6.3 Appraisal

As far as the legal basis is concerned, China depends on discovery and occupation, treaty and estoppel, and Vietnam counts on discovery and occupation, and the Philippines relies on discovery and proximity, and both ot Malaysia and Brunei back on geographic proximity. The recent ICJ case of Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v. Malaysia^hereinafter the Indonesia v. Malaysia case),93 in which Indonesia and Malaysia, two Southeast Asian States, were also competing for the sovereignty of very small uninhabited islands and the dispute was also caused by the exploitation of potential oil resources around the disputed islands, embodies many legal implications for the territorial disputes in the South China Sea.

6.3.1 The Situation in the Light of the Indonesia v. Malaysia case

In 1998, Indonesia and Malaysia, by special agreement, asked the ICJ to determine sovereignty ot the two originally uninhabited islands ot Ligitan and Sipadan on the basis ot the treaties, agreements and any other evidence furnished by the Parties.''1 In other words, the Parties presented arguments based on treaty law, utipossidetis, effective control, and history.'"

Ligitan and Sipadan are two very small islands located in the Celebes Sea, oft the northeast coast of the island of Borneo. After their independence, Indonesia and Malaysia began to grant oil-prospecting licences in waters oft the east coast ot Borneo during the 1960s. The present dispute crystallized in 1969 in the context of discussions concerning the delimitation of the respective continental shelves of the two States. Following those negotiations a delimitation agreement was reached on 27 October 1969. It entered into force on 7 November 1969. However, it did not cover the area around the islands of Ligitan ans Sipadan."n

After the Parties brought the dispute before the ICJ, the Court began by recalling the complex historical background of the dispute between the Parties.9 It then examined the titles invoked by them. Indonesia's claim to sovereignty over the islands was based primarily on a conventional title, the 1891 Convention between Great Britain and the Netherlands. Indonesia maintained: "Under the Convention title to those islands vested in The Netherlands, and now vests in Indonesia.Malaysia, for its part, asserted that the 1891 Convention just claritied the boundary of land on die islands of Borneo and Sebatik, different from the islands ot Ligitan and Sipadan.9"

Hie Court then directly examined the 1891 Convention, the relevant travelux preparatoires, the subsequent conduct of the parties to the Convention and the cartographic material submitted by the Parties. Consequently the Court concluded that the Convention did not constitute a title on which Indonesia can found its claim to Ligitan and Sipadan.]l>"

Then the Court turned to the question whether Indonesia or Malaysia obtained title to Ligitan and Sipadan by succession.101 The Court did not accept Indonesia's contention that it retained title to the islands as successor to the Netherlands, which allegedly acquired it through contracts concluded with the Sultan ot Bulungan, the original title-holder. Nor did the Court accept Malaysia's contention that it acquired sovereignty over the islands of Ligitan and Sipadan turther to a series ot alleged transfers ot the title originally held by the former sovereign, the Sultan ot Sulu, that title having allegedly passed in turn to Spain, the United States, Great Britain oil behalf ot the State of North Borneo, the United Kingdom of Great Britain and Northern Ireland and finally to Malaysia.102

Having found that neither of the Parties had a treaty-based title to Ligitan and Sipadan, the Court next considered the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue of the effectivites cited by them.1"1 In this regard, the Court relied on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign to determine whether the Parties had gained the sovereignty of the two islands.

Indonesia believed that it had obtained effective control of the disputed islands based on the traditional activities by Indonesian fishermen around the islands. The Court refused this claim. The Court considered that "activities by private persons cannot be seen as effectivites if they do not take place on the basis of official regulations or under governmental authority."10'1

Malaysia cited the measures taken by the North Borneo authorities to regulate and control the collecting of turtle eggs on Ligitan and Sipadan. It relied on the Turtle Preservation Ordinance of 1917 and maintained that the Ordinance "was applied until the 1950s at least" in the area of the two disputed islands. It further invoked the fact that the authorities of the colony of North Borneo constructed a lighthouse on Sipadan in 1962 and another oil Ligitan in 1963, that those lighthouses exist to this day and that they have been maintained by Malaysian authorities since irs independence.111'' The Court noted that "the activities relied upon, by Malaysia... are modest in number but... they are diverse in character and include legislative, administrative and quasi-judicial acts. They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect ot the two islands in the context of the administration of a wider range ot islands."10'1 Hie Court further stated, "at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest."1"

On 17 December 2002, the ICJ in its Judgment concluded "Malaysia has title to Ligitan and Sipadan on the basis of effectivites"108

So the first question concerning the dispu te over the sovereignty ot the Spratlys is whether there have been valid treaties to decide the sovereignty ot the Spratly Islands. If there are no valid treaties, the next question is whether effective control has been established to determine who has stronger legal basis to claim the Spratlys.

