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Background Brief: South China Sea: Does China Have a Superior Claim? Carlyle A. Thayer August 5, 2012

Sourabh Gupta has written an article entitled, Chinas South China Sea jurisdictional claims: when politics and law collide on the East Asia Forum, July 29, 2012. This is attached below. In this article he asserted:
Chinas 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 lawbased 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 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: didnt 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? Didnt 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

2 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 precolonial 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 Chinas 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 Peoples 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.

Suggested citation: Carlyle A. Thayer, South China Sea: Does China Have a Superior Claim?, Thayer Consultancy Background Brief, August 5, 2012. Thayer Consultancy Background Briefs are archived and may be accessed at: http://www.scribd.com/carlthayer.

3 Chinas South China Sea jurisdictional claims: when politics and law collide East Asia Forum, July 29, 2012 Author: Sourabh Gupta, Samuels International A running thread through the tensions at various Southeast Asian regional forums over the past four summers has been the uncertainty and insecurity generated by Chinas jurisdictional claims in the South China Sea. Legally, China claims sovereignty over the disputed islands and adjacent waters in the Sea and sovereign rights over relevant waters as well as the seabed and subsoil thereof a claim in accordance with Law of the Seas (LOS) norms. But operationally, Chinas 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 lines extremity is side-tracking attention from what ought to be the central premise of this issue: that Chinas 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 lawbased 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 JapanTaiwan 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 JapanTaiwan 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 Chinas law-based claim is superior to that of rival claimants, why does it persist with the infamous nine-dashed line [1]? 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. Beijings 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

4 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 Japans 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 Beijings control in the South China Sea would be found to be mere rocks. Although CLCS findings are non-enforceable, it would dent Chinas 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 lines 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, Manilas 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 Chinas 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 Beijings 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 ninedashed 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 [2], which is accentuating the gap between political calculus-based and rules-based orders at sea, it is in Chinas self-interest to submit an LOS-compliant claim to its outer continentalshelf limits in the South China Sea. Beijings 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.
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C quan ngn lun ca THNG TN X VA H

Tin Ch Nht, 12-08-2012

1201. Carl Thayer Bin ng: Trung Quc c li th hn trong tuyn b ch quyn?
Posted by basamnews on 12/08/2012 Thayer Consultancy

Bin ng: Trung Quc c li th hn trong tuyn b ch quyn?

Tc gi: Carl Thayer Ngi dch: Dng L Chi 05-08-2012 ng Sourabh Gupta vit mt bi bo c ta : Tuyn b ch quyn ti phn trn bin ng ca Trung Quc: khi chnh tr v lut php xung t, ng trn Din n ng (East Asia Forum), ngy 29 thng 7 nm 2012. Bi vit c ng km bn di. Trong bi vit ny, ng khng nh: Tuyn b ch quyn ca Trung Quc i vi cc yu t t ai ch yu, nm trong ng chn on t khc qun o Hong Sa v Trng Sa r rng l thun li hn so vi cc i th i ch quyn ca h. Mt mnh trong cc nc tranh chp, Trung Quc c kh nng ni kt chuyn chim ng lin tc v hiu qu cc hn o, o nh v rng san h ngm, vi tuyn b da theo lut php quc t hin i, mnh m, c h tr bng cc cng c song phng v a phng c lin quan. Ti ng phn tr li sau y: Ti mun hi ng Sourabh Gupta, nu nh ti hiu ng lp lun ca ng. Trung Quc c li th hn trong tuyn b ch quyn i vi cc vng t, o, (features) Bin ng (nguyn vn: bin Hoa Nam) bi v: (a) cc triu i Hn/ Mng C/ Mn Chu lm ra cc bn , kt hp chng vi khu vc m h kim sot, nhng bng cch v phn ln cc vng t, o, u khng c ngi v khng ai qun l; (b) Trung Hoa Dn Quc (ND: tc i Loan) k tc truyn thng ny v chim ng mt s o nh trong qun o Hong Sa v o Thi Bnh, v c l cc vng ln cn trong qun o Trng Sa (c) Php chim ng

