official arguments have nolegal ground, as explained above, Vietnam firmly protests against theplacement of the rig. China has not mentioned the U-shaped line in its
argument, even though its activities have been suspected as one of the steps tostrengthen this unfounded claim.
It should be pointed out that measured from uncontested Hainan Island
the two locations of the drilling rig is at a distance of about 182 nm and 190 nm.
Despite having a much more grounded basis, for some reasons China has
decided not to make use of this argument. Regardless of the intention behindsuch silence, even if this were the case, the drilling rig, which is 119 nm fromthe coast of Vietnam, would be within the overlapping EEZs and continental
shelves of the two States.
Leaving aside the fact that if delimitation was to be carried out, the rig
would still be to the west of the delimitation line, pending delimitation,
UNCLOS obliges concerned states to enter into provisional arrangements and
9China passed a law on 200nm EEZ from an archipelagic baseline around the Paracel islands in 1998.
See Exclusive Economic Zone and Continental Shelf Act (adopted at the third session of the Standing
Committee of the Ninth National People’s Congress, 26 June 1998). Available at:
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/chn_1998_eez_act.pdf
10China drew an archipelagic baseline around the Paracel islands in 1996. See Declaration of theGovernment of the People's Republic of China on the baselines of the territorial sea (15 May 1996),
available at:
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHN_1996_Declaration.pdf

not to jeopardize or hamper the reaching of a final agreement (Articles 74(3)and 83(3)). In the similar Suriname/Guyana case, the Arbitral Tribunal placedemphasis on the phrase “in a spirit of understanding and cooperation” and heldthat any unilateral activity that might affect the other party’s rights in apermanent manner or lead to a permanent physical change, such as exploitationof oil and gas reserve, would be prohibited.
The presence of the drilling rig, supported by a flotilla of ships including
armed vessels, already shows a clear disregard for any spirit of understandingor cooperation. China’s persistence for this to be a successful drill and “not beinterfered or disrupted by external factors”11 is yet another blatant defiance of
its obligations under international law.
2. Diplomatic responses of Viet Nam
Shortly after the deployment of Chinese drilling rig discovered, Vietnam
made a number of diplomatic efforts in order to persuade China to remove its
rig out of the Vietnamese waters. These efforts were made at various levels insequences from senior diplomatic officers to Minister of Foreign Affairs and up
to state leader-level. According to Ministry of Foreign Affairs of Vietnam,
there were more than 30 meetings between Vietnam and China within the firsttwo months after the deployment. 12 As positions of the two sides remained
diverse, diplomatic efforts were deployed at multilateral level in line with
continuous bilateral attempts. Vietnam had made protests and called forsupports from other states at ASEAN high-level meetings, requested the UN
Secretary-General to circulate its position papers to UN member states. It canbe seen that Vietnam handled the dispute with China in a very good faithmanner, from officers to high-level leaders, from bilateral to multilateral.
In response, China, for the first time, requested UN Secretary-General tocirculate its position papers regarding the South China Sea dispute and the11

Chinese Foreign Ministry Spokesperson Hong Lei's Further Remarks Concerning the Withdrawal of
the HYSY 981 Drilling Rig on 16th July 2014, available at:
http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1175131.shtml
12
Ministry of Foreign Affairs of Vietnam, Press conference on 5th June 2014, at
http://www.mofa.gov.vn/en/tt_baochi/tcbc/ns140609024213, accessed on 5th October 2014.

