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South China Sea: Analysis
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People's Liberation Army Navy soldiers patrol near a sign in the Spratly Islands reading ‘Nansha is our national land, sacred and inviolable’. Photo: Reuters

Why do so many countries have claims to territory in the South China Sea?

Competing claims based on history, geography and law – but raw military power the trump card

All the territorial disputes ­between six Asian neighbours in the South China Sea are, in the end, related to three academic disciplines: history, geography and law.

Most of the islands, rocks, reefs and shoals claimed are uninhabited and some are even underwater at low tide. They cover just a few square kilometres in total but are spread over the 2 million square kilometres of sea encompassed by China’s “nine-dash line”, with mainland China, Brunei, Malaysia, the Philippines, Vietnam and self-ruled Taiwan all claiming sovereignty over the whole or part of several island chains and nearby waters.

This situation appears to be producing something akin to a volatile compound in these waters, one that could only require the smallest of catalysts to ignite
Allen Carlson, Cornell University

That makes for a complicated context that even an impending Permanent Court of Arbitration ruling might not be able to settle.

The dispute is not just about maps and national pride, but also about a nation’s exclusive rights to natural resources in the surrounding seas and beneath the seabed, and about its sovereign right to manage the ships and aircraft of other nations passing through the area, which contains some of the world’s busiest and most important sea lanes.

Maochun Miles Yu, a professor of East Asian military and naval history at the United States Naval Academy, said all the claimants used some of or all the three academic disciplines to back their arguments, but the disputes all boiled down to one question: what qualifies one country as the rightful sovereign owner of certain islands in the South China Sea.

“For China, the justification is historical mentions by ancient texts; for the Philippines, Malaysia and others, it’s geographical proximity; for Vietnam, it’s active ruling and administration since the 17th century that should really give Hanoi the right to own these islands,” Yu said.

China said the islands had been discussed from the 4th century BC in the Chinese texts Yizhoushu, Classic of Poetry, Zuo Zhuan, and Guoyu, though they were described implicitly as part of the “Southern Territories”.

Various names had been used to describe the islands from the Tang dynasty (618–907) to the Qing dynasty (1644–1912), Chinese historians said.

During the Republic of China era, the government mapped more than 291 islands, reefs, and banks following surveys in the 1930s and then published a map showing the nine-dash line in 1947.

After the 1949 revolution, the People’s Republic of China inherited the claim made by the Republic of China. And in 1958, Beijing issued a declaration defining its territorial waters within the nine-dash line, which encompassed the Spratly Islands. North Vietnam’s then prime minister, Pham Van Dong, sent a diplomatic note to Chinese premier Zhou Enlai expressing his country’s support for China’s position.

Chinese folk singer Song Zuying performs for workers and military personnel on Fiery Cross Reef in the Spratlys in May. Photo: AFP

Beijing is undertaking a diplomatic and public relations blitz to rally support for its claims ahead of an international court decision expected on July 12 in a case against China that was initiated by the Philippines.

On May 9, China published a lengthy article, co-authored by Fu Ying, chairwoman of the Foreign Affairs Committee of China’s National People’s Congress and a former vice foreign minister, and Wu Shicun, president of the National Institute of South China Sea Studies, explaining its position. “The South China Sea islands and their surrounding waters were first discovered, named, and used by the early Chinese, as well as administered by successive governments, and have been considered inherent national territory and waters since ancient times, as is attested in numerous historical records, local gazetteers, and maps,” they wrote.

The article, published in both The National Interest magazine in the United States and China Newsweek magazine, said the international community – including the US – had historically recognised China’s sovereignty over the islands, until recently.

But Mohan Malik, a professor of Asian security at Honolulu’s Asia-Pacific Centre for Security Studies, said that as far as “jurisprudential evidence” was concerned, the vast majority of international legal experts had concluded China’s claim to historical title over the South China Sea, implying full sovereign authority and consent for other states to transit, was invalid.

Philippine Navy personnel jog past the strategic sealift vessel BRP Tarlac during its commissioning ceremony in Manila on June 1. Photo: Reuters

Benjamin Herscovitch, a research manager at China Policy, a Beijing-based policy analysis and advisory firm, said Beijing had still not clarified the meaning of its historical territorial claim encompassed by the nine-dash line, which he said had always been historically dubious and remained so, despite Beijing’s recent efforts to provide justification.

