But operationally, China’s oceanic law enforcement agencies have unilaterally, and at times forcefully, enforced their writ across the more expansive political perimeter bounded by the ‘nine-dashed line’.
Plainly, these legal and political claims overlap but do not coincide. However, endless dwelling on the supposedly impenetrable logic of the nine-dashed line’s extremity is side-tracking attention from what ought to be the central premise of this issue: that China’s claim to the primary land elements lying within the nine-dashed line — the Spratlys and the Paracels — is markedly superior to those of its rival claimants.
Alone among claimants, China is capable of coupling ‘continuous and effective occupation’ of the islands, islets and reefs with a robust modern international law-based claim backed by relevant multilateral and bilateral instruments.
In 1952, Japan renounced all right, title and claim to the Spratly and Paracel Islands to the Republic of China (Taiwan), by way of Article 2 of the bilateral Japan–Taiwan Treaty of Taipei. This treaty followed — and referenced — the territorial renunciations of the Islands by Japan under the 1951 San Francisco Peace Treaty, which had not identified the beneficiary at the time — a treaty that was ratified by both the Philippine and (South) Vietnamese governments. And although neither country is bound by provisions in the bilateral Japan–Taiwan treaty, neither can produce a Spratlys/Paracels cession or reversion clause in their own bilateral treaties with Japan. Rather, their claims are supplementarily based on historical cartography in the case of Vietnam or, for the Philippines, ‘historical discovery’ that is (incredibly) of a post-World War II vintage!
At the end of the day, ultimate title cannot be said to rest with any one party so long as a territorial claim is not resolved by way of a binding instrument between claimant states. At best, there are better claims and less-better claims to the territory in question. But given China’s law-based claim is superior to that of rival claimants, why does it persist with the infamous nine-dashed line?
As the successor government of Taiwan, the mundane reason is that Beijing is proceeding from the claim line that it inherited from the Chiang Kai-shek regime as the baseline for negotiation and compromise in an open territorial dispute. Beijing’s approach to negotiating its Himalayan boundary dispute with India is no different in this regard. But the technical reason is more complicated. Were China to submit an LOS-compliant claim to its outer continental shelf limits in the South China Sea, the UN Commission on the Limits of the Continental Shelf (CLCS), tasked with examining its validity, would almost certainly strike down parts of the submission.
The CLCS appears on track to de-recognising Japan’s claim that the two high-tide elevations — totally the size of five tatami mats — within the Okinotori atolls in the Pacific are in fact ‘islands’ capable of generating an EEZ (that is ironically larger in dimension than the land mass of Japan itself). By the same reasoning, many of the high-tide elevations under Beijing’s control in the South China Sea would be found to be mere ‘rocks’. Although CLCS findings are non-enforceable, it would dent China’s case to certain disputed resource-rich zones within the Sea — hence its preference for the nine-dashed line.
The foremost motive for the nine-dashed line’s persistence is its intertwined character with the highly politicised, deterrence-based model of territorial dispute management that Beijing favours.
Territorial jurisdiction issues have never been treated as mere cartographic detail: they are tied to a larger political calculus of stability and good neighbourliness. In its maritime dimension, joint development of commonly held resources has been the established mode to implement this principle. Here, Manila’s misjudgement in abrogating its joint seismic study agreement with Vietnam and China in 2008 (compounding the error by unilaterally issuing exploration licenses within a disputed section of the study area) has been the principal cause of the swift deterioration in bilateral ties with China.
Furthermore, territorial settlements have never been concluded under duress, and China’s rulers calibrate their approach between a hard-line and a flexible one to suit the strategic circumstances at hand. The nine-dashed line has conveniently served as a hard-line expedient that Beijing’s competing maritime bureaucracies are not shy to lever to signal displeasure to other claimants.
So what are the enabling circumstances that would motivate China to set the nine-dashed line aside and adhere to best international practice in issuing forth maritime jurisdictional claims? Beijing has previously been willing to soften its inflated ‘natural prolongation’ principle with Korea and Japan to pursue fisheries and (in-principle) joint resource development, and the 2000 Gulf of Tonkin maritime delimitation agreement with Vietnam too was firmly in keeping with the highest international practices.