drilling rig incident to UN member states. 13 Even though the arguments in the
China’s position papers are unfounded in facts and in law,14 this action can beconsidered as an evidence of China’s use of third party in dealing with an issue
relating to the South China Sea dispute.
Diplomatic efforts during the drilling rig incident not only contribute to
the settlement of the dispute but are also of legal importance. First, they are inaccordance with the principle of peaceful settlement of dispute – a fundamental
principle of international law embodied in the UN Charter.15 Second, in lightwith UNCLOS, those diplomatic efforts may be considered as having satisfied
the condition of exchange of views between parties which is required before aparty can unilaterally initiate judicial proceedings at international courts ortribunals.16 The right to bring other state before international courts or tribunals
can only be exercised if there were efforts to negotiate beforehand.
3. The applicability of judicial means
It is clearly stipulated in the statement of Vietnam’s spokesperson that
“Vietnam will use all peaceful means17 to settle the dispute in the East Sea.”18
This can be interpreted that the possibility of the use judicial measures is not
excluded. 19 During the drilling rig incident, there has been a considerable
portion of public opinion in Vietnam in support of the use of judicial means tosettle the dispute. However, it should be mentioned that from international law

13

See Letter dated 22 May 2014 from the Chargé d’affaires a.i. of the Permanent Mission of China to
the United Nations addressed to the Secretary-General. Available at:
http://www.un.org/ga/search/view_doc.asp?symbol=A/68/887.
14
See Letter dated 3 July 2014 from the Permanent Representative of Vietnam to the United Nations
addressed to the Secretary-General. Available at:
http://www.un.org/ga/search/view_doc.asp?symbol=A/68/942.
15
Charter of the United Nations, Art. 2.3 and Art. 33.
16
The United Nations Convention on the Law of the Sea 1982 (UNCLOS), Art. 283.
17
The policy of resorting to all peaceful measures to settle the disputes in the East Sea has beenreiterated by MOFA’s Spokesperson Le Hai Binh. See, for example, Regular Press Briefing by
MOFA’sSpokesperson
Le
Hai
Binh
On
May
15,
2014,
availableat:
http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns140516233943.
18
In Vietnam the name “Bien Dong” with the equivalent English translation “East Sea” has been usedinstead of the international name “South China Sea.”
19
Ms. Nguyen Thi Thanh Ha (Director of the Department of International Law and Treaties, Ministryof Foreign Affairs of Viet Nam) in the International Press Conference on developments in the East Sea
on 23rd May 2014, stated that: “The use of peaceful means including international tribunals is inconformity with international law.”and the law of the sea perspectives, as analyzed below, it is not easy to bring acountry before international tribunals.
It is a well-established principle that a state cannot be brought before
international courts or tribunals without its consent. The consent of a state may
be expressed in forms of unilateral declarations, treaties or conducts.20
To settle disputes between state parties concerning the interpretation orapplication of UNCLOS, the Convention provides for a judicial mechanismwith four choices, namely the International Tribunal for the Law of the Sea(ITLOS), the International Court of Justice (ICJ), an arbitral tribunal
established under Annex VII, and a special arbitral tribunal established under
Annex VIII. The court or tribunal, which is chosen by all parties to a dispute,
will be the competent one to settle their dispute. 21 In case the choices aredifferent or there is no choice the default forum is the arbitral tribunal
established under Annex VII. 22 Vietnam and China (like other states directly
concerned in the South China Sea disputes) do not choose any court or tribunal,thus the arbitral tribunal under Annex VII will be competent forum for them.
However, the Convention allows State Parties to optionally make adeclaration to exclude one or more of following types of disputes from thejurisdiction of one or more tribunals, mentioned above, i.e. disputes relating tomaritime delimitation, historic titles or bays, disputes involving the concurrent
consideration of any unsettled dispute concerning sovereignty, disputes
concerning military activities and certain enforcement activities with regards tomarine scientific research and fisheries and disputes concerning issues under
the consideration of the UN Security Council.23 Vietnam does not make suchdeclaration, but China did in 2006, excluding from the jurisdiction of all
tribunals provided in Article 287 all the categories of disputes provided for in
Article 298.