6.3.2 Treaties Related to the Case of the Spratly Islands Disputes

On 26 June 1887, China and France signed a convention that included the territory division line between China and Vietnam that was then a French Protectorate.11" Hie convention provided that "the French laid claim to territory west ot the 105°43' east of Paris, therefore ceding territory east of this line to China."110 In 1933 when the French foreign Ministry announced that it had occupied some of the Spratly Islands, China protested against the French action and invoked the 1887 Sino-French Convention. China interpreted that the convention covered the Spratly Islands which were far east ot the line and therefore it was China's territory.111 France responded that the Treaty only applied to the Mancay area in northern Vietnam.112

Ironically, in the 1980s, when Vietnam issued a statement on 12 November 1987 claiming that the 1887 Si no-French Convention also set the maritime boundary line between Vietnam and China, the PRC immediately protested about the Vietnamese statement, denying that boundary delimitation was set in the 1887 Convention between China and France.11' Later, during die negotiations between China and Vietnam to resolve the maritime boundary dispute in the GulfofTonkin (the Beibu Gulf in Chinese) in the 1990s, at the beginning the two parties were far apart in the issue of validity of the 1887 Convention in the maritime delimitation. On 25 December 2000, China and Vietnam finally agreed that the 1887 Convention did not set the maritime boundary between China and Vietnam and officially signed an Agreement on Fishery Cooperation in the Gulf ofTonkin (the Beibu Gulf in Chinese, and the Bac Bo Gulf in Vietnamese) together with the Agreement on Maritime Boundary Delimitation in the Gulf ofTonkin. Thus, a conclusion can be drawn that the 1887 Convention did not cover the Spratly Islands.

The other treaties claimed to be related to the Spratlys dispute include the 1943 Cairo Declaration, the 1945 Potsdam Proclamation, the 1951 Treaty of Peace with Japan and the 1952 Treaty of Peace between the Republic of China and Japan. As far as these treaties are concerned, the key issue is to decide whether the Spratly Islands fall into the Chinese territory Japan had seized from China according to the Cairo Declaration and the 1945 Potsdam Proclamation. At this point, China has the burden of proof if it depends on the above two declarations to claim the Spratly Islands. Although the Treaty of Peace with Japan and the Treaty of Peace between the ROC andJapan provided that Japan renounced the Spratly Islands, the treaties themselves contained no words mentioning to whom Japan renounced the Spratly Islands. In addition, the two treaties can only be used as evidence instead of valid treaties because the FRC refused to accept them. Does the statement that Japan renounced the Spratly Islands in the Treaty of Peace between the ROC and Japan suffice to support the claim that Japan renounced them to China? It needs further evidence to support it. It seems that the 15th map of Southeast Asia of the Standard World Atlas, recommended by the then Japanese Foreign Minister, Cats Okazaki, and just issued in the same year of signing the Treaty, is a quite convincing evidence to support the explanation that the Spratly Islands fall into the Chinese territory seized by Japan and later renounced to China because the map clearly marks the Spratly Islands as the Chinese territory.

Obviously, the settlement of the disputes over the sovereignty of the Spratly Islands concerns the interpretation of the treaties. Individual interpretation is tantamount to argument and is very unlikely to reach a consensus. Thus, an authoritative interpretation of the treaties, such as the ICJ's, would be more persuasive and decisive.

 6.3.3 Effectivites

Before addressing the issue of effective control, the prerequisite is to decide what time is the critical date before which the parties were able to show the consolidation of their title or their fulfilment of the requirement of the doctrine ot occupation.111 In the Indonesia v. Malaysia case, the Court considered the year of 1969 as the critical time because that is the year in which the Parties negotiated the delimitation of the respective continental shelves of the two States and an agreement was reached. Although the Parties did not cover the area lying to the east of Borneo in the agreement, they asserted conflicting claims to Ligitan and Sipadan.116 The Court further observed that it could not take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position ot the Party which relies on them."

