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A legal analysis in support of Viet Nam’s position regarding the Paracel & Spratly Islands – by Linh Nguyen, Huy Duong | SCSS

28 May 2012

by Linh Nguyen, Huy Duong | SCSS – To understand the complex nature of disputes over the Paracel and Spratly Islands, a comprehensive integration of the legal and the political perspectives is required. The legal perspective allows us to determine whether arguments of the claimants are valid and whether they are actually supported by historical facts. This essay reviews and analyses the arguments of the claimants from the perspective of international law and argues for Viet Nam’s position.

 

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The Paracel Islands are disputed between Viet Nam, the People’s Republic of China (hereafter referred to as “China”), and the Republic of China (“Taiwan”), all of which claim sovereignty over the whole archipelago.

The dispute over the Spratly Islands involves Viet Nam, China, Taiwan, the Philippines, Malaysia, and Brunei Darussalam (“Brunei”). While the first three claimants assert their sovereignty over the whole archipelago, the Philippines (since 1951) and Malaysia (since 1978) have claimed parts of the archipelago, and Brunei has only claimed a single feature (Louisa Reef, since 1984).

VIETNAM’S ARGUMENTS

The Paracel and Spratly Islands have been subject to the sovereignty of Viet Nam by reason of terra nullius (land not belonging to any sovereign State) effectively occupied by Viet Nam since the 16th century

According to international law, the discovery of a terra nullius itself does not sufficiently legitimize any legal status for the discovering State over that territory. To acquire sovereignty over the terra nullius, a State must effectively occupy that territory. There are two principles that govern this effective occupation. The first is the principle of actuality, which requires that the State actually possesses the terra nullius, considers it as part of the State’s territory, and exercises State authority and administration over it for a reasonable period of time. In addition to the material (corpus) element, the actual possession also requires the intentional (animus) element of whether a State wishes to possess the terra nullius. The second is the principle of publicity, which requires that the possession by a State must be announced to, or acknowledged by, other sovereign States1. An individual or a company cannot acquire sovereignty over a territory.

To demonstrate its actual possession of the Paracel and Spratly Islands, Viet Nam asserts the following arguments:

–          The States of Viet Nam knew of the Paracel and Spratly Islands, grouped them together, named them as “Đại Trường Sa” (Hán-Nôm: 大長沙; English: Grand Long Sand), “Hoàng Sa” (黃沙, Yellow Sand), or “Vạn Lý Trường Sa” (萬里長沙, Ten-Thousand-Mile Long Sand), and considered them as part of Viet Nam’s territory.

–          Throughout more than three hundred years, from the 16th to the 19th centuries, the States of Viet Nam had continuously exercised their sovereignty at least over the Paracel Islands by frequently sending the Flotillas of Hoàng Sa and Bắc Hải to the archipelago, which would stay there for several months every year for surveying and exploiting resources in a systematic manner. Personnel from these flotillas collected goods from wrecked ships, built temples, planted trees to symbolize the State’s sovereignty, collected taxes, and provided assistance to foreign ships in danger. These activities of the Vietnamese States were totally free from any opposition or disputes from other countries, including China, and contained both the corpus and animus elements of an actual possession.

Viet Nam uses official documents from the 17th century to support these arguments. These include Đại Nam thực lục tiền biên (1600–1775) (大南實錄前編, The Early Chapter of The Chronicles of Đại Nam [Đại Nam is an ancient name of Vietnam]), Toản tập Thiên Nam tứ chí lộ đồ thư (1630–1653) (纂集天南四至路图書, The Collection of the South’s Road Map), Phủ biên tạp lục (1776) (撫邊雜錄, Miscellany on the Pacification at the Frontier), Đại Nam thực lục chính biên (1848) (大南實錄正編, The Main Chapter of The Chronicles of Đại Nam), Đại Nam nhất thống chí–the combinatorial record for geography and history of Đại Nam (1865–1882) (大南ー統誌, The Record of The Unified Đại Nam), Hoàng Việt dư địa chí (1833) (皇越輿地誌, Geography of The Viet Empire), Việt sử thông giám cương mục khảo lược (1876) (越史通鑑綱目考略, Outline of The Chronicles of The Viet History), official documents of the Nguyễn Dynasty on petitions and imperial decrees, and many maps and documents made by other countries at that time2.

Jaseniew Vladimir and Stephanow Evginii, in their 1982 book entitled “The Chinese Frontiers: From Traditional Expansionism to Present Hegemonism”, listed the activities of the Vietnamese States in continuously exercising their sovereignty over the Paracel and Spratly Islands, and emphasized that “feudal States of Viet Nam had for long annexed archipelagos such as the Paracels and Spratlys into their State’s territory”3.

France, after imposing its protectorate over Viet Nam, represented Viet Nam in exercising and maintaining Viet Nam’s sovereignty over the archipelagos

In 1899, then Governor-General of Indochina Paul Doumer submitted a proposal to the Government of France to build a lighthouse in the Paracel Islands. Financial difficulty, however, prevented this plan from being realized.

On March 8, 1925, the Governor-General of Indochina affirmed that the Paracel Islands were part of French territory4. Surveillance and research trips thus had been organized in the Paracel Islands since 1925 and in the Spratly Islands since 19275.

In 1930, the French authorities in Indochina sent a mission group to set up a flag pole in the Spratly Islands. Since then until 1933, French naval units established a garrison on the main islands of the archipelago, including Spratly (Trường Sa) (April 13, 1930), Amboyna Cay (An Bang) (April 7, 1933), Itu Aba (Ba Bình) (April 10, 1933), the Two-Island Group including Southwest and Northeast Cays (Song Tử Tây, Song Tử Đông) (April 10, 1933), Loaita (Loai Ta) (April 11, 1933), and Thitu (Thị Tứ) (April 12, 1933), together with small islets/cays surrounding these islands. These occupation activities were proclaimed in the July 26, 1933 Official Gazette of the French Republic and the September 25, 1933 Official Gazette of Indochina, and did not meet any opposition from China, the Philippines, the Netherlands (which occupied Brunei at that time), or the United States of America. The United Kingdom of Great Britain and Northern Ireland required explanation for these activities and was satisfied with the response from France6.

On December 2, 1933, Governor of Cochinchina (Nam Kỳ) J. Krautheimer incorporated the Spratly Islands into the Province of Bà Rịa.

On March 30, 1938, Emperor Bảo Đại issued his imperial edict to incorporate the Paracel Islands into the Province of Thừa Thiên. On June 15, 1938, the Governor-General of Indochina Jules Brévié issued a decree on establishing an administrative unit in the Paracel Islands. The French authorities then effectively occupied the whole archipelago with a permanent guard unit. In 1938, a sovereignty stele was erected with the inscription of the words “The French Republic – The Kingdom of An Nam – The Paracel Islands, 1816 – Pattle Island – 1938”. A lighthouse, a meteorological station, and a radio station were also set up on Pattle Island5.

Japan occupied the Spratly Islands in 1939, re-named the archipelago as Shinnan Shoto (新南諸島, the New Southern Islands), and put it under the jurisdiction of Kaohsiung (Taiwan, which China had ceded to Japan in the Treaty of Shimonoseki in 1895). France subsequently sent a diplomatic note to oppose Japan’s military action and re-affirmed that the Spratly Islands were part of An Nam’s territory7. There was no protest by China against either Japan’s occupation of the Spratlys or France’s assertion of sovereignty.

Immediately after Japan surrendered in 1945, the French authorities restored their presence in the Paracel and Spratly Islands. In June 1946, a subunit of the French armed forces landed to re-occupy the Paracel Islands. In October 1946, the French battleship Chevreud arrived in the Spratly Islands and installed a sovereignty stele on Itu Aba Island8. When the Republic of China sent its troops to occupy Itu Aba Island in late 1946, France also opposed the action and demanded China’s withdrawal from the archipelago.

In summary, as the protecting power representing Viet Nam’s interests, France maintained Viet Nam’s sovereignty over the Paracel Islands without any interruption. In the Spratly Islands, France considered the archipelago as aterra nullius and conducted its effective occupation with the knowledge of other States without any opposition from China, the Philippines, the Netherlands (which occupied Brunei at that time), the United States of America or the United Kingdom of Great Britain and Northern Ireland.

Viet Nam’s sovereignty over the two archipelagos has been continuously exercised and maintained since France left Indochina

With the Hạ Long Bay Treaty of 1949, France transferred the sovereignty of Cochinchina, which included the Spratlys, to Viet Nam. On October 14, 1950 the government of France officially handed over the control of the Paracels to Viet Nam’s Bảo Đại Administration.

On September 7, 1951, during the seventh session of the San Francisco Conference on the Treaty of Peace with Japan, Prime Minister and Foreign Minister Trần Văn Hữu of the State of Viet Nam officially affirmed Viet Nam’s sovereignty over the Paracel and Spratly Islands. His statement did not meet with any objection or reservation of opinion from any of the 51 States attending the Conference. The Soviet Union requested an amendment that envisaged the recognition by Japan of the sovereignty of the People’s Republic of China over a series of territories including the Paracels and the Spratlys. This amendment was rejected by 46 of the countries present, only Poland and Czechoslovakia supported the Soviet request. Neither China nor Taiwan attended the Conference7.

After the partition of Viet Nam by the 1954 Geneva Accords, the administration of the Paracel and Spratly Islands was placed under the Republic of Viet Nam (RVN, South Viet Nam). Immediately after the last French troops’ withdrawal on August 22, 1956, the Republic of Viet Nam promptly established its control over the Paracel and Spratly Islands, and faced challenges from China, which disputed the archipelagos9.