20

The consent in form of acts is usually termed forum prorogatum.
UNCLOS, Art. 287(4).
22
UNCLOS, Art. 287(3), (5).
23
UNCLOS, Art. 298.
21

Even though Vietnam has full legal basics and historical evidences tosupport its sovereignty over Paracels, the islands now are illegally occupied by
China. In accordance with UNCLOS, disputes involving the concurrent
consideration of the sovereignty over the Paracels would be excluded from thejurisdiction of the Annex VII Arbitration. For the purpose of examining theapplicability of UNCLOS’s judicial procedures to the drilling rig incident,
issues relating to the sovereignty over the Paracels will not be considered inthis paper.
Obligations under Articles 74(3) and 83(3)Putting aside the issue of the sovereignty of the Paracels since thepresence of these islands will not change the legal status of the maritime arewhere the drilling rig was deployed, the location of the drilling rig, as
explained above, was in the overlapping EEZs and continental shelves fromundisputed coasts of two countries. Pending delimitation, the two countries areunder the obligations stipulated in Articles 74(3) and 83(3), which read that:‘Pending agreement as provided for in paragraph 1, the States concerned, in a
spirit of understanding and cooperation, shall make every effort to enter into
provisional arrangements of a practical nature and, during this transitional
period, not to jeopardize or hamper the reaching of the final agreement.’ In the
Guyana v. Suriname case24 the arbitral tribunal held that the provision provides
for two specific obligations. First states have duty to make every effort to reachprovisional arrangements of practical nature, which are usually under the formof arrangements for joint development in the overlapping areas. It is also a duty
to act in “spirit of understanding and cooperation” when conducting activities
in such area. As analyzed in the first part of the paper, this obligation has notbeen fulfilled by China.
The second duty provides that states concerned have to make every
effort not to jeopardize or hamper the reaching of final agreement on maritime
delimitation. In the opinion of the arbitral tribunal the second duty should be24

Guyana v Suriname, Award, ICGJ 370 (PCA 2007), 17th September 2007, Permanent Court of
Arbitration [PCA].

understood as a duty not to make physical change to the environment or theseabed of the concerned areas, which are of irreparable nature.25 In overlapping
areas, states concerned may conduct only those unilateral acts that are within
the framework of a joint development agreement or those, which do not cause“permanent physical change” to the area such as seismic exploration. 26 The
exploitation of gas and oil is expressly prohibited.27 It is also worth noting that
the Tribunal believes that seismic exploration can be considered as lawful,while some drilling exploration may cause permanent physical change to themarine environment. Thus it is quite clear that if the exploration activities are
conducted by seismic testing, it should be permissible. In other hand, if the
exploration involves drilling activities, it may be illegal. In the incident
between Vietnam and China, since the drilling rig conducted drilling
activities 28 it can possibly be found that the act violated the obligation
mentioned above.
If any of the parties in the case considers to use judicial means, namely
the arbitral tribunal under Annex VII of the UNCLOS, the jurisdiction of thetribunal depends on whether obligations under Article 74(3) and 83(3) should
be considered as (i) “relating to sea boundary delimitations” or (ii) as predelimitation obligations. If look at the titles of Articles 74 and 83, one may
jump to the conclusion that paragraphs 3 of these Articles relate to delimitationand therefore fall under the exceptions in China Declaration 2006. The authorof this paper is with the view that the obligations are clearly not related todelimitation, based on the substance of paragraphs 3 of these Articles. They
should be correctly considered as pre-delimitation obligations and the arbitral
tribunal, therefore, should have jurisdiction over these issues. Similar cases
25

