The Spratly Islands Dispute
Disputes among states are an inevitable part of international relations1 and it is hardly deniable that, sovereignty and jurisdiction over territorial disputes are the most common and complicated ones. Clearly, these disputes would lead to the growing tension in relations among the States with high tendency to cause armed conflicts or eventful wars2 when they fail to resolve it peacefully. The sanctity of the territorial issue to the peoples in question – nationalism and the associated passions – have made these disputes extremely difficult to resolve.3 these disputes have been further complicated by historical, cultural, political, military and economic phenomena.4
The current maritime dispute to be discussed is the Spratly Islands in the South China Sea where the dispute has begun a long time ago since the world war 2. The Spratly islands dispute is a regional maritime territorial sovereignty dispute which involves six countries in the South China Sea – China, Taiwan, Vietnam, Philippines, Malaysia, and Brunei.5 Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam claim part or all of the area. All of the countries except Brunei claim some of the islands and reefs.6 Matters are complicated because there is no agreed definition of the ‘Spratly islands’, and international law is ambiguous about the definition of islands and the resolution of conflicting sovereignty and jurisdictional claims.7
The dispute becomes more complicated due to historical enmity, other land and maritime boundary disputes among the claimants, and the wealth of the island like oil and natural gas, fish and sedentary species.
The Spratly islands located in the South China Sea. It is an archipelago. The archipelago comprises of over one hundred widely scattered islands, islets, banks and rocks spread across a surface area8 estimated to be around 410,000 square kilometers (km2) of water. In 1939, the Spratly Islands were coral islets mostly inhabited by seabirds.9 According to UNCLOS, Article 121(1) defines an island to be “a naturally formed area of land, surrounded by water, which is above water at high tide”.10 Under the UNCLOS definition, only forty of the Spratly features are considered islands and for the remaining features of the archipelago are either submerged under water or are above water only during low tide. On the other hand, based on a source, Chinese 1986, the Spratly Islands consist of 14 islands or islets, 6 banks, 113 submerged reefs, 35 underwater banks, 21 underwater shoals.11
The northeast part of the Spratly Islands is known as Dangerous Ground. This part is featured by lot of low islands, sunken reefs, and degraded sunken atolls with coral often rising abruptly from ocean depths greater than 1,000 metres (3,300 ft). These features make the area of northeast part of the island dangerous for navigation.
As for the southern part of the South China Sea, it is studded with low islands, cays, and reefs extending in a rough oval southwest to northeast for approximately 900 kilometres (km). The average eastwest extension is roughly 360km. The 240,000 sq. km area is roughly the size of the United Kingdom.12
There are more than 170 features with English names in the Spratly islands.13 Most of them are submerged banks and shoals where there are approximately 36 tiny islands rise above the water. Within the Spratly islands, features tend to cluster on submerged structures, variously termed table mounts, atolls, reefs, or banks, of relatively shallow depths (less than 200 metres). Some countries have constructed fortified platforms above reefs and cays.14 Such shallows also hold promise for siting drilling platforms. The waters in Spratly has less than 2,500 meters depth.15
Spratly Islands (8°38.5’N, 111°55’E) lies near the southwest edge of the chain. It lends its name to the island group in English and Vietnamese but not in Chinese. The island has a height of 2.4 meters and 13 hectares width in area. Not only that, like most of the other islands and cays in the group, Spratly Islands sit on a larger coral bank or atoll. Nearly 610km northwest of Spratly Islands lies the largest island of the group, Itu Aba (10°23’N, 114°21.5’E). The island is 1.4km long and 400 metres wide, with an area of 50 hectares. Itu Aba rises a mere two and one-half meters above sea level. The combined surface area of all of the Spratly features above water at high tide is probably less than a few square kilometres.16
Figure 1: South China Sea: Selected Claims17
Source: US Department of State, Office of the Geographer and Global Issues.
Figure 2: Maritime claims in the South China Sea18
* China, Malaysia, Philippines, Taiwan and Vietnam all have claims to the Spratly Islands. China, Taiwan, and Vietnam claim the Paracel Islands. Claim lines shown on this map are only those relevant to these two Island groups.*
In this dispute, some states claimed the title over the Spratly Islands by using centuries-old evidence of discovery as their basis, claiming that they were on first. Since the end of the Second World War, the sovereignty over the Spratlys has been hotly contested only after the withdrawal of Japanese and French forces that had occupied some islands. Besides the varying temporal aspect, the claims differ spatially. Only China, Taiwan, and Vietnam claim all parts of the Spratly islands.
