Stop China’s Unlawful “Great Wall” in the South China Sea

A careful review of the historical record and law reveals that China’s claims in the South China Sea are unfounded.

The first half of 2014 witnessed a significant increase in aggressive behavior by China as it continues its maritime salami-slicing campaign in the South China Sea. Beijing seeks to change the status quo in the region in order to solidify its sovereignty claims over the disputed Spratly and Paracel Islands and their adjacent waters.

In February, China began a large-scale land reclamation project at Johnson South Reef in the Spratly Islands, which could house a new PLA military airfield to control the region’s strategic sea lanes that traverse the South China Sea. The following month, Chinese authorities began enforcing new fishing regulations that require foreign fishing vessels to obtain prior approval to operate in the 2 million-plus square kilometers of ocean space encompassed by China’s notorious “nine-dash line.”

In May, China stationed a deep sea oil rig (HD 981) 120 nautical miles (nm) off the coast of Vietnam and began drilling for oil in Vietnam’s 200-nm exclusive economic zone. PLA Navy warships and other government patrol ships, as well as a large number of civilian fishing vessels, were deployed with the rig to guard its drilling operations. The following week, China Maritime Safety Administration ships prevented the resupply of 10 Filipino marines stationed on board the BRP Sierra Madre at Second Thomas Shoal in the Spratlys, even though contingents on board the grounded warship have been routinely resupplied by the Philippines since 1999.

Finally, in an obvious snub to a U.S. proposal at the ASEAN Regional Forum to freeze all provocative acts in the South China Sea, Beijing announced in August that it would build lighthouses on five features, including two islets in the Paracels, to purportedly enhance safety of navigation. Two weeks later, a Chinese Su-27 fighter conducted a dangerous intercept of a U.S. Navy P-8 patrol aircraft conducting routine surveillance 135 miles east of Hainan Island. Reminiscent of the 2001 EP-3 incident, the Chinese fighter made several passes under and alongside the P-8 before doing a barrel roll over top of the U.S. plane and flying within 20-30 feet of the Poseidon aircraft.

China justifies these actions by claiming it has “indisputable sovereignty” over the South China Sea islands and their adjacent waters, as well as sovereign rights and jurisdiction over the relevant waters and seabed included within the “nine-dash line.” A careful review of the historical record and law, however, reveals that China’s claims in the South China Sea are unfounded.

China claims the Spratlys and Paracels based on its extensive and continuous display of authority over the islands following their discovery during the Han Dynasty. Although Chinese mariners may have been aware of the existence of the South China Sea islands, there is no concrete evidence that China actually “discovered” the islands before seafarers in neighboring kingdoms in Vietnam, Malaysia, Indonesia, and the Philippines.

Moreover, even if China did discover the islands, international law is quite clear—discovery alone, without subsequent acts of effective occupation and control, does not confer title to territory. Effective occupation requires the intention and will to act as sovereign, and some actual exercise or display of such authority. There is simply no credible evidence, however, that China peacefully and continuously occupied the islands, or exercised requisite authority over them.

For the most part, China relies on records showing that Chinese fishermen sporadically lived on some of the Spratly Islands for short periods of time. Under international law, however, nonproprietary acts by private individuals do not qualify as “state” action unless they are immediately followed up or sanctioned by government authorities. There is no reliable evidence that the Chinese government ever authorized or subsequently sanctioned these acts.

The first verifiable acts of Chinese sovereignty over the Paracels did not occur until 1909. These acts occurred, however, nearly 100 years after Vietnamese Emperor Gia Long formally took possession of the archipelago in 1816. Vietnam and France effectively and continuously administered the islands until they were expelled by Japanese forces during World War II.

China’s first verifiable act of sovereignty in the Spratlys occurred even later – in 1933 – and well after France publicly announced in 1929 that it claimed the islands on the grounds that they were terra nullius. Formal French occupation took place in 1933. At the time France annexed and effectively occupied the Spratlys, conquest was still a recognized method of acquiring territory under international law. Conquest did not become illegal until the entry into force of the UN Charter in October 1945.

China also relies on a number of treaties, documents and statements to substantiate its sovereignty claims over the South China Sea islands, none of which support Beijing’s position.

China maintains that France relinquished its claims to the Paracels and Spratlys when it signed the Sino-French Treaty of 1887. China’s position is not, however, supported by a plain reading of the treaty or subsequent actions of the parties to the dispute. The 1887 boundary line established in the treaty only decided the ownership of the near coastal islands, not the mid-ocean islands in the Gulf of Tonkin or the more distant Paracel and Spratly Islands.