The South China Sea (17 page)

Spratly must have been only one of dozens of European ships’ captains to have spotted his ‘sandy isle’ but he is the one credited with its discovery. It might have been an accident that it was he; but it was much less of an accident that he was British. Britain was the global hegemon, British cartographers were drawing the best maps and British committees were drawing up the rules for naming territory. Thousands of others probably
saw Spratly Island during the preceding millennia, perhaps even landed on it, but they left no traces in any written records. The idea that this patch of land, just 750 metres long and 350 metres wide, could actually ‘belong’ to anyone didn't arise until 1877.

It was, unsurprisingly, Great Britain that first claimed it, initiating a process that led ultimately to the disputes of today. Over the century and a half since, claim has been laid upon claim with governments reaching far into the past and the furthest recesses of legal theory in search of evidence and arguments that might make their actions compatible with international law. Unfortunately, in the South China Sea the law is far from clear. There are two sets of laws to contend with: an older form governs ‘historical claims’ to territory and a newer form, defined by the United Nations Convention on the Law of the Sea (UNCLOS), governs the maritime claims that can be measured from territorial claims. The South China Sea is where the two forms intersect – and perhaps collide.

* * * * * *

The international rules about claiming territory were laid down by those most active in acquiring it. European rulers wanted their actions to be legitimate in the eyes of God and, more importantly, protected from the predations of rivals. In the fifteenth century, Portugal and Spain needed the authority of a man who purported to speak on behalf of God. The 1455 ‘Papal Bull’ of Pope Nicholas V authorised King Alfonso of Portugal to conquer non-Christian lands and peoples and prohibited other Christians from ‘meddling’ with Portuguese possessions. Its sequels, the Treaty of Tordesillas in 1493 and the Treaty of Zaragoza in 1529, divided the world into Portuguese and Spanish realms. When the Dutch broke up this global duopoly in the seventeenth century they wrote new rules to legitimise their actions. The rules evolved further through the wars and conquests of the following two centuries until, by the time of the Conference of Berlin in 1884, European powers had developed a coherent set of principles justifying the grabbing of land around the world and arbitrating disputes between them.

In these bad old days, before the foundation of the League of Nations, they recognised five ways that territory could be acquired: conquest
(the forcible acquisition of rights over territory), cession (another ruler giving up their rights through a formal treaty), occupation (establishing an administration over territory not belonging to any other ruler: what was called ‘empty land’ or
terra nullius
regardless of the presence of ‘natives’), prescription (the gradual recognition of one ruler's rights by others) and accretion (where land is added to existing territory by, for example, reclaiming the sea). In the twentieth century, having acquired as much territory as they were likely to and, in the wake of two savagely destructive world wars, realising that the costs of conflict now firmly outweighed the benefits, the victorious states decided to strike conquest from the list. Further acquisitions of territory by force were outlawed by the United Nations Charter.

But the legacy of that imperial past is a system of international law that, when it comes to territorial disputes, prioritises discovery over proximity. The sound of that original Papal Bull still echoes, sometimes in the language of the playground: ‘finders keepers, losers weepers’. Since there is no overarching global constitution, countries have agreed – to varying degrees – to be bound by a set of customs and practices that have grown up haphazardly in response to specific circumstances. Over the centuries, international law has fused the requirements of dominant states for a system that legitimises their territorial gains with the legalistic practices of a European civil court. It therefore demands demonstrable forms of evidence – papers, treaties and charts – rather than inchoate senses of national entitlement – such as ‘the islands have been ours since ancient times’. The result in the South China Sea dispute is the apparently ridiculous situation whereby Britain or France might have as strong a legal claim to the islands as any of the states that border the Sea.