There was a claim by the exercise of effective control. It can be found by the Japanese invasion and occupation in 1939. In some islands, garrisons were established and regular naval patrols were carried out. The allocation of sovereignty could have been settled in the 1951 San Francisco Peace treaty and the 1952 Japan-Taiwan Treaty; however, western powers refused to settle the ownership of the islands and viewed it as of no significance then. After that, the Japanese claims effectively ceased.19
Besides, pursuant to a geological study in the 1970s, it showed the possible existence of substantial petroleum and natural deposits beneath the seabed of dangerous ground in the Spratly Islands . It proved that there was ship navigation before this. Therefore, littoral states have become entangled in a web of overlapping and conflicting claims over the sovereignty of the islands and its resources.20
In addition, according to history, the closure of U.S. bases in the Philippines, the collapse of the Soviet Union and its withdrawal from the Cam Ranh Bay, and the end of the Cold War, left an emptiness of power in the South China Sea that has caused interest states to re-evaluate their national security interests, maritime jurisdiction and territorial sovereignty.21 In consequence to this, the People’s Republic of China (China), the Republic of China (Taiwan) and Vietnam have traditionally claimed the whole portions of the Spratly islands originally because of historical grounds, sustained occupations by China since 1956, by Vietnam since 1973, and by the Philippines since 197. Thus, it complicates the issue of whether ownership of the islands should be decided in whole or by parts.22
Significance of the Spratly Islands
The Spratly dispute does not merely a trivial dispute over territorial claims but it does have a lot of significance in respect of geo-strategic, economic, political and legal challenges. Even though the features of the island are barren, uninhabitable and contain little land resources but it has significance strategically, politically and economically important because they serve as legal base points for which claimant states can project jurisdiction over water and resources in the South China Sea.
Furthermore, according to the United States Energy Information Agency (EIA), they roughly estimate that there are approximately 11 billion barrels (bbl) of oil reserves and 190 trillion cubic feet (Tcf) of natural gas reserves in the South China Sea. Additionally, the USGS figures that anywhere between 0.8 and 5.4 billion barrels of oil and between 7.6 and 55.1 trillion cubic feet (Tcf) of natural gas reserves are within the Spratly Islands area.
Not only that, the Spratly Islands also has geopolitical or geostrategic significance in global maritime and military navigation. Most of the maritime traffic traversing the South China Sea passes through this island and no global maritime power can ignore this area of sea. Based on the fact, to the south-west, the South China Sea connects with the Indian Ocean through the Straits of Malacca and Singapore. Meanwhile, to the north-east, it connects to the East China Sea, which in turn connects to the Sea of Japan through the strait of Korea. In 2011, approximately 11 million barrels of oil per day and 6 trillion cubic feet of natural gas passed through this area. Additionally, 25% of world shipping, 80% to 90% of Japanese and Chinese oil imports, and military fleets moving from the Pacific to the Indian Ocean transit through this area of sea.
Another significance of the Spratly Island is, this area is one of the world’s most productive areas for commercial fishing. In 2010, the total production of marine according to the Western Central Pacific has grown continuously to a maximum of 11.7 million tonnes. This area contributes about 14 percent of the global marine production.23
Overall, the Spratly Islands contain many significances that make the claimant states eager to have it under their jurisdiction and sovereignty.
Claim and Their Basis
In this dispute, China, Taiwan and Vietnam claim the whole region of the Spratly, while the Philippines, Malaysia and Brunei only claim certain part of islands or features in the archipelago.
China claims to have right and sovereignty over the whole region of the South China Sea due to historical sovereignty and occupation. The claims on the archipelago began since the ancient Chinese dynasties,24 with some claims dating back to as early as the Han Dynasty in the Second Century B.C.25 Pursuant to Ancient Chinese maps, texts and reports of commercial and naval activity in the area, it shows that it was the first to discover and occupy these islands. China also contends that the Spratly were terra nullius prior to their discovery and occupation of the island.
In March 1988, China asserts of having effective control over the island, based on the event that there was a brief naval engagement with Vietnamese forces that sank three transport vessels and killed 72 Vietnamese troops, China subsequently took possession of several features of the Island and established a base and airstrip in Fiery Cross Reef.26 Then, China further claims the Spratly by enacting a special territorial sea and contiguous zone act27 in February 1992. This law states the Spratly Island as part of Chinese territory.
Moreover, starting from 1998, China has also established garrisons and deployed marines on other islands. China continues to maintain occupation on some islands and features, in order to reinforce its claims under international law, while at the same time claiming sovereignty and right over the whole island based on historical claims.28
Like China’s claim, Taiwan’s claims are based on historical discovery and occupation. Not only that, China and Taiwan both claims that the Spratly Islands have been in Chinese territory “since ancient times”. Beginning from the separation of China and Taiwan, separate attempts at occupying and administering the islands have been made.29 Through physical motion, Taiwan contends to be the first government to occupy part of the Spratly Islands and the first to implement effective control and authority in the area.
