The South China Sea (20 page)

The more explosive question is whether a ruling on Itu Aba would apply to all the other islands in the Spratlys. Vietnam and both Chinas
talk of their claims in this maximalist frame, declaring their sovereignty over the entire ‘Truong Sa’ and ‘Nansha’ archipelagos respectively. The Philippines speaks similarly, albeit for the subset of the Spratlys it calls the ‘Kalayaan Island Group’ (which includes Itu Aba). If all these states were to maintain their positions and ask a tribunal for a ruling on the islands as a whole, then the ownership of Spratly Island, Thitu and all the others would probably fall to whichever had the best claim to Itu Aba. Given that it has been in control of the island for most of the past 70 years, the winner is highly likely to be the Republic of China (Taiwan). The People's Republic of China (Beijing) would then need to argue that it has the legitimate right to succeed to the Republic of China's claim – opening a fresh can of worms.

Itu Aba would be the centrepiece of any South China Sea claimant's property portfolio and is clearly coveted by both Communist China and Vietnam. The occupants harbour a constant fear of invasion and an acute sense of vulnerability. Itu Aba is a dot in the ocean surrounded by hostile neighbours. The 1,400-kilometre sea journey from the nearest Taiwanese port, Kaohsiung, takes three days in good weather and much longer in a typhoon. Taiwanese governments have struggled to create an identity for the island that is both peaceful in intent but also resolute in defence. Unlike Spratly, Thitu or Woody islands there is little pretence about civilian life on Itu Aba: there are no children's schools or tourist hotels, for example.

In 1999, to try to de-escalate growing tension in the Sea, the government in Taipei announced that it was removing its marines from the island and replacing them with coastguards. But they are not ordinary coastguards: they are armed with 120mm mortars and 40mm cannon and trained by the military. In September 2012 they held live fire exercises to demonstrate how they would shoot up an invasion force. Like the two other largest islands in the Spratlys, Itu Aba's main feature is a runway, filling 1,200 metres of its 1,400 metre length. It was built in just 273 days and formally inaugurated with a flying visit from President Chen Shui-bian a month before the March 2008 presidential election. Chen declared the facility to be for ‘humanitarian purposes’ – to help in the rescue of stranded fishermen – but few believed him. The runway had been argued over for 15 years and stopped and started as relations with Beijing warmed
and cooled. The opening was a gesture to demonstrate Chen's support for a more independent Taiwan. It failed to win Chen the election though.

The island is just 370 metres wide but it has its own supply of fresh water and a covering of natural vegetation. It's clearly able to support at least minimal human habitation, although the 120-strong garrison depend entirely upon supplies shipped from Taiwan. The strips of land either side of the runway host accommodation blocks, defensive emplacements, a solar power installation (to reduce the amount of diesel required to run the island's generators) and a conservation area for the island's population of endangered green sea turtles.

In short, Taiwan's position on Itu Aba is secure. It might therefore be better, in a legal sense, for Vietnam and the Philippines to modify their positions and no longer seek sovereignty over large groups of islands but over specific named features. Vietnam might then be able to demonstrate the strongest claim to Spratly Island (Truong Sa Lon) and potentially others, and the Philippines to Thitu Island (Pagasa) and potentially others, through long histories of occupation and use. The same might be possible between Vietnam and China for the Paracel Islands – with Vietnam's claim stronger to the Crescent group and China's claim stronger to the Amphitrite group. However, rolling back from their all-encompassing claims in the face of nationalist hypertension would require considerable political bravery.

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National pride is one reason why countries around the South China Sea expended blood and treasure to occupy the reefs and islands but right from the first claims on behalf of British guano-diggers in the 1870s, there have been economic motivations too. These days, with the bird droppings extracted and turned into fertiliser, the islands themselves contain almost nothing of value. Malaysia has turned Swallow Reef, which it calls Layang-Layang, into a diving resort with a hotel and swimming pool (next to the barracks, runway and naval harbour) but this is the only spot in the Sea that comes close to turning a profit. Apart from their somewhat overrated strategic importance (see Chapter 8), the rocks and islands are now only valuable because of the waters that surround them. That's the result of
a new framework of international law that's grown up in the past half-century. This time, unlike the rules governing the grabbing of territory, none of the claimants can argue that they are victims of rules drawn up by medieval popes and nineteenth-century imperialists.

