6.2 Conflicting Claims

6.2.1 Chinese Claims

China claims all the islands in the Spratly archipelago based on discovery and occupation, treaty and estoppel.

In the Chinese claims, the Chinese first discovery of the Spratly Islands can date back as far as more than 2000 years ago. Many Chinese historical books, records and documents support its claim, for example, YiZhou Shu (Scattered Books of the Zhou Dynasty), and Shi Jing (The Classics ofPeoms), Zuo Zhiian (Zuo's Commentaries), Guo Yit (Statements of the States) all mentioned the Spratly Islands.41 Between 1405 and 1433, Zheng He (also known as Cheng Ho), a well-known navigator and a high-ranking official of the Ming imperial court led seven large-scale voyages through the South China Sea and recorded the location of the Paracel and Spratly Islands."4

China claimed that it started to exercise authority over the Spratly Islands in the form of naval patrol since the Han Dynasty (206 B.C.-220 A.D.).**' The patrol activities by various Chinese dynasties continued until modern times.46 In 1909, the Governor of Guangdong and Guangxi, Zhang Renjun, sent the naval officer-in-charge, Li Zhun, to the Spratly Islands area. His crew erected stone markers, raised Chinese flags and held cannon-shooting ceremonies to demonstrate China's sovereignty.4 Since the replacement of the Qing Dynasty with the Republic ot China in 1911, the Chinese government continued to exercise authority over the Islands and entrusted administration of the Islands to the local government of Hainan, which was a special prefecture within Guangdong Province.44 Although France and Japan once occupied the Spratly Islands respectively from 1933 to 1945, the Chinese government never stopped its protest and condemnation.49 China emphasized that neither the French nor the Japanese occupations changed the territorial status of the islands in the South China Sea because they were illegal and invalid under international law.50

At the end ofWorld War II, Japan renounced the Spratly Islands and withdrew its troops. In November 1946, the ROC sent representatives with warships to resume its control over the islands and set up an Administration to exercise jurisdiction over the islands in the South China Sea including the Spratly Islands under the Guangdong Province and later the Hainan Administrative District.11 In 1956, the ROC under the name of China sent its naval contingent to the Spratly Islands to defend die Philoppino invasion and retained its troops on the Taiping Island up to now.52

Meanwhile, die PRC has never given Up its claim of jurisdiction over the Spratly Islands since it was founded in October 1949. China believes China's sovereignty over the Spratly Islands has never been interrupted during and after the government transition.1' On 4 September 1958, the PRC promulgated a decree in which it confirmed its sovereignty over the Spratly Islands.54 In March 1959, the PRC established an office in charge of Xisha, Nansha (the Spratlys) and Zhongsha Islands. Hie office during the Cultural Revolution (1966—1976) changed its name into the Revolutionary Committee of the Xisha, Zhongsha and Nansha Islands ot Guangdong Province.15 In January 1988, the PRC sent its troops to some islands of the Spratly archipelago and built a ferry and a helicopter airport on Yong Shu Island (Fiery Cross or N. W. Investigator Reef). The PRC also built a Maritime Observation Station on the Island based on the UNESCO plan and support. In March 1988, the PRC even fought against an invasion ot the Spratly Islands by Vietnam.'1' China claims that its jurisdiction over the Spratly Islands has been consistent and the occupations of some of the Spratly Islands by foreign countries are all illegal and invalid.57

China uses various official maps and encyclopedia to support its occupation of the Spratly Islands.58 Hie maps listed as illustrations published by the Qing Dynasty of China (1644—1912) include:1''

 

(1) The 1724 Map of the Provinces Directly under Qing Authority (Qing Zhi Sheng FengTu);

(2) The 1755 Map of the Provinces Directly under the Imperial Qing Authority (Huang Qing Zhi Sheng FenTu);

(3) The 1767 Map of Eternally United Great Qing Empire (Da Qing Wan Nian Yi Tong Tian Xia Tu);

(4) The 1810 Map of the Eternally United Great Qing Empire (Da Qing Wan Nian Yi Tong Di Liang Quan Tu);

(5) The 1817 Map of the Unified Territory of the Great Qing Empire (Da Qing Yi Tong Tian Xia Quan Tu).

Hie maps published in other countries and listed as proof of international recognition of the Spratlys as China's territory since 1949 include:60

(1) Hie Welt-Atlas published by the Federal Republic of Germany in 1954, 1961 and 1970 respectively;

(2) World Atlas published by the Soviet Union in 1954 and 1967 respectively;

(3) World Atlas published by Romania in 1957;

(4) Oxford Australian Adas and Philips Record Atlas publishedbyBritainin 1957 and Encyclopedia Britannica World Atlas published by Britain in 1958;

(5) World Atlas drawn and printed by the mapping unit of the Headquarters ot the General Staffof the People's Army of Vietnam in I960;

(6) Haack Welt Atlas published by German Democratic in 1968;

(7) Daily Telegraph World Atlas published by Britain in 1968;

(8) Atlas International Larousse published by France in 1968 and 1969 respectively;

(9) World Map Ordinary published by the Institut Geographique National (IGN) of France in 1968;

(10) World Atlas published by the Surveying and Mapping Bureau of the Prime Minister's Office of Vietnam in 1972 and;

(11) China Atlas published by Neibonsya of Japan in 1973.

