Home | Business News | Browse by Publication | C | Contemporary Southeast Asia

Maritime claims and energy cooperation in the South China Sea.

Article Excerpt
The South China Sea is an area comprising over 200 islands, rocks, and reefs and includes the Paracels and Spratly groups. The unresolved maritime claims of China, Taiwan, Brunei, Malaysia, Vietnam, and the Philippines overlap; China and Vietnam have claimed the entire area; and the others have claimed contiguous zones. Uncertainty in relation to sovereign jurisdiction has hindered the exploitation of the hydrocarbon and fishing resources there. Attempts to settle the claims have stumbled over the complexity of the issue and sanguine expectations that reason and the logic of compromise would prevail have proven to be unfounded. One important reason for the as yet unresolved status of the area has been the refusal of the main claimant, China, and also Vietnam, to depart from their formal claim to the entire area. Proposals that have called for multilateral negotiations with the intention of accommodating China have floundered accordingly. If the South China Sea were just an outlying area where the competing claims could be shelved without detriment, it would not merit much attention. The search for new sources of energy reserves however, has added a new urgency to the issue, particularly as China struggles to meet exploding demands for energy. The claimants are now interested in exploiting the energy reserves of their respective claims, the ASEAN states in particular. Can there be security in the South China Sea which would allow the claimants to tap those resources without a resolution of the maritime claims?

The Maritime Claims

The key point about the maritime claims is that their resolution according to the UN Conventional on the Law of the Sea (UNCLOS) would ignore what China regards as its historical rights to the South China Sea, while giving the littoral states control over resources to which the Chinese feel they have a right of access. The issue arose largely because China was prevented by events from realizing its historical claims to the South China Sea, while ASEAN countries took the opportunity to occupy islands there. This division between China's sense of historical rights and actual possession of the South China Sea islands was the outcome of the San Francisco Conference of September 1951 when the allied powers failed to identify who had title to the South China Sea islands when they divested Japan of possession after the Pacific War. Article 2(f) of the San Francisco Treaty simply stated that "Japan renounces all right, title, and claim to the Spratly Islands and to the Paracel Islands". The result as Valero noted was a "legal and political vacuum" which allowed the littoral states to raise their respective claims, however justified (Valero 1994). Had China not fallen to the communists the US delegation at the conference may have allowed a non-communist China to assume possession. Chinese claims based on prior discovery carried weight with the allied powers as China had repeatedly affirmed them. The Qing dynasty had lodged a diplomatic protest in 1877 when British vessels reached the Spratlys, a similar protest was made in 1883 when a German vessel surveyed the area. In 1887 China and France, as the colonial power in Indochina, signed a boundary agreement which specified that islands situated east of the designated line belonged to China, leaving the South China Sea islands to China (Choon-ho 1978). Chinese markers were placed on the Paracels in 1907, which were subsequently incorporated into Guangdong province (Valero 1994). France on 26 July 1933 claimed possession of the South China Sea islands and incorporated them into French Indochina. In 1939 Japan occupied some of the main islands in the Spratlys but when France returned after the war the Nationalist government in China continued to contest French possession. In December 1947 the Nationalist government issued a declaration reaffirming that the Paracels and Spratlys were part of Guangdong province. Before the San Francisco Conference Chinese Foreign Minister Zhou Enlai on 15 August 1951 again declared Chinese claim to the islands (Valero 1994). The allied powers would not permit the islands to revert to a Communist China, in which case the critical separation between China regarded as its historical rights and actual occupation was the result.

China had protested against external intrusions into the islands and had contested French and Japanese possession giving its claims some substance in law. The problem for China was that historical claims are insufficient and need to be perfected by a demonstration of "continuous and effective acts of occupation" before the title can be recognized in law. The importance of effective occupation was established as a precedent in the Island of Palmas, which was heard by the Permanent Court of Arbitration on 4 April 1928, other cases affirming the same were Clipperton (28 January 1931) and Eastern Greenland (5 April 1932). These cases not only affirmed the importance of continuous occupation in deciding sovereignty but gave an incentive for states to occupy islands irrespective of historical claims in the expectation that the title would follow (Valero 1994). The separation of historical claims from actual occupation was significant for the subsequent development of the South China Sea dispute, and for understanding China's grievances and sense of injustice. The Chinese Nationalists in 1947 had occupied some of the Spratly Islands briefly after the Japanese vacated them but they withdrew while the mainland was falling to the Communists. The presence of the United States and later the Soviet Union, however, prevented the Chinese Communists from demonstrating effective occupation of the Spratlys, though in 1956 they occupied the Eastern Paracels and in 1974 they seized the Western Paracels. Communist China resorted to maps to publicize its claim, which followed a broad sweep deep into the South China Sea but the exact dimensions and coordinates were never defined (Wang 1958; Yu 2003). The inability to validate historical claims through occupation explains China's frustration over the issue and the determination to regain what later came to be regarded as "lost territories" (Garver 1992; Tai 1990).

Vietnam similarly insisted on a historical claim to the South China Sea based on contact with the islands there during the Nguyen dynasty, from the 16th through to the 19th century. Those claims relate to the Paracels and evidence supporting historical contact with the Spratlys is doubtful (Valero 1994). In 1956 South Vietnam claimed that the Paracel Islands became Vietnamese when Vietnam was unified by the Nguyen dynasty in 1802, and that the Spratlys had been incorporated by the French into Cochin China in 1929. (1) South Vietnam also claimed the right of succession for the entire South China Sea from the French colonialists as rightful heirs. When a Philippine adventurer called Tomas Cloma claimed the Western Spratlys for the Philippines, South Vietnam began to occupy islands there as from August 1956, and on 22 October 1956 reiterated its claim to the area. Cloma's activity also prompted Taiwan to garrison the largest island called Itu Aba as from October 1956. Not wishing to provoke China at this stage North Vietnam was silent and on 14 September 1958 Premier Pham Van Dong in a diplomatic note accepted China's sovereignty over both the Paracels and Spratlys. North Vietnam also witnessed China's expulsion of the South Vietnamese from the Western Paracels on 19 January 1974. Reunification in 1975 gave Vietnam the confidence to deal with China from a position of strength. It repudiated the earlier acknowledgement of Chinese sovereignty and moved to occupy 13 islands in the Spratlys precipitating an open breach with China (Joyner 1999). Prompted by the ongoing UNCLOS negotiations, Vietnam on 12 May 1977 declared a 200 nautical mile (nm) Exclusive Economic Zone (EEZ), and included the Paracels and Spratly Islands in its territorial waters (Hyer 1995). Vietnam expressed its claims in two White Papers published by the Ministry of Foreign Affairs in 1979 and 1981 entitled Vietnam's Sovereignty over the Hoang Sa and Truong Sa Archipelago (Valero 1994). It had the advantage of being able to demonstrate effective occupation in the Spratlys of 21 islands by 1989, and by 1999 some 27 islands and reefs were occupied (Joyner 1999).

The other claimants similarly resorted to the occupation of islands to support claims that otherwise had a dubious historical basis. The Philippines has long laid claimed rights to a contiguous area in the South China Sea and protested when France declared sovereignty over the islands in 1933. The Americans who ruled the Philippines at that stage, however, regarded the Spratly Islands as outside Philippine jurisdiction (Barnes 1939). Similar protests were raised when Japan seized the Spratly Islands in 1939, Secretary for Public Works and Communications Mariano Jesus Cuenco called for a survey of the islands to ascertain which were...