The RVN, as a successor to the French authorities for legal titles, rights, and demands in the Paracel and Spratly Islands, had continuously exercised its administration, surveillance, exploitation, and defence over the two archipelagos through a series of actions such as erecting flag pole and sovereignty stele in the Spratly Islands (August 1956), incorporating the Paracel Islands into the Province of Quảng Nam (July 1961), affirming sovereignty over the two archipelagos by a statement of the Ministry of Foreign Affairs (July 15, 1971), incorporating the Spratly Islands to the Province of Phước Tuy (September 1973), granting license for guano collection, and detaining China’s troops who were disguised as fishermen in an attempt to occupy the western group of the Paracel Islands (February 1959).

China’s complete occupation of the Paracel Islands by military forces in January 1974 was strongly opposed by RVN, which took every opportunity to affirm its sovereignty, including sending letter to demand an intervention from the President of the United Nations General Assembly and the Secretary-General of the United Nations, issuing statements to re-affirm sovereignty at the meeting in March 1974 of the Economic Commission for the Far East (precursor of the Economic and Social Commission for Asia and the Pacific) and the Third United Nations Conference on the Law of the Sea (July 1974), and proclaiming the White Paper on the Paracel and Spratly Islands (February 1975).

The Socialist Republic of Viet Nam is the successor of the two prior States and has had all legal titles over the Paracel and Spratly Islands since July 2, 1976

As part of its exercise of sovereignty, in December 1982 Viet Nam established Hoàng Sa District (huyện) under the Province of Quảng Nam–Đà Nẵng for the Paracel Islands, and Trường Sa District under the Province of Đồng Nai for the Spratly Islands. Hoàng Sa and Trường Sa Districts are currently under the jurisdiction of the City of Đà Nẵng and the Province of Khánh Hoà, respectively. Viet Nam has also maintained permanent troops in the Spratly Islands.

In addition, Vietnamese top officials have paid several visits and joined surveillance trips to affirm Viet Nam’s sovereignty in the Spratly Islands. These include a series of visits in May 1988 by Minister of Defence Lê Đức Anh, Vice-Chairman of the State Council Nguyễn Quyết, and Chief of the Armed Forces’ General Staff Đoàn Khuê. More recent visits of top officials include those by Member of the Politburo of the Communist Party of Viet Nam (CPVN) Phạm Thế Duyệt (April 1998), and former Secretary-General of CPVN Lê Khả Phiêu (November 2011).

Although the Paracel Islands have been completely occupied by China’s troops since 1974, Viet Nam maintains all its legal titles over the archipelago. The most recent assertion of sovereignty by Viet Nam is a statement by Prime Minister Nguyễn Tấn Dũng in a televised testimony at the National Assembly on November 25, 2011 in which he said that Viet Nam has had sovereignty over the Paracel and Spratly Islands at least since the 17th century, and that Viet Nam seeks to resolve the sovereignty dispute through peaceful means according to international law

CHINA AND TAIWAN’S ARGUMENTS

As China and Taiwan share the same arguments about the Paracel and Spratly Islands, they can be presented together as follows.

China was the first country to discover and occupy the Paracel and Spratly Islands as terra nullius

China asserted that it was the first country to find the archipelagos, and this discovery was made as early as the reign of Emperor Wǔof the Hàn Dynasty (2nd century BCE)10. This argument, however, is not backed up by official historical documents. On this issue, Nguyễn Hồng Thao commented that “most of these documents are travel accounts, monographs, and navigation books demonstrating knowledge of ancient people about territories belonging to not only China but also other countries”9. Moreover, in these documents, the territories which China now claims to be the Paracels and Spratlys are named inconsistently, thus there are no convincing arguments that those territories are really the Paracels and Spratlys5.

Moreover, the aforementioned assertion from China contradicts the encyclopedia Gǔjīn TúshūJichéng(古今圖書集成, Complete Atlas on the Past and Present) completed by the Qing Dynasty in 1706. None of the maps inZhífāng Diăn(職方典, Dictionary of Administrative Units) of this encyclopedia, including Zhífāng Zŏngbùtú(職方總部圖, General Map of the Administrative Units, Number 1), Guăngdōng Jiāngyùtú (廣東疆域圖, Territorial Map of Guăngdōng, Number 157), and Qióngzhōufǔ Jiāngyùtú(州府疆域圖, Territorial Map of Qiongzhou Prefecture, Numer 167), indicate any archipelagos farther to the south than Hainan Island. The islands depicted inGuăngdōng Tōngzhì (廣東通志, Annals of Guăngdōng), made during the reign of Emperor Jiājìng of the Ming Dynasty (1522–1567), also do not go beyond Qiongzhou (i.e. Hainan)11.

The finding of ancient money and goods dated back to the Wáng Măng (王莽) Era (9–23 CE) is also used as archaeological evidence by China to support the early presence of its fishermen in the archipelagos. However, even if these pieces of evidence are valid, Chinese fishermen’s early presence was merely private/individual activities and thus cannot constitute an effective occupation by a State as required by international law.

China also claims sovereignty over the archipelagos by asserting the following events:

–          The Sòng Dynasty (960–1127) sent its military patrols to the Paracel Islands’ area. This assertion is based on Wǔjīng Zŏngyào (武经, Military General Records) with a prologue written by Emperor Rénzōng5. However, according to Monique Chemillier-Gendreau, this record merely indicates that there were geographical surveillance trips conducted by the Chinese that went as far as the Indian Ocean, and that China knew of the Paracel Islands. The document, however, does not demonstrate any possession.

–          In the 13th century, emperors of the Yuán Dynasty ordered the astronomer GuōShŏujìng (郭守敬) to conduct astronomical observations in many areas, including the Paracel Islands. However, Guō’s observations, performed both inside and outside of China, were only astronomical research activities and thus could not legitimize any sovereignty status over the territories from which the observations were made.

–          Wu Sheng (升), Guangdong navy’s rear-admiral, commanded a patrol to the Paracel Islands in 1710–1712. However, according to Monique Chemiller-Gendreau, this was in fact a patrol around Hainan Island and did not go as far as the Paracels.

–          The local government of Guangdong opposed a German ship conducting research in the Spratly Islands in 1883. This opposition, however, was only a diplomatic action and did not have any legal status as China’s sovereignty had not been established9.

Therefore, historical evidence used by China to support its claim is insufficient and weak according to international law. These pieces of evidence do not demonstrate any occupation, effective administration, or sovereignty12. As far as the effective occupation of the Paracel and Spratly Islands as terra nullius without protests from other States are concerned, Viet Nam’s arguments are stronger than those of China13.

China’s arguments regarding the period from early 20th century to 1945

It was not until the beginning of the 20th century that China showed any real efforts in occupying the Paracel Islands. In 1909, Admiral LǐZhǔn (李准) commanded a small-scale landing (over a period of 24 hours) in the Paracel Islands. His troops raised their flag and fired their guns to mark China’s sovereignty5 (which raises the question of why LǐZhǔn’s fleet acted as if this was the first time the islands were discovered despite China’s claim to have possessed them long before?)

In 1921, the self-proclaimed Guăngzhou Military Government annexed the administration of the Paracel Islands to Yái (崖) District. This action did not meet any response as the Guăngzhou Military Government was not recognized by any countries in the world.

In 1937, Japan occupied the islands offshore of Indochina despite the opposition from the French authorities, renamed them to “Shinnan Shoto”, and put them under the jurisdiction of Kaohsiung (Taiwan), which China had ceded to Japan in the Treaty of Shimonoseki of 1895. Japan maintained its occupation in the South China Sea’s archipelagos throughout World War II.

In summary, with a limited effort in early 20th century to demonstrate its sovereignty in the Paracel Islands, China neither actually and continuously occupied nor effectively established administration over the archipelago. At the same time, China had absolutely neither influence nor interest in the Spratly Islands and did not protest when Japan claimed and occupied them. In contrast, France was the only country to protest against Japan’s occupation of the Spratlys. An irrefutable evidence of China not considering the Spratlys to be its territorry was China’s diplomatic note to France in September 1932 claiming that the Paracels “form the southernmost part of Chinese territory”5.

China’s arguments regarding the period after 1945

After Japan’s surrender in 1945, it withdrew troops from mainland and all archipelagos of Indochina. France promptly restored its presence in the Paracel Islands in June 1946. In July 1947, the Republic of China sent its troops to Woody Island in the Paracels. In response, France opposed this illegal occupation and sent a military unit to the Paracel Islands to set up a garrison and built a meteorological station which would be in operation for the next 26 years until the People’s Republic of China used military force to occupy the archipelago in 1974.

At the end of 1946, the Republic of China sent its troops to occupy Itu Aba Island in the Spratlys after France had erected a sovereignty stele. The Chinese Civil War’s conclusion and the proclamation of the People’s Republic of China in October 1949 forced the Republic of China’s troops to leave Woody Island in the Paracels and Itu Aba Island in the Spratlys while the French garrisons were maintained.

In April 1956, French forces were withdrawn from Indochina. In the Paracels they were replaced by the Republic of Viet Nam’s troops (i.e.,South Viet Nam’s troops). At the same time, the People’s Republic of China’s troops secretly landed and occupied Amphitrite Group in the eastern part of the Paracel Islands5. On September 4, 1958, China issued a statement on its twelve-nautical-mile territorial waters, including around both the Paracel and Spratly Islands. On January 19, 1974, China used its military forces to occupy completely the Paracel Islands. Until then, the Spratly Islands “were completely out of China’s influencelet alone China’s intention to control them7. In February 1988, China sent troops to some islands in the Spratlys, and a month later, seized six islands from Viet Nam5. All of these events make China a unique claimant in the Spratly Islands for its exclusive claim over the whole archipelago and its absolute lack of control in reality until 19887.

