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Tuesday, September 9, 2014

Captain Raul Pedrozo (USN Retired): Stop China’s Unlawful “Great Wall” in the South China Sea

A careful review of the historical record and law reveals that China’s claims in the South China Sea are unfounded.


The first half of 2014 witnessed a significant increase in aggressive behavior by China as it continues its maritime salami-slicing campaign in the South China Sea. Beijing seeks to change the status quo in the region in order to solidify its sovereignty claims over the disputed Spratly and Paracel Islands and their adjacent waters.

In February, China began a large-scale land reclamation project at Johnson South Reef in the Spratly Islands, which could house a new PLA military airfield to control the region’s strategic sea lanes that traverse the South China Sea. The following month, Chinese authorities began enforcing new fishing regulations that require foreign fishing vessels to obtain prior approval to operate in the 2 million-plus square kilometers of ocean space encompassed by China’s notorious “nine-dash line.”
In May, China stationed a deep sea oil rig (HD 981) 120 nautical miles (nm) off the coast of Vietnam and began drilling for oil in Vietnam’s 200-nm exclusive economic zone. PLA Navy warships and other government patrol ships, as well as a large number of civilian fishing vessels, were deployed with the rig to guard its drilling operations. The following week, China Maritime Safety Administration ships prevented the resupply of 10 Filipino marines stationed on board the BRP Sierra Madreat Second Thomas Shoal in the Spratlys, even though contingents on board the grounded warship have been routinely resupplied by the Philippines since 1999.
Finally, in an obvious snub to a U.S. proposal at the ASEAN Regional Forum to freeze all provocative acts in the South China Sea, Beijing announced in August that it would build lighthouses on five features, including two islets in the Paracels, to purportedly enhance safety of navigation. Two weeks later, a Chinese Su-27 fighter conducted a dangerous intercept of a U.S. Navy P-8 patrol aircraft conducting routine surveillance 135 miles east of Hainan Island. Reminiscent of the 2001 EP-3 incident, the Chinese fighter made several passes under and alongside the P-8 before doing a barrel roll over top of the U.S. plane and flying within 20-30 feet of the Poseidon aircraft.
China justifies these actions by claiming it has “indisputable sovereignty” over the South China Sea islands and their adjacent waters, as well as sovereign rights and jurisdiction over the relevant waters and seabed included within the “nine-dash line.” A careful review of the historical record and law, however, reveals that China’s claims in the South China Sea are unfounded.
China claims the Spratlys and Paracels based on its extensive and continuous display of authority over the islands following their discovery during the Han Dynasty. Although Chinese mariners may have been aware of the existence of the South China Sea islands, there is no concrete evidence that China actually “discovered” the islands before seafarers in neighboring kingdoms in Vietnam, Malaysia, Indonesia, and the Philippines.
Moreover, even if China did discover the islands, international law is quite clear—discovery alone, without subsequent acts of effective occupation and control, does not confer title to territory. Effective occupation requires the intention and will to act as sovereign, and some actual exercise or display of such authority. There is simply no credible evidence, however, that China peacefully and continuously occupied the islands, or exercised requisite authority over them.
For the most part, China relies on records showing that Chinese fishermen sporadically lived on some of the Spratly Islands for short periods of time. Under international law, however, nonproprietary acts by private individuals do not qualify as “state” action unless they are immediately followed up or sanctioned by government authorities. There is no reliable evidence that the Chinese government ever authorized or subsequently sanctioned these acts.
The first verifiable acts of Chinese sovereignty over the Paracels did not occur until 1909. These acts occurred, however, nearly 100 years after Vietnamese Emperor Gia Long formally took possession of the archipelago in 1816. Vietnam and France effectively and continuously administered the islands until they were expelled by Japanese forces during World War II.
China’s first verifiable act of sovereignty in the Spratlys occurred even later – in 1933 – and well after France publicly announced in 1929 that it claimed the islands on the grounds that they were terra nullius. Formal French occupation took place in 1933. At the time France annexed and effectively occupied the Spratlys, conquest was still a recognized method of acquiring territory under international law. Conquest did not become illegal until the entry into force of the UN Charter in October 1945.
China also relies on a number of treaties, documents and statements to substantiate its sovereignty claims over the South China Sea islands, none of which support Beijing’s position.
China maintains that France relinquished its claims to the Paracels and Spratlys when it signed the Sino-French Treaty of 1887. China’s position is not, however, supported by a plain reading of the treaty or subsequent actions of the parties to the dispute. The 1887 boundary line established in the treaty only decided the ownership of the near coastal islands, not the mid-ocean islands in the Gulf of Tonkin or the more distant Paracel and Spratly Islands.
China’s reliance on the Cairo Declaration and Potsdam Proclamation to support its claim is likewise clearly misplaced. These documents only provide that China would recover Manchuria, Taiwan, and the Penghu Islands after the war. The next sentence states that Japan would be expelled from “other territories” that it had acquired by force, but it does not indicate that these “other territories” would be returned to China. The only logical conclusion is that these “other territories” included the Spratlys and Paracels, which were seized by violence from France, not China.  These islands would, therefore, be restored to France, not China, at the conclusion of the war.