Further, with the withdrawal of Japanese forces at the end of World War II, Taiwan placed troops on Itu Aba, the largest island in the Spratly. Taiwanese forces remained on it until 1948 when they were retreat because of the Chinese civil war, but in 1956, they were subsequently redeployed and remained there.30
Taiwan also asserts to have sovereignty over Spratly due to the 1952 Treaty of Peace between the Republic of China and Japan. During the negotiation, Taiwan delegates China since there was no Chinese delegation at the 1951 San Francisco Peace Conference. The reason of no Chinese delegation participated in the 1951 San Francisco Treaty made the United States and its allies could not agree on which government represented China, Taiwan (The Republic of China) negotiated a separate peace treaty. The treaty provides that Japan has “renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands.”31
Vietnam’s arguments for its claim are in respect of historic occupation and administration, and colonial inheritance. It contended that since the Nguyen dynasty in the 17th to 19th centuries, Vietnamese emperors have administered the islands. Further, Vietnam published white papers and supported its historical claims by including maps and records of ancient activities in the Spratly islands and features since the 17th century.32 In the white paper, Vietnam asserts its sovereignty over the Hoang Sa (Paracel Islands) and Trung Sa (Spratly Islands) islands.33
Even though Vietnam lost effective administration due to Chinese invasion, it further claims that it had regained rights to the island during independence from France in 1933 when it inherited its territorial holdings in the area.
In order to secure its claim, Vietnam has made a move for example by occupying thirteen islands of the Spratly Islands in 1973 and 1975, then, in 1989, it further occupied three more islands and has since taken more features, placed military on several Spratly areas, formations and published maps incorporating the Spratly Islands into Vietnamese territory.
The Philippines in their claim contended the Spratly was terra nullius as there was no effective sovereignty over the islands until the 1930s when France and Japan renounced their sovereignty over the islands according to the San Francisco Treaty. Therefore, the status of the islands became terra nullius and available for occupation by any interested states.
In 1956, a Filipino, Tomas Cloma, had discovered a group of islands in the South China Sea and declared a new state on the islands called “Kalayaan”, which means “freedom” in English. Cloma continued to claim these islands until 1974, the island status was terra nullius at that time, Cloma succeed in acquiring the ownership of the islands under international law.
In 1968, since there was many threats of occupation by other countries, the Philippines occupied eight of the islands claimed by Cloma. Pursuant to an incident where Vietnamese military on Itu Aba Island fired upon a Philippine fishing vessel in 1971, the Philippine government then lodged official protests against Vietnam and made official claims to the islands. Further, Ferdinand Marcos, the Philippine President issued a Decree 1596 and annexed the islands by incorporating them into the Palawan province in 1978.34
The contention by Philippine quite different from other claimant states since the official position of Philippine acknowledges that it has no claim to the Spratly Islands. But, it states that the islands in the Kalayaan group are part of the natural extension of the Philippine continental shelf and not part of the Spratly Island. Philippines further argues pertaining to provision in UNCLOS that the Kalayaan group of islands falls within the area of its legitimate Exclusive Economic Zone (EEZ).
Similar to other claimants, Philippines has continued to maintain its occupation in the Kalayaan Island since the first occupation in 1971. This can be seen when Philippines erected garrisons, stationed marines and established an airstrip on the island.35 These bases have also been equipped with radar facilities, weather stations and ammunition depots.
For this dispute, Malaysia claims a small number of islands and its claims cover only the islands included in its Exclusive economic zone of 200 miles. Malaysia has militarily occupied three islands that it considers to be within its continental shelf which are Swallow Reef (Pulau Layang Layang), Ardasier Reef (Terumbu Ubi), and Mariveles Reef (Terumbu Mantanani). The Swallow Reef was under Malaysia control since 1983 and has been turned into an island through a land reclamation.
Malaysia’s claims are based on geographic proximity, upon the continental shelf principle. Its claims date back to 1979, when the Malaysian government first published a map showing the country’s continental shelf and EEZ extending into the southernmost part of the Spratly Islands. Malaysia contended that the islands were terra nullius as when Japan renounced their sovereignty over the islands according to the San Francisco Treaty, therefore, the islands became terra nullius and available for occupation.36
Malaysia claims that it has sovereign and right to control over all the islands and features within its continental shelf. Malaysia also cites the Geneva Convention 1958 and UNCLOS on territorial waters and continental shelf boundaries to support its delimitations. Not only that, Malaysia enacted an Exclusive Economic Zone Act (Act 311) and declared the said islands within its EEZ in 1984.37 Besides, Malaysia has effectively controlled one feature since 1983 and two others since 1986. Malaysia is the most recent state that occupies features in the Spratly Islands.
