China Arguments
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China's Claim to the Spratly Islands China claims both the Paracel Islands in the north and the Spratly Islands in the southern sector of the South China Sea. Its claim to the islands is based on historical usage, its ship captains having sailed across the South China Sea 2,000 years ago and having used the Sea as a regular navigational route during the Han dynasty (206-220 A.D.)." As Chinese voyages increased in frequency and range during the T'ang Dynasty (618-906 A.D.), so did Chinese awareness of the Spratlys. From the 12th through the 17th centuries, Chinese records made occasional reference to the islands and their "sandy banks," including maps displaying elevations. During this period, China viewed "itself as the centre of a universal state" which "oversaw a hierarchy of tributary states . From this perspective, it had no reason to make any formal claim of sovereignty. This uniquely-Chinese view of social organization presents problems for the modem analysis of a "sovereignty" claim. As one commentator has observed: Chinese legal and political thought, reflecting the influence of the Confucian ethic, conceives of the area over which a State, or "kuo," had sovereignty, not as a function of legal limits, but as one of social organization, history and the loyalty of subjects. The Emperor ruled men and not space; the area of rule was defined as points of human residence and use. Thus, the delineation of the scope of territorial sovereignty was expressed in terms of zones of influence rather than by definite linear boundaries. Sorting out the merits of China's historic links to the Spratlys in relation to Vietnam's historic links to the islets is particularly challenging because China asserted dominance over Vietnam during this period as well. China's presence in the Spratly area is more consistently documented from the 19th century onward. Tombstones and household utensils from Emperor Tongzhi's reign of 1862-75 have been found on the islands. Traders from Hainan exchanged rice and other necessities for trepang and tortoise shells with fishers visiting the islands. In 1 876, the first formal act of a sovereignty claim was made, when China's ambassador to England claimed the Paracel Islands as Chinese territory, and, in 1883, a German survey team on the Spratly Islands was expelled by the Chinese. An 1887 boundary treaty between France and China allocated all the islands east of 108 degrees, 43 minutes east of Greenwich (or 105 degrees 43 minutes east of Paris) to China (which would cover all the Spratlys if the line were extended indefinitely to the south), but this basis for China's claim is weak because the treaty does not name any islands and France later argued that this line covered only the northern part of the South China Sea. China itself, in fact, rejects the view that the line can be taken literally, because it would give Vietnam more area in the Gulf of Tonkin than China is prepared to concede. In 1907, China sent a senior military team to survey the South China Sea Islands. In 1917, a Japanese company began exploiting some of the guano deposits on the Spratly islets. Then, in the early 1930s, France made a formal claim to seven of the "larger" Spratly features, and to some extent exercised actual physical control of the Spratlys. By the late 1930s, Japan had established a strong presence there, using Itu Aba as a submarine basing area to intercept shipping through the region. In 1945, at the end of World War II, Japan left the area and in Article 2 of the Treaty of Peace signed in 1951, Japan renounced all "right, title and claim to ... the Spratly Islands. China cites this statement as proof of the legitimacy of its historic claim to the islets, even though the treaty does not assign the islands to any specific country. China was militarily weak during this period and preoccupied with its own domestic turmoil, and thus did not have the capacity to patrol and protect the Spratlys vigilantly. It has, however, been relatively consistent in protesting the claims made by other nations, including in recent years the claims of the Philippines,SouthVietnam, reunited Vietnam, and Malaysia. In recent years,China has asserted its claim to the islands with military force, engaging in skirmishes with Vietnam on several occasions. The most dramatic battle took place in March 1988, when China sank three Vietnamese vessels, killing 72 Vietnamese, and took control of Fiery Cross Reef (Yung Shu Jiao). Fiery Cross Reef is about 14 nmi long. U.S. Defense Mapping Agency charts indicate that it is submerged at high tide in its natural state, 47 but other sources claim it has one rock at its southwest end that is about the size of a table and is 0.6 meter above water at high tide. This reef has been converted into an artificial island and now contains a supply base, a helipad, a 300-meter pier capable of handling 4,000-ton ships, and an ultramodem oceanographic observation station that can receive and transmit messages through satellites and provide vital meteorological data to passing aircraft and ships . The other features occupied by China are Cuarteron Reef (Huayang Jiao) (coral rocks, said by some to reach a height of 1.5 meters), Gaven Reef (Nanxun Jiao (northern part) and Duolu Jiao (southern part)) (reported to contain a 