Given the fast-paced development of international maritime law, which is accentuating the gap between political calculus-based and rules-based orders at sea, it is in China’s self-interest to submit an LOS-compliant claim to its outer continental-shelf limits in the South China Sea. Beijing’s gains in goodwill earned will far outweigh the territory, and resources, relinquished. It might also allow China leeway to subsequently initiate a region-wide conversation on introducing limits to objectionable, threat-based activities in EEZs by foreign navies, under the guise of navigational freedoms.
Sourabh Gupta is Senior Research Associate at Samuels International Associates, Washington DC, and a 2012 EAF Distinguished Fellow.
Most helpful background and perspective, especially in respect of China’s situational approach in diplomatic dealings on these issues.
Territorial claims and counter-claims are rarely resolved–witness Japan’s dispute over the “Northern Islands.”
National policy should be diplomacy aimed at avoiding confrontation while promoting cooperation in resource development. This would be the “win-win” approach.
Regrettably, it seems that this approach is being abandoned in favor of confrontation and escalation throughout the region.
I would like to ask Sourabh Gupta to expand on his statement that “China is capable of [demonstrating]‘continuous and effective occupation’ of the islands, islets and reefs.” My problem is that during the period between the establishment of the Republic of China and the end of the Second World War neither present day Vietnam nor the Philippines was independent. Was the Republic of China relying on claims by the Qing and/or earlier dynasties? If so what form did “continuous and effective occupation” take? What “islands, islets and reefs” were occupied and governed? Did Imperial or Republican China abandon its “occupation” at any time because a colonial power took possession? The farther back in pre-colonial history we go, the more difficulty I have in applying contemporary international law to ownership and sovereignty over features in the South China Sea. For example, does Imperial China’s assertion of ownership over features in the South China Sea in the form of written documents and maps trump the rights of the native Malay peoples who lived in what today is the Philippines? When do we begin our historical odyssey to determine who has a superior claim? It seems to me, excepting Itu Aba (Taiping island), that nearly all the other features were uninhabitable (and hence unoccupied) until the colonial era.
I hit the button too quickly and posted my first draft. This is what I wanted to post. Mea culpa.
I would like to ask Sourabh Gupta if I have got his argument right. China has a superior claim to the features in the South China Sea because: (a) a series of Han/Mongol/Manchu dynasties produced maps incorporating them into their sphere of control; but by and large the vast majority of features were unoccupied and unadministered; (b) the Republic of China carried on this tradition and occupied some of the islets in the Paracel Islands and Taiping Island and perhaps nearby features in the Spratly Islands; (c) France occupied and took possession of many features in the South China Sea claimed by the Republic China; (d) everyone lost out when Japan swept through the region during the Second World War and (3) Japan renounced it territorial claims in the South China Sea under the 1951 San Francisco Peace Treaty.
Questions: didn’t the features previously held by France return to French jurisdiction at that time? If Japan renounced territorial claims in 1951, what the heck is it doing a year later renouncing “all right, title and claim to the Spratly and Paracel Islands to the Republic of China” in a treaty with Taiwan? Didn’t the states of Vietnam (Democratic Republic of Vietnam and the State of Vietnam) acquire French-held territory when France departed the scene in 1954-55? Why should Vietnam or the Philippines have sought a cession or reversion clause from Japan?
I think it is a bit of an overstatement to argue that China has a superior claim to all the islands, islets and features in the South China Sea. China may have a better claim to some islands and features. But to argue it can demonstrate continuous occupation and administration over each and every feature that is today above water at high tide has yet to be demonstrated. How did it come about that so many of the features that were occupied in the 1990s were uninhabited?
Finally, if the starting point is the pre-colonial era, can we really argue that China has a superior claim to islands, islets and rocks that were also visited by Malay and Vietnamese fishermen? Because there was no Philippines kingdom in the pre-colonial era, should we conclude that the written records of dynastic China trump historic native rights to traditional fishing grounds?
I think a good case can be made that China’s claims to continuous occupation and administration are spurious with respect to the vast majority of the features that are presently occupied by Vietnam, the Philippines and Malaysia. It might be further argued that in some residual cases China abandoned these features. The People’s Republic of China had to seize the western Paracels by force in 1974. The PRC was not physically present in the Spratly Islands until 1988 when it attacked and seized Johnson South Reef. The next phase of Chinese expansion came in the early 1990s when China and Vietnam scrambled to occupy as many of the features that were above high tide as possible.
