The Spratly Islands dispute and the law of the sea.

• Author: Whiting, David

1. INTRODUCTION

   The United Nations Convention on the Law of the Sea, which went into effect on November 16, 1994, designates the Earth's ocean areas as being part of the common heritage of mankind, and sets forth the goals of finding peaceful and equitable solutions to disagreements regarding sovereignty over disputed territories and to establishing equal access to the Earth's marine resources.(1) In furtherance of these goals, the Convention contains provisions granting the state which has sovereignty over an island group the right to exploit its natural resources, and an entire part containing dispute resolution mechanisms to aid in the resolution of conflicts over disputed territories and their resources. There are few places in the world that provide a greater challenge to the dispute resolution mechanisms of the Law of the Sea than the South China Sea's Spratly Islands.

   The islands were first mapped by the British in the 1880's,(2) and are now claimed by six nations: The People's Republic of China (PRC), The Republic of China (Taiwan), Vietnam, Malaysia, Brunei, and the Philippines.(3) Although all of these claims have a historical basis, the primary reasons for the claims are the islands strategic location and their potential oil and gas reserves.(4)

   Considering the amount of attention they have received from nearby countries, the islands themselves are small and physically insignificant by any standard. The total area of the 100 or so islets that comprise the Spratlys is less than five square kilometers,(5) the largest of the islands being only .43 kilometers square.(6) Bearing in mind that the islands are spread over a 200,000 square mile area (518,000 square kilometers), it seems clear that these islands, despite their strategic importance, are actually very small, and that the dispute over them is driven by the desire on the part of the various parties to profit from potential oil reserves and control the South China Sea.(7)

   The goal of this paper is to examine the claims on the Spratly Islands that are made by the PRC and Vietnam in light of the signing of the Convention on the Law of the Sea by both countries. The scope of the paper will be limited to the claims made by the PRC and Vietnam because, of the claimants, they are the two nations between whom tensions over the Spratlys are highest. In addition, they are the nations who are most actively pursuing their goals of possessing and economically exploiting the islands. Finally, this paper will discuss the impact of the dispute resolution provisions contained in the Law of the Sea on the possible resolution of the disagreement between the PRC and Vietnam over the Spratly Islands.

2. CUSTOMARY INTERNATIONAL LAW

   Article 293(1) of the Law of the Sea states that when a territorial dispute is being settled using the Law, "[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention" when settling the dispute.(8) This language clearly indicates that previously existing international law is to be taken into account when settling territorial disputes under the Law of the Sea.

   Since the turn of the century, there have been three cases that have demonstrated what courts base their decisions on in cases involving territorial disputes over islands.(9)

   In The Island of Palmas, the United States and the Netherlands agreed to arbitrate their conflicting claims of ownership of islands in the southern part of the Philippines. The United States claimed that the islands had been given to it by the Spanish at the end of the Spanish-American War. In effect, the claim was based on Spain's claim to the islands by their discovery in the 16th century.(10) The Dutch claimed that the islands had been given to the Dutch East Indies Company as tribute by native princes.(11)

   After examining the competing claims, the arbitrator ruled in favor of the Dutch on the grounds that although Spain has discovered the islands, they had not taken sufficient steps to protect against their use by the Dutch. Since the Dutch used the islands on a regular basis, the court held that their title was superior to that of Spain and by extension, the United States, and that the Netherlands would retain sovereignty over the islands.(12)

   This doctrine was refined in the Sovereignty Over Clipperton Island, a case between France and Mexico.(13) In this case, the French claimed the rights to an island in the Pacific Ocean due to its discovery by a French Naval Officer in 1858, after which the French did not use or visit the island until 1897. They did, however, survey the island during their 1858 expedition, and upon their arrival in Hawaii, their next port of call, placed a notice in the newspaper notifying interested parties that the island had been claimed by France.(14)