2-meter-high sand dune), Johnson Reef (Chigua Jiao), Subi Reef (Zhubi Jiao) (above water only at low tide), Kerman Reef (Dongmen Jiao), Loaita Cay, and North Danger Reefs (Shuangzi Jiao or Gongshi Jiao),'o and - as of July 4, 1992 - Whitson Reef (Niue Jiao). Although some reports indicate that some of these features have small portions sticking up above water at high tide, other reports indicate that none of them are high-tide elevations in their natural state. On Johnson South Reef, the Chinese have built an elevated fort -like structure, with a long matshed to house the troops and sailors stationed there. One commentator estimated in 1993 that the PRC had about 260 troops stationed on nine separate reefs." China has asserted that it has no soldiers stationed in the Spratlys, only civilian personnel operating weather and communications stations. Indeed China claims its weather station was established under the auspices of the World Meteorological Association, which denied sanctioning the installation. The culmination of these claims and activities was China's promulgation of its "Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone" issued on February 25, 1992, which in Article 2 specifically identifies the Nansha (Spratly) Islands as Chinese territory. Weaknesses in China's Claim to the Spratly Islands Chinese authors claim that China has met the requirements found in the Isle of Palmas arbitration by effectively exercising sovereignty over the Spratly islets without challenge for centuries until the French intrusion in 1933. Most non-Chinese commentators have concluded, however, that China's claim that the South China Sea islands have "always been part of Chinese territory , is weak. China's exercise of authority over the islands was only occasional and sporadic up through the end of World War II. One commentator has summarized the evidence as follows: Ancient records are sparse, incomplete, and do not provide compelling evidence of routine occupation, effective administration, or assertion of sovereign control. The claim that the islands were exclusively Chinese is further weakened by an official Chinese government report published in 1928 that shows the southernmost delineation of Chinese territory as the Xisha Islands (Paracels) and makes no mention of the Nansha (Spratly) islands."' China's claim to have exercised its authority continuously is similarly weak. China did not exhibit a regular pattern of behavior or repetition of the same or similar activities until the 1970s, when it started regularly asserting itself against Vietnam and the Philippines. As mentioned above, a Japanese company fished in the Spratly area and exploited the guano deposits in 1917, apparently without Chinese protest. Later, in the 1930s, the French moved into the area, followed by the Japanese. This undisputed break in the continuity of China's historical chain certainly weakens its claim. Chinese scholars respond by arguing that China was not familiar with Western international law principles and procedures until the nineteenth century, that China did protest a German survey of the island group in 1883, that China was politically and militarily weakened during the first half of the 20th century and thus unable to maintain a continuous presence, and that acquisition by conquest is not permitted under international law.62 They argue that China's grip on the islets was firm as of 1930, and that subsequent developments could not dislodge China's sovereignty. If the limited actions required by Emperor Victor Emmanuel in the Clipperton case described above were applied here, then China might well prevail, but the later cases emphasize effective occupation and control more than original discovery. China does appear to have had an interest in the Spratly islets at different historical periods. China's claim is weakened, however, if one gives credence to Vietnam's assertions that it also had a relationship with the Spratlys during earlier centuries. In the end, one is left with an inconclusive collection of historical evidence that points in several directions. No activity on China's part that could be characterized as "occupation" occurred until 1988, when China built a marine observatory on Fiery Cross Reef and air traffic control centers, weather stations, and military garrisons on other features. The opposition of foreign states also weakens China's claims. Other nations did not "acquiesce" to China's assertions of sovereignty. Vietnam has claimed the islands for centuries, and France, Britain, and Japan each made claims in earlier periods. And currently, the Philippines, Malaysia, and Brunei, as well as Vietnam, all have significant claims to all or some of these islets. Also, China has not until very recently tried to exclude or regulate foreign fishing vessels or merchant shipping in the southern South China Sea. In July 1995, a Chinese patrol boat stopped and inspected two Taiwan fishing boats in the Spratly area. Nevertheless, for all of the above reasons, China's historical claim to the Spratly Islands - although strongly maintained by China - is weak under international law principles. See more interesting articles in "Sharing the Resources of the South China Sea," Mark J. Valancia, Jon M. Van Dyke, Noel A. Ludwig, Published by Kluwer Law International, P.O. Box 85889 CN The Hague, The Netherlands, 1997. |