International law, in this case the United Nations Convention on Law of the Sea, has contributed to making a resolution of contending territorial disputes more difficult. Sovereignty over territory confers sovereign rights over the resources in surrounding water and sea bed. That is why China asserts indisputable sovereignty over the South China Sea.
There seem to be two issues flagged here: the issue of “continuous and effective occupation” and its dating and, second, what might/might not be authoritative legal ownership under contemporary international law.
The first point ought to be non-controversial … I have not engaged in any historical odyssey or fishing expedition. The simple exercise of administrative authority by sovereign actors (and Taiwan) in the post-War and post-San Francisco era – AND particularly as of November 2002 (when the DoC came into effect) – is sufficient for me to assume that they have displayed ‘continuous and effective occupation’. I take no position here as to whether parties have done so through (illegal) encroachment, violence or otherwise. My only bottom line is that states be able to display their exercise of administering authority, leading up to the current time … which they have done so by way of effective occupation. A minor sidebar – I have taken as a given that the Forum’s readers know that the various South China Sea land elements are held by a variety of parties and no one party exercises control over them all.
On the more important question of contemporary law-backed ownership, I’m afraid Vietnam’s claim – let alone the Philippines – to the Spratlys and the Paracels (particularly the latter which it covets) is rather weak. If you could point out to me any crisply formulated French jurisdictional declaratory claim that did – or ought to – devolve to post-colonial Hanoi/Saigon, I would be glad to see it. The mere presence of the French on the islets/features in the South China Sea, interspersed through periods of the 1930s and 1940s, does not constitute a law-backed jurisdictional claim.
Evidently, neither did the victors at San Francisco – INCLUDING THE FRENCH – think so! They recognized that Japan possessed legal title to the Spratlys and Paracels (which Tokyo or rather the colonial Japanese governor-general in Taiwan had notified in the official gazette in 1939 as falling under the jurisdiction of Kaohsiung County) and proceeded to strip the title from Japan at San Francisco. Mind you, the French appended their signature to this document too … so even the potential scope of the Spratlys and Paracels devolving to the Vietnamese ought to have been negated right away here.
San Francisco left matters vague as to whom the title (of all the territories being renounced) was being transferred to … neither PRC nor ROC were invited to San Francisco, and neither party signed the document. By way of the 1952 Treaty of Taipei though which referenced the territorial clause at San Francisco, Japan renounced the Spratlys and Paracels (as well as Taiwan and Penghu)to the ROC. (http://www.taiwandocuments.org/taipei01.htm)
Although neither Manila nor Hanoi is bound by a bilateral treaty that did not involve it (although one would assume the U.S. and Japan ought to at least be bound), the argument that their contemporary international law backed claim to the Spratlys and Paracels is equivalent to that of China’s reflects a very poor reading of international law. China’s law-based claim is markedly superior although, as I have pointed out, until disputants directly resolve their claims – bilaterally or regionally – by way of a binding instrument, final title cannot be said to rest with any one party.
I hope this clarification helps.
Sourabh
Sourabh Gupta puts much store in his argument that since Japan renounced its “legal” occupation of the Spratlys and Paracels at San Francisco in 1951, since France is a signatory to this treaty, and since Japan ceded the islands to the ROC in a subsequent 1952 bilateral treaty, the ROC has a valid legal claim on the islands. Let us look more closely at this argument.
1. “They [the victorious countries] recognized that Japan possessed legal title to the Spratlys and Paracels”: this is a misinterpretation of the clause “Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands”, since the clause does not imply that Japan claims were legal (it is doubtful that territories acquired through war were), and it does not preclude the case that other countries – in this case, France – may also have parallel claims.
2. “The French appended their signature to this document too … so even the potential scope of the Spratlys and Paracels devolving to the Vietnamese ought to have been negated right away here”: Sourabh Gupta seems to argue that because France signs a treaty in which Japan renounces all right, title and claim to the Spratly Islands, it implicitly renounces its own claims to the said islands! This is of course nonsense. Imagine that, say, the Philippines now signs an international treaty renounces all right, title and claim to the Spratly Islands, and China signs it: will it mean that China ALSO renounces its claims? Common sense would imply that the other parties’ claims will become stronger.