“Is it a claim to all of the waters within this line or simply the islands and other features? How does it relate to the United Nations Convention on the Law of the Sea (Unclos), to which China is a signatory? Are the waters within the nine-dash line territorial waters or merely EEZs (exclusive economic zones)?” he asked.

Herscovitch, who is an expert on Asian diplomacy and regional security, said Vietnam had also used historical records to prop up its claim, saying it had documents proving it had actively ruled over both the Paracels and the Spratlys since the 17th century.

The other major claimant in the area is the Philippines, which invokes its geographical proximity to the Spratly Islands as the main basis of its claim for part of the group.

Both the Philippines and China also lay claim to Scarborough Shoal (known as Huangyan Island in China) – a little more than 160km from the Philippines and 800km from China.

Malaysia and Brunei also lay claim to territory in the South China Sea that they say falls within their exclusive economic zones, as defined by Unclos.

Then Taiwanese president Ma Ying-jeou visited Taiping Island, also known as Itu Aba, in the Spratlys in January. Photo: AP

Allen Carlson, associate professor of government at Cornell University, said the South China Sea was now awash with a mixture of contrasting international legal claims and historical narratives, developing naval capabilities and nationalist sentiment. “This situation appears to be producing something akin to a volatile compound in these waters, one that could only require the smallest of catalysts to ignite,” Carlson said.

Yu said China had the weakest case among the claimants because one simply could not use historical mentions of far away places as the primary justification for today’s sovereign claims. “Otherwise, Marco Polo mentioned China in the 13th century to the Italians, does that justify Italy’s sovereign claim over China? Of course not,” he said.

Unclos has been signed and ratified by all the key coastal countries with interests in the South China Sea, which should help in bringing certainty to the legal framework that applies throughout the region. However, legal and territorial disputes persist.

Yu said that modern international maritime laws and territorial jurisdiction heavily favoured active administration and geographical coherence (natural extension of the continental shelf being one example).

Vietnamese living in Hong Kong hold Vietnamese flags during a protest in Hong Kong two years ago against China's territorial claims in the South China Sea. Photo: Reuters

Unlike other countries, China’s claim is not based on claims to particular islands or other features defined by the 1982 UN law, but on a historical map China officially submitted to the United Nations in 2009. The map features the nine-dash line, forming a U-shape down the east coast of Vietnam to just north of Indonesia and then continuing northwards up the west coast of the Philippines. Many experts consider the nine-dash line incompatible with the 1982 UN law, which rejects historically based claims.

But Herscovitch said international law was of little importance in the South China Sea dispute. The UN convention also worked slightly differently as it also said discovered lands qualified as terra nullius – territories not belonging to a particular country – which meant land over which no state exercised sovereign control. Thus, one could argue that any state exercising unchallenged control over such land claimed it to the exclusion of all other states based on the latter’s “abandonment” of their rights of challenge. Under such rules, no nation could afford to “abandon” its rights.

China has effective control over the most islands, despite being relatively late to the party when it comes to occupying territory in the Spratly archipelago.

A China Southern Airlines jetliner lands at the airfield on Fiery Cross Reef in the Spratlys on January 6 in a test to see whether its airstrip was up to standard. Photo: Xinhua

Taiwan first occupied an island in the Spratlys after the second world war, and the Philippines, Vietnam and Malaysia followed suit. They have all built outposts and airstrips on their claimed territory, according to Mira Rapp-Hooper, a senior fellow in the Asia-Pacific security programme at the Centre for a New American Security. Beijing began to dispatch personnel to occupy the reefs and islands in the area in the 1980s.

Since 2012, all of the Paracel Islands have been under Chinese control, while mainland China, Vietnam, the Philippines and Malaysia all control islands in the Spratlys, with Taiwan controlling one.

Alexander Vuving, a professor at the Asia-Pacific Centre for Security Studies, said in an article in The Diplomat on May 6 that Vietnam occupied 21 features in the Spratlys, the Philippines nine, China seven, and Malaysia five.

Analysts said sovereignty issues could not be settled under international law, and nor were they within the tribunal’s jurisdiction.

Herscovitch said China would continue to consolidate its de facto control over large stretches of the South China Sea. “International law might delegitimise China’s nine-dash line and broader South China Sea policy in the eyes of the international community. However, international law is largely powerless in the face of China’s determination and superiority in the realm of raw military power,” he said.

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