China then established its 33rd province including Hainan Island, the Paracels, and the Spratlys in April 1988, occupied one more small island in the Spratly Islands in May 19895, and seized Mischief Reef of the Philippines in February 1995.

China’s main approach to seize control over the islands is to use military force, an approach which has been condemned by international law since early 20th century. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, adopted on October 24, 1970, also states explicitly that “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal”. The use of military force is therefore against international law and cannot legitimize any legal status for China in the Paracel and Spratly Islands.

China’s use of statements by the Democratic Republic of Viet Nam

China maintains that Viet Nam recognized China’s sovereignty over the Paracel and Spratly Islands during the Viet Nam War by statements of the Democratic Republic of Viet Nam (North Viet Nam) including:

–          A verbal expression by Deputy Foreign Minister Ung Văn Khiêm on June 15, 1956 to a standing member of the Embassy of China in Ha Noi that these archipelagos are part of China’s territory in terms of history. However, China fails to provide the meeting’s minutes that contains this expression by Deputy Foreign Minister Khiêm14. It should also be noted that, according to international law, deputy foreign ministers do not by default have the authority to represent a State in such matters.

–          A diplomatic note by Prime Minister Phạm Văn Đồng on September 14, 1958 in which China’s claim of twelve-nautical-mile territorial sea was said to be approved without any reservation of opinion regarding the Paracel and Spratly Islands.

–          On May 9, 1965, in response to the the escalation of the Viet Nam War and the establishment of tactical zones in the South China Sea by the United States, the Democratic Republic of Viet Nam’s newspaper Nhân Dân (The People) stated that the Paracel Islands were under the sovereignty of China. It should be noted that, according to international law, newspapers are not considered representatives of a State.

Whether these statements have legal implications for the Socialist Republic of Viet Nam’s sovereignty over the Paracel and Spratly Islands will require further studies in international law. However, the author would like to offer a perspective on these statements as below.

During the Viet Nam War (1954–1975), there were two States co-existing in Viet Nam, namely, the Democratic Republic of Viet Nam (DRVN) in the North, and the Republic of Viet Nam (RVN) in the South. The co-existence of these two States is agreed upon by many leading international laywers, such as James Crawford, Robert Jennings, Nguyễn Quốc Định, Jules Basdevant, Paul Reuter, Louis Henkin, and Grigory Tunkin14.

Acccording to the DRVN and RVN’s understanding of the 1954 Geneva Accords, and to thede factoadministration, the RVN was the successor State to the Vietnamese titles over the Paracel and Spratly Islands. As mentioned above, the RVN had continuously controlled, exercised administration, and affirmed sovereignty until China’s occupation of the Paracel Islands by force in 1974, and until the Provisional Revolutionary Government of the Republic of South Viet Nam’s takeover of the Spratly Islands in 1975. The DRVN was a third party in the dispute between the RVN and China over the Paracels, and in that between the RVN, the Philippines and China over the Spratlys.

First, given that it was the RVN, and not the DRVN, which was the successor State to the Vietnamese titles over the Paracel and Spratly Islands, the DRVN did not have the duty to defend these titles. Therefore, its conduct cannot be interpreted as acquiescence to China or the Philippines’ claims. Furthermore, as a third party, the DRVN was not in dispute or negotiation with any other State over these archipelagos. Therefore, no statement made by the DRVN can be said to have been made in the context of a dispute or negotiation over these archipelagos between it and China or the Philippines.

Second, the 1958 diplomatic note of the DRVN’s Prime Minister Phạm Văn Đồng and other DRVN’s statements on the issue did not affect RVN’s titles over the archipelagos. Any legal obligation that might arise from the DRVN’s statements could only apply to the DRVN, not to the RVN.

Third, let us consider whether the DRVN’s statements gave rise to any binding obligations for itself? The statements made by DRVN on the issue are unilateral ones. According to international law, to determine whether a unilateral statement might give rise to binding obligations, three main conditions must be considered, namely,

  1. the context in which the statement was made;
  2. whether the unilateral statement is explicit, and whether the party making the statement explicitly expresses the intention that it wishes to be bound by its own statement; and
  3. whether there has been detrimental reliance for the other party, i.e., damage or loss caused by that party’s reliance on the unilateral statement.

In addition, judgements by the International Court of Justice require that the unilateral statements are made continuously over a prolonged period of time for it to give rise to binding obligations15.

It is not difficult to see that the DRVN’s statements on the issue lack most of these prerequisite conditions, and therefore did not give rise to any binding obligations for the DRVN. Regarding the criterion of context, these statements were not made in the context of the DRVN and China contesting the Paracels and Spratlys with each other. Regarding the criterion of explicitness, the only authoritative statement from the DRVN – the diplomatic note by Prime Minister Phạm Văn Đồng, did not say anything explicit about the Paracels or Spratlys. Regarding the criterion of detrimental reliance, China has not taken any actions that could be said to be detrimental reliance on the DRVN’s statements.

As the successor State to the DRVN and the RVN (and subsequently the Provisional Revolutionary Government of the Republic of South Viet Nam) since 1976, the Socialist Republic of Viet Nam (SRVN) succeeded to both the sovereignty of the Paracel and Spratly Islands from the RVN and the unilateral, non-binding statements from the DRVN. Since the latter is non-binding, the SRVN is free to choose to uphold the former. The re-unified Vietnamese State, therefore, has full legal basis to assert its sovereignty over the Paracel and Spratly Islands.

THE PHILIPPINES’ ARGUMENTS

The Philippines claims over about 60 islands, reefs, and submerged banks in the Spratly Islands16. The first assertion was made in 1947 by Tomás Cloma, a Philippine citizen, when he claimed to have discovered a group of islands and reefs 300 nautical miles to the west of Palawan Island.

On May 17, 1951, the President of the Philippines claimed that islands in the Spratlys should belong to the closest territory, which is the Philippines9. This claim was opposed by the other countries.

It was not until March 1956 that Tomás Cloma resumed his “work to discover” these islands. He sent a group of 40 sailors to land on many islands in the Spratlys to mark their possession. The flag of the Philippines was raised on some islands including Itu Aba17. On May 11, 1956, they proclaimed Kalayaan (Freedom-land) as the new official name of the islands and Tomás Cloma as the President of the Supreme Council of the State of Kalayaan7. This proclamation was opposed by all relevant countries10.

Tomás Cloma sent a letter dated May 15, 1956 to the Republic of the Philippines’ Minister of Foreign Affairs to announce that he and his group had occupied a 64,976-square-mile area to the west of Palawan Island, that this area was outside of Philippine territorial waters and was not subject to the jurisdiction of any countries, and that this area had been found and effectively occupied as a terra nullius. He also included with the letter a map of his claimed area. Although the names of these islands were completely changed, Cloma’s map indicates that the Kalayaan area includes most of islands in the Spratlys8.

The Philippines’ Minister of Foreign Affairs subsequently declared in a press conference on May 19, 1956 that the islands in the Spratlys including Itu Aba and Spratly are subject to the Philippines’ sovereignty as they are closest to the Philippines. This declaration met with objections from Sai Gon, Beijing, and Taiwan. When Taiwan showed its intention of deploying troops to the Spratly Islands, Manila promptly sent a notice to Taiwan and South Viet Nam and said that it had not officially claimed sovereignty over the area.

On July 6, 1956, Tomás Cloma sent a letter to the Philippines’ government to ask that Kalayaan become a protectorate of the Philippines. In his response, the Philippines’ Minister of Foreign Affairs stated that any island in the area that is not within the group of seven islands referred to as “the Spratly Islands” by international community can be considered as terra nullius, and thus can be freely exploited and inhabited by citizens of the Philippines or any other countries. To retaliate against Tomás Comas’ activities, South Viet Nam sent a patrol ship to the Spratly Islands in August 1956.

The first clash between Taiwan’s navy and Tomás Cloma’s group occurred on October 1, 1956 in North Danger Shoal. Tomás Cloma’s group ended up having all their weapons stripped while the Philippines’ government did not intervene.

During 1970–1971, President Ferdinand Marcos ordered the Philippines’ navy to occupy some islands in the Spratlys including Thitu, Nanshan, and South Rock. The Philippines also organized patrols in many small islands and reefs in the northeast of the archipelago7. After the Philippines attempted once more but failed to occupy Itu Aba Island in 1971, it continued to object to Taiwan’s occupation of the island with three arguments, namely, (1) the Philippines’ sovereignty over the islands based on Tomás Cloma’s discovery of terra nullius, (2) de factooccupation without notice by China of many islands under the jurisdiction of the Allies, and (3) the Philippines archipelagic waters containing the Spratlys10. The Philippines also expanded its occupation to 1,000 troops and built an airport on Thitu Island. Tomás Cloma transferred the “sovereignty” of the islands to the Philippines’ government in 1974. By that time, the Philippines had acquired control over four islands in the Spratlys.

In 1978, the Philippines deployed troops to seven islands in the Spratlys. The President of the Philippines then signed Decree 159612 on June 11, 1978 to annex these seven islands to the Philippines’ territory. The decree also states that “these areas do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control established in accordance with the international law, such areas must now deemed to belong and subject to the sovereignty of the Philippines”, and that a 200-nautical-mile economic exclusive zone was set for these islands10.

