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Thayer South China Sea: Does China Have a Superior Claim?

Thayer South China Sea: Does China Have a Superior Claim?

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Published by Carlyle Alan Thayer
Does the assertion that China has a superior claim to the land elements inside its nine-dash line hold water - historically speaking?
Does the assertion that China has a superior claim to the land elements inside its nine-dash line hold water - historically speaking?

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Categories:Types, Research, Law
Published by: Carlyle Alan Thayer on Aug 06, 2012
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Background Brief:South China Sea: Does ChinaHave a Superior Claim?Carlyle A. ThayerAugust 5, 2012
Sourabh Gupta has written an article entitled, “China’s South China Sea jurisdictionalclaims: when politics and law collide” on the
East Asia Forum
, July 29, 2012. This isattached below. In this article he asserted:
China’s claim to the primary land elements lying within the nine
-dashed line
theSpratlys and the Paracels
is markedly superior to those of its rival claimants.Alone among claimants,
China is capable of coupling ‘continuous and effectiveoccupation’ of the islands, islets and reefs with a robust modern international law
-based claim backed by relevant multilateral and bilateral instruments.
I posted the following reply:I would like to ask Sourabh Gupta if I have got his argument right. China has asuperior claim to the features in the South China Sea because: (a) a series of Han/Mongol/Manchu dynasties produced maps incorporating them into their sphereof control; but by and large the vast majority of features were unoccupied andunadministered; (b) the Republic of China carried on this tradition and occupiedsome of the islets in the Paracel Islands and Taiping Island and perhaps nearbyfeatures in the Spratly Islands; (c) France occupied and took possession of manyfeatures in the South China Sea claimed by the Republic China; (d) everyone lost outwhen Japan swept through the region during the Second World War and (3) Japanrenounced it territorial claims in the South China Sea under the 1951 San FranciscoPeace 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 an
d 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-heldterritory when France departed the scene in 1954-55? Why should Vietnam or thePhilippines 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 allthe islands, islets and features in the South China Sea. China may have a better claimto some islands and features. But to argue it can demonstrate continuousoccupation and administration over each and every feature that is today above
Thayer Consultancy
ABN # 65 648 097 123
 
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water at high tide has yet to be demonstrated. How did it come about that so manyof 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 hasa superior claim to islands, islets and rocks that were also visited by Malay andVietnamese fishermen? Because there was no Philippines kingdom in the pre-colonial era, should we conclude that the written records of dynastic China trumphistoric native rights to traditional fishing grounds?
I think a good case can be made that China’s claims to continuous occupation
andadministration are spurious with respect to the vast majority of the features that arepresently 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 wasnot physically present in the Spratly Islands until 1988 when it attacked and seizedJohnson South Reef. The next phase of Chinese expansion came in the early 1990swhen China and Vietnam scrambled to occupy as many of the features that wereabove high tide as possible.International law, in this case the United Nations Convention on Law of the Sea, hascontributed to making a resolution of contending territorial disputes more difficult.Sovereignty over territory confers sovereign rights over the resources in surroundingwater and sea bed. That is why China asserts indisputable sovereignty over the SouthChina Sea.
Suggested citation: Carlyle A. Thayer, “
South China Sea: Does China Have a SuperiorClaim?
,”
Thayer Consultancy Background Brief 
, August 5, 2012.Thayer Consultancy Background Briefs are archived and may be accessed at:http://www.scribd.com/carlthayer. 
 
3
China’s South
China Sea jurisdictional claims: when politics and law collide
East Asia Forum
, July 29, 2012Author: Sourabh Gupta, Samuels InternationalA running thread through the tensions at various Southeast Asian regional forumsover the past four summers has been the uncertainty and insecurity generated by
China’s jurisdictional claims in the South China Sea.
 Legally, China claims sovereignty over the disputed islands and adjacent waters inthe Sea and sovereign rights over relevant waters as well as the seabed and subsoilthereof 
a claim in accordance with Law of the Seas (LOS) norms.
But operationally, China’s oceanic law enforcement agencies have unilaterally, and
at times forcefully, enforced their writ across the more expansive political perimeterbounded by
the ‘nine
-
dashed line’.
 Plainly, these legal and political claims overlap but do not coincide. However, endlessdwelling 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
theSpratlys 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 Islandsto the Republic of China (Taiwan), by way of Article 2 of the bilateral Japan
 –
Taiwan
Treaty of Taipei 
. This treaty followed
and referenced
the territorialrenunciations 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 byboth the Philippine and (South) Vietnamese governments. And although neithercountry is bound by provisions in the bilateral Japan
 –
Taiwan treaty, neither canproduce a Spratlys/Paracels cession or reversion clause in their own bilateral treatieswith 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 longas a territorial claim is not resolved by way of a binding instrument betweenclaimant 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 rivalclaimants, why does it persist with the infamous nine-dashed line 
[1]
?As the successor government of Taiwan, the mundane reason is that Beijing isproceeding from the claim line that it inherited from the Chiang Kai-shek regime asthe baseline for negotiation and compromise in an open territorial dispute. B
eijing’s
approach to negotiating its Himalayan boundary dispute with India is no different inthis regard. But the technical reason is more complicated. Were China to submit anLOS-compliant claim to its outer continental shelf limits in the South China Sea, the

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Adds a Vietnamese language translations publshed on Ba Sam.

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