On 3 December 1973 members of the United Nations sat down in New York to draft a new Convention on the Law of the Sea. These heirs to John Selden and Hugo Grotius would spend the next nine years debating to whom the oceans belonged. The discussions were marked by the politics of the time. The war in Vietnam was in its final phase; the People's Republic of China was still a relatively new member of the UN; the Republic of China (Taiwan) had just lost its UN seat. The UNCLOS talks became a venue for Cold War arguments between capitalists and Communists but also between states that favoured freedom of the seas and those who wanted to keep others out – and away from ‘their’ resources.

As the UNCLOS negotiations dragged on, a compromise emerged around the concept of the ‘Exclusive Economic Zone’ (EEZ) and the ways it could be defined and claimed. An EEZ would not be ‘territory’ but coastal states would have the rights to exploit and regulate the resources flying over it, swimming within it, lying on the seabed and buried beneath it. As the diplomats debated, oil prices rose and governments grasped the implications. Whoever owned an island would own the rights to the fish, minerals and hydrocarbons surrounding it. As technology developed, governments issued offshore oil leases and exploration companies began to survey and drill further and further from land. UNCLOS had significantly raised the stakes in the South China Sea.

By the time the negotiations finally ended, at Montego Bay in Jamaica on 10 December 1982, the world's governments had agreed that coastal states could claim a territorial sea 12 nautical miles (22 kilometres) wide, an EEZ out to 200 nautical miles (370 kilometres) and perhaps an ‘extended continental shelf’ beyond that. They had also sketched out some broad principles for what does, and does not, count as territory. UNCLOS defines three kinds of maritime feature: ‘islands’ that can support human habitation or economic life; ‘rocks’ (including sandbanks and reefs above water at high tide) that cannot support either; and ‘low-tide elevations’ which, as the name suggests, are only dry at low tide. Although the exact definitions of ‘human habitation’ and ‘economic life’ were left unspecified,
each type of sea feature was endowed with certain inalienable rights. Islands are regarded as ‘land’ and generate both a 12-nautical-mile territorial sea and a 200-nautical-mile EEZ. Rocks generate a 12-nautical-mile territorial sea, but no EEZ. Low-tide elevations generate nothing at all unless they are within 12 nautical miles of a piece of land or a rock, in which case they can be used as base-points from which the territorial sea and EEZ can be measured. As far as maritime resources are concerned, the difference between an island and a rock is vast. A rock generates a potential territorial sea of just 452 square nautical miles (π × 12 × 12). An island generates the same territorial waters but also a potential EEZ of at least 125,600 square nautical miles (π × 200 × 200).

On 22 January 2013 the Philippine government tried to change the terms of the South China Sea disputes by relegating traditional arguments about ‘historic rights’ over territory in favour of new arguments based upon UNCLOS. Rather than hold emotive debates about claims to wide areas of water, it tried to focus them onto designated pieces of sea based on distances from specific pieces of land. Its 20-page submission to the Permanent Court of Arbitration (PCA) in The Hague made clear that the Philippines wasn't seeking a ruling on the historical claims to the islands, or on any maritime boundaries, but purely on which features constituted islands and rocks and could thus be classed as ‘territory’, and on what kind of zones could be legitimately drawn from them.
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The Manila government was hoping the PCA would rule that none of the features occupied by the People's Republic of China were islands capable of sustaining human habitation or economic life and were therefore unable to generate any EEZ whatsoever.

By forcing arbitration on these issues, the Philippines was explicitly seeking to have any historical claim to all the waters inside the ‘U-shaped line’ – based on a Chinese interpretation of the traditional model of international law – ruled invalid. Regardless of which country owned each rock, rights over the sea would be limited to – at best – a 12-nautical-mile radius around each feature. This would allow the Philippines to develop the oil and fish the seas within its EEZ, provided the resources lay outside the 12-nautical-mile potential territorial sea of each Chinese-occupied feature. A different court could make a ruling about ownership at a later date.

