Tag Archive | "south east asia sea"

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Trouble outside the Gulf of Tonkin – by Huy Duong and Van Pham | CSIS Blog

14 December 2012

by Huy Duong and Van Pham | CSIS Blog – On November 30, 2012, two Chinese trawlers operating just outside the Gulf of Tonkin ran across the seismic cable being towed by a Vietnamese survey ship and severed it. Vietnam sent a diplomatic note to China’s embassy in Hanoi to protest. In response, China claimed that this concerns an area of overlapping claims and demanded that Vietnam stop unilateral oil and gas activities.

This incident took place at 17º26’N, 108º02’E—roughly 43 nautical miles from Vietnam’s Con Co Island, 54 nautical miles from Vietnam’s mainland coast, and 75 miles from China’s Hainan Island. It was 210 miles from the disputed Paracel Islands, and is therefore unrelated to the dispute over that archipelago.

Although China and Vietnam agreed to a boundary between their waters inside the Gulf of Tonkin in 2000, the two countries are still negotiating a boundary for the area outside its entrance.

If international law or international practice of maritime delimitation is applied, there is little doubt that the negotiated boundary will be at approximately equal distance from China’s Hainan Island and Vietnam’s mainland coast and coastal islands.

If the boundary were drawn in a way that is most favorable to Vietnam (i.e., halfway between Con Co Island and Hainan), then the location of this incident would be 13.5 nautical miles nearer to the Vietnamese mainland coast than this boundary.

Conversely, if the boundary were drawn in a way that is most favorable to China (i.e., halfway between Vietnam’s mainland coast and Hainan, disregarding Vietnam’s Con Co Island), then the location of this incident would still be 10.5 nautical miles nearer to the Vietnamese mainland coast than this boundary.

A reasonable compromise would be for the boundary to lie exactly between the two above-mentioned positions. The location of the cable-cutting incident is 12 nautical miles nearer to Vietnam than this compromise boundary.

In claiming that the cable-cutting incident had taken place in an area of overlapping claims, China is claiming at least 12 nautical miles past the compromise boundary above, and 10.5 nautical miles past even the boundary that is most favorable to itself.

Thus far, China has not indicated the basis for this claim, but it would be difficult to find a legal justification for why a maritime area 75 nautical miles from Hainan and 54 nautical miles from Vietnam’s mainland coast should belong to China. It is apparent that China is seeking to treat an area that it cannot reasonably dispute as a disputed area, and there are three possible explanations for this.

It might be China’s negotiating tactic to claim far beyond all possible equidistance lines, so that when a compromise is reached it will still end up with a part of the area beyond those lines.

The second hypothesis is that China does not accept the use of equidistance lines for drawing the boundary for this area. In pursuing its various claims around the “U-shaped line”, China has been referring to “historic waters” and “historic rights”. It is possible that China wishes to apply these arguments to the demarcation of this area.

The third hypothesis is that China does not want to demarcate this area at all, preferring instead to “set aside the dispute and pursue joint development” even in an area where it does not have a reasonable claim.

Due to the asymmetry of power between the two countries, a negotiated boundary based on the use of equidistance lines, as per legal and international norms for the demarcation of similar areas, will best protect Vietnam’s rights. Joint development might be a temporary solution or might operate in conjunction with this boundary, but cannot be a viable long term substitute for it. Unfortunately, this asymmetry also means that Vietnam’s options might be limited should China choose one or a combination of the three above-mentioned scenarios.

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

(Original version is available at CSIS Blog)

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Dangerous waters: Behind the islands dispute – by Kevin Voigt | CNN

24 September 2012

by Kevin Voigt | CNN - Hong Kong – When Chinese Vice President Xi Jinping called Tokyo’s territorial claims on a group of East China Seas island “a farce,” he echoed national sentiment of protesters who took to the streets in anti-Japan protests in recent weeks.


Islands’ former owner comments on furor par CNN_International

“Japan should rein in its behavior, not utter any words and prevent any acts that undermine China’s sovereignty and territorial integrity,” said Xi — who is expected to become China’s new president next month — at a Wednesday meeting with U.S. Defense Secretary Leon Panetta, state media reported.

As Beijing’s presumptive new leader wades into the Japan-China dispute, analysts say the stakes are being raised in a dispute that is largely being led by nationalist fervor rather than government policy or underlining economic interests. And the détente that usually follows these territorial disputes is muddied by the leadership change in Beijing expected next month.

“This is where it’s becoming dangerous,” said Alan DuPont, defense expert at the University of New South Wales. “No incoming Chinese leader can be perceived to be weak on territorial claims.”

On Monday, the Japan Coast Guard said two Chinese surveillance ships entered its territorial waters, while 10 other Chinese ships patrolled nearby. Meanwhile, China announced Sunday it was postponing planned celebrations later this month marking the 40th anniversary of normalization of relations between Beijing and Tokyo.

The bellicose rhetoric also charts the rise of an assertive China and a sea change in the forces shaping Pacific politics that are writ small in the battle over the uninhabited island chain, known as Diaoyu in China and Senkaku in Japan.

“China’s feeling more confident both in its position and in its right to the area both legally and politically,” Mark Valencia, a fellow at the National Asia Research Program and expert on the South China Sea dispute. “And nationalism in China has gained strength and influencing the government.”

Rising tensions in China waters

The East China Sea isn’t the only flashpoint for territorial tensions among China and its neighbors. The South China Sea is dotted with hundreds of largely uninhabited islands and coral atolls, many of which have competing claims from China, Vietnam, the Philippines, Malaysia, Brunei and Taiwan. Just like the friction with Japan, there have been increasing incidents of tension between China and its South China Sea neighbors over island claims.

