6.1 History of Disputes

In the South China Sea, China is also embroiled in both territorial and boundary disputes with its neighbouring States. But the key question is the territorial disputes over the Spratly Islands.1 Without settlement of the disputes over the sovereignty of the Spratly Islands, logically, it would be impossible to delimitate the maritime area around the Spratlys. It would be much easier for the disputing States to settle their maritime boundary disputes if the sovereignty disputes would be resolved, because all the disputing States have acceded to the 1982 UNCLOS, which provides the rules for maritime delimitation. This chapter focuses on the settlement of disputes over the sovereignty of the Spratly Islands.

Tire sovereignty disputes over the Spratly Islands are extremely complicated and intricate. Mainland China, Taiwan, Malaysia, Vietnam, the Philippines and Brunei all make claims either in whole or in part to the small islets of the Spratly Islands and their surrounding water areas. The issue of sovereignty in the South China Sea is regarded as one of the three major factors that might trigger military conflicts in the Asia-Pacific region." The disputes over the sovereignty of the Spratly Islands could flare up into further armed conflict because of the prospect of rich oil and gas deposits around the Islands and the strategic location of the area and the limitations of the Law of the Sea and international law, which fail to provide an effective mechanism and framework for resolving the disputes.'

It should be pointed out at first that both the PRC and Taiwan respectively regard themselves as the representative government of China to claim the Spratly Islands. Til at is to say, the claims of Mainland China and Taiwan to the Islands are all built up on the "one China policy." So in this chapter, Taiwan's claim shall not be treated separately. Actually, no competing claims exist there under the current conception of''one China." Additionally, any recommendation to resolve the dispute over the Spratly Islands, if it were based on separating Beijing and Taiwan's claims to the Islands, would become meaningless in practice because such a recommendation would be unacceptable to Beijing whose position in the disputes will be determinative due to its growing economy and military strength.4

The Spratly Islands consist of more than 100 small islands, islets, coral reefs, sands and cays scattering over an area of nearly 410,000 sq km of the central South China Sea.1 There are only L L islands, 5 sand cays and 20 reefs rising above sea level.' In general, the Spratly Islands are too small and barren to support permanent human settlement independently, and lew have fresh water or any significant land-based resources. The largest islet in the area, Taiping Island (also named as Itu Aba Island), at approximately 0.43 square kilometers in area is not large enough "to sustain permanent, independent settlement."" The Spratly Islands are located in the South China Sea, 900 miles south of the Chinese island of Hainan, 230 miles east of Vietnam, 120 miles west ofthe Philippine island ofPalawan, and 150 miles northwest of the Malaysian state of Sabah. '

The dispute over the Spratly Islands did not come into existence until 1933 when the French Foreign Ministry suddenly declared that France had occupied the Spratly Island and five other islands. Actually, when the French took possession ot the islands in the 1930s, three Chinese were living on an island called the Spratly Island and Chinese homes and temples were found on the other islands.1" Hie French action brought about immediate protests, not only from China, but also from Japan which also claimed the Islands, During World War II, Japan occupied the Spratly Islands. In 1945 when the War ended, the Japanese troops withdrew and the Islands remained unoccupied for more than a year.11

In November 1946, the Republic of China (ROC) sent its troops to the Islands and garrisoned on Taiping Island, the largest island in the Spratly Islands.1" Hie Chinese officials made a comprehensive survey of the area and the Ministry ot Internal Affairs published new names for many of the Spratly Islands.1' In 1947, the newly founded Philippines Government advocated that all the islands in the South China Sea should be given to the Philippines.14 In 1956, a private expedition led by a Filipino named Tomas Clomas landed on the Spratlys and claimed their discovery Without support from the Philippine Government, Clomas and his party abandoned the islands a few months later.11

After the defeat in Mainland China, the government of ROC withdrew the last of its troops from the Spratly Islands in May 1950.1" Since the founding of the PRC in October 1949, the new Chinese government has repeated its claim to the Spratly Islands consistently.1 Chinese Prime Minister Zhou Enlai in a statement issued in August 1951 restated China's claim to the Islands.I!i When Tomas Clomas launched a private expedition to the Spratly Islands and named them "Freedom-land", the ROC protested to the Philippine government and sentgarrison forces to Taiping Island, to defend the Spratly Islands.19 Ever since the ROC has maintained a garrison on the island.'"