v nm quyn s hu nhiu vng t, o, bin ng m i Loan tuyn b ch quyn; (d) tt c cc nc u b mt quyn kim sot khi Nht Bn trn qua khu vc ny trong chin tranh th gii th hai v (e) Nht Bn t b ch quyn lnh th Bin ng theo Hip c Ha bnh San Francisco nm 1951. Cu hi: Cc vng t, o, trc y do ngi Php nm gi c tr li quyn ti phn cho Php vo thi im phi khng? Nu Nht t b cc tuyn b ch quyn lnh th nm 1951, vy th h lm qui qu g khi mt nm sau [h li] t b tt c cc quyn, giy t xc nhn quyn s hu v vic i ch quyn qun o Trng Sa v Hong Sa vi Trung Hoa Dn Quc trong mt hip c vi i Loan? Chng phi cc chnh ph Vit Nam (Vit Nam Dn ch Cng ha v Quc Gia Vit Nam) c c lnh th do Php nm gi khi Php ri khi khu vc nm 1954-1955? V sao Vit Nam hay Phillippines tm kim s nhng li hay iu khon trao tr t Nht? Ti ngh rng tuyn b hi qu li mt cht khi lp lun rng Trung Quc c li th hn trong tuyn b ch quyn i vi tt c cc o, o nh v cc vng t, Bin ng. C th tuyn b ca Trung Quc thun li hn i vi mt s hn o v t ai, nhng lp lun rng h c th chng minh s chim hu v qun l lin tc i vi tng ni v mi ni hin ang nm trn mt nc khi thy triu ln cao, th vn cha chng minh c. Lm g c th c chuyn rt nhiu vng b chim hu trong thp nin 1990 l khng c ngi ? Cui cng th, nu im khi u l thi k tin thuc a, liu chng ta c th lp lun rng Trung Quc c tuyn b ch quyn thun li hn i vi cc o, o nh v , [nhng ni] cng c cc ng dn M Lai v Vit Nam lui ti hay khng? Bi v trong thi tin thuc a khng c vng quc Philippines, vy chng ta c nn kt lun rng cc ti liu c vit di thi cc triu i [phong kin] Trung Quc th vt tri hn v cc quyn t nhin lch s i vi cc khu vc nh c truyn thng? Ti ngh chng c r rng l tuyn b ca Trung Quc v vic chim ng v cai qun lin tc l khng xc thc i vi hu ht cc vng t, o, hin do Vit Nam, Philippines v Malaysia chim gi. C th lp lun thm rng trong mt s trng hp cn li, Trung Quc t b cc vng t, o, ny. Cng ha Nhn dn Trung Hoa chim pha Ty qun o Hong Sa bng v lc hi nm 1974. Cng ha Nhn dn Trung Hoa khng h c mt trn thc t qun o Trng Sa cho n nm 1988 khi h tn cng v chim Gc Ma (Johnson South Reef). Giai on k tip ca s bnh trng ca Trung Quc l u thp nin 1990 khi Trung Quc v Vit Nam tranh nhau chim cng nhiu cng tt cc vng t, o, nm trn mt nc khi thy triu ln cao. Lut php quc t, trong trng hp ny l Cng c Lin Hip Quc v Lut Bin, gp phn lm cho mt gii php v tranh u trong cc chp lnh th kh khn hn. Ch quyn lnh th trao quyn ch quyn v ti nguyn trong vng bin xung quanh v y bin. l l do v sao Trung Quc khng nh ch quyn khng th tranh ci trn Bin ng. Ngun: Carlyle A. Thayer, Bin ng: Trung Quc c li th hn trong tuyn b ch quyn? Thayer Consultancy Background Brief, ngy 6 thng 8 nm 2012.