This conclusion is supported by the fact that Generalissimo Chiang Kai-shek was present at the Cairo Conference, yet there is no reference to the South China Sea islands in the final declaration. Surely, if the Spratlys and Paracels were considered to be Chinese territory prior to the war, Chiang Kai-shek would have insisted that the archipelagoes be returned to Chinese control at the Conference.
China additionally claims that Chinese sovereignty over the South China Sea islands was recognized during the drafting of the 1951 Peace Treaty with Japan. However, the final text of the treaty treats Japan’s renunciation of rights to Taiwan and the Penghu Islands, and the Spratly and Paracel Islands, in two separate subparagraphs of Article 2. Thus, Japan presumably renounced its rights to Taiwan and the Penghus in favor of China and its rights to the Spratlys and Paracels in favor of France. Had the drafters of the treaty intended to return the islands to only one nation, they would not have included them in two separate subparagraphs.
China’s argument that Japan returned the Spratlys and Paracels to China in the two separate agreements formally ending hostilities between the two Chinas and Japan is likewise unfounded. Article 2 of the 1952 Taiwan-Japan Treaty simply states that Japan renounced its rights to Taiwan, the Penghu Islands, and the South China Sea islands. If the intent of the treaty was to transfer title to the Spratlys and Paracels to Taiwan, explicit devolution of rights in Taiwan’s favor would have been included in the treaty. Similarly, the 1972 China-Japan Joint Communiqué does not support Beijing’s position. The Communiqué merely states that Article 8 of the Potsdam Proclamationwould apply. However, neither the Potsdam Proclamation nor the Cairo Declaration support China’s claim to the South China Sea islands.
China also maintains, albeit incorrectly, that it retook possession of the Paracels and Spratlys in 1946 when Nationalist forces accepted the surrender of Japanese forces in French Indochina north of the 16th degree of latitude. Nationalist troops were sent to Itu Aba (Spratlys) and Woody Islands (Paracels) as an occupation force pursuant to General MacArthur’s General Order Number 1. That order did not, however, transfer title of the South China Sea islands to China. On the contrary, the Republic of China and France subsequently agreed that French troops would relieve Chinese Nationalist forces in north Indochina, including the Paracels and Spratlys, on March 31, 1946. As an occupation force, the Nationalist troops had a legal obligation to depart French Indochina, but they failed to do so.
The fact that Chinese forces illegally remained on Itu Aba and Woody Islands after the Allied occupation of Indochina formally ended in March 1946 was a clear violation of Article 2(4) of the UN Charter, and therefore, does not provide China with clear title to the two archipelagoes. Likewise, Taiwan’s occupation of Itu Aba in 1956, and China’s seizure of the Paracels in 1974 and several features in the Spratlys in 1988 and 1995 by armed force, also violated the UN Charter, and therefore do not confer a valid legal title to the islands.
China also asserts that North Vietnam renounced its rights to the South China Sea islands in the 1950s and 1960s. China’s reliance on these statements, however, is problematic for a number of reasons. Most importantly, North Vietnam had nothing to renounce during this time frame. The 1954 Geneva Accords divided North and South Vietnam at the 17th parallel—both the Paracels and the Spratlys lie south of the 17th parallel. As the successor state to France’s title, the South China Sea islands were therefore under the administration and control of South Vietnam, not North Vietnam. Consequently, North Vietnam was not in a position to relinquish the territory; any statements made by North Vietnamese officials regarding the islands were legally meaningless.
Based on the evidence submitted by the claimants and general principles of international law related to the acquisition of territory, it would appear that Vietnam clearly has a superior claim to the South China Sea islands.
A broad range of actions taken by Vietnamese and French authorities since the 18th century provides incontrovertible evidence of Vietnam’s continuous, peaceful and effective control of the Paracels. Vietnamese sovereignty was first established in the 18th century by the state-sponsored Hoang Sa Company; consecrated by Emperors Gia Long and Minh Ming in the 19th century; temporarily assumed by the French during the second half of the 19th century and first half of the 20th century; and continued in an open, peaceful and normal manner by an independent South Vietnam after the French withdrawal from Indochina in 1956, and by a unified Vietnam after 1976.
Similarly, France, on behalf of Vietnam, conducted various activities that confirmed French sovereignty over the Spratly Islands, particularly its formal annexation and occupation of a number of features in the archipelago in 1933. At the time, France’s annexation of the islands as terra nullius was strictly in compliance with existing international law and state practice. Great Britain, which had controlled some of the Spratly Islands in the 1800s, abandoned its claims following the French annexation, so French title to the Spratlys was legally and soundly established. Thereafter, French and Vietnamese actions clearly demonstrate an effective and active presence in the archipelago, as well as a peaceful exercise of sovereignty over the Spratly Islands. France’s title to the archipelago was ceded to South Vietnam in the 1950s and the South Vietnamese government (and subsequently a united Vietnam) effectively and peacefully controlled the islands until Taiwan illegally occupied Itu Aba Island in 1956 and China illegally occupied a number of islets in the archipelago in 1988.
           