   In 1897, a French Naval Ship which had been ordered to inspect the island found three Americans on the island excavating guano for a San Francisco company. France promptly protested to the United States, which replied that it had not granted any concession to the men and that it had no claims to the island. A month later, a Mexican vessel stopped at the island and forced the Americans to raise the Mexican flag, claiming that the island belonged to Mexico. Upon hearing of this, the French protested to the Mexicans, and the parties agreed to have the case settled through arbitration.(15)

   In this case, the arbitrator ruled for France on the grounds that the French had taken sufficient steps to protect their claim by publishing notice of the claim and protesting unauthorized exploitation of the islands resources by the Americans whom they found on the island. This modified the Island of Palmas ruling insofar as the arbitrator did not require France to make use of the island, as Spain had been required to do. In the case of Clipperton Island, all that was required of the French was that they publicize their claim to the island and exclude others from it.(16)

   The international law standard was further modified in 1933 in the Legal Status of Eastern Greenland.(17) In this case, the Permanent Court of International Justice held that if the territory in question was uninhabited due to its remote location and unfavorable climate, occupation is not required in order to retain sovereignty of the territory and that protests and the exclusion of others are sufficient.

   Taken as a whole, these cases lead to the conclusion that in order to establish sovereignty over an island, a nation needs to establish title to the islands through discovery and, except in the case of inhospitable territory, needs to protect the title through use.

   Examining China and Vietnam's claims on the islands in light of international case law is a task that could only be done adequately in a paper exclusively devoted to that analysis.(18) For the purposes of this paper, however, a brief overview will suffice to demonstrate that both parties have claims which meet the criteria for sovereignty established in the cases discussed above.

   China's claim to the Spratlys dates back to their discovery by the Chinese in the second century B.C., which was shortly followed by the establishment of Chinese administration over the islands.(19) Following their initial discovery and use of the islands, the Chinese sent numerous expeditions to the islands, starting in about 111 B.C.(20) In addition to governmental use and exploration of the islands, the Chinese point to the fact that fishermen from Hainan used the Spratlys as emergency or seasonal homes throughout this period. This use would strengthen the Chinese claim.(21) Perhaps more importantly, the Provincial Government of Kwangtung issued five licenses between 1921 and 1932 for the exploitation of the islands resources.(22)

   Starting in 1883, China's claim to the Spratlys was recognized by European powers. Of particular note is a survey by Germany conducted in 1883 which was stopped after protest from the Chinese government.(23) Following this, use of the islands by Chinese fisherman from Hainan was documented by the British and the French, and French occupation of nine of the islands was met with official protest from the Chinese in 1932.(24)

   At the end of World War II, the Japanese, who had occupied the islands during the war, formally renounced their claim to the islands and surrendered them to the Republic of China at the signing of the San Francisco Peace Treaty on September 8, 1951.(25) Understandably, the Chinese place a great deal of emphasis on the fact that the Japanese surrendered the island to the Chinese, and not to the French, who had occupied some of the islands prior to their seizure by the Japanese in 1939.(26) This is especially important because the Vietnamese claim to the islands is based in part on the French occupation of the islands from 1932 until 1939.

   Since World War II, both the PRC and the Republic of China have maintained garrisons on the islands(27) and have taken steps to maintain the validity of their claims on the islands.(28) The most dramatic example of China's assertion of its sovereignty over the islands was a naval engagement that occurred in 1988 when Chinese patrol craft opened fire on three Vietnamese freighters delivering supplies to a Vietnamese outpost on one of the islands.(29) Most recently, the People's Republic of China has built what it claims are shelters for fishermen on what is perhaps appropriately called Mischief Reef. This activity has been met with strong objections by the Philippines, which claim the reef as a part of Palawan Province, and which claims that the structure is in fact a naval support installation.(30) In addition to this, in 1992 the Chinese Parliament passed a Law on the Territorial Sea and the Contiguous Zone on February 25, explicitly claiming the Spratlys as a part of China.(31)

   Vietnam's claims to the islands do not have as extensive a history as...