In addition, all the maps published by both the ROC and PRC included the Spratly Islands as the Chinese territory.61 In 1948, the ROC officially published the Atlas of Administrative Area of the Republic of China and this map has had substantial influence over subsequent maps either published by the mainland or by Taiwan.  

After the PRC replaced the ROC in the mainland in 1949, the maps of the South China Sea were the same as before 1949.63

China believes that its occupation of the Spratly Islands has international recognition. For example, in 1955i in Manila the International Civil Aviation Organization (ICAO) held the Conference on Pacific Region Aviation, which was attended by the representatives from 16 countries and areas, such as Australia, Canada, U.K., U.S., Japan, France, Thailand, New Zealand, the Philippines, Vietnam, the ROC, etc.. When ICAO at the Conference assigned the ROC the task to improve meteorological observations throughout the Spratly Islands, no representatives including the ones from the Philippines and Vietnam made a protest or reservation.'"4 The aforementioned instances of recognition of Chinese sovereignty claims to the Spratly Islands by certain cartographers are also the evidences China depends on to declare that its occupation has international recognition.

China buttresses up its occupation with Vietnam's official acknowledgement of the Spratly Islands as being China's territory before 1975- When China took over the Spratly Islands from Japan in 1946, and published new names for each ot the Islands, neither Vietnam nor any country protested to China regarding to its actions. On 15 June 1956 Vietnamese Vice Foreign Minister Ung Van Khiem publicly stated to the Chinese Charge d'Affaires, Li Zhimin, ''according to Vietnamese data, the Xisha (Paracel) and Nansha (Spratly) Islands are historically part of Chinese territory." On 4 September 1958, China proclaimed the breadth ot its territorial sea to be 12 nm and specified that this provision applies to all Chinese territories including the Spratlys. On 14 September, Vietnam's late premier Pham Van Dong in his note to Beijing affirmed that Vietnam "recognizes and supports" China's declaration and "respects this decision.""' China believes that these recognitions constitute estoppel and thus Vietnam is estopped from asserting otherwise/'7

China also argues that international treaties constitute turther evidence ot Chinese ownership of the Spratly Islands. From China's viewpoint, the Spratly Islands should be part of the Chinese territory Japan seized during World War II and therefore should be returned to China after the war under both the 1943 Cairo Declaration and the 1945 Potsdam Proclamation.6" In China's interpretation, even if the treaties do not stipulate unequivocally that these islands should be returned to China after the Japanese renunciation, the following events imply that these islands should be returned to China. In 1946, China held a take-over ceremony on the Spratly Islands, and in 1952, the year after the San Francisco Treaty was signed, Japan stated that it had renounced all rights to Taiwan, the Spratly Islands, and other islands that it occupied during the war.6' At the same year, the 15th map of Southeast Asia of the Standard World Atlas, recommended by the signature ot the then Japanese Foreign Minister, Cats Okazaki, marks as part of China all the Paracel and Spratly islands which Japan had to renounce as stipulated by the Treaty of Peace with Japan.70

The PRC has reiterated its sovereignty over the Spratly Islands ever since its founding. In 195k the PRC Foreign Minister reconfirmed China's sovereignty over the Spratly Islands in his statement. 1 In 1956, the PRC Foreign Ministry pronounced a similar statement. 1 In 1958, the PRC issued a Declaration of the Territorial Sea, which claimed that the Spratly Islands belonged to China. ! In the following years, such announcements continued. ^ On 25 February 1992, the Chinese National People's Congress, which functions as the Parliament of the PRC, codified China's claim to sovereignty over the Spratly Islands by passing the Law of the PRC on the Territorial Sea and Contiguous Zone, Article 2 of which provides that China's territory includes the Spratly Islands.75

 

6.2.2 Vietnamese Claims

Vietnam claims ownership of the entire Spratly Islands mainly based on discovery and occupation.7*5 At the 1951 San Francisco Peace Conference, the former Saigon government said that the Spratly Islands "have always belonged to Vietnam." In 1971, South Vietnam (the Republic of Vietnam) issued a "Declaration on the Sovereignty of the Republic of Vietnam over the Archipelago of Paracels and Spratly", in which it stated that the Spratly Islands (Thruong Sa) were included as part ot the Vietnamese territory under Emperor Minh Mang in 1830. 8 Vietnam also invokes the principle of state succession to strenghthen its claim. South Vietnam once viewed its title to the islands as succession from its colonial power, France.7 J Notwithstanding the fact that the government of North Vietnam had concurred with Chinese claims of sovereignty over the Spratly Islands in the 1950s, in 1975, the reunited Vietnam reasserted its claim to the entire archipelago based on South Vietnam's jus tificarions. In May, the China Department of the Vietnamese Foreign Ministry declared "the Truong Sa Islands (Spratly Islands) had been Vietnamese territory since ancient times.