By the time the PRC joined the party in the Spratlys in the late 1980s, the best tables had been taken: only the cheap seats were left. Five of the eight PRC-occupied features are, at best, low-tide elevations (Mischief, Kennan, Subi, Gaven North and Gaven South Reefs). The remaining three, the Philippines case argues, are, at best, rocks that only generate a 12-nautical-mile territorial sea and no EEZ. UNCLOS is clear: it doesn't matter how large a fortress you build on a low-tide elevation; if the natural feature underneath would be under water at high tide then it doesn't generate any maritime territory. The same is true of all the features occupied by Malaysia (including Swallow Reef), most of those controlled by Vietnam and at least three of the Philippines’ possessions. Constructed on low-tide elevations or reefs, they don't count as either islands or even rocks under UNCLOS.

The Philippines, Vietnam and the Republic of China (Taiwan) do control some features that might be classified as islands and therefore entitled to an EEZ. But to prove this to a tribunal they would need to establish that the islands can, in the words of UNCLOS, ‘sustain human habitation or economic life of their own’. This is why all three go to such great lengths to develop civilian facilities wherever they can: houses and schools are clearly forms of human habitation and fishing depots and tourism plans are forms of economic life. All the children learning their multiplication tables on Thitu/Pagasa, and all the monks chanting their prayers on Spratly/Truong Sa Lon are, in their own small ways, helping to stake their country's maritime claims.

There are no children learning anything on the Scarborough Shoal but in April 2007 a group of grown men spent a week playing on it. They were amateur radio enthusiasts – ‘DXers’ – who compete to broadcast from the most extreme locations. They set off from Hong Kong on a chartered boat carrying all they would need: radio equipment and antennae of course – but also planks, sheets of wood, generators, umbrellas and life jackets. This was the fourth DXpedition to the Shoal since 1994 so the hams knew roughly what to expect. But when they arrived, they found almost nothing there. At high tide, just six rocks protrude above the sea: none more than two metres high and, at most, only three or four metres across. They set to work. In order to qualify for DX status, the transmissions had to take place on the rocks themselves but there wasn't a flat surface anywhere.
Using planks, they managed to construct a small platform on each one – just big enough for a table and chair, a generator, a radio and an umbrella. Working in shifts they then broadcast to fellow DXers around the world for five days.

To outsiders it may seem a bizarre and incomprehensible way to spend a holiday but the trip was the fruit of a long and emotionally charged battle with echoes of the geopolitical disputes in the South China Sea. There had been long arguments within the DX community about whether Scarborough Shoal qualified for ‘new country status’ – a marque that would unlock a flood of support from hobbyists keen to add another notch to their radio reception bedposts. In June 1995, a committee of the American Radio Relay League had tried to impose a minimum size rule for islands in order to disqualify Scarborough from consideration. It echoed the wording of UNCLOS, declaring that ‘rocks which cannot sustain human habitation shall not be considered for DXCC country status’. However, the DX adventurers and their supporters lobbied to get the decision overturned – and seven months later they were successful. But, as the DXpeditioners conclusively proved, Scarborough Shoal is completely incapable of supporting human habitation. Even with timber, generators and umbrellas it was utterly inhospitable for more than a few hours at a time. There is a specific rule for this kind of feature in UNCLOS: it is a ‘rock’, so it generates a 12-nautical-mile territorial sea, but no EEZ or continental shelf whatsoever.

None of this deterred China's maritime authorities from expending an extraordinary amount of effort to wrest control of Scarborough Shoal from the Philippines during 2012. A standoff began on 10 April when Philippine coastguards tried to prevent eight Chinese fishing boats making off with a great hoard of coral, giant clams and even live sharks. Two large China Marine Surveillance ships then arrived to prevent the fishermen being arrested. The Philippines sent its biggest warship, the BRP
Gregorio del Pilar
(a former US Coastguard cutter built in 1965), before rethinking the decision and replacing it with coastguard ships. With a typhoon approaching, both governments agreed to withdraw their vessels – but only the Filipinos did so, leaving the Chinese in physical control of the shoal.