3. Sourabh Gupta then argues that because Japan subsequently signed a bilateral treaty ceding the islands to the ROC, the ROC has a valid legal claim. There is an obvious logical flaw here: once a country has renounced “all right, title and claim” to a territory, it cannot legally cede it to another party. You cannot give what you do not have.
1. Sourabh Gupta implied that there was no jurisdictional declaratory claim from France through periods of 1930s and 1940s. I would like to provide some facts cited from Vietnamese White paper or the book “Sovereignty over the Paracel and Spratly Islands”, by Monique Chemillier-Gendreau:
– On 8 March 1925, the Governor General of Indochina declared the Paracels and Spratlys to be French territory.
– In subsequent years, France sent ships to take official possession of the islands. The action of possession was then announced by French Ministry of Foreign Affairs in the French Journal Officiel 1933.
– Notification of the French occupation was sent to interested countries included China, China did not protest.
– On December 21, 1933, France incorporated the Spratlys into Vietnam’s Ba Ria province.
– On June 15, 1938, France signed an ordinance creating an administrative unit on the Paracel archipelago. Subsequently, two administrative agencies were created on May 5, 1939.
To my best knowledge, China had neither exercised sovereign jurisdiction nor effectively occupied these islands during this period. Or if you could point out any, I would be grateful to learn.
In the late 1930s, Japan took over both archpelagoes by force, so it is clear that its occupation is unlawful.
2. Sourabh Gupta said “they (the victorious countries) recognized that Japan possessed legal title to the Spratlys and Paracels”. It would then be interesting to look back the Cairo Declaration (1943), which was one of the basic documents for postwar territorial settlements, completed by the heads of government of the United States, Republic of China and the United Kingdom. It said:
“It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.”
The statement did not name Spratlys and Paracels as territories restored to the Republic of China. The Spratlys and Paracels clearly form part of the “other territories”.
As Republic of China participated in the drafting of the Declaration, it can be implied that the Declaration reflected the opinion of Republic of China.
A quick couple of points in response to the previous comment.
First, a (San Francisco) Treaty legally treaty trumps a (Cairo) Declaration, (Yalta) Agreement or (Potsdam) Proclamation, anyday/everyday. The San Francisco Treaty is authoritative here.
Second, if France believed she possessed title to the Spratlys and Paracels, she would have eliminated the references to them in the San Francisco treaty document. That France did not suggests that she generally accepted the claim that title lay with the Japanese. Not that Vietnam needs to be bound by that … but just saying.
Finally, and as I wrote in the original piece, China alone is capable of coupling effective occupation with a law-based claim BACKED by a relevant multilateral/bilateral instrument. All claimants have their own unilateral basis for claimancy … China alone can display bilateral/multilateral legal sanction.
Best, Sourabh
In territorial disputes, sometimes it is not the case that the title lies exclusively with one side. Sometimes it is the case that each side has a title, and the question (eg to be answer by a court) is “Which side has the superior title?”
Therefore, when France did not object to the statement in the San Francisco Treaty which says that “(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands”, it does not mean that France generally accepted that the title lies exclusively with Japan.
It is perfectly possible for France to believe that its title was stronger than any title that Japan might have had, and which Japan was renouncing anyway.
Therefore the fact that France signed the San Francisco Treaty 1951 with the clause “(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands” does not mean that “she generally accepted the claim that title lay with the Japanese”, that France did not believe that it had a superior title.
On the other hand, that clause means that in 1952 Japan had absolutely no right, title or claim over the Paracels and Spratlys in order to transfer to China.
Therefore there is no basis for saying that China’s claim is backed by a relevant multilateral/bilateral instrument.
I II
I would like to point out that on the Treaty of Taipei was signed on April 28, 1952, a few hours before the San Francisco Treaty took effect on April 28, 1952.
I am wondering what the difference is between a declaration of code of conduct and a code of conduct, and how a code of conduct will help resolve the conflict over the South China Sea between China and the ASEAN countries involved in the dispute? Are there any enforcement mechanisms to be included in the code of conduct? I mean even though there is a code of conduct it might not be able to resolve the conflict if there are no enforcement mechanisms e.g. punishment/sanctions for not complying with the code of conduct. Or it will be rather a symbolic agreement? I might understand it incorrectly…Please feel free to correct me if so. Thank you