In 2011, Vietnam claimed that Chinese patrol boats cut cables from PetroVietnam boats during oil and gas surveys in disputed waters. Beijing said that Vietnamese vessels have been illegally surveying in Chinese waters and harassing Chinese fishing boats. The same year Philippines also reported boats cutting cables of a survey ship and threatening to ram its boats.

“A lot of this wouldn’t be happening if China wasn’t becoming more assertive and being more confident, and that’s one important issue why all these issues are becoming more salient,” DuPont said.

The difference in the East China Sea is the collective might of China and Japan, the second and third largest economies in the world, respectively. “When you have two major nation states involved, it’s more dangerous than the (South China Sea),” DuPont said.

A nationalist wave

The often violent protests that broke out in dozens of Chinese cities — from Guangzhou in the south to Qingdao in the north — came to a head after the Japanese government bought the disputed islands from the Japanese family that have privately owned the islands on September 11 for 2.05 billion yen (US$26.2 million).

Dozens of Japanese factories and businesses temporarily shut their doors in the wake of the violence as angry crowds overturned Japanese brand cars and looted Japanese stores in some areas. The island dispute, which traces back centuries, have reached diplomatic boiling points in 1996, 2005 and most recently in 2010, when a Chinese boat allegedly rammed a Japanese patrol boat, resulting in the arrest of the Chinese sailors.

“I don’t think anyone thought the Chinese reaction would have been as strong as it was, and I don’t think anyone expected the level of violence that we saw, especially looking at past incidents,” said James Manicom, an expert on maritime disputes at the Balsillie School of International Affairs in Waterloo, Canada.

The “nationalization” of the islands infuriated Chinese, although analysts say Tokyo’s move was an effort to wrest the issue away from Japanese nationalists, led by Tokyo Governor Shintaro Ishihara who launched an online appeal to buy the islands. Donations poured in, prompting a sharp rebuke from China and forcing the Japanese government to wade into the dispute with its own offer for the contested land.

“If you’re interested in stability, the Japanese government is better than owning the islands than a group of nationalists, because who knows how they might raise tensions,” Manicom said. “(Prime Minister) Noda’s calculation is, this is going to explode in the short-run, in the long run it’s better.”

Economic interests

Although nationalistic ardor on both sides of the dispute have brought the current situation to a boil, national interest in the territory can be traced to a 1969 United Nations geological survey that contains this tantalizing line: “A high probability exists that the continental shelf between Taiwan and Japan may be one of the most prolific oil reserves in the world.”

Also under its South China Sea lie potentially huge reserves of natural gas and oil. A Chinese estimate suggests as much as 213 billion barrels of oil lie untapped in the South China Sea – which, if true, would make it the largest oil reserves outside of Saudi Arabia, according to the U.S. Energy Information Administration.

At the heart of all these island disputes in China Seas is a term of international maritime law known as “;Exclusive Economic Zone,” where nations are allowed sole rights to fish and develop resources within 200 nautical miles of a country’s shores. That has created interest in nation’s grabbing uninhabited islands – often little more than rocky atolls – to thereby extend their zone.

“The area is starting to look a little bit like Alaska, at first looked worthless, now may not be worthless,” Valencia said. “The East China Sea is virtually all continental shelf, which means it’s all relatively easy digging except in typhoon season.”

But the likelihood the areas will be developed dwindles as the political storm brews between China and Japan. If this fracas follows past contretemps, the two sides will cool for a few months before rapprochement from high-level officials on both sides. But with the leadership change coming in China, and leadership elections imminent in Japan’s two major parties, the likelihood is tensions will remain high. “No one wants to be perceived as soft on China,” Manicom said.

Meanwhile, as historic enmities over Japan’s war past inflame tensions in China, public sentiment is changing in Japan toward China.

“The result is the average Japanese person views China with more suspicion than the past,” Manicom said. “You can now be anti-China in Japan and not be conservative, which is a development that I think took Beijing by surprise.”

(Orginal version is available at CNN)

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China’s “U-shaped Line” in the South China Sea – by Huy Duong | Asia Sentinel

19 September 2012

(C) Huy Duong | Asia Sentinel

China’s four possible positions

China’s claims to the disputed islands in the South China Sea and their inclusion on a map that depicts a U-shaped line that comes perilously close to the coastal waters of the countries that abut the sea, have given rise to concern and debate about the line’s meaning. At stake are billions of dollars in fishing and mineral rights that all of the parties to the debate each claim as their own.

Although the dispute over the Paracels started as long ago as 1909 between China and colonial Vietnam, then represented by France, and that over the Spratlys started in the 1930s between France and Japan, the arguments over the maritime space beyond 12 nautical miles from these islands are relatively recent.

In the 1960s Indonesia and Malaysia began to make claims to the continental shelf in the southern part of the South China Sea and in 1969 the two countries signed a demarcation agreement. In 1971 the then Republic of Vietnam, i.e., South Vietnam, declared a continental shelf claim that overlapped with those of Malaysia and Indonesia.

China — that is, the pre-1949 Kuomintang government — advanced a claim to the Spratlys from the end of the Second World War, and published a map in 1948 showing the now-well-known U-shaped line. Although the area inside that line overlaps the continental shelf claims of Indonesia, Malaysia and South Vietnam, neither the People’s Republic of China in Beijing nor the Nationalists now camped in Taipei objected to these claims, nor to the 1969 Indonesia-Malaysia agreement, nor did they advance any claims of their own.
In the 1990s, however, the government in Beijing started to protest against Vietnam’s oil and gas activities in the Nam Con Son and Vanguard Bank areas, and in 1992 it awarded an area of 25,000 sq km in the Vanguard Bank area to a US company. Since then, China’s words and actions in claiming maritime space far beyond 12 nautical miles from the disputed islands have been increasingly assertive.