Before the early 1970s, the situation in the Spratlys remained relatively calm because the value ot the islands' known resources, primarily fish and guano, did not justify the expense of excising control over the Spratlys.21 The emerging oil potential of the area around the islands ignited a rush of occupations in the Spratlys."2 Hie 1973 oil crisis and the substantial rise of oil price further stimulated the struggle in the area.23 In 1971, the Philippines officially claimed the largest area of the Spratly — a zone refered to as Kalayaan and began oil exploration in 1976. In 1978, the Philippines government issued a presidential decree declaring Kalayaan as part of the national territorial."'1 Before 1975, North Vietnam had recognized Chinese sovereignty over the Paracel and Spratly Islands.25 In 1975, North Viptnam defeated South Vietnam and reunified Vietnam and began to renege on its commitment to China by asserting its own Spratly claims.26 Meanwhile, Malaysia also extended its continental shelf in 1979 and included some features ot the Spratlys into its territory.2 China continued to refute the claims made by other States. In July 1977, Chinese Foreign Minister Huang Hua reconfirmed China's claim to all the Spratly Islands.2"

In the 1980s, the report made by the UN Economic Commission in Asia on the possibility of potential petroleum deposits around the Spratly Islands further raised international interest and attracted more countries to claim their sovereignty."'1 Brunei and Indonesia in the late 1980s and the early 1990s respectively established their exclusive economic zones ot 200 nautical miles that extend to the south of the Spratly Islands.In 1988 and 1992, military clashes broke out between Chinaand Vietnam in the South China Sea. Up to now, China, Vietnam and the Philippines have enacted legislation incorporating the Spratlys into their territory.1' Except tor Brunei, all the claimants have established military presence there.

Similar with the situation in the East China Sea, the interests in the deposit ot oil and gas around the Spratly Islands are the main motivation for the States concerned to compete for the uninhabited tiny islands. Advances in drilling technology and the rising interest ot toreign companies in searching for petroleum resources in the South China Sea have intensified the disputes. Many U.S. and Western oil companies have been involved in oil exploratory activities respectively with China and Vietnam in the Spratlys ever since the 1990s.-'' As a result, the disputes were highlighted by these economic activities. In May 1992, when Beijing let a concession to a foreign company — the Crestone Energy Corporation — to explore oil in the western area of the Spratlys, '1 Vietnam immediately lodged a protest against China's concession. ^4 Similarly, China also protested against the Vietnamese concession to foreign oil companies. On 8 February 1995, the Philippines discovered the Chinese occupation ot Mischief Reef, located in Kalayaan, the part ot the Spratly Islands claimed by the Philippines. Then, the Philippine President Fidel Ramos strongly criticized China's action. Manila responded by taking retaliatory measures that included the destruction of Chinese territorial markers and the arrest of Chinese fishermen.35 On 17 April 1996, a spokesman from the Chinese Foreign Ministry stated that Vietnam's grant of rights to foreign petroleum companies tor oil exploration in the sea area of the Spratly Islands was ''illegal and invalid" and "an encroachment on China's sovereignty and its maritime rights and interests." The entire area covered by the Vietnamese contract falls within the Wan'an Tan Bei-21 block licensed by Beijing to Crestone Energy Corporation.3'1 In March 1999, Malaysia's seizure of Navigator Reef caused protestations from the Philippines, Vietnam, Brunei and China.'57

In order to prevent further tensions over the disputed territories and to reduce the risks of military conflict in the South China Sea, the ASEAN foreign ministers and the Chinese Vice Foreign Minister, Wang Yi, signed a Declaration on the Conduct of Parties in the South China Sea on the sidelines of the ASEAN summit in Phnom Penh in November 2002.38 In fact, the Declaration is political rather than legal, but it is regarded as the first step for China and the ASEAN members to reach agreements on joint oil exploration and development schemes.39 In order to commit itself to a peaceful settlement, the PRCacceded to the Treaty of Amity and Cooperation (the TAC) on 8 October 2003, which is a binding treaty rather than a political declaration.40 In May 2004, Vietnam started re-building a runway on the disputed island of Truong Sa Lon (Big Spratly) with the purpose of sending small groups of Vietnamese tourists to the South China Sea.41 China strongly criticised the Vietnamese actions and described them as violating the 2002 Declaration.|J

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1 Different countries refer to the islands by different names, Vietnam named the islands theTruong Sa Islands, China named them the Nansha Islands, and the Philippines calls some of them the Kalayaan Islands. See L. G. Gordner, 'Th e Spratly Island Dispute and the Law of the Sea' 25 Ocean Dev. drlnt'lL. (1994), pp. 61, 64, 66.

1 The other two factors are the military confrontation in the Korean Peninsula and Taiwan's separatist activities. See X. Yan 'Co-operation Key to Regional Peace' China Daily (Beijing 27 Mar. 1998), p. 4.

3 L. G. Gordner, op. cit. (1994), p. 71.

4 This attitude is adopted by some authors, For example, Professor Omar SaJeem, See O. SaJeem. *The Spratly Islands Dispute: China Defines the New Millennium' 15 Am. U. IntlL. Rev. (1999—2000), pp. 576-7.

 

5 The South China Sea is categorised as a semi-enclosed sea under the general definition set down in the 1982 UNCLOS. Hundreds of uninhabited islets, shoals, reefs, banks, sands, cays and rocks are distributed in the form of four groups of islands and underwater features, i.e. the Pratas Islands (Dongsha Islands), the Paracel Islands (Xiasha Islands), the Macclesfield Bank (Zhomgsha Islands) and the Spratly Islands (Nansha Islands). See K. Zou. lThe Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands' 14 Intl J. Marine & Coastal L. (1999), p. 28. See also the Spratly Islands at <https://www.cia,gov/cia/publication5/factbook/print/pg.html> [17 Mar. 2008].

