S. China Sea - possession is nine-tenth of the law.
Tension in the S. China Sea region has been increasing lately due to the disputes of sovereignty over parts of the S. China Sea which include the Xisha Archipelago or Paracel A. and Nansha Archipelago or Spratly A. I will present first the historic proofs of China and demonstrate why its claim of sovereignty is the only tenable one. I will then give the arguments of the other countries on which they base their respective claim and show why their arguments are false, facetious and untenable. The other claimants are Vietnam, the Philippines, Malaysia and Brunei.
In the West the determination of sovereignty is based on their international laws which are mostly compiled by Westerners. The main elements and factors for claiming sovereignty under the Western international laws are as follow:
Terra Nullius or Res Nullius
The principle way for gaining sovereignty over a territory is by discovering it when it is unoccupied by anybody (terra nullius or abandonment) and not already claimed by anybody as their sovereign territory. Then the prospective sovereign owner must conduct a ceremony to declare officially that he is making it his sovereign territory. Finally, the new sovereign owner of the territory must demonstrate that he is indeed the sovereign owner by exercising exclusive control and governance over his new possession by excluding all other claimants - occupation and control. There are other ways of gaining sovereignty over a territory which are conquest, cession and prescription. There is a familiar saying that possession is nine-tenth of the law. This corresponds to the principle of uti possidetis, ita possideatis - as you did posses, so you shall possess. This means if there are many claimants equally strong in their claims then whoever is in physical possession of the land may continue to possess it.
The determination of sovereignties in the S. China Sea is complicated by the United Nations Convention on the Law of the Sea or UNCLOS. Article 57 of UNCLOS allows a coastal state to have certain sovereign rights to exploit the resources within 200 nautical miles from the baseline of its coast in terms of exclusive economic zone or EEZ. Article 76 of the UNCLOS also allows 350 nm of continental shelf for sovereign exploitation. These are sources of confusion as it has misled many people into thinking that a coastal state may claim sovereignty over every feature within this water such as islands, atolls, banks, shoals, etc. In actuality UNCLOS in general and the EEZ and rights over continental shelf in particular cannot be used to determine sovereignty as EEZ and rights over continental shelf are derived from sovereignty and therefore do not exist until sovereignty has been determined. Also when EEZs and rights over continental shelf overlap, the EEZ and the rights over continental shelf of either coastal state is determined by proximity or by some other factors agreed to by all parties concerned.
Ultimately, China’s claim of sovereignty over the S. China Sea is based on historical and documentary proofs. China’s history with the S. China Sea began as early as the Han Dynasty and continued from then on down to today without interruption. China had established sovereignty over S. China Sea by including Nansha A. in the administrative map of Tang Dynasty in 789 A.D. As of that time, Nansha A. had become China’s inalienable sovereign territory and the Chinese people have the right to defend it against all invaders. (2, 3)
Throughout subsequent dynasties, China had maintained and reaffirmed its sovereignty over S. China Sea and all the features within it. Sung Dynasty, Yuan Dynasty, Ming Dynasty, and Qing Dynasty had all established sovereignty and control over the S. China Sea. Unfortunately, Qing Dynasty became weakened and in its latter years China was invaded by Japan and many Western countries. However, this does not negate China’s sovereignty over S. China Sea just as all the invasions by Japan and Western invaders into China’s sovereign land territories did not negate China’s sovereignty over them. Taiwan and Manchuria were even ceded to Japan for a time. But China did not lose sovereignty because of the cession. After the WW2 China recovered all lost land territories. By the same token just because Japan and Western countries had invaded S. China Sea and temporarily established their control over it does not mean China had irretrievably lost sovereignty over S. China Sea. China still had the sovereign right to recover the S. China Sea and reestablish sovereign occupation and control over it. (2, 3)
Following WW2 the government of the Republic of China had reestablished its control over S. China Sea in 1946 by sending Special Commissioners accompanied by troops to the Xisha and Nansha Islands to take over the two archipelagoes with ceremonies and erected marks of sovereignty on the islands.