In this context, China’s inclusion of a map that depicts the U-shaped line in unsigned diplomatic notes sent to the Commission on The Limit of the Continental Shelf in 2009, without explanation of the line’s meaning, has given rise to much discussion. Experts and diplomats ponder what China intends to claim inside that line and how China might use that line to support its claims.

Four potential meanings of the U-shaped line have been advanced and will be considered here.

Interpretations:

  1. China’s Foreign Ministry has stated that China claims the islands inside the U-shaped line. By international law, this would include the 12-nautical-mile territorial sea and any EXCLUSIVE ZONE and continental shelf that these islands generate. If this is all what China is claiming, with no implication that this line represents a claim to rights over maritime space right up to it, then this would be the most reasonable and legally valid interpretation of the U-shaped line. If the U-shaped line represents such claims, it is no more controversial than the claims to islands by other states. However, China has not stated that this is all what the U-shaped line represents.
  2. The government of the Republic of China (i.e., the Taiwan authorities), which is not recognized as a sovereign state, has described the area inside the U-shaped line as historical waters. This view is shared by some mainland scholars. However, international law has never recognized claims of historical waters that extend so far out to sea and cover such a vast area. In any case, there is no evidence that China has historically exercised sovereignty over the area enclosed by the U-shaped line. Therefore the interpretation of the area inside the U-shaped line as historical waters is overwhelmingly rejected by international law and evidence. Furthermore, given that historical waters are normally enclosed by baselines rather than lie outside them, such interpretation would be inconsistent with baseline declarations made by the PRC.
  3. China’s diplomatic note to the CLCS in 2009 in relation to Vietnam and Malaysia’s unilateral and joint CLCS submissions claim sovereignty over the “adjacent waters” of the islands in the South China Sea and sovereign rights and jurisdiction over “relevant waters as well as the seabed and subsoil thereof”, referring to a map on which the U-shaped line is depicted, but without declaring that this line demarcates any of these areas. In 2011, China submitted a further asserting that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zones and Continental Shelf”. These notes seem to support a third interpretation: that China intends to claim the area inside the U-shaped line as an exclusive zone and continental shelf generated by the disputed Paracels, Spratlys and Scarborough Reef. However, while this is a possible speculation, there has been no official statement from China to confirm it. Further, given that the U-shaped line for the most part lies closer to undisputed territories than to the disputed Paracels, Spratlys and Scarborough Reef, it would be impossible for China to justify it as a boundary for the exclusive zone and continental shelf generated by these features.
  4. Since China is not ready to settle for the first interpretation, and since the second and third are clearly indefensible under international law, in recent years Chinese scholars have advanced a fourth interpretation. According to this interpretation, China’s claims in the South China Sea are composed of three layers. In the first, China claims the disputed islands. In the second, it claims the exclusive zone and continental shelf generated by those islands, which might not extend as far as the U-shaped line. In the third layer, China claims “historic rights” over maritime space beyond 12 nautical miles from the islands, with the U-shaped line being either the limit or both the basis and the limit for this claim.

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Trouble in the South China Sea – by Bonnie Glaser | Foreign Policy

17 September 2012

by Bonnie Glaser | Foreign Policy With China and Japan at odds over disputed islands to the east, the potential for conflict in the south may seem muted for now. But not for long.

 

As Defense Secretary Leon Panetta’s visit to Japan, China, and New Zealand shows, President Barack Obama’s “pivot to Asia” continues apace. But if U.S. policy toward this strategically important region is to be successful, it must take into account a paradox: China’s neighbors seek greater U.S. economic, diplomatic and military involvement in the region as a counterbalance to China’s growing power — but at the same time, every country in the region also desires a close relationship with Beijing.

Activists holding Chinese and Taiwanese flags landed on the South China Sea. (C) foreignpolicy.com

The difficulty of navigating this paradox is clearly evident in the handling of territorial disputes in the South China Sea.  Southeast Asian nations periodically urge Washington to help them stand up to Chinese pressure to accept Beijing’s expansive claims there — but when Washington acts to prevent China from running roughshod over the region, its partners’ concerns about U.S.-China tensions spike and they implore the United States to step back. It is this paradox that makes maintaining a consistent and principled U.S. policy on the South China Sea both challenging and essential.

The United States has a great deal at stake in the South China Sea. It is one of the world’s primary trade arteries, with over half of the world’s merchant fleet by tonnage sailing through those sea-lanes each year. The region also contains an abundance of fish — an important source of revenue for the bordering countries’ economies  and potentially contains significant quantities of oil and gas resources strategically located near large energy-consuming countries.

Yet the South China Sea is a tangle of competing territorial demands. China, Taiwan, Indonesia, the Philippines, Vietnam, Malaysia, and Brunei all assert overlapping claims over land features and adjacent waters in the sea, heightening diplomatic tensions and potentially laying the foundation for a future military conflict. And while no country is blameless in this standoff, China is clearly the most egregious aggressor. It is currently following a deliberate policy of bullying and intimidating its smaller neighbors into recognizing its sovereignty over large swathes of the sea — and the United States must clearly communicate that such behavior is unacceptable.

The South China Sea has long been a military flashpoint. Skirmishes took place periodically on its waters from the mid-1970s to the mid-1990s. A decade of relative quiescence followed, but tensions have flared since 2007, with a marked increase in incidents and provocations. The main causes of growing tensions are rising interest in surveying and exploiting the South China Sea’s oil and gas deposits, intensified competition for fish as stocks in close proximity to coastlines are depleted, and growing nationalistic pressures on governments to defend their territorial and maritime claims.