On 25 December 2000, China and Vietnam agreed that the 1887 Convention did not set the maritime boundary between China and Vietnam and signed an agreement on maritime boundary delimitation in the Gulf ofTonkin. Although China and Vietnam did not cover the Spratly Islands in their agreement, in the context of discussions concerning the delimitation in the Gulf ot Tonkin, the dispute over the Spratly Islands crystallized. Thus, the critical time in the case ot the dispute over the sovereignty ot the Spratly Islands should be the year of2000, and the acts undertaken by any Party after 2000 for the purpose of improving its legal position should not be taken into consideration. For example, Vietnam's building of a small airport on the disputed island ot Big Spratly with the purpose of sending small groups of Vietnam tourists to the South China Sea in May 2004 should be completely ignored.

In the Indonesia v. Malaysia case, the Court reconfirmed the statement by the Permanent Court of International Justice in the Legal Status of Eastern Greenland (.Denmark v. Norway) case about the basic elements in an effective control. The statement contains that if claims to sovereignty are not based upon some particular act or title such as a treaty of cession but merely upon continued display of authority, two elements are involved: the intention and will to act as sovereign, and some actual exercise or display of such authority.' 14

In the Indonesia v. Malaysia case, the Court evaluated that maps in general constitute extrinsic evidence and may be used to establish or reconstitute the real facts along with other evidence of a circumstantial kind.11'' A similar evaluation was in the Eritrea/Yemen Arbitration Case. With respect to the plethora of maps, the Tribunal was of the opinion that the maps suggested a certain widespread understanding that the islands appertained to Yemen.120 The maps displaying the Spratly Islands as the Chinese territory, along with the declarations by the different Chinese governments, at least suffice to show China's willingness to control the Spratly Islands. Hie question is whether it has displayed its authority over the islands in some other effective ways.

Chinese historical books, records mentioning the Spratly Islands and China's early naval patrols in the Spratly Islands, such as Zheng He's voyages between 1405 and 1433 through the South China Sea, seem quite weak in displaying its effective control. "The ICJ observed in the Indonesia v. Malaysia case that it could only consider those acts as constituting a relevant display of authority which leave no doubt as to their specific reference to the islands in dispute as such.121 The Court further stated:

Regulations or administrative acts of a general nature could therefore be taken as effectivites with regard to Ligitan and Sipadan only if it was clear from their terms or their effects that they pertained to these two islands.121

It is a big question whether the Chinese historical books and records and the early naval patrols undoubtedly constitute a relevant display of authority in the Spratly Islands.

Hie Chinese fishermen's use of the islands hardly strengthens China's display of authority, either. In the Indonesia v. Malaysia case, when Indonesia stated that the waters around Ligitan and Sipadan had traditionally been used by Indonesian fishermen, the Court observed that activities by private persons could not be seen as effectivites if they did not take place on the basis of official regulations or under governmental authority.123 Thus, China has a huge burden to prove that the acts of its fishermen were not merely private acts.

Hie Court in the Indonesia v. Malaysia case accepted the statement by the Permanent Court in the Legal Status of Eastern Greenland case that if claims are made to sovereignty over areas in thinly populated area or unsettled countries, the tribunal would be satisfied with very little in the way ot the actual exercise of sovereign rights, provided that the other State could not make out a superior claim.124 In the case of the Spratly Islands, most of the disputed islands possess the same characteristics as the Ligitan and Sipadan, very small, uninhabited or not permanently inhabited at least until recently. Therefore, the following acts definitely showed China's display of its authority over the Islands:

(1) In 1946, the ROC sent to and garrisoned its troops on the Islands;

(2) In 1955, the ROC was requested by the ICAO to establish meteorological observations throughout the Spratly Islands;

(3) In 1956i the ROC re-sent its troops to the Islands and continued to retain troops on the Taiping Island (Itu Aba Island);

(4) In 1958, the PRC, as successor ofthe ROC, promulgated a degree in the name of the Declaration of Territorial Sea of the PRC;

(5) In 1988, the PRC sent its troops to some of the Islands and built a ferry and a helicopter airport there. It also built a Maritime Observation Station on one of the Islands based on the UNESCO plan and support.125

(6) In 1992, the PRC passed the Law of the PRC on the Territorial Sea and Contiguous Zone, which includes the Spratly Islands as China's territory.