In September 1877, the authorities in the British colony of Labuan (an island off the coast of Borneo) licensed an American named Graham and two Britons named Simpson and James to claim Spratly Island and Amboyna Cay on behalf of the British Crown and then extract from it as many tons of guano as they could carry away on their ships. An announcement was duly posted in the
Government Gazette
.
¹
Other countries may have been closer, other fishermen may have visited the island, other navies may even have sailed past it but Britain was the first to announce it in a newspaper – and that is the kind of evidence that tribunals value. From
such humble beginnings, claims of empire grow. It was the first act of sovereignty by any state in what we now know as the Spratly Islands. Another British licence was issued to the Central Borneo Company in 1889. However, the imperial interest in guano never reached the levels of tea, opium or rubber and its interest in the islands remained mainly one of navigation. Nonetheless Britain has never formally renounced its claim to Spratly Island and Amboyna Cay.

Indeed, Britain discreetly revived its claim in the weeks after April 1930 when the French authorities announced that they'd despatched a warship, the
Malicieuse
, taken possession of Spratly Island and laid claim to all the other features within a large rectangular area of the South China Sea. The two governments exchanged diplomatic notes and legal arguments for the following two years. At the front of their minds was the apparent danger posed to their colonies by the expansion of the Japanese empire into the region. Faced with a common enemy, neither wished to relinquish its own claim but the British didn't want to undermine France's either. It wasn't until July 1933 that the French government formally annexed six named islands: Spratly or Storm, Amboyna Cay, Itu Aba, North Danger (known to the French as Les Deux Iles), Loaita and Thitu. Another newspaper announcement was placed – in the French government's
Journal Officiel
. The announcement prompted national hysteria in China but (as we saw in Chapter 2) once the Chinese government had realised that it related to the Spratlys and not to the Paracels, the fuss died down. Contrary to what Chinese officials claim today, newspapers remained bare of official protests or rival annexation notices. The French maintained their claim on paper but did little to enforce it on land until 1938 when they erected a weather station on Itu Aba,
²
which was occupied by Japanese forces during the Second World War. As we've seen, the Japanese abandoned it some time between a US bombing raid on 1 May 1945 and a US naval landing on 18 November 1945. The next sailors to arrive were French, aboard the minesweeper FR
Chevreuil
, on 5 October 1946. They erected a stele reclaiming the island for France and renewing the annexation of 1933. The Philippine government asserted a claim to the Spratlys in July 1946 but did nothing to enforce it for decades.

Until the end of the Second World War, the Chinese Navy had been incapable of even reaching the Spratly Islands. It was only with the supply
of ships, maps and training by the United States that the Republic of China (ROC) government was able to mount an expedition and make the kind of claim that would be recognised by an international court. On 12 December 1946, two ROC Navy ships, the
Taiping
and
Zhongye
(the former USS
Decker
and USS
LST 1056
respectively), arrived at Itu Aba. According to Chinese accounts, the ships’ crews removed a Japanese stele from the island and erected a Chinese one in its place. They appear not to have noticed the French one – or not thought it worth mentioning. This was the first act of sovereignty, in a form that an international tribunal would recognise, ever made by any Chinese government in the Spratlys. ROC forces then occupied the island, on and off, until they pulled out on 5 May 1950. By then the French had other priorities: Indochina was being prised from their grasp by Ho Chi Minh and his nationalist friends.

Threading a coherent case through the tapestry of what happened next will earn international lawyers some fine fees. To summarise two bloody decades: Vietnam was divided between Communist north and capitalist south in 1954, the French pulled out in 1956 and then the country was reunited under Communism in 1975–6. While it might seem logical that – since France was the colonial power in Vietnam – French territorial claims in the South China Sea would naturally fall to Vietnam after independence, that argument is unlikely to satisfy an international court. Just like Britain, France has never formally abandoned its claim to the Spratly Islands. It claimed them on its own account, not on behalf of Vietnam. (This situation contrasts strongly with its earlier claim on the Paracel Islands, which was ostensibly made on behalf of the protectorate of Annam, and later fell to Vietnam.) It was not until 1956 that the newly independent Republic of Vietnam (‘South Vietnam’) asserted a claim to the Spratly Islands, in response to the pretensions of the Filipino entrepreneur Tomas Cloma. That was also the cue for the Republic of China to reoccupy Itu Aba.