In a press conference on September 14, 1979, the President of the Philippines stated clearly that his country would maintain its claim over the seven islands that it occupied but not all of the Spratly Islands. The Philippines’ President also re-affirmed that these seven islands had never been occupied, known of, inhabited, or even marked in any maps before World War II, and they had thus been terra nullius until the Philippine’s occupation.

On March 10, 2009, the President of the Philippines promulgated Republic Act 9522 to define the archipelagic baseline of the Philippines, in which most of the Spratly Islands was included in the Philippines’ regime of islands. China quickly objected while Vietnam re-asserted its claims to the Spratlys but did not mention the Act specifically.

Arguments from the Philippines, in general, do not have a solid basis. The Philippines maintains that the islands it claimed were terra nullius. Even if we ignore those events in the Spratlys in previous centuries, the Spratly Islands were effectively occupied since 1930 by France (French troops had been on Thitu Island since April 1933) and transferred to Viet Nam without objection from any countries including the Philippines when France left Indochina. Also, the claim that these islands should belong to the Philippines on the basis of proximity is not supported by international law. Moreover, the Philippines’ occupation and claim to the Spratly Islands have been opposed by relevant countries from the beginning. Therefore, the involvement of the Philippines in these islands cannot constitute an effective occupation without disputes as required by international law.

MALAYSIA’S ARGUMENTS

In 1978, Malaysia made its first claims for sovereignty over Amboyna Cay, Mariveles Reef, and Commodore Reef on the basis that these features lie on its continental shelf. The 1979 map of Malaysia depicted some islands in the Spratlys as Malaysia’s territory.

Malaysia started its first military occupation in June 1983 by taking control of Swallow Reef, which is within its claimed area. In September 1983, Malaysia officially declared its intention to occupy James Shoal, Swallow Reef, Ardasier Reef, and Mariveles Reef, and asserted that these islands/reefs lie within Malaysia’s “marine economic zone”7. In December 1986, Malaysia’s troops occupied Mariveles and Ardasier Reefs. In June 1999, Malaysia expanded its occupation to a total of seven islands/reefs/shoals by taking control over Erica Reef and Investigator Shoal.

In general, Malaysia cites the international law’s regulations of continental shelf to support its claim in the Spratly Islands. However, Article 76 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) defines clearly that: “The continental shelf of a coastal State comprises of the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend up to that distance”. This definition does not govern the above water islands/reefs/cays on the continental shelf and thus cannot provide legal ground for Malaysia’s claims to any feature that is above high tide.

The legal question for a feature that Malaysia claims is whether it is above high tide or not. This question is critical because a State can only claim and acquire sovereignty over islands that are naturally above high tide. If a feature is submerged or is a low-tide elevation then neither Malaysia nor any other State can claim sovereignty over it18,19, and Malaysia can only claim certain restricted rights as prescribed by UNCLOS. And if this is the case, we shall have to resolve the question of whether that feature lies within Malaysia’s exclusive economic zone or that of another State.

BRUNEI’ ARGUMENTS

Brunei only claims Louisa Reef based on the argument that this reef is within its exclusive economic zone.

Article 56 of the 1982 UNCLOS, however, only acknowledges that a coastal State has (1) “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds”, and (2) jurisdiction to establish and use artificial islands, installations and structures for marine scientific research, and protection and preservation of marine environment. The use of UNCLOS to claim sovereignty over islands within the exclusive economic zone is an aberrant interpretation of the Convention. Therefore, the argument from Brunei, similar to that of Malaysia, is unconvincing if applied to islands that are naturally above high tide.

The legal question in this case is whether Louisa Reef is an island naturally above high tide, or is it submerged or is a low-tide elevation. If Louisa Reef is submerged or is a low tide elevation then neither Brunei nor any other countries can claim sovereignty over it18,19, and Brunei can only claim certain restricted rights as prescribed by UNCLOS. And if this is the case, we shall have to resolve the question of whether Louisa Reef lies within Brunei’s exclusive economic zone or that of Viet Nam or Malaysia.

Conclusion

In the light of international law, the above comparative analysis of perspectives from different claimants of the Paracel and Spratly Islands reveals that the most logical and best-supported arguments are those of Viet Nam. In reality, however, the prolonged and complicated nature of disputes in area, as well as the involved parties’ intention, make dispute resolution through legal means a very difficult approach. Instead, an integration of legal, historical, political, and economic solutions is needed to resolve the issue. And any resolution for the South China Sea’s dispute would require efforts and good will of the involved parties, particularly China, which has been objecting to any proposal made by Viet Nam to bring the Paracel and Spratly Islands’ issue to the International Court of Justice.

Nevertheless, the legal perspective of the issue is still of vital importance.

Nguyễn Thái Linh

LL.M.(University of Warsaw, Warsaw, Poland)

Dương Danh Huy

Translated by Nguyễn Trịnh Đôn

——-

Acknowledgement

The authors wish to thank Nguyễn Đức Hùng and Lê Vĩnh Trương for their comments and discussion.

 

Literature Cited

1.       Wójciech Góralczyk, Stefan Sawicki (2007). Introduction to International Public Law (Prawo miedzynarodowe publiczne w zarysie). Warszawa, Wydawnictwo Prawnicze LexisNexis (in Polish).

2.       Ministry of Foreign Affairs of the Socialist Republic of Viet Nam (1988).White Paper: The Archipelagos of Paracels, Spratlys and International Law (in Vietnamese and English).

3.       Vladimir Jaseniew, Evginii Stephanow (1982). The Chinese Frontiers: From Traditional Expansionism to Present Hegemonism (Kитайские границы: от традиционного экспансионизмa к текущемy гегемонизмy). Moscow (in Russian).

4.       Jean-Pierre Ferrier (1975). The Conflict of the Paracel Islands and the Problem of Sovereignty over the Uninhabited Islands (Le conflit des iles Paracels et le problème de la souveraineté sur les iles inhabitées). Annuaire francais de droit international. Vol. 21 (in French).

5.       Monique Chemillier-Gendreau (1998). Sovereignty over the Archipelagos of Paracels and Spartlys(Chủ quyền trên hai quần đảo Hoàng Sa và Trường Sa) (in Vietnamese). Ha Noi. Translated from “La souveraineté sur les archipels Paracels et Spratleys” (in French). L’Harmattan, Paris.

6.       Marcel Beauvois (November 27, 1971). The Archipelagos of Paracels and Spratlys (Les archipels Paracels et Spratley). Vietnam Press nr.7574 (in French).

7.       Jan Rowiński (1990). South China Sea––Potential Dispute in Asia (Morze Południowochińskie––region potencjalnego konfliktu w Azji). Warsaw (in Polish).

8.       Marwyun Samuels (1982). Contest for the South China Sea, New York, 1982

9.       Nguyễn Hồng Thao (2000). Viet Nam and the Maritime Disputes in the South China Sea”. Institute of Economic Law of the Sea (Le Vietnam et ses différends maritimes dans la mer de Bien Dong [Mer de Chine méridionale]). Monaco (in French).

10.    Lee G. Cordner (1994). The Spratly Island dispute and the Law of the Sea. Ocean Development and International Law, Washington D.C. Vol. 25.

11.    Phạm Hoàng Quân (December 11, 2007). “Xisha” and “Nansha” in China’s historical documents. Talawas:  http://www.talawas.org/talaDB/showFile.php?res=11697&rb=0302(in Vietnamese).

12.    Kuang-Minh Sun (1990/1991). Dawn in the South China Sea? A  Relocation of the Spratly Islands in an Everlasting Legal Storm. South African Yearbook of International Law, University of South Africa. Vol. 16.

13.    Lacoste Yves (1981). China’s Sea or Southeast Asian Sea (Mer de Chine ou Mer de l’Asie du Sud-Est). Herodote, Paris (in French).

14.    Dương Danh Huy (November 9, 2011). Was there one or were there two States in North and South Viet Nam during the 1954–1975 War?(Trong chiến tranh 54–75, có một hay hai quốc gia Việt Nam trên hai miền Bắc, Nam).Southeast Asian Sea Foundation: http://www.seasfoundation.org/articles/from-members/1288-trong-chin-tranh-54-75-co-mt-hay-hai-quc-gia-tren-hai-min-bc-nam (in Vietnamese)

15.    Từ Đặng Minh Thu (July 2007). Sovereignty over the Two Archipelagos of Paracels and Spratlys(Chủ quyền trên hai quần đảo Hoàng są và Trường Sa).Thời Đại Mới (New Era) Magazine, Vol. 11 (in Vietnamese).

16.    Michael Hindley, James Bridge (June 1994). South China Sea: the Spratly and Paracel Islands Dispute. The World Today, London, Vol. 50.

17.    Quốc Tuấn (1975). Comments on China’s arguments on the Paracels and Spratlys’ issue (Nhận xét về các luận cứ của Trung Hoa liên quan tới vấn đề chủ quyền hai quần đảo Hoàng Sa và Trường Sa).Tập san Sử Địa (History and Geography Reviews). Vol. 29. Sai Gon (in Vietnamese)

18.    International Court of Justice (2001). Judgement: Maritime Delimitation and Territorial Questions between Qatar and Bahrainhttp://www.icj-cij.org/docket/files/87/7029.pdf

19.    International Court of Justice (2008). Judgement: Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)http://www.icj-cij.org/docket/files/130/14506.pdf

 

(Original version is available at SCSS)

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Vietnamese Back Philippines

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Vietnamese Back Philippines – by Huy Duong | The Diplomat

24 May 2012

(C) Huy Duong | The Diplomat – In a new twist this week to the stand-off between China and the Philippines at Scarborough Shoal, 66 Vietnamese, many of them well-known public figures in Vietnam and within the Vietnamese Diaspora, signed a letter to the Philippine Ambassador in Vietnam to express support for the Philippines’ “sovereign rights” in the continuing stand-off.