 

6 J. Shen. "International Law Rules and Historical Evidences Supporting Chinas Title to the South China Sea Islands' 21 Hastings Intl drComp. L. Rev. (1997—1998), p. 2. Y. Bochu. 'Jiakuai nansha haiyu de youqi diaocha hanwei woguo de ziyuan quanyi (Accelerating the Oil and Gas Surveys in the South China Sea Area, and Protecting Our Country's Rights and Interests in Natural Resources)' in Symposium on the South China Sea Islandsr Selected Papers (Institute for Marine Development Strategy, State Oceanic Administration, Beijing 1992), p. 213.

7 See generally D. Hancox and V. Prescott. A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands' in Maritime Briejing (International Boundaries Research LInit, special issue, 1995).

 

8 M. Bennett. ""The People's Republic of China and the Use of International Law in the Spratly Island Dispute' 28 Stan. J. Int'lL. (1992), p. 425, pp. 429—30. J. Shen, op. cit. (1997—1998), p. 4.

9 L. G. Gordner, op. cit. (1994), p, 61.

 

10 It was reported by the French themselves that there were three Chinese living on the Spratly Island in 1930, See Saix. Ties Par ace Is' La. Geographie (Nov.—Dec. 1933), reprinted in 3 Waijiao pinglun (Foreign Affairs Review), p. 66. See alsoT, Cheng. 'The Dispute over the South China Sea Islands' 10 Tex. Int'lL.J. (1975), pp. 268—9¬

11 M, Bennett, op. cit. (1992), p, 437.

12 H. Chin and C.-H. Park. 'Legal Status of the Paracel and Spratly Islands' 3 Ocean Dev. & Intl L.J. (1975), p. 13.

 

13 Ibid.

14 7a KungPao (Shanghai 26 Jan, 1947), p. 3. See also T. Cheng, op. cit, (1975), p. 270.

15 M, Bennett, op. cit. (1992), p, 438.

16 H. Chin and C.-H. Park. 'Legal Status of the Paracel and Spratly Islands' 3 Ocean Dev. drlnt'lL.J, (1975), P. 14.

17 G. Ji. 'The Spratly Islands: China's Dispute with Vietnam' (40) Indochina Report( Jul—Sep. 1999), pp. 19-20.

 

18 Th e statement was issued just days before the signing of the San Francisco Treaty of Peace between

 

the U.S. and Japan on 8 September 1951, saying, "The inviolable sovereignty of the People's Republic of China over Nansha (Spratly Islands) and the Xisha (Paracel) archipelago will by no means be impaired, irrespective of whether the American-British draft for a peace treaty with Japan should make any stipulation and of the nature of any such stipulation." Beijing Review (Beijing. 22 Jul. 1977).

 

24 D. C. Drigot. "Oil Interests and the Law of the Sea: The Case of the Philippines1 12 Ocean Dev. & Int'l L. (1983), p. 23.

 

27 L. C. Kin. Chinas Policy towards Territorial Disputes (Routledge, London 1989), pp. 153—4. See also J. R. Coquia, 'Maritime Boundary Problems in the South China Sea' 24 U. Brit. Colum. L. Rev. (1990), p. 119.

28 Chinese Foreign Minister Huang Hua publicly said, "The territory of China reaches as far south as the James Shoals, near Malaysia's Borneo territory... I remember that while I was still a schoolboy, I read about those islands in the geography books. At that time, I never heard anyone say those islands were not Chinas... The Vietnamese claim that the islands belong to them. Let them talk that way. They have repeatedly asked us to negotiate with them on the issue; we have always declined to do so.. .As to the ownership of the islands, there are historical documents that can be verified. There is no need for negotiations since they originally belonged to China." Beijing Review (Beijing 22 Jul. 1977).

 

30 Although Indonesia has made no Spratly claim, its Natuna gas field was depicted within Chinese territory on a 1992 official Chinese map of the South China Sea. SeeC. Liu. 'Chinese Sovereignty and Joint Development: A Pragmatic Solution to the Spratly Islands Dispute' 18 Loy. L. A. Int'l dr Comp. L. J. (1995—1996), Note One, p. 865; 'Chinese Bureaucrats Draw the Line in South China Sea Petroleum Economist (Jul. 1995), p. 16.

 

33 K. Zou. 'The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands' 14 Int'l J. Marine & Coastal L. (1999), pp. 35—6. D. Hancoxand V. Prescott. A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands' in Martime Briefing (International Boundaries Research Unit, special issue, 1995), pp. 6, 16.

 

34 See Statement Of The Ministry Of Foreign Affairs of the Socialist Republic of Vietnam on the Agreement between Chinese and US Oil Companies for the Exploration and Exploitation of Oil and Gas on the Continental Shelf of Vietnam (Hanoi, Ministry Of Foreign Affairs, 16 May 1992;as cited in S. P Kim. 'China's Changing Policies toward the South China Sea \ 2 American Asian Review (1994), p. 69, note 5).