6.2.3 Philippine Claims

The Philippine Government claims to approximately 60 of islands in the Spratly archipelago based on discovery and proximity. On 10 July 1971, the Philippine Government announced that it "had sent a diplomatic note to Taipei ashing the the Chinese garrison be withdrawn trom Itu Aba." The legal reasons asserted by the Philippine Government were that the Philippine explorer, Tomas Cloma, discovered the Spratly Islands in the early 1950s and the Islands were within its archipelagic territory."J On 11 June 1978, President Ferdinand Marcos signed Presidential Decree 1596 claiming sovereignty over the Kalayaan group (some ot the Spratly Islands), which was identical to the Cloma claim except that it omitted Spratly Island proper and included Amboyna Cay." In 1998, when Beijing expanded some permanent structures it had built earlier on Mischief Reet, one part ot the Spratlys, the Philippines claimed the sovereignty of Mischief Reef based on the fact that the Reef is just within its exclusive economic zone. It asserted that the Spratly Islands are over one thousand miles away from China's coast.81 In fact, the Philippine Government also justified its claims based on the continental shelf of the 1982 UNCLOS.Under the 1982 UNCLOS, state territory includes both a continental shelf, which allows for the exploitation of natural resources, and an exclusive economic zone that can extend limited sovereignty to a distance of approximately 200 nautical miles from the coastline.35

6.2.4 Malaysian Claims

Malaysia claims some of the islands in the Spratly region based on geographic proximity.1'" In 1996, Malaysia passed a Continental Shelf Act based on the provisions of the 1958 Geneva Convention on the Continental shelf. The southern Spratly Islands claimed by it coincides with its continental shelf area defined in the 1979 Map of Malaysia. The map showed the Malaysian jurisdiction overall the islands and atolls on the shelf based on the 1958 and 1982 treaties on the Law of the Sea.8 In 1984, Malaysia proclaimed an Exclusive Economic Zone Act, which provided that its jurisdiction shall extend to the southern part of the Spratly Islands, such as Pulau Amboyna Kecil (Amboyna Cay), Terumbu Laksamana (Commodore Reef) and Terumbu Semarang Barat Kecil (Louisa Reef). Malaysia also uses Article 121(1) of the 1982 LOS Convention to support its claim.88

6.2.5 Bruneian Claims

Like Malaysia, Brunei claims the southern portion of the Spratlys based on geographic proximity.89 In 1988, a Brunei map displays acontinental shelf that extends beyond Rifleman Bank apparently based on a 350-nautical-mile continental shelf interpretation. " On 21 July 1993, Brunei issued Declaration on the Exclusive Economic Zone,1'1 establishing an EEZ that extends to the south of the Spratly Islands and compromises the Louisa Reef.' "

 

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48 J. Shen. 'International Law Rules and Historical Evidences Supporting Chinas Title to the South China Sea Islands' 21 Hastings Int'l&Comp. I. Ren. (1997—1998), p. 37.

 

69 Ibid. Here the PRC actually refers to the the 1951 Treaty of Peace with Japan and the 1952 Treaty of Peace between the Republic of China and Japan, in which Japan denounced its right to the Spratly Islands, though it once refused the binding force of the two treaties upon itself due to its absence in clie signatories.

71 In 1951, before the Treaty of Peace with Japan, Zhou En-lai, the PRC Foreign Minister, stated: "These lands.., although they were occupied by Japan for some time during the war... were all taken over by the Chinese government following Japans surrender. Whether or not the U.S.-British Draft Treaty contains provisions on this subject, and no matter how these provisions are worded, the inviolate sovereignty of the PRC over [Spratly] Islands.. .will not be affected in any way." See B. Scott. 'Resolving the Question of Sovereignty over the Spratly Islands' 3 Willamette Bull. Int'l L. &Poly( 1995), p. 44.

75 Article 2 of the Law of the PRC on the Territorial Sea and Contiguous Zone provides: "The PRC's territorial waters refer to the island waters contiguous to its territorial land. The PRCs territorial land includes the mainland and its offshore islands, Taiwan, and the various affiliated islands, including Diaoyu Dao (the Senkaku Islands), the Penghu Islands (the Pescadores), the Nansha Islands (the Spratly archipelago), and other islands that belong to the PRC." See L. Wang and P. H. Hearse. The New Legal Regime for China's Territorial Sea' 25 (4) Ocean Dev. & Int'l L. (1994), pp. 431-42.

76 B. Scott, 'Resolving the Question of Sovereignty over the Spratly Islands' 3 Willamette Bull. Int'l L. &Poly( 1995), p- 45.

79 R. D. Beller. 'Analyzing the Relationship between International Law and International Politics in Chinas and Vietnam's Territorial Dispute over the Spratly Islands' 29 Tex. Int'l L. J. (1994), p. 305.

 

81 New York Times (11 Jul. 1971)y Col. 1, p. 18. See also T. Cheng, lThe Dispute over the South China Sea Islands' 10 Tex. Int'l L. J. (1975), p. 270.

82 B. H. Dubner. 'The Spratly "Rocks" Dispute — A "Rockapelago" Defies Norms of International Law* 9 Temp, Intl & Camp. L.J. (1995), p. 312.