The South China Sea is home to some of the world’s busiest and most strategic sea lines of communication (SLOC). More than $5 trillion in commerce, including over half of the world’s oil tanker traffic and more than half of the world’s merchant fleet by tonnage, flows through the region on an annual basis. This includes over $1 trillion in U.S. trade. A conflict in the region would have a destabilizing effect on the world economy.
The United States must firmly demonstrate its distain for China’s aggressiveness in the Asia-Pacific, and encourage its friends and allies to do the same. Vietnam should be encouraged to follow the Philippines’ lead and seek compulsory dispute settlement in an international forum. It is also unhelpful for the United States to continue to call on the various claimants to clarify their claims in accordance with international law. The facts and the law are quite clear—China’s claims are baseless and its antagonistic behavior threatens regional peace and security. Feigning neutrality emboldens Beijing to be more assertive against its weaker neighbors, and it puts China one step closer to realizing its illicit land-grab of the South China Sea islands.
Captain (Ret.) Raul Pedrozo was the former U.S. Pacific Command Staff Judge Advocate. The article is based on an occasional paper commissioned by the Center for Naval Analyses entitled “China versus Vietnam: An Analysis of the Competing Claims in the South China Sea” available at http://www.cna.org/research/2014/china-versus-vietnam.
Image: Flickr/See-ming lee/CC by 2.0

September 3, 2014
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1 comment:

Anonymous said...

Thanks to the author for a very informative and well documented statement of the subject. This needs to be read by anyone interested in the subject.