The situation becomes even more complex when one investigates the legal situation of the Republic of Vietnam (RVN) itself. One could take the view that the republic was an illegal puppet state created by the imperial powers (French and American). This was certainly the view of the leadership of the Communist Democratic Republic of Vietnam (‘North Vietnam’ or DRV) at the time. The DRV regarded itself as the legitimate government of the entire country, temporarily constrained to a part of
the national territory by the 1954 partition. Alternatively one could see the DRV (North Vietnam) and the RVN (South Vietnam) as two legitimate states in separate areas of the national territory. To some extent the DRV leadership played along with this too – it sponsored a separate ‘Provisional Revolutionary Government’ that was officially in charge of the war in the south. When the Communists defeated the Republic in 1975 they officially created a southern Communist state with its own legal ‘personality’ for just over a year before uniting the two countries under a single ‘Socialist Republic of Vietnam’ in 1976.

Why does all this matter? Because the legalistic nature of international tribunals will require a claimant country to show it has established a formal claim to a territory, that it has maintained that claim and then asserted it in the face of actions by other claimants. Up until 1975 the DRV did very little to assert its claims in the South China Sea while the Republic of Vietnam did considerably more. If the DRV was the legitimate government of the whole country, then its earlier lack of action could harm its case. If the Republic's actions are taken into account – as a legitimate state within the national territory of Vietnam – then Vietnam's case would be much stronger.

There is one particular action taken by the leadership of DRV that has been used to undermine the Vietnamese claim to the islands. In 1958 the Prime Minister of the DRV, Pham Van Dong, sent a brief letter to his (Communist) Chinese counterpart in which he wrote that ‘the Government of the Democratic Republic of Vietnam recognises and approves the declaration made on 4 September 1958 by the Government of the People's Republic of China regarding the decision taken with respect to China's territorial sea’. Again, this might seem a somewhat obscure reason to deny the Vietnamese claim to the islands but under the customs of international law it might amount to what's known as an ‘estoppel’.

Estoppel is a key concept in European civil law. Its purpose is to stop claimants saying one thing and doing another. If, for example, one party agrees that a dispute is settled, they can't subsequently go back on their word. It's intended to promote transparency and honest behaviour and is supposed to do the same thing in international law too. If one state recognises the validity of another's territorial claim then, in theory, it should be ‘estopped’ from contesting the claim in future. In 1958, however, neither the Democratic Republic of Vietnam nor the People's Republic of China
had acceded to the International Court of Justice and, as communist states, neither had much regard for the ‘bourgeois, imperialist’ rules of the international community. Rather, they were in the midst of an international anti-imperialist war against them.

On 23 August 1958 forces of the People's Republic of China began shelling their Nationalist rivals on the islands of Jinmen and Mazu, both within a few kilometres of the Chinese mainland. Eleven days later the Communist Chinese issued a ‘Declaration on the Territorial Sea’ claiming ownership of all waters up to 12 nautical miles offshore – encompassing both Jinmen and Mazu. The purpose was primarily to prevent American ships from resupplying or defending the islands. But the declaration also asserted a territorial claim to Taiwan and its surrounding islands, and to the Paracels, Macclesfield Bank and the Spratlys. In a gesture of solidarity against the American imperialists North Vietnam printed the declaration in the Communist Party newspaper
Nhan Dan
on 6 September and then, on the 14th, Pham Van Dong sent his letter. The letter didn't explicitly consent to Communist China's claim to the islands but neither did it explicitly reject it. That failure to protest might be sufficient grounds for a tribunal to regard the Vietnamese claim to the islands as estopped. However, the Vietnamese leadership would feel more than a little aggrieved if its gesture of brotherly solidarity with another Communist state during a period when neither was familiar with the minutiae of international law was used more than half a century later to undermine its country's territorial position.