The most serious confrontation in decades took place this past spring over a triangular-shaped chain of reefs and rocks called Scarborough Shoal, located approximately 124 nautical miles from Zambales, the Philippines. In early April, a Philippines frigate, which had been deployed to observe a pending North Korean missile launch, was redirected to Scarborough Shoal to investigate the presence of eight Chinese fishing boats in the lagoon. Infuriated by what it viewed as a provocative and escalatory action, China dispatched two large maritime surveillance ships  to the shoal, which positioned themselves between the Chinese fishing vessels and the Philippine warship.  Over the ensuing weeks, Manila withdrew the frigate and replaced it with a coast guard cutter, while the Chinese increased their presence, at one point deploying approximately eighty surveillance ships, fishing boats, and utility craft in the lagoon. Manila’s staunch refusal to withdraw was met with additional Chinese intimidation: Beijing began to quarantine tropical fruit imports from the Philippines and apply other forms of economic pressure. Quiet diplomacy produced a verbal agreement in early June that both sides would pull out their ships and end the standoff, but only Manila complied.  After the Philippines withdrew, China roped off the mouth of the lagoon to prevent Filipino and other fishermen from entering, and stepped up patrols around the shoal.

It’s clear that there is a cycle of escalation underway in the South China Sea that threatens to destabilize this critical region. However, it is important to note that China’s claims, policies, ambitions, behavior, and capabilities are significantly different from those of other actors. Beijing resists engaging in multilateral discussions on the territorial and maritime disputes in the region, preferring bilateral mechanisms where it can apply leverage over smaller, weaker parties. It rejects a role for the International Court of Justice (ICJ) or the International Tribunal on the Law of the Sea (ITLOS) in resolving the territorial and maritime disputes in the South China Sea.

Although Beijing has agreed to eventually enter into negotiations to reach a code of conduct for the South China Sea, Chinese officials have recently stated that discussions can only take place “when conditions are ripe” — which, evidently, is not now. The United States views a code of conduct as a tool for conflict prevention and conflict resolution, and urges negotiations to begin immediately. Chinese officials, meanwhile, prefer the 2002 Declaration on the Conduct of Parties in the South China Sea, which has no dispute resolution mechanism and is not legally binding.

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Secretary of State Hillary Rodham Clinton and Chinese Foreign Minister Yang Jiechi met last week in Beijing. The U.S. is trying to ease tensions in the South China Sea.

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Squabbles in the South China Sea – by Editorial | Chicago Tribune

11 September 2012

by the Editorial Board | Chicago Tribune - Commentory: Beijing is proving to be its own worst enemy.

Secretary of State Hillary Rodham Clinton and Chinese Foreign Minister Yang Jiechi met last week in Beijing. The U.S. is trying to ease tensions in the South China Sea.

The world has many trouble spots that have long posed a risk to peace and stability — the Persian Gulf, Israel and its neighbors, and the Afghanistan-Pakistan border, to name the most obvious. One looming danger is far from the usual arc of crisis. It’s the South China Sea, where territorial disputes and national ambitions are heightening tension and posing a small but not insignificant risk of escalation.

China has long been at odds with many of its neighbors over various islands in these waters. A few months ago, Chinese and Philippine naval vessels entered a tense standoff over the disputed Scarborough Shoal. In March, China detained Vietnamese it accused of fishing illegally near the Paracel Islands, which it occupies over the protests of other countries in the area.

This summer, Beijing announced it would install troops on one of the Spratly Islands, which are also claimed by Vietnam. Oh, and China has been quarreling noisily with Japan over islands in the East China Sea.

The general problem arises from Beijing’s growing assertiveness in the area, and its urge to restore what it sees as its historic sovereignty. Its neighbors, however, read history differently, and they regard China with a mix of age-old hostility and new concern about its rising power. The presence of oil and other valuable resources has raised the stakes.

But the disagreements have implications beyond the locals. As the dominant naval power in the Pacific and the world, the United States has an interest in preserving that position as well as maintaining unrestricted navigation in the region. It sees such freedom as crucial to worldwide trade, much of which is borne on merchant vessels. It also has ties with many of the countries currently at odds with Beijing, which see Washington as a vital counterweight to their giant neighbor.

These clashes are one reason the Obama administration announced a “pivot to Asia” earlier this year, which included the deployment of Marines to Australia. The goal is to provide support for friends as well as facilitate peaceful settlement of disagreements.

But the shift has evoked anger from the Chinese, who advise that the U.S. gracefully accept its inevitable decline. They insist the disputes should be resolved strictly by those countries that are “directly concerned,” which pointedly excludes America.

When Secretary of State Hillary Rodham Clinton visited Beijing last week, the Chinese rebuffed her call for regional negotiations — and canceled a scheduled meeting between her and Vice President Xi Jinping, who is expected to become China’s top leader later this year.

With its overbearing manner, though, China has done an excellent job of frustrating its own goals. The more it throws its weight around, the more its neighbors are motivated to coalesce in self-protection — and to seek shelter in the arms of the U.S., whose military capabilities dwarf those of China.

Over the years, the Americans have had their share of differences with Vietnam and the Philippines, among others. But these nations know Washington can be trusted more than Beijing because it has no territorial ambitions in the region. Its chief interests — free navigation and nonviolent settlement of disagreements — align well with theirs.

Maybe one of these days the Chinese government will come to see that these principles pose no threat to its position. As a huge country with growing wealth and military power, China has to tread gently to avoid provoking a backlash that will hinder its ambitions. It has much to gain from multilateral cooperation and much to lose from unilateral assertiveness.

Many people in the Chinese government and military think the U.S. is essentially hostile and determined to prevent China from gaining its rightful place in the Pacific and the world. But in many ways, China is proving to be its own worst enemy.