Similar to Malaysia, Brunei did not claim the whole region of Spratly, but it claims only the part of the South China Seas nearest and within to its continental shelf and Exclusive Economic Zone (EEZ). In 1984, Brunei claims Louisa Reef, which is a naturally submerged formation in the archipelago Even so, Brunei is the only claimant that not practicing military occupation in the area.
Brunei’s claims are solely based on the United Nations Convention on the Law of the Sea (UNCLOS). It contended that the southern part of the Spratly Islands chain is actually a part of its continental shelf, and therefore it is being a part of its territory and resources. Thus, it makes Brunei should have sovereignty upon it. Brunei seems to have a strong legal claim over Louisa Reef as it is consistent with the provision38 of UNCLOS.
1 J.G Merrills, International Dispute Settlement, Third edition, (1998), at 1
2 Tuomas Forsberg, Explaining Territorial Disputes: From Power Politics to Normative Reason, (1996), Vol. 33. No. 6, Journal of Peace Research, at 443
3 Nguyen, D. M. Settlement of disputes under the 1982 United Nations Convention on the Law of the Sea The case of the South China Sea dispute.
5 Gonzales, R. The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks For Dispute Resolution. University of Nevada, Las Vegas.
6 Dzurek, D. J. (1996). The Spratly Islands Dispute: Who’s On First?. Vol. 2, No. 1, (Durham: International Boundaries Research Unit, University of Durham).
8 Chemillier-Gendreau, M. Sovereignty over the Paracel and Spratly Islands (Springer, 2000), 19.
9 Keyuan, Z. (2011, November 21). The Impact of Artificial Islands on Territorial Disputes Over The Sparatly Islands. Retrieved November 11, 2017, from http://nghiencuubiendong.vn/en/conferences-and-seminars-/second-international-workshop/597-the-impact-of-artificial-islands-on-territorial-disputes-over-the-sparatly-islands-by-zou-keyuan
10 Article 121(1) United Nations Convention on the Law of the Sea (UNCLOS).
11 Keyuan, Z. (2011, November 21). The Impact of Artificial Islands on Territorial Disputes Over The Sparatly Islands. Retrieved November 11, 2017, from http://nghiencuubiendong.vn/en/conferences-and-seminars-/second-international-workshop/597-the-impact-of-artificial-islands-on-territorial-disputes-over-the-sparatly-islands-by-zou-keyuan
12 Dzurek, D. J. (1996). The Spratly Islands Dispute: Who’s On First?. Vol. 2, No. 1. (Durham: International Boundaries Research Unit, University of Durham)
13 Dzurek, D. J. (1994). 167. The Spratly Islands: Placenames Guide (Australia, 1988) lists 98 Chinese place
names and 62 Vietnamese place names in the Spratly islands.
14 Dzurek, D. J. (1996). The Spratly Islands Dispute: Who’s On First?. Vol. 2, No. 1. (Durham: International Boundaries Research Unit, University of Durham)
18 Bhagat, P. (2016, March 01). Barackface. Retrieved November 05, 2017, from http://democracyforum.blogspot.my/2016/03/south-china-sea-early-thoughts.html
19 Gonzales, R. The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks For Dispute Resolution. University of Nevada, Las Vegas.
20 Joyner, C. The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy, and Geo-politics in the South China Sea, The International Journal of Marine and Coastal Law 13, no. 2 (1998): 193.
21 Ibid. 194
22 Womack, The Spratly, 373.
23 World review of fisheries and Aquaculture 2012, 59
24 Chang, T. K. (1991). China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective, vol. 2, Issue 3.
25 Dzurek, D. J. (1996). The Spratly Islands Dispute: Who’s On First?. Vol. 2, No. 1, (Durham: International Boundaries Research Unit, University of Durham).
27 China, Law of the People’s Republic of China on the Territorial Sea or Contiguous Zone (1992), Article 2.
28 Chang, T. K. (1991). China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective, vol. 2, Issue 3.
29 Gonzales, R. The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks For Dispute Resolution. University of Nevada, Las Vegas.
30 Furtado, International Law and the Dispute over the Spratly Islands, 390.
31 Gonzales, R. The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks For Dispute Resolution. University of Nevada, Las Vegas.
32 Joyner, The Spratly Islands Dispute, 60.
33 Gonzales, R. The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks For Dispute Resolution. University of Nevada, Las Vegas.
34 Gonzales, R. The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks For Dispute Resolution. University of Nevada, Las Vegas.
35 Furtado, International Law and the Dispute over the Spratly Islands, 392.
36 Gonzales, R. The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks For Dispute Resolution. University of Nevada, Las Vegas.
37 Ooi, K. G. (2004). Southeast Asia: A Historical Encyclopedia, from Angkor Wat to East Timor, ABC-CLIO. pp. 124.
38 Article 83, United Nations Convention on the Law of the Sea (UNCLOS)