During the era of the WW2 Japan had control over the entire S. China Sea and established military bases on some islands therein. From the legal perspective of the Westerners, the Cairo Declaration of 1943 and the Potsdam Proclamation of 1945 legitimized the transfer of the sovereignty of S. China Sea back to China by returning to it all territories stolen by the Japanese through armed invasion. The returned territories included "Manchuria, Taiwan and the Penghu Islands." At that time, Japan put the Nansha Islands under the jurisdiction of Taiwan. Therefore, Nansha A. was legally returned to China together with Taiwan under the Cairo Declaration of 1943 and the Potsdam Proclamation of 1945. But, of course, China did not need these declaration and proclamation to establish its sovereignty over S. China Sea. China had already established sovereignty over S. China Sea starting in the Tang Dynasty. Regardless of the Cairo Declaration and the Potsdam Proclamation, China by itself has the sovereign right to recover its possessions and establish control over them. (2, 3)
China’s sovereignty over S. China Sea was established through its long history of relationship and government jurisdiction over the entire S. China Sea region. Or in other words, China established its sovereignty over S. China Sea based on discovery and historical usage and governmental control and occupation over more than two thousand years. Obviously, once China had discovered the archipelagos in the S. China Sea, it is absurd that it could be rediscovered by anyone else. Nor can any other country establish control over S. China Sea except by invasion to rob China of its sovereignty. And any invasive occupation of any S. China Sea territories or features cannot deny China’s sovereignty over them. Therefore, even if China were temporarily robbed of its sovereign territories, ultimately it has the sovereign right to recover its lost territories by any means open to it including armed force such as used in its fight against Japan. By the same token, if any other countries today dared to make false claims to Chinese sovereign territories in the S. China Sea and invade to occupy them then they are like Japan in WW2 and China has the same sovereign right to fight them with armed force to take back and defend its sovereign territories. (2) (3)
Vietnam claims Nansha A. by alleging that it had discovered and then occupied and controlled it from the 17th Century. It also claimed that it had received it through succession from France. How could Vietnam have discovered Nansha A. when it was discovered by China some two thousand years previously? It is nonsense. By the 17th Century, Zheng He had already passed through Nansha A. at least two hundred years ago in the early 15th Century. There is plenty of evidence that Zheng had seen and therefore “discovered” Nansha A. even if there were any question about whether the Chinese had discovered it in the Han Dynasty. Therefore, Vietnam’s claim that it was the first ever to have discovered Nansha A. is obviously false and facetious and its claim of sovereignty due to discovery must of necessity also be false and facetious and untenable.
As to France’s claim on Nansha A. it was no more than Japan’s. Both France and Japan were invaders who robbed China of its sovereign territories. Japan could not have legitimately left it to anybody through succession, therefore, neither could France have legitimately left it to Vietnam through succession. Ultimately, China reclaimed its rightful sovereign territories by defeating Japan. And as it was with Japan, China has the right to reclaim its rightful sovereign territories even if France had left them to Vietnam. It is like stolen properties. No recipient of stolen property has the right to keep it. It is in fact a crime to receive stolen properties. Therefore, Vietnam’s claim to sovereignty over Nansha A. due to succession of title from France is untenable.
Because Vietnam has no sovereign right to Nansha A. either by discovery or through succession from France, it cannot claim sovereignty by maintaining effective occupation and control. That is to say, Japan could not have established sovereignty over Nansha A. by invading and then maintaining effective occupation and control over it, therefore, neither Vietnam could have established sovereignty over Nansha A. by invading it and then maintaining effective occupation and control over it. Ultimately, China reclaimed its rightful sovereign territories after defeating Japan with armed force. By the same token, China ultimately has the right to reclaim its rightful sovereign territories from Vietnam with armed force if necessary. Therefore, Vietnam cannot claim sovereignty over Nansha A. due to occupation and control no matter how long it occupied it or controlled it.
The Philippines is claiming essentially a group of features it calls the Kalayaan Island Group (KIG). The claim is based on discovery, proximity, and occupation and control. Proximity is not a valid basis for claiming sovereignty under international law. So that can be dismissed immediately. Its claim of discovery is based on the illegal action of a Filipino citizen by the name of Tomas Cloma who in 1956 simply claimed some 53 features of the S. China Sea as his own private property. (1) The gall of this man is truly amazing. It seems his guiding principle was “what I see, I can keep.” This is obviously the guiding principle of a pirate and a thief. But again, since these features were already the sovereign territories of China and had been discovered by the Chinese thousands of years ago there is no valid basis for his claiming these features.
Subsequently, these features were taken over by the Philippines government in 1971 which tried to justify Cloma’s claiming the features by calling it discovery of res nullius arguing that these features had been abandoned and therefore the Philippines government can establish sovereignty over it by effective occupation and control. But the Chinese government had never abandoned these features. In 1971 the Vietnam War was in full swing. The U.S. navy was in dominant control of the S. China Sea. The Chinese navy had no ability to challenge the U.S. navy for occupation and control of the S. China Sea. But this does not mean the Chinese had abandoned its sovereign territories in the S. China Sea. China still asserted its sovereignty over S. China Sea. And the Philippines occupation and control are just as illegal as the Japanese occupation and control of the S. China Sea. And just as China had the right to take back these sovereign territories from the Japanese, it has the sovereign right to take back these sovereign territories from the Philippines no matter how long they were illegally occupied.