The maps issued by other states also support China's authority over the Spratly Islands.1"6 In addition, Vietnam officially admitted that both the Paracels and Spratlys were without dispute China's territory. So the Chinese claims become stronger on the basis of estoppel. The ICJ made a statement in the Temple case expressly recognizing estoppel as a means of restricting a state from altering its position or denying the truth of a prior statement.12 Although Vietnam, may argue that its declarations recognizing the Spratlys as China's territory are not binding on it because they arose from vitiated consent, it is very difficult for Vietnam to prove such a vitiated consent.128

The Vietnamese claim becomes quite weak on the basis of its first discovery of the Spratlys while confronted with a huge historical records provided by China. Actually, the historical records that Vietnam has given as evidence of its first discovery only mentioned some small islands along its coast, which are not the Spratlys at all.125

Hie Philippines' claim of its discovery of the Spratlys is also very weak when we consider that the time ot its first discovery was declared as late as the 1950s. Many evidences revealed make it unreasonable for the Spratlys to remain as terra mdlius up to the 1950s.

Hie Philippines, Malaysia and Brunei hardly establish their sovereignty over some islands and features in the Spratly Islands based on proximity and the 1982 UNCLOS. The Palmas court rejected the proximity argument with the following rule: ''Nor is this principle ot contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results."130 And the Court concluded "contiguity... has no foundation in international law."131 Hie 1982 UNCLOS is a treaty about sovereignty over sea, not over land.112 Article 76 and 77 of the 1982 UNCLOS invoked by the States concerned just describe what constitutes the continental shelf of a state and the sovereign rights of a state for the purpose of exploring and exploiting the resources of its continental shelf.133 Hie 1982 UNCLOS neither stipulates nor invites the interpretation that a state possessing a continental shelf also possesses sovereign rights over land formations arising seaward from that shelf.134 The application of the 1982 UNCLOS is premised on the assumption that a particular State has undisputed title over the territory troni which the maritime zone is claimed. It would be beyond the substantive scope ot the Convention to determine the status ot land territory.135

Sir Robert Jennings defined occupation as '"the appropriation by a State of a territory which is not at the time subject to the sovereignty of any State.""6 Under international law, the question about the sovereignty of the Spratlys favours the Chinese claims and China may rely on discovery, occupation and estoppel to win its tide to the Spratly Islands. 

__________

109 The convention is called Convention Additionelle de Commerce et Convention Relativek la delimitation de la frontiere entre la Chine et le Tonkin (Additional Commercial Convention and Convention Relative to the Delimitation of the Tonkinese Frontier Between China and France. Hereafter referred to the 1887 Sino-French Convention.

 

113 J. R. Coquia. 'Maritime Boundary Problems in the South China Sea1 24 U. Brit. Colum. L. Rev. (1990), pp. 121-2.

See tlie speech made by Xiao Jianguo, an official from the Legal Section of Foreign Ministry ot the PRC, on 28 July 2004, at <http://news.sina.oom.en/c/2004-08-03/04203274593s.shtml> [18 Mar. 2008],

1,9 ICJ Reports2002, p. 667, para. 88, See also the case of Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, p. 582, para. 54; the case of Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999 (II), p. 1098, para. 84.

120 1998 Award, para, 490, See Eritrea/Yemen Awards at <http://www.pca-cpa.org> f 18 Mar. 2008]. B. Kwiatkowska. lThe Eritrea/Yemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation' 32 Ocean Dev. & Int'l L. (2001), p. 18.

125 L. Zhao, 'Guanyu nanhai zhudao de ruogan falii wenti (Some Legal Problems Related to the Islands in South China Sea)' (4) Legal System and Social Development (1995), at <http://www .legaltheory.com.cn/info.asp?id=481> [18 Mar. 20081.

12l1 The maps recognizing the Spratly Islands as China's territory are listed in the resources ofMinistry of Foreign Affairs of the PRC, at <http://www.fmprc.gov.cn/chn/ziliao/wzzt/2305/tl 0651 ,htm> [18 Mar. 2008].

 

134 C. C. Joyner. 'The Spratly Islands Dispute in the South China Sea: Problems, Policies, and Prospects for Diplomatic Accommodation in R. Singh (ed.) Investigating Confidence-Building Measures in the Asia-Pacific Region (1999), p. 63. The article is also available at chttp;//community .middlebury.edu/~scs/doc5/JoynerJ%2GSpratly%20lslands%20Dispute.pdf> [19 Mar, 2008].

135 R, W. Smith and B. Thomas. 'Island Dispute and the Law of the Sea: An Examination of Sovereignty and Delimitation of Disputes' in M. H. Norquist and J. N. Moroe (eds.) Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation (M. Nijhoff Publishers, The Hague 1998), p. 69.