Vietnamese Back Philippines

The main points of the letter are:

1) Support for the “sovereign rights” of the Philippines in the Scarborough Shoal.

2) Opposition to China’s use of the “nine-dashed line”  to make overlapping claims with the Exclusive Economic Zones and continental shelves of the Philippines, Vietnam and other ASEAN countries, as well as opposition to “China’s actions and threats of force,” the latter presumably referring to articles in China’s state controlled press.

3) Support for the Philippines’ proposal to submit the dispute at Scarborough Shoal to the International Tribunal for the Law of the Sea (ITLOS).

The first interesting thing about the letter, to which I am a signatory, is that while supporting the Philippines, the letter stops short of taking sides on the question of sovereignty over the rocks at Scarborough Shoal. What it supports the Philippines on is the question of “sovereign rights,” which isn’t sovereignty over islands and rocks, but rights over the Exclusive Economic Zone (EEZ) and continental shelf.

Does it make legal sense to support the Philippines on the question of rights over the EEZ and continental shelf without taking sides on the question of sovereignty over the rocks? Don’t the rights over the EEZ and continental shelf depend on sovereignty over territories, including islands and rocks? The answer lies in the fact that the rocks at Scarborough Shoal aren’t the only territories in this area; there’s also Luzon Island. It’s possible to argue that these rocks aren’t entitled to an EEZ beyond 12 nautical miles, therefore the EEZ in this area belongs to Luzon Island, regardless of whether the rocks belong to China or the Philippines, and regardless of the fact that they are disputed territory.

It’s evident that while both Vietnam and the Philippines feel most threatened by China’s “nine-dashed line,” those countries also feel that this line has a legal Achilles’ heel, which they seek to target with the concepts of UNCLOS such as EEZ, and of maritime delimitations, arguing that regardless of which country owns an island or rock, and of the fact that it might be disputed territory, the EEZ in certain areas belongs to larger landmasses.

The second interesting thing is that whoever drafted the letter chose not to use the conventional international name of “South China Sea.” Instead, they chose to use a combination of the Filipino and Vietnamese names, “West Philippine Sea/East Sea.” Are we about to see something similar to South Korea’s challenge to the conventional name “Sea of Japan”?

However, most interesting of all is the fact that this is the first time ever that members of the public in a country involved in the South China Sea disputes have expressed support for another in this way.

Still, perhaps this move shouldn’t come as a complete surprise given that in recent years most of the incidents in the South China Sea involve either China and Vietnam or China and the Philippines. With a common legal argument and facing a common, but much larger, opponent, there will likely be a tendency for the Vietnamese and the Filipinos to move towards a strategy of mutual support in the future.

Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet.

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South China Sea

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A South China Sea Plan – by Huy Duong, Tinh Le | The Diplomat

20 October 2011

by Huy Duong, Tinh Le | The Diplomat – The logical way to properly resolve theSouth China Sea disputes would first be to determine the ownership of the disputed islands, and then determine how much of the sea belongs to each island. However, given China’s opposition to using an international court or tribunal to resolve the disputes, and given that without a court ruling, no nation will give up its claim to the islands, there’s little prospect of resolving the question of island ownership any time soon.

South China Sea

The problem is that the claimants are stuck indefinitely at the first step, which means they never get around to defining the maritime space belonging to each island. This allows China to act as if most of the South China Sea were disputed, thus bringing the James Shoal, part of the Natuna Sea, the Reed Bank, the Vanguard Bank and Blocks 127 and 128 off the coast of Vietnam into the category of ‘disputed territory.’

Given the problems with the conventional approach, then, it’s imperative that Southeast Asian parties to the dispute find an alternative method – rather than wait for the answer to the question of island ownership, the claimants should do the reverse and first define the extent of the maritime space belonging to each disputed island. This can be done through negotiations or by submitting the question to an international court or tribunal.

How much maritime space belongs to an island obviously depends on the physical geography of that island when compared with surrounding territories, not on who owns it. Therefore, it should be possible to address this question independently of, and without prejudice to, the issue of island ownership.

Once the extent of the maritime space belonging to each island has been defined, the extent of the South China Sea disputes is also defined: those disputes comprise the disputed islands and the area of the sea that actually belongs to each island.

Although defining the extent of the South China Sea disputes doesn’t in itself resolve the problem, it would be the most significant progress forward in decades in managing this issue. For example, while much has been said about the Declaration of Conduct from 2002 between ASEAN and China, as well as on the idea of a new Code of Conduct, these instruments both have a fundamental shortcoming: they don’t define the extent of the disputes. Clearly, different action is necessary depending on whether a disputed or an undisputed area is concerned. It’s therefore necessary to define the extent of the disputed areas before devising the best approach for each area.

As another example, consider China’s proposal of shelving the sovereignty disputes and jointly exploiting the resources. In theory, that sounds like a reasonable proposal. In practice, it’s only reasonable if the joint exploitation is in disputed areas – the problem being, of course, that the extent of the disputed areas haven’t been agreed on by all parties. At the moment, China is demanding joint exploitation arbitrarily, in areas that are up to 700 nautical miles from the coast of China, but which are well within the 200 nautical mile EEZ of the coasts of the Philippines and Vietnam, and closer to those nations’ undisputed territories than to the disputed Paracels and Spratlys. This is clearly unreasonable, and it’s why China’s seemingly reasonable proposal isn’t actually workable. Defining the disputed area in a way that is consistent with international law is a prerequisite for any joint exploration.

Ultimately, defining the extent of the disputed areas would also improve security in the South China Sea. First, the disputes would be contained in clearly marked areas, rather than being expanded arbitrarily. Second, agreeing on what is actually in dispute would reduce mismatched expectations among claimants, which would, in turn, reduce tensions and the likelihood of incidents involving the use of force.

Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet.

(Original version is available at The Diplomat)

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The South China Sea Disputes: Why Conflict is not Inevitable? – by Rukmani Gupta | IDSA

17 October 2011

by Rukmani Gupta | IDSA – The South China Sea issue and China’s position on it have become subjects of much deliberation, especially since the ASEAN Regional Forum Meeting at Hanoi last July. It is generally believed that the South China Sea will emerge as the hot-spot of conflict in the coming years. Evidence of this is found in the heated rhetoric exchanged between parties to the dispute – most notably, China, Vietnam and the Philippines. A declaration by the United States that it has a “national interest” in the region was seen as its commitment to taking an active part in the issue, much to Chinese chagrin. In recent weeks, statements by Chinese officials reasserting China’s “indisputable sovereignty” over the South China Sea and warnings to India against investment in the region are seen as signs of Chinese aggressiveness that would inevitably precipitate conflict.

Suggestions for greater Indian involvement in the South China Sea disputes are made on the grounds that India must be forceful in its dealings with China. The continuation of ONGC Videsh Limited’s (OVL) investments in Vietnamese energy fields is certainly advisable. In fact, there is nothing to indicate that the Indian government is thinking otherwise. OVL’s presence in Vietnam is not a recent phenomenon. Its first joint-venture for offshore oil and natural gas exploration in Vietnam’s Lan Tay field along with Petro Vietnam and BP became functional in 2003. Deals for the investments now in the headlines were signed in May 2006; this is a project that will not be halted because of oblique Chinese statements. India simply need not take heed of Chinese views on Indian economic ventures.

What is worrisome however is the suggestion that Indian involvement should extend to taking an active part in the territorial disputes themselves, and that India should actively extend its naval presence – either to protect OVL’s investments (to be now deemed strategic and thereby meriting the backing of the Indian armed forces) or to protect the SLOCs. A closer bilateral relationship with Vietnam, Vietnamese rhetoric on the South China Sea disputes and its history of standing up to big powers are provided as rationale for India to engage and arm Vietnam to win a war in the South China Sea.

These suggestions to recalibrate Indian policy towards the South China Sea and its relationship with Vietnam as a linchpin in the process, are premature at best. Despite the rhetoric, conflict in the South China Sea may not be inevitable. If the history of dialogue between the parties is any indication then current tensions are likely to result in forward movement. In the aftermath of statements by the US and skirmishes over fishing vessels, ASEAN and China agreed upon The Guidelines on the Implementation of the Declaration on the Conduct of Parties in the South China Sea at the Bali Summit in July 2010. Recent tensions may well prod the parties towards a more binding code of conduct. This is not to suggest that territorial claims and sovereignty issues will be resolved, but certainly can become more manageable to prevent military conflict.

There is a common interest in making the disputes more manageable, essentially because, nationalistic rhetoric notwithstanding, the parties to the dispute recognize that there are real material benefits at stake. A disruption of maritime trade through the South China Sea would entail economic losses, and not only for the littoral states. No party to the dispute, including China, has thus far challenged the principle of freedom of navigation for global trade through the South China Sea. The states of the region are signatories to the UNCLOS, which provides that “Coastal States have sovereign rights in a 200-nautical mile exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection”; but that “All other States have freedom of navigation and overflight in the EEZ, as well as freedom to lay submarine cables and pipelines.” The prospect of threats to SLOCS thus seems somewhat exaggerated.