(Original version is avaible at Chicago Tribune)

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The Neverending Story: Drama in the South China Sea – Trefor Moss | The Diplomat

07 September 2012

by Trefor Moss | The Diplomat - While many have put their faith in a Code of Conduct some wonder if China is stalling for time. A real solution may take years, if ever.

 

ASEAN

The South China Sea is often presented as one of the world’s thorniest territorial disputes. A group of objective, completely disinterested observers, however, would likely find this characterization peculiar. Indeed, to these hypothetical people, it would seem painfully obvious what needed to be done to at least significantly reduce the tensions in the South China Sea. Such a plan would likely start with four simple steps:

Step 1: Put sovereignty issues to one side. These are too complex and too emotive to be solved in the foreseeable future.

Step 2: Establish who claims what. China, for example, is extremely protective of its sovereignty, but it has never made a precise declaration about which areas of the South China Sea it actually owns (vaguely drawing dashes on a map doesn’t count). Claims should be filed with the UN’s International Court of Justice by a certain date – complete with latitude or longitude coordinates – or be considered frivolous by the rest of the world.

Step 3: Use UNCLOS wherever possible. Here’s a happy coincidence: all South China Sea claimants have ratified the United Nations Convention on the Law of the Sea. That should make this situation so much easier to handle. For areas that are not contested, UNCLOS clearly lays out the rights of the claimant state and also of non-claimant states in territorial waters and exclusive economic zones. Any problems and the Convention (Article 279 ff.) also has a detailed dispute-resolution mechanism.

Step 4: Neutralize the contested areas. If the disputants really want to maintain peace and stability in the South China Sea – and they all say that they do – then they obviously need to draw up a set of rules governing what is and is not allowed in disputed zones. They could call it a Code of Conduct, or some something of the sort. Likely rules would include: the demilitarization of disputed areas; refraining from any provocative rhetoric or action, such as new construction projects on contested islands; no exploration for, or exploitation of, marine resources, unless the claimants agree to do it jointly; and the establishment of a dispute resolution mechanism, probably under the auspices of the ICJ.

It all sounds so simple. But beyond the realms of this “Fantasy Dispute Resolution” and back in the messy world of international politics, this tidy plan is a complete non-starter. The underlying reason for this is that different countries diagnose the South China Sea problem differently. Some think the situation is dangerous and needs fixing. Others, notably China, are actually quite comfortable with the status-quo.

For many observers, the recent disputes over Scarborough Shoal and other island territories have become a matter of great concern. Beijing is less disturbed, however. In fact, China’s strategy is to maintain this sometimes messy status-quo, while making outward demonstrations of being cooperative about seeking a lasting solution so as to guard against accusations that it is the problem. It calculates that these tensions are unlikely to lead to conflict, and that they are an acceptable price to pay for its continued ability to act with relative impunity in disputed areas. At the same time, Beijing doesn’t want to overstep the mark, which would harm its standing in Southeast Asia (many parts of which are pro-China), and invite greater U.S. involvement in the region.

Beijing’s grandest cooperative gesture to date was its establishment of the 3 billion yuan ($473 billion USD) China-ASEAN Maritime Cooperation Fund in 2011. Discussions are now underway about how this money can be spent in order to help implement the 2002 Declaration of Conduct (DOC) in the South China Sea. According to Ian Storey, a senior fellow at the Institute of Southeast Asian Studies in Singapore, this is all building up to a tenth anniversary communiqué to mark the original signing of the DOC. But is this really anything to celebrate? The DOC is a failed protocol that was never properly implemented – which is why momentum has built up behind the formulation of a new Code of Conduct. “China’s view is that some ASEAN members have repeatedly violated the DOC; that’s also the view of some of the ASEAN countries about China,” Storey remarks.

“But is China serious about an effective Code of Conduct?” he asks. “I think the answer is no. A really effective code would constrain China’s freedom of manoeuver in the South China Sea, and big countries don’t like that.”

The Philippines, Vietnam, and other interested parties have doubtless reached the same conclusion about China’s commitment to crafting a meaningful COC. Filipino proposals backed by Hanoi for a robust COC have already been diluted by other ASEAN members, for fear of antagonizing China. More recently, the July ASEAN Foreign Ministers Meeting held in Phnom Penh descended into a farce, with Cambodia, the current Chair, blocking constructive debate about the South China Sea dispute in defense of China’s interests. Cambodia has sold ASEAN out: in doing so, it has facilitated a Chinese policy of extraterritorial interference in Southeast Asia’s key institution. For China, it’s been a foreign-policy coup.

Indonesia – doing the job that Cambodia failed to do – subsequently showed ASEAN some leadership after the Phnom Penh fiasco, cobbling together a common position called the “Six-Point Principles on the South China Sea”. Though better than the Cambodian no-show, it’s a lax document that goes no further than calling for “an early conclusion” to the COC drafting process.

That won’t happen. China has already begun soft-pedaling on talks, which are now unlikely to happen until 2013 (the upcoming leadership handover in Beijing all but rules out near-term movement on what has become such a contentious issue). A new code is therefore unlikely to emerge before 2014 at the earliest.

It would be worth the wait, of course, if it was a business-like code that really sought to regulate the behavior of claimant states. But nobody expects it to be. “China will not accept anything that is mandatory,” concludes Carlyle Thayer, an emeritus professor at the Australian Defence Force Academy.

Strangely enough, China could gain a great deal from backing the formulation of an effective COC. Its image in the region would receive a considerable boost; calls for greater U.S. involvement in the regionwould diminish; and the chances of conflict over some tiny island would recede.