Guyana v. Suriname case, paras. 465 – 470.
Ibid.
27
Ibid.
28
Even though there remains some inconsistency in China’s reference to the operation of the HYSY
981 oil platform, in Letter dated 22 May 2014 from the Chargé d’affaires a.i. of the Permanent Missionof China to the United Nations addressed to the Secretary-General, available at:
http://www.un.org/ga/search/view_doc.asp?symbol=A/68/887.
China clearly stated that its “HYSY 981 drilling rig started an oil and gas drilling operation”
26have never been brought before any international tribunal and the answer,
therefore, remains uncertain.
Obligations under Articles 60(5) and 8029
In the drilling rig incident China established a safety zone around the rig
which was first one nautical mile, then expended up to three nautical miles. On
this point, state members to UNCLOS may ask the arbitral tribunal on whether
China violated the obligation under Article 60(5) on the maximum width ofsafety zone of artificial installation. This issue is clearly not concerning any
category of disputes excluded by the 2006 Declaration of China.
UNCLOS allows coastal states to establish a safety zone aroundartificial installations in its exclusive economic zone. Article 60(5) sets a
maximum limit of 500 meters of such zone. States may expand the limit if it isauthorized by generally accepted standard or by competent internationalorganizations i.e. the International Maritime Organization (IMO). Until now
there is no such standard or authorization from the IMO. 30 In 2007 Brazil
attempted to obtain authorization from the IMO to expand the width of thesafety zone established around its installations in the Campos basin. 31 However
this request has not been adopted. The newest guidelines of the IMO
concerning the safety zones in 2010 did not mention the possibility of
expanding such zone beyond 500 meters. 32 Moreover when considering therequest from Brazil the committee of the IMO in charge for the issue concluded
that at current time there is no need to consider the expansion of the safety zone
and decides to put aside the issue.33 Thus it can be concluded that up to now
there is no standard or authorization from the IMO to expand the safety zone
beyond 500 meters, and as a result China violated its obligation under Article
60(5) and 80 of the Convention.
29

Article 80 provides that “Article 60 applies mutatis mutandis to artificial islands, installations andstructures on the continental shelf”.
30
Satya N. Nandan and Shabtal Rosenne (eds.), United Nations Convention on the Law of the Sea
1982: A Commentary (Vol. II) (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1993), p. 585.
31
James Kraska and Raul Pedrozo, International Maritime Security Law (Leiden: Brill, 2013), p. 78.
32
IMO’s Sub-Committee on Safety of Navigation, Guidelines for Safety Zones and Safety ofNavigation around Offshore Installations and Structures (07/12/2010).
33
Kraska and Pedrozo (2013), p. 82

There may be a question of whether a possible submission of this issue
to arbitral tribunal by a country, may be considered as that country’s implied
recognition of Chinese sovereign rights over the waters concerned as Articles
60 and 80 provide for the establishment and regime of artificial installations
within the EEZ and continental shelf of coastal states. Countries may exclude
such risk by expressly state that the submission does not have such implied
recognition in all relevant circumstances during the proceedings. In principle,
international courts or tribunals cannot adjudicate a dispute broader than thedispute submitted by concerned parties.34 It must be noted, however, that thearbitral tribunal is the one to decide the way it deal with the dispute.35
Obligations under Articles 58 and 87
The establishment of the safety zone and as well as actions by Chinese
ships to prevent ships flying flags of other countries from approaching the zone
obviously violate the freedom of navigation, stipulated in Articles 58 and 87 of
UNCLOS. This category of dispute does not fall under the exceptions,provided in Article 298 and can not be affected by the 2006 Declaration. The
arbitral tribunal, therefore, will have jurisdiction over this type of dispute.
Other issues
In addition, other issues such as the allegedly water firing and ramming
Vietnam’s ships by Chinese ones, especially the ramming and sinking aVietnamese fishing boat with 10 fishermen on board by a Chinese ship have to
be examined more thoroughly in order to analyze the legal aspects of theseissues as well as the applicability of judicial means.
***
In sum, the drilling rig incident, even though took place in the maritime
area with overlapping claims of sovereign rights and sovereignty, there areprovisions of UNCLOS that the parties are to comply with. The thoroughanalyzes have proved that the arguments of China to justify its placement of thedrilling rig are ungrounded. Other actions of China, following the positioning
34

J. G. Merrills, International Dispute Settlement (5th Edn, Cambridge University Press 2011), pp. 116-

8.
35

Ibid, pp. 119-23.

of the drilling rig, are found to be in violation of the provisions of UNCLOS
and incompatible with case law. Even though the applicability of judicial
procedures under UNCLOS is quite limited in the case, there have been issues
that are not excluded from the jurisdiction of the arbitral tribunal under Annex
VII.