An Unclos proposal that will not work

Asking China to base its claims on the United Nations Convention on the Law of the Sea will not contribute to peace in the region.

PROFESSORS Robert Beckman and Clive Schofield recently suggested in a commentary in these pages a way for China to "bring its maritime claims into conformity with... international law and still protect its legitimate interests in the South China Sea".

They propose that China should depict "the outer limit of its... Exclusive Economic Zone (EEZ) claims from the islands over which it claims sovereignty".

This would create an area of overlapping claims in the middle of the South China Sea where the claimant states could move towards joint development, pending a final agreement on maritime boundaries.

While I have a great deal of respect for both authors, their proposal is problematic and will not contribute to peace and stability in the region. Appeasing China in this manner is not only unproductive, but will also allow Beijing to further advance its salami-slicing strategy in the South China Sea at the expense of the other claimants.

There are six reasons why the proposal will not work.

First, it assumes China has a legitimate claim to the South China Sea islands.

With the exception of Pratas Island, China does not have a valid claim to any of the South China Sea islands. The Paracels and Spratlys were both French territories until Japan invaded the islands during World War II. When the war ended, Japan renounced its rights to the islands and the title reverted to France.

South Vietnam acquired sovereignty over the islands by right of cession after the French-Indochina War. Following unification of the country in 1975, the Socialist Republic of Vietnam inherited South Vietnam's title to the two island groups.

Second, the proposal rewards Beijing for its illegal occupation of the Paracel and Spratly Islands.

At the end of World War II, Chinese troops were sent to Itu Aba and Woody Islands to disarm and accept the surrender of the Japanese forces. General Order No. 1 did not, however, transfer title of the Spratlys and Paracels to China.

Pursuant to an exchange of notes, China agreed that French troops would relieve Chinese troops stationed in Indochina north of 16 degrees north latitude (including the Paracels and Spratlys) by March 31, 1946.

The fact that Chinese forces illegally remained on Itu Aba and Woody Islands after the Allied occupation of Indochina ended in 1946 was a clear violation of Article 2(4) of the United Nations Charter, and therefore does not confer China with a clear title to the two archipelagoes. China's subsequent acts of aggression in 1974 (Paracels), 1988 (Spratlys), 1995 (Mischief Reef), and 2012 (Scarborough Shoal) likewise violate the charter's prohibition against the aggressive use of force or threat of use of force.

Third, the proposal suggests China should be allowed to claim its EEZ from the 12 largest islands in the Spratlys because "they all have vegetation and in some cases roads and structures have been built on them". Therefore, the authors believe China can argue in "good faith that the (features) are 'islands' entitled... to EEZ... rights... under... Unclos".

The fact that an islet has vegetation, or that a claimant has built improvements on it, is not the test for determining the status of land features under Unclos. Only features that can "sustain human habitation or economic life of their own" are entitled to claim an EEZ.

Fourth, the proposal allows China to use a "full effect equidistance line" from the largest islands towards the surrounding coasts of the South China Sea littoral states.

However, even the authors recognise that a full effect equidistance line is "inequitable and inconsistent with the reduced effect generally given to small offshore islands by international courts and tribunals". Indeed, the most urgent rationale for creation of the EEZ was not for political aggrandisement of the coastal state, but to protect subsistence fishermen.

Fifth, the proposal pre-supposes China is willing to share the South China Sea resources. China's new fisheries regulations, which require foreign fishing vessels to obtain prior Chinese approval to operate in the waters within the "nine-dash line", however, belie that goal.

Moreover, China's track record when it comes to joint development projects is not encouraging.

In 2008, China and Japan agreed to jointly develop gas deposits in the East China Sea. The agreement was heralded as a model for cooperation.

To date, however, no joint development has occurred, and there is evidence that China is exploiting the resources on its side of the median line. When it comes to joint development, China operates on the principle of "what's mine is mine, what's yours is also mine, but I am willing to share yours".

Finally, the authors believe China will live up to its obligations under Unclos to avoid taking actions in the overlapping area that would jeopardise reaching a final delimitation agreement.

China's non-compliance with its commitments under the Asean Declaration of Conduct (DOC) is illustrative. Despite signing up to the DOC, Beijing has engaged in a series of actions since 2002 that are clearly at odds with its commitment to exercise self-restraint in the conduct of activities that would complicate or escalate disputes in the South China Sea.

Recent examples of Chinese indiscretion include: Viking II ramming incident; Reed Bank incident; Binh Minh 02 cable-cutting incidents; establishment of Sansha City; Scarborough Shoal incident; implementation of the Hainan maritime security regulations and new fisheries regulations; and naval patrols to James Shoal.

Designed to alter the status quo through unlawful intimidation, each of these acts brings China one step closer to achieving de facto control over the South China Sea.

The mistaken belief that China is willing to coexist on an equal footing with its neighbours is wishful thinking. Asean can stand by and allow China to incrementally solidify its maritime claims in the South China Sea through coercion, or it can, together with like-minded states, stand up to Chinese brinkmanship before it is too late.


The writer is a retired naval captain who is now a professor assigned to the International Law Department at the United States Naval War College.This article first appeared in RSIS(S. Rajaratnam School of International Studies) Commentaries.