Another illegal and immoral argument put forward by the Philippines government is that it has the right to annex Nansha A. because its proximity poses a danger to the security of the Philippines. Such arguments is scurrilous because it would allow any country to attack any other country to take their sovereign territories by claiming insecurity and threat from the attacked country. If such an argument is valid then China can also use it to take back not only Nansha A. but also to acquire Palawan citing the dangerous threats posed by the proximity of Palawan.
Therefore, the reasons provided by the Philippines to justify their claim of sovereignty over the 53 features in the S. China Sea are obviously either absurd or simply untenable.
Philippines also claims that its territorial sea is defined by three treaties, which are the 1898 Treaty of Paris, the Cession Treaty of 1900 and the 1930 Treaty of Washington. (1) What the limit of its territorial sea is as based on these treaties is not important. What is important is the principle that old treaties can be used to define the limit of territorial sea today. Obviously, if the Philippines can use historical documents to define its territorial sea then China can also use its historical document to define its territorial sea. Therefore, the Nine-dotted line map can effectively define the extent of China’s territorial waters. And the Chinese government must exert itself to protect the sovereign rights of its territorial legacies.
Malaysia is claiming sovereignty over some eleven features in the Nansha A. based on the argument that they are on its extended continental shelf as well as under its effective occupation and control. Malaysia had claimed sovereignty over these features simply by passing a law in 1966 defining the extent of its continental shelf and then in 1979 published a map and claimed sovereignty over features within the map. Continental shelf is not a valid reason for claiming “sovereignty.” Therefore, it is illegal for Malaysia to claim China’s sovereign territories based on UNCLOS’ provision for continental shelf.
Article 76 of the UNCLOS allows a coastal country to have up to 350 nautical miles of continental shelf. But Paragraph 10 of Article 76 also made it clear that UNCLOS does not have anything to do with the question of sovereignty.
Article 76, Paragraph 10:
10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.
How two states with overlapping claims to continental shelf resolve their conflicting claims is strictly up to the parties involved. If two coastal countries have coasts closer than 700 nm then obviously neither can have exclusive rights to 350 nm of continental shelf. The usual solution is to make the distance of the continental shelf of either country to be half the distance between them. Of course, this depends on both coastal countries’ first agreeing to abide by the provisions of UNCLOS. However, China had long before the existence of UNCLOS demarcated its sea boundaries. Therefore, UNCLOS cannot force China to abandon its long established boundaries and China is entitled to maintain its sovereignty over the Nansha A. and the sea boundaries that it had established for thousands of years before the existence of UNCLOS. UNCLOS cannot even determine the respective EEZ and continental shelf when countries claim them under its provision. In the end, the countries themselves have to work it out between themselves. Therefore, UNCLOS cannot be invoked to infringe into China’s sovereign sea boundaries.
Once the sea boundaries of China had been established by historical documents, Malaysia’s claim of continental shelf cannot extend into China’s sovereign sea boundaries. Many coastal countries claim a territorial sea that extends up to 12 nm under the UNCLOS. But China had demarcated its territorial sea clearly on maps before UNCLOS came into existence and therefore its territorial sea is not derived from UNCLOS and therefore not subject to the provisions of UNCLOS. Which means China is entitled to maintain its territorial sea as indicated by its maps. And UNCLOS cannot give Malaysia any continental shelf inside China’s sovereign territorial seas.
Wherever China did not demarcate any territorial sea then it will claim territorial sea, contiguous zones, EEZ, continental shelf, etc. according to the provisions of UNCLOS. But wherever China had already demarcated territorial seas based on historical evidence then it must enforce its own sovereign territorial seas based on its historical documents and evidence. And no countries can use UNCLOS to force China to change its long established historical sea boundaries. Specifically, Malaysia cannot claim continental shelf to the extent of intruding into China’s territorial sea.
Malaysia’s claim of sovereignty based on effective occupation and control is inapplicable because it is seizing China’s sovereign territories. No country can seize the sovereign territories of any country and establish sovereignty by occupying and controlling it for a long time. The sovereignty of Nansha A. still belongs to China. For a time China was distracted by wars and unable to drive out the invaders. But now China is again strong and it is ordering the invaders out of its sovereign territories.
What Brunei is claiming is uncertain. It could be claiming sovereignty over Louisa Reef and Riflemen Bank or it could be claiming some portions of the nearby sea in terms of EEZ or continental shelf under the UNCLOS. It is also unusual with respect to other claimants in that it is disputing Malaysia’s claim over Louisa Reef based on some delimitation done by the UK in 1958 over Brunei’s continental shelf. (1) Currently, UK is disputing on behalf of Brunei the map published by Malaysia in 1980 claiming Louisa Reef as part of Malaysian continental shelf.
But Brunei’s claim either of sovereignty or EEZ or continental shelf are all invalid because China has long ago established sovereignty over these areas.
Looking at the claims of Vietnam, the Philippines, Malaysia and Brunei, it is clear