It will also be pertinent to remember that the states involved deem the dispute as only one part of larger bilateral relationships. The South China Sea is by no means the only calculus through which smaller countries view their relationship with China. Earlier in the month, Philippine President Aquino stated that the dispute in the South China Sea is but one aspect of the relationship with China. The country would continue to seek greater Chinese investment particularly in the fields of tourism and energy, among others. Vietnam too has not let its relationship with China be stymied by the disputes over the South China Sea. The General Secretary of Vietnam’s ruling Communist Party, Nguyen Phu Trong, visited Beijing last week and the joint statement issued stated that the two sides would “actively boost co-operation” in offshore oil and gas exploration and exploitation. It was also agreed that negotiations towards a peaceful settlement of the territorial disputes in the South China Sea would be speeded up, military cooperation between China and Vietnam would be strengthened, a hotline between defence ministers established and contacts between high-level officials would be increased. As of July 2011, China, ranking 14th among Vietnam’s foreign investors, had 805 operational projects in Vietnam with a capitalized value of USD 4.2 billion. Furthermore, China has been Vietnam’s largest trading partner since 2004. Bilateral trade between the two was valued at USD 27 billion in 2010; for the first half of 2011, the corresponding value was USD 16 billion. In the event of military hostilities, the first casualty would be the economic relationship, an outcome both countries are keen to avoid.

Despite what opinion pieces in the Global Times may say, there is reason to suspect that China does not want to escalate conflict in the region. Although commentary from the US has suggested that China considers the South China Sea a “core interest”, no official Chinese writing can be found to corroborate this. The designation of an issue as a “core interest” by China would imply the will to safeguard that interest with military means. Chinese scholars are wary about such a development. The caution advocated over the inclusion of the South China Sea into the pantheon of “core interests” is a clear indication that China is not prepared to engage in direct military confrontation over the issue. This caution can also be seen as a reflection on Chinese military capability, which is not yet assessed as being strong enough to win a war over the South China Sea. The China National Defense News published by the Chinese PLA’s General Political Department has likened the use of force by China in the South China Sea to shooting one’s own foot. Not only would the use of force bring ASEAN together on the issue, it could conceivably involve the US and Japan; derail China’s plans for continued economic growth and undo China’s diplomacy based on peaceful development and harmonious world conceptions. Chinese declarations on the South China Sea can be seen as attempts to exaggerate claims so as to obtain a better negotiating stance. The area is obviously disputed and Chinese claims to “indisputable sovereignty” do not make it any less so.

For India to revise its policy on the South China Sea in such conditions would be foolhardy. It is unclear how far Vietnam would be a willing partner in escalation of conflict with China. Given that escalation is not in China’s interests either, it remains unlikely that China will use military force to disrupt OVL’s operations (others such as ExonnMobil have continued to operate in areas China claims). In any case, India’s military relations with Vietnam should deter any such occurrence. There is no need for India to take positions on territorial disputes in which it is not involved. Perhaps India could take a page out of the US book on this matter. Despite claiming a “national interest” on the issue, the US has categorically stated that it will not take sides on the territorial disputes. A revision of Indian policy on the issue should be based on a clear understanding of what India stands to gain and how Indian national interest is strengthened. India’s relationships with South East Asian countries are not uni-dimensional. They are not geared only towards checking the Chinese imprint in the region but are reflective of India’s multifarious interests globally. As regards military support for OVL’s operations, the issue should be reflected upon seriously. It is one thing to build capabilities in order to deter misadventure, quite another to back investment with military might. This is a matter that will affect Indian ventures globally. Is India prepared – both in terms of military capability and policy implications – to send military backing for all such ventures? This is an issue that is larger than India’s relationship with Vietnam or China – it is a question of Indian values and vision in the long term.

 (Orginal version is available at IDSA)

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The South China Sea Is The Future Of Conflict – by Robert Kaplan | The CNAS

15 August 2011

by Robert Kaplan | The CNAS — Europe is a landscape; East Asia a seascape. Therein lies a crucial difference between the 20th and 21st centuries. The most contested areas of the globe in the last century lay on dry land in Europe, particularly in the flat expanse that rendered the eastern and western borders of Germany artificial and exposed to the inexorable march of armies. But over the span of the decades, the demographic and economic axis of the Earth has shifted measurably to the opposite end of Eurasia, where the spaces between major population centers are overwhelmingly maritime. 

Because of the way geography illuminates and sets priorities, these physical contours of East Asia augur a naval century — naval being defined here in the broad sense to include both sea and air battle formations now that they have become increasingly inextricable. Why? China, which, especially now that its land borders are more secure than at any time since the height of the Qing dynasty at the end of the 18th century, is engaged in an undeniable naval expansion. It is through sea power that China will psychologically erase two centuries of foreign transgressions on its territory — forcing every country around it to react.

Military engagements on land and at sea are vastly different, with major implications for the grand strategies needed to win — or avoid — them. Those on land enmesh civilian populations, in effect making human rights a signal element of war studies. Those at sea approach conflict as a clinical and technocratic affair, in effect reducing war to math, in marked contrast with the intellectual battles that helped define previous conflicts.

World War II was a moral struggle against fascism, the ideology responsible for the murder of tens of millions of noncombatants. The Cold War was a moral struggle against communism, an equally oppressive ideology by which the vast territories captured by the Red Army were ruled. The immediate post-Cold War period became a moral struggle against genocide in the Balkans and Central Africa, two places where ground warfare and crimes against humanity could not be separated. More recently, a moral struggle against radical Islam has drawn the United States deep into the mountainous confines of Afghanistan, where the humane treatment of millions of civilians is critical to the war’s success. In all these efforts, war and foreign policy have become subjects not only for soldiers and diplomats, but for humanists and intellectuals. Indeed, counterinsurgency represents a culmination of sorts of the union between uniformed officers and human rights experts. This is the upshot of ground war evolving into total war in the modern age.

East Asia, or more precisely the Western Pacific, which is quickly becoming the world’s new center of naval activity, presages a fundamentally different dynamic. It will likely produce relatively few moral dilemmas of the kind we have been used to in the 20th and early 21st centuries, with the remote possibility of land warfare on the Korean Peninsula as the striking exception. The Western Pacific will return military affairs to the narrow realm of defense experts. This is not merely because we are dealing with a naval realm, in which civilians are not present. It is also because of the nature of the states themselves in East Asia, which, like China, may be strongly authoritarian but in most cases are not tyrannical or deeply inhumane.

The struggle for primacy in the Western Pacific will not necessarily involve combat; much of what takes place will happen quietly and over the horizon in blank sea space, at a glacial tempo befitting the slow, steady accommodation to superior economic and military power that states have made throughout history. War is far from inevitable even if competition is a given. And if China and the United States manage the coming handoff successfully, Asia, and the world, will be a more secure, prosperous place. What could be more moral than that? Remember: It is realism in the service of the national interest — whose goal is the avoidance of war — that has saved lives over the span of history far more than humanitarian interventionism.

EAST ASIA IS A VAST, YAWNING EXPANSE stretching nearly from the Arctic to Antarctic — from the Kuril Islands southward to New Zealand — and characterized by a shattered array of isolated coastlines and far-flung archipelagos. Even accounting for how dramatically technology has compressed distance, the sea itself still acts as a barrier to aggression, at least to a degree that dry land does not. The sea, unlike land, creates clearly defined borders, giving it the potential to reduce conflict. Then there is speed to consider. Even the fastest warships travel comparatively slowly, 35 knots, say, reducing the chance of miscalculations and giving diplomats more hours — days, even — to reconsider decisions. Navies and air forces simply do not occupy territory the way that armies do. It is because of the seas around East Asia — the center of global manufacturing as well as rising military purchases — that the 21st century has a better chance than the 20th of avoiding great military conflagrations.

Of course, East Asia saw great military conflagrations in the 20th century, which the seas did not prevent: the Russo-Japanese War; the almost half-century of civil war in China that came with the slow collapse of the Qing dynasty; the various conquests of imperial Japan, followed by World War II in the Pacific; the Korean War; the wars in Cambodia and Laos; and the two in Vietnam involving the French and the Americans. The fact that the geography of East Asia is primarily maritime had little impact on such wars, which at their core were conflicts of national consolidation or liberation. But that age for the most part lies behind us. East Asian militaries, rather than focusing inward with low-tech armies, are focusing outward with high-tech navies and air forces.

As for the comparison between China today and Germany on the eve of World War I that many make, it is flawed: Whereas Germany was primarily a land power, owing to the geography of Europe, China will be primarily a naval power, owing to the geography of East Asia.

East Asia can be divided into two general areas: Northeast Asia, dominated by the Korean Peninsula, and Southeast Asia, dominated by the South China Sea. Northeast Asia pivots on the destiny of North Korea, an isolated, totalitarian state with dim prospects in a world governed by capitalism and electronic communication. Were North Korea to implode, Chinese, U.S., and South Korean ground forces might meet up on the peninsula’s northern half in the mother of all humanitarian interventions, even as they carve out spheres of influence for themselves. Naval issues would be secondary. But an eventual reunification of Korea would soon bring naval issues to the fore, with a Greater Korea, China, and Japan in delicate equipoise, separated by the Sea of Japan and the Yellow and Bohai seas. Yet because North Korea still exists, the Cold War phase of Northeast Asian history is not entirely over, and land power may well come to dominate the news there before sea power will.

Southeast Asia, by contrast, is already deep into the post-Cold War phase of history. Vietnam, which dominates the western shore of the South China Sea, is a capitalist juggernaut despite its political system, seeking closer military ties to the United States. China, consolidated as a dynastic state by Mao Zedong after decades of chaos and made into the world’s most dynamic economy by the liberalizations of Deng Xiaoping, is pressing outward with its navy to what it calls the “first island chain” in the Western Pacific. The Muslim behemoth of Indonesia, having endured and finally ended decades of military rule, is poised to emerge as a second India: a vibrant and stable democracy with the potential to project power by way of its growing economy. Singapore and Malaysia are also surging forward economically, in devotion to the city-state-cum-trading-state model and through varying blends of democracy and authoritarianism. The composite picture is of a cluster of states, which, with problems of domestic legitimacy and state-building behind them, are ready to advance their perceived territorial rights beyond their own shores. This outward collective push is located in the demographic cockpit of the globe, for it is in Southeast Asia, with its 615 million people, where China’s 1.3 billion people converge with the Indian subcontinent’s 1.5 billion people. And the geographical meeting place of these states, and their militaries, is maritime: the South China Sea.