However, these attractive aspects of cooperative diplomacy are outweighed by Beijing’s instinct not to give any ground where sovereignty issues are concerned. “When it comes to high-stake, high-politics issues, such as territorial disputes and strategic rivalries, international agreements have limited impact,” suggests Zhang Baohui, an associate professor at Lingnan University in Hong Kong. “Overall I think China is a status quo power on the South China Sea issues,” Zhang but observes that upholding the status quo cuts both ways: China won’t facilitate a lasting solution, but it won’t be the one to provoke a confrontation either. It will only react forcefully to perceived provocations on the part of others, as in its recent dispute with Manila. At the same time, it will not hold back from pushing the envelope of acceptable behavior, such as upgrading Sansha to city status, for example, or granting new drilling rights to Chinese oil companies.

But what is China’s ultimate objective in all of this? “They just want to play for time, and to drag it out as long as possible,” argues Storey. “What is China’s end game? I don’t think they know themselves.”

Sadly, there is no Plan B for the South China Sea. China and ASEAN appear locked into the futile process of formulating a Code of Conduct that won’t address the types of conduct that actually need addressing. Pity the poor diplomats who will be spending the next two years working on it. The COC is another fantasy – only one that won’t sound good either in theory or in practice.

Photo Credit: Wikicommons

 (Original version is available at The Diplomat)

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South China Sea: Not Just About “Free Navigation” – by Denny Roy | Asia Pacific Bulletin

04 September 2012

by Denny Roy | Asia Pacific Bulletin - HONOLULU — The South China Sea territorial dispute increasingly looks like a point of strategic friction between the United States and China after a recent nasty exchange between the two governments. The U.S. Department of State criticized China for its plan to base a new military garrison in the Paracel Islands, saying this would increase international tensions. Beijing shot back that the United States should mind its own business.

Illustrated photo (C) ibtimes.com

Many observers wonder why Washington and Beijing are allowing a new irritant to emerge in the incalculably important U.S.-China relationship. Unfortunately, there is widespread misunderstanding about the U.S. rationale for America’s diplomatic intervention in a territorial dispute to which the United States is not a party.

Although U.S. officials have named several specific U.S. concerns about China’s policies and activities in the South China Sea, the U.S. concern most widely understood and repeated is the potential threat to “freedom of navigation”: the PRC might be moving toward imposing restrictions on foreign ships sailing in the South China Sea. This, however, is not the real issue. It is really about bullying.

To be sure, the United States is a strong proponent of freedom of navigation in international waters. This stance reflects not only America’s commitment to the general principle of liberty but also the interests of a trading nation with the world’s most capable navy. There should be no doubt that if freedom of navigation was in jeopardy in the South China Sea, the United States would spring to its defense. At present, however, freedom of navigation is not at issue.

The Chinese say they do not interfere with international navigation in the South China Sea and do not intend to in the future. Their position has some merit.

China has a particular beef with surveillance by U.S. ships and aircraft near the Chinese coast. This has resulted in Chinese harassment, with several incidents reported in the press. The UN Law of the Sea Treaty allows for spying in the region between a country’s internal waters limit—12 nautical miles—and its exclusive economic zone limit which is usually 200 nm.

The Chinese argue that spying is not “innocent passage” and should not be allowed within the EEZ. It is not an unreasonable argument. So this situation has resulted in some interference with the “free navigation” of the U.S. Navy, but this is a very limited and special case.

The other circumstance in which Chinese vessels have interfered with non-Chinese ships is when the latter are engaged in activities that involve taking resources—fishing or preparing to drill for hydrocarbons—or when foreigners are attempting to arrest Chinese fishermen. These, as well, are special cases. Otherwise, the Chinese have not interfered with the passage of cargo ships of any flag or of U.S. Navy vessels passing through the waterway.

Consequently, the Chinese assert that the freedom of navigation argument is bogus, and the assertion is persuasive to many neutral onlookers. From here the Chinese charge that the Americans are using freedom of the seas as a pretext to extend the alleged “containment” strategy to Southeast Asia, limiting Chinese influence and recruiting new allies to join in the military encirclement of China.

Instead of providing fodder for Chinese rhetoric, the freedom of navigation argument should remain in the background. Rather, what the U.S. government should be talking about is making the world safe from unlawful international coercion. Ironically, the Chinese have begun practicing what Beijing’s diplomats have for decades condemned as “hegemonism” or “power politics”—strong countries forcing their self-interested preferences onto smaller countries.

Six governments claim ownership of parts of the South China Sea. None has a slam-dunk case. China is not the only claimant that has moved unilaterally to strengthen its control over South China Sea territory and resources in recent years. China, however, has distinguished itself in two important and negative ways.

First, China’s claims are both unusually expansive and intentionally vague. Beijing has stubbornly refused to clarify its claims based on the guidelines in the international Law of the Sea treaty, to which the PRC is a signatory. This is part of a strategy of ambiguity by which the PRC tries to minimize global concern and to avoid being constrained by the Law of the Sea guidelines while taking actions aimed at intimidating individual rival claimants.

Second, the actions China has taken to assert ownership over the South China Sea and its tiny “islands” are stronger than those taken by the other claimants. These acts include threatening and damaging foreign ships, declaring a fishing ban for part of the year in half of the South China Sea and arresting foreign fisherman who do not comply. There is also the recent announcement of increased Chinese militarization of the region—not only the new garrison, but the statement by military spokesman Geng Yansheng in June that China has begun “regular, combat-ready patrols” in the South China Sea.

China’s actions are threatening because China is big. No other state in Southeast Asia can match the military power China is able to project into the South China Sea. China’s massive economic weight, rapid growth rate, and commitment to strengthening its military forces ensure that the gap will only grow larger in the future. To make the contest even more lopsided, the Chinese government recently announced plans to greatly increase the number of quasi-military patrol ships—operated by the PRC Coast Guard and other agencies—it will deploy in the South China Sea.