The South China Sea joins the Southeast Asian states with the Western Pacific, functioning as the throat of global sea routes. Here is the center of maritime Eurasia, punctuated by the straits of Malacca, Sunda, Lombok, and Makassar. More than half the world’s annual merchant fleet tonnage passes through these choke points, and a third of all maritime traffic. The oil transported through the Strait of Malacca from the Indian Ocean, en route to East Asia through the South China Sea, is more than six times the amount that passes through the Suez Canal and 17 times the amount that transits the Panama Canal. Roughly two-thirds of South Korea’s energy supplies, nearly 60 percent of Japan’s and Taiwan’s energy supplies, and about 80 percent of China’s crude-oil imports come through the South China Sea. What’s more, the South China Sea has proven oil reserves of 7 billion barrels and an estimated 900 trillion cubic feet of natural gas, a potentially huge bounty.

It is not only location and energy reserves that promise to give the South China Sea critical geostrategic importance, but also the coldblooded territorial disputes that have long surrounded these waters. Several disputes concern the Spratly Islands, a mini-archipelago in the South China Sea’s southeastern part. Vietnam, Taiwan, and China each claim all or most of the South China Sea, as well as all of the Spratly and Paracel island groups. In particular, Beijing asserts a historical line: It lays claim to the heart of the South China Sea in a grand loop (widely known as the “cow’s tongue”) from China’s Hainan Island at the South China Sea’s northern end all the way south 1,200 miles to near Singapore and Malaysia.

The result is that all nine states that touch the South China Sea are more or less arrayed against China and therefore dependent on the United States for diplomatic and military support. These conflicting claims are likely to become even more acute as Asia’s spiraling energy demands — energy consumption is expected to double by 2030, with China accounting for half that growth — make the South China Sea the ever more central guarantor of the region’s economic strength. Already, the South China Sea has increasingly become an armed camp, as the claimants build up and modernize their navies, even as the scramble for islands and reefs in recent decades is mostly over. China has so far confiscated 12 geographical features, Taiwan one, Vietnam 25, the Philippines eight, and Malaysia five.

China’s very geography orients it in the direction of the South China Sea. China looks south toward a basin of water formed, in clockwise direction, by Taiwan, the Philippines, the island of Borneo split between Malaysia and Indonesia (as well as tiny Brunei), the Malay Peninsula divided between Malaysia and Thailand, and the long snaking coastline of Vietnam: weak states all, compared with China. Like the Caribbean Sea, punctuated as it is by small island states and enveloped by a continental-sized United States, the South China Sea is an obvious arena for the projection of Chinese power.

Indeed, China’s position here is in many ways akin to America’s position vis-à-vis the similar-sized Caribbean in the 19th and early 20th centuries. The United States recognized the presence and claims of European powers in the Caribbean, but sought to dominate the region nevertheless. It was the 1898 Spanish-American War and the digging of the Panama Canal from 1904 to 1914 that signified the United States’ arrival as a world power. Domination of the greater Caribbean Basin, moreover, gave the United States effective control of the Western Hemisphere, which allowed it to affect the balance of power in the Eastern Hemisphere. And today China finds itself in a similar situation in the South China Sea, an antechamber of the Indian Ocean, where China also desires a naval presence to protect its Middle Eastern energy supplies.

Yet something deeper and more emotional than geography propels China forward into the South China Sea and out into the Pacific: that is, China’s own partial breakup by the Western powers in the relatively recent past, after having been for millennia a great power and world civilization.

In the 19th century, as the Qing dynasty became the sick man of East Asia, China lost much of its territory to Britain, France, Japan, and Russia. In the 20th century came the bloody Japanese takeovers of the Shandong Peninsula and Manchuria. This all came atop the humiliations forced on China by the extraterritoriality agreements of the 19th and early 20th centuries, whereby Western countries wrested control of parts of Chinese cities — the so-called “treaty ports.” By 1938, as Yale University historian Jonathan D. Spence tells us in The Search for Modern China, because of these depredations as well as the Chinese Civil War, there was even a latent fear that “China wasabout to be dismembered, that it would cease to exist as a nation, and that the four thousand years of its recorded history would come to a jolting end.” China’s urge for expansion is a declaration that it never again intends to let foreigners take advantage of it.

JUST AS GERMAN SOIL constituted the military front line of the Cold War, the waters of the South China Sea may constitute the military front line of the coming decades. As China’s navy becomes stronger and as China’s claim on the South China Sea contradicts those of other littoral states, these other states will be forced to further develop their naval capacities. They will also balance against China by relying increasingly on the U.S. Navy, whose strength has probably peaked in relative terms, even as it must divert considerable resources to the Middle East. Worldwide multipolarity is already a feature of diplomacy and economics, but the South China Sea could show us what multipolarity in a military sense actually looks like.

There is nothing romantic about this new front, void as it is of moral struggles. In naval conflicts, unless there is shelling onshore, there are no victims per se; nor is there a philosophical enemy to confront. Nothing on the scale of ethnic cleansing is likely to occur in this new central theater of conflict. China, its suffering dissidents notwithstanding, simply does not measure up as an object of moral fury. The Chinese regime demonstrates only a low-calorie version of authoritarianism, with a capitalist economy and little governing ideology to speak of. Moreover, China is likely to become more open rather than closed as a society in future years. Instead of fascism or militarism, China, along with other states in East Asia, is increasingly defined by the persistence of old-fashioned nationalism: an idea, certainly, but not one that since the mid-19th century has been attractive to intellectuals. And even if China does become more democratic, its nationalism is likely only to increase, as even a casual survey of the views of its relatively freewheeling netizens makes clear.

We often think of nationalism as a reactionary sentiment, a relic of the 19th century. Yet it is traditional nationalism that mainly drives politics in Asia, and will continue to do so. That nationalism is leading unapologetically to the growth of militaries in the region — navies and air forces especially — to defend sovereignty and make claims for disputed natural resources. There is no philosophical allure here. It is all about the cold logic of the balance of power. To the degree that unsentimental realism, which is allied with nationalism, has a geographical home, it is the South China Sea.

Whatever moral drama does occur in East Asia will thus take the form of austere power politics of the sort that leaves many intellectuals and journalists numb. As Thucydides put it so memorably in his telling of the ancient Athenians’ subjugation of the island of Melos, “The strong do what they can and the weak suffer what they must.” In the 21st-century retelling, with China in Athens’s role as the preeminent regional sea power, the weak will still submit — but that’s it. This will be China’s undeclared strategy, and the smaller countries of Southeast Asia may well bandwagon with the United States to avoid the Melians’ fate. But slaughter there will be not.

The South China Sea presages a different form of conflict than the ones to which we have become accustomed. Since the beginning of the 20th century, we have been traumatized by massive, conventional land engagements on the one hand, and dirty, irregular small wars on the other. Because both kinds of war produced massive civilian casualties, war has been a subject for humanists as well as generals. But in the future we just might see a purer form of conflict, limited to the naval realm. This is a positive scenario. Conflict cannot be eliminated from the human condition altogether. A theme in Machiavelli’s Discourses on Livy is that conflict, properly controlled, is more likely than rigid stability to lead to human progress. A sea crowded with warships does not contradict an era of great promise for Asia. Insecurity often breeds dynamism.

But can conflict in the South China Sea be properly controlled? My argument thus far presupposes that major warfare will not break out in the area and that instead countries will be content to jockey for position with their warships on the high seas, while making competing claims for natural resources and perhaps even agreeing to a fair distribution of them. But what if China were, against all evidential trends, to invade Taiwan? What if China and Vietnam, whose intense rivalry reaches far back into history, go to war as they did in 1979, with more lethal weaponry this time? For it isn’t just China that is dramatically building its military; Southeast Asian countries are as well. Their defense budgets have increased by about a third in the past decade, even as European defense budgets have declined. Arms imports to Indonesia, Singapore, and Malaysia have gone up 84 percent, 146 percent, and 722 percent, respectively, since 2000. The spending is on naval and air platforms: surface warships, submarines with advanced missile systems, and long-range fighter jets. Vietnam recently spent $2 billion on six state-of-the-art Kilo-class Russian submarines and $1 billion on Russian fighter jets. Malaysia just opened a submarine base on Borneo. While the United States has been distracted by land wars in the greater Middle East, military power has been quietly shifting from Europe to Asia.

The United States presently guarantees the uneasy status quo in the South China Sea, limiting China’s aggression mainly to its maps and serving as a check on China’s diplomats and navy (though this is not to say that America is pure in its actions and China automatically the villain). What the United States provides to the countries of the South China Sea region is less the fact of its democratic virtue than the fact of its raw muscle. It is the very balance of power between the United States and China that ultimately keeps Vietnam, Taiwan, the Philippines, Indonesia, Singapore, and Malaysia free, able to play one great power off against the other. And within that space of freedom, regionalism can emerge as a power in its own right, in the form of the Association of Southeast Asian Nations (ASEAN). Yet, such freedom cannot be taken for granted. For the tense, ongoing standoff between the United States and China — which extends to a complex array of topics from trade to currency reform to cybersecurity to intelligence surveillance — threatens eventually to shift in China’s favor in East Asia, largely due to China’s geographical centrality to the region.

THE MOST COMPREHENSIVE SUMMATION of the new Asian geopolitical landscape has come not from Washington or Beijing, but from Canberra. In a 74-page article published last year, “Power Shift: Australia’s Future Between Washington and Beijing,” Hugh White, professor of strategic studies at the Australian National University, describes his country as the quintessential “status quo” power — one that desperately wants the situation in Asia to remain exactly as it is, with China continuing to grow so that Australia can trade more and more with it, while America remains “the strongest power in Asia,” so as to be Australia’s “ultimate protector.” But as White writes, the problem is that both of these things cannot go on. Asia cannot continue to change economically without changing politically and strategically; a Chinese economic behemoth naturally will not be content with American military primacy in Asia.

What does China want? White posits that the Chinese may desire in Asia the kind of new-style empire that the United States engineered in the Western Hemisphere once Washington had secured dominance over the Caribbean Basin (as Beijing hopes it will over the South China Sea). This new-style empire, in White’s words, meant America’s neighbors were “more or less free to run their own countries,” even as Washington insisted that its views be given “full consideration” and take precedence over those of outside powers. The problem with this model is Japan, which would probably not accept Chinese hegemony, however soft. That leaves the Concert of Europe model, in which China, India, Japan, the United States, and perhaps one or two others would sit down at the table of Asian power as equals. But would the United States accept such a modest role, since it has associated Asian prosperity and stability with its own primacy? White suggests that in the face of rising Chinese power, American dominance might henceforth mean instability for Asia.

American dominance is predicated on the notion that because China is authoritarian at home, it will act “unacceptably abroad.” But that may not be so, White argues. China’s conception of itself is that of a benign, non-hegemonic power, one that does not interfere in the domestic philosophies of other states in the way the United States — with its busybody morality — does. Because China sees itself as the Middle Kingdom, its basis of dominance is its own inherent centrality to world history, rather than any system it seeks to export.

In other words, the United States, not China, might be the problem in the future. We may actually care too much about the internal nature of the Chinese regime and seek to limit China’s power abroad because we do not like its domestic policies. Instead, America’s aim in Asia should be balance, not dominance. It is precisely because hard power is still the key to international relations that we must make room for a rising China. The United States need not increase its naval power in the Western Pacific, but it cannot afford to substantially decrease it.

The loss of a U.S. aircraft carrier strike group in the Western Pacific due to budget cuts or a redeployment to the Middle East could cause intense discussions in the region about American decline and the consequent need to make amends and side deals with Beijing. The optimal situation is a U.S. air and naval presence at more or less the current level, even as the United States does all in its power to forge cordial and predictable ties with China. That way America can adjust over time to a Chinese blue-water navy. In international affairs, behind all questions of morality lie questions of power. Humanitarian intervention in the Balkans was possible only because the Serbian regime was weak, unlike the Russian regime, which was committing atrocities of a similar scale in Chechnya while the West did nothing. In the Western Pacific in the coming decades, morality may mean giving up some of our most cherished ideals for the sake of stability. How else are we to make room for a quasi-authoritarian China as its military expands? The balance of power itself, even more than the democratic values of the West, is often the best safeguard of freedom. That, too, will be a lesson of the South China Sea in the 21st century — another one that idealists do not want to hear.

 

(Original version is available at The CNAS)

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China’s U-Shaped Claims – by Huy Duong | The Diplomat Blog

09 June 2011

by Huy Duong | The Diplomat Blog – Late last month, tension in the South China Sea was ratcheted up a further when three Chinese marine surveillance ships threatened the Vietnamese seismic survey ship Binh Minh 02 and sabotaged its seismic equipment. The incident took place 120 nautical miles from Vietnam’s mainland coast and 340 nautical miles from China’s Hainan Island, well inside Vietnam’s 200-nautical-mile exclusive economic zone (EEZ).

China's U-Shaped ClaimsFor anyone wondering if this incident is somehow tied to the Paracels and Spratlys disputes, then the answer is no. The Binh Minh incident took place closer to the Vietnamese coast than the Paracels or the Spratlys. According to international law and state practice, the Spratlys and Paracels’ islands and rocks are only entitled to either a territorial sea of 12 nautical miles or, at most, a territorial sea plus an EEZ that doesn’t extend much beyond 12 nautical miles. By no stretch of the imagination, then, could their EEZs extend to or past the midlines between them and the coastlines surrounding the South China Sea.

With this in mind, it has been interesting to follow the ensuing war of words between Vietnam and China.

On May 27, Vietnam sent a diplomatic note to the Chinese Ambassador in Hanoi accusing China of violating the United Nations Convention on the Law of the Sea (UNCLOS) and Vietnam’s sovereign rights in its exclusive economic zone and continental shelf.

The following day, China retorted that what it did was ‘completely normal marine law enforcement and surveillance activities in China’s jurisdictional sea area.’

But as ‘jurisdictional sea area’ isn’t one of the maritime zones defined in the UNCLOS, it remains unclear what exactly China meant by that term, and what might be the legal basis for it.

The exchange of barbs continued on May 29, when Vietnam retaliated by saying that it was conducting its exploration entirely within its 200-nautical-mile EEZ and continental shelf, ‘in accordance with the 1982 United Nations Convention on the Law of the Sea. It is neither a disputed area nor is it an area “managed by China.” China has deliberately misled the public into thinking that it is a disputed area.’

Effectively, Vietnam was saying that the area wasn’t part of the Paracels and Spratlys disputes.

Two days later, China hit back, claiming that its action was, ‘law enforcement activities by Chinese maritime surveillance ships against Vietnam’s illegally operating ships are completely justified.’ It urged Vietnam to ‘immediately stop infringement activities and refrain from creating new troubles.’

Once again, China failed to state its claim in terms of UNCLOS maritime zones. Nor did it specify any limit or cite international law to support its claim.

This latest development bears a striking resemblance to the Reed Bank incident in March, when two Chinese patrol boats threatened a seismic survey ship operating on behalf of the Philippines. That incident also took place nearer to the Philippines’ Palawan coast than to the contested Spratlys. In both cases, China asserted its claims without any limit or justification based on the UNCLOS or international law. The Philippines’ riposte was that the Reed Bank isn’t part of the Spratlys and therefore isn’t subject to the Spratlys dispute.

In the past, China has made similar claims against Malaysia at James’ Shoal, against Indonesia over the waters near the Natuna Islands, and against Vietnam in the Vanguard Bank and Blue Dragon areas. These claims, together with the Reed Bank and Binh Minh incidents, should dispel any doubts that China is trying to expand its control well beyond the disputed Paracels, Spratlys and Scarborough Reef, and their associated waters.

A common feature with all these claims and clashes is that they all involve areas inside the mysterious ‘;U-shaped line’ that, some time during the last century, China started putting on its maps. Over the years, this U-shaped line gradually expanded until it covered most of the South China Sea, to within less than a hundred nautical miles of other countries’ coastlines, without any justification based on international law or customs.

Although the Philippines, Vietnam, Malaysia, Indonesia and Brunei are all directly affected by this expansionist policy, the first two, being the countries that are nearest to China, will bear the brunt of Chinese expansion, for a number of reasons.

First, these two nations’ maritime spaces will clearly be affected the most. Second, if China doesn’t try to claim the Philippines and Vietnam’s maritime spaces, its claims over Malaysia’s, Indonesia’s and Brunei’s will disintegrate. This means that while China might make compromises at the southern tip of its notorious U-shaped line to keep Malaysia, Indonesia and Brunei quiet while it deals with the Philippines and Vietnam first, it can’t do the reverse and give up its claims in the Philippines’ and Vietnam’s maritime spaces in order to gain the southern tip. Of course, if China is successful in getting its way against the Philippines and Vietnam, Malaysia’s, Indonesia’s and Brunei’s turns will come.

As a result, both the Philippines and Vietnam have been put in a situation where they need to resolutely protect their legitimate maritime spaces. At stake are more than economic interests: they also have reasons to fear that their security and national independence are threatened.

Although there remain differences between the Philippines and Vietnam over the Spratlys, there’s much more scope for the two nations to co-operate in defending their respective maritime spaces that don’t belong to the Spratlys. Given China’s extensive claims, these maritime spaces may be far more significant than those belonging to the disputed Spratlys.

The Philippines’ note verbale to the Commission on the Limits of the Continental Shelf after the Reed Bank incident highlights how the country is using UNCLOS to defend its rights in the South China Sea. With Vietnam relying on the same body of law, the two nations have a common framework for co-operation.

For example, if Vietnam and the Philippines could voice their diplomatic support for each other in incidents such as the Reed Bank and Binh Minh ones, it would benefit both nations. More fundamentally, though, analysts and diplomats from the two nations should get together with their counterparts from Malaysia, Brunei and Indonesia to decide what exactly the Spratlys consist of and how much maritime space can be attributed to them, which would lead to a collective agreement on the extent of the contested areas in the South China Sea. This will help these nations in individually and collectively opposing China’s attempts to expand the South China Sea dispute into previously uncontested areas. It will also help to convince the world of the merit of their case.

Another path that the Philippines and Vietnam could explore is making joint submissions of their continental shelf claims to the Commission on the Limits of the Continental Shelf, possibly with the participation of Malaysia and Brunei.

Either of these actions would be without prejudice to the question of sovereignty over the Spratlys, and would benefit the Philippines and Vietnam enormously in counteracting China’s expansive claims in the South China Sea.

Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet.

 

(Original version is available at The Diplomat Blog)

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