In effect, this is a struggle between two visions of international order for Asia. The U.S. vision includes a system of norms and international laws that ensure, among other things, that small states are protected from predation by larger states and that dispute resolution procedures should be fair. China, on the other hand, appears to favor restoring a Chinese sphere of influence in East and Southeast Asia such as the Middle Kingdom enjoyed anciently.

Under this arrangement, the rules of international interaction would reflect basic Chinese interests. Beijing would expect regional governments not to take major decisions that run contrary to Chinese preferences. Beijing’s current unwillingness to base Chinese claims in the Law of the Sea treaty may reflect the sentiment that this mostly Western-written body of law will not be needed when China resumes its historical position of regional dominance.

Some observers see the China-U.S. contention over the South China Sea as simply a squabble between two great powers that are both seeking regional domination, with each acting in its respective hegemonic self-interest rather than in defense of some higher principle. In this case, however, U.S. intervention is clearly aligned with the interests of the Southeast Asian countries, which seek to avoid domination by China or any other great power. China is trying to implement a might-makes-right order, while the United States is trying to ensure that smaller countries do not get steamrolled. This is the real issue, and U.S. officials should make it clear.

Denny Roy is a Senior Research Fellow at the East-West Center. He can be contacted via email at royd@eastwestcenter.org.

(Original version is available at Asia Pacific Bulletin)

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South China Sea conflict generates uncertainty and insecurity – by Tuong Nguyen | Global Post

24 August 2012

by Tuong Nguyen | Global PostPARIS, France — A recent article, ;China’s South China Sea jurisdictional claims: when politics and law collide,” published in the East Asia Forum, remarked that the uncertainty and insecurity generated by China’s claims in the South China Sea are reflected in headlines throughout Southeast Asia, even though the claims have no solid legal basis in international law.

China’s Blue Water Navy in the South China Sea. (C) dinmerican.wordpress.com

The insecurity is a consequence of tension in the region and in international relations rising from China’s newly aggressive posture in the South China Sea. The claims are based on a so-called “9-dashed line” map, adapted by the Zhou Enlai government when it took control of China in 1949. It is taken from the original map, known as the “11-dashed line” that was drawn by Chiang Kai-shek’s nationalist government in 1947, a time when the islands of the South China Sea, once said to be a Japanese lake, were being returned to the countries that had possessed them before World War II.

The fundamental difference in the maps is that the Nationalist China map includes the Gulf of Tonkin, the Communist China map does not. The dashes on the maps refer to the demarcation lines used by China for its claim of the South China Sea area that includes the Paracels Island and the Spratly Islands. China occupies the Paracels, which are closest to China and Vietnam, but Vietnam and Taiwan are claiming them. Claims on some or all of the Spratly Islands, which are nearest Indonesia and the Philippines, are being made by the Philippines, China, Brunei, Malaysia, Taiwan and Vietnam. The Spratlys are believed to contain important mineral resources, including oil.

The confusion over the legality of claims to the territories begins with the San Francisco Peace Treaty, signed in 1951, that officially ended World War II and Japan’s position as an imperial power. Neither China nor Taiwan were present because countries attending the peace conference could not agree which was the legitimate government of China. The treaty, as signed by the parties, did not specify which countries could legally possess the former Japanese territories in the South China Sea.

Taiwan and China each wanted Japan to return the islands of Paracels and Spratlys to them. This resulted in Taiwan’s version, the “11-dashed line” map, and Communist China’s adaptation that became the “9-dashed line.” The 1952 Treaty of Taipei between Japan and the Republic of China, newly established on the island now known as Taiwan, did not assign possession of Paracels and Spratlys. Communist China unilaterally claimed the right to have the islands.

Thus, the current claims of both China and Taiwan have no basis in international accords and, in effect, are illegal. China is inconsistent in attempting to de-recognize Japan’s World War II territorial claims in the South China Sea while using those claims to assert its sovereignty on former Japanese territories.

Internationally, the political and legal status of Taiwan remains a contentious issue. Consequently, China’s claims to the territories, based on Taiwan’s sovereignty, are among many unresolved issues between the two countries.

Disputes on the sovereignty over the Paracels and Spratlys in the South China Sea existed before the World War II. All unilateral or bilateral agreements or claims on multilateral disputes are invalid.

The United Nations Law of the Sea Convention that concluded in 1982 defines the rights and responsibilities of nations in their use of the world’s oceans. Among its provisions are rules for establishing territorial limits and providing means for settling disputes over coastal claims. All of the countries boarding the South China Sea, except North Korea, are among the 162 nations to ratify the treaty. The U.S. Senate has not ratified the treaty.

Under international law, the current crisis should be presented to the Law of the Sea Convention to settle the Chinese challenge to Vietnam, the Philippines and others over claims to more than 40 islands in the South China Sea.

Among the territorial disputes the Law of the Sea Convention might address is to clarify which areas are disputed and which ones are not. In May 2009, for example, Malaysia and Vietnam submitted jointly to the UN Commission on the Limits of the Continental Shelf, which was established to implement the Law of the Sea Convention.

Also in May 2009, China submitted for the first time its “9-dashed line” map attached to a Note Verbale to Secretary-General of the United Nation seeking to refute the claims of Vietnam and Malaysia and to clarify its claims. Although the claim in China’s map was unclear, its submission was considered a major milestone in the South China Sea disputes.

Because that was the first time the international community knew officially of the Chinese claims designated on the map, Vietnam immediately sent a diplomatic note to the Secretary-General to refute China’s claims. These submissions did not identify clearly the disputed areas, but they are legal and valuable documents for the settlement procedure.

Philippines, a leading voice in the resolution of South China Sea issues, has recently proposed a solution based on a Zone of Peace, Freedom, Friendship and Cooperation. It requires a clear delimitation of disputed and undisputed areas in accordance with the UN Convention on the Law of the Sea before peacefully pursuing joint development as outlined in China’s proposal.

The Philippine proposal segregates the undisputed areas from disputed ones. Vietnam supports the Zone of Peace, Freedom, Friendship and Cooperation while China has rejected it and pressed others Association of South East Asian Nations not to participate in discussions about it.

Not surprisingly, since China has never made clear its claims by using the so-called “9-dashed line” covering virtually more than 90 percent of the South China Sea, this rule-based concept breaks through the imprecision of China’s approach. China’s assertive posture has raised concerns among the international community about the potential for conflict in the South China Sea area. Beijing’s steps in the South China Sea are more determined and aggressive than ever, creating the worrisome prospect of escalating tension in the area. The first step toward settling these disputes through peaceful negotiations based on international law would be for all to claimants to state their claims with clarity.

Tuong Nguyen is a computer science postdoctoral fellow in Paris, France and free commentator on maritime affairs. 

(Original version is available at Global Post

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Disputed waters are rising in the South China Sea – by Huy Duong | RSIS

11 July 2012

by Huy Duong | RSIS - Disputes over maritime space in the South China Sea appear intractable.

Since 2011 claimants have been unable to agree even over what constitutes a ‘disputed area’ — and this bodes poorly for attempts to settle questions of sovereign rights and jurisdiction.

On 23 June 2012, China’s National Offshore Oil Corporation invited bids for nine blocks of oil and gas exploration in the South China Sea. The blocks lie inside Vietnam’s declared Exclusive Economic Zone (EEZ), which prompted Vietnam’s Ministry of Foreign Affairs response of 26 June, that this area ‘is absolutely not a disputed area’. The Chinese Ministry of Foreign Affairs responded that its jurisdiction applies to this region and referred to the ‘proper settlement of maritime disputes’, thereby asserting that the area is disputed.

This controversy echoes a May 2011 incident, when Chinese marine surveillance ships cut a seismic cable being towed by a Vietnamese geological survey vessel. At the time, Vietnam asserted that the incident took place in undisputed waters, but China disagreed.

similar controversy exists between China and the Philippines over the EEZ in the Reed Bank area, which the Philippines considers to be under its own jurisdiction, while China maintains otherwise.

So where exactly are the disputed areas in the South China Sea?

Nobody knows for sure. No claimant to the disputed islands and rocks in the South China Sea has so far declared the limits of their claims, so the boundaries of the disputed areas are unknown. This makes managing disagreements extremely difficult and increases the risk of mismatched expectations — and resulting conflict.

The 2002 Declaration of Conduct of Parties in the South China Sea between ASEAN and China is a case in point, because it does not differentiate between disputed areas and undisputed ones. If the new Code of Conduct is to overcome the limitations of its predecessor, it needs to identify disputed and undisputed areas.

Another example is China’s proposal to sidestep the disputes and pursue joint development projects. While joint development is in principle a valid approach for managing the disputes, it cannot work in practice without the claimants agreeing on the boundaries of disputed areas.

One approach to determining disputed areas is to say simply that any area claimed by two or more countries is disputed. But this would set a very low bar because it would allow any country to make any area a disputed one by making a conflicting claim there. China could declare that its U-shaped line represents a boundary for maritime space, making the whole area inside it disputed. The Philippines could do the same with a C-shaped line and Vietnam could use a D-shaped one. This would make it impossible to contain or manage disputes between the claimants.

Instead, the definition of ‘disputed area’ should be based on the United Nations Convention on the Law of the Sea, or UNCLOS, which regulates specific maritime zones. This convention is based on the principle that economic zones must be drawn with reference to land and insular territories.

It is clear that the 12-nautical-mile territorial sea around the islands and rocks of the Scarborough Shoal and the Paracel and Spratly Islands are disputed. Beyond this, the picture becomes more complicated, though opinion seems to be arranged in a clear spectrum.

At one end of the spectrum is the view that none of the disputed rocks or islands deserves an EEZ or continental shelf. This would mean that the disputed areas are confined exclusively to the 12-nautical-mile territorial sea generated from valid baselines and base points around these features.

At the other end of the spectrum is the counterfactual hypothesis that every feature in the Paracels, Spratlys and Scarborough Shoal is an island entitled to an EEZ and deserves full effect in EEZ delimitation. Under this hypothesis the boundaries would be equidistant lines between uncontested territories and the closest features of these three groups.

In reality, not every one of these outermost features is entitled to an EEZ and even those that are so not deserve full effect in EEZ delimitation.  This is because in areas where overlaps occur the international law of maritime delineation gives priority to the EEZs of larger landmasses. Therefore, in areas of overlapping entitlements, the EEZs of outlying features of the Paracels, Spratlys and Scarborough Shoal would fall short of the equidistance lines.

A criterion for drawing boundaries for disputed areas that is consistent with international law would be closer to the views near the first end of the spectrum. This solution may still give rise to disputes as to exactly where the boundaries lie, but adopting UNCLOS would allow the interested parties to negotiate to a specific standard, or submit the question to an international court.

Agreeing on boundaries for the disputed areas is the necessary basis for adopting effective dispute management measures. Boundaries that limit potential claims are consistent with international law and would also keep disputed areas small. Agreeing on how to define a disputed area would thus significantly improve the likelihood that claimants will agree on dispute resolution measures for the South China Sea.

Huy Duong is a UK-based IT consultant and commentator on maritime affairs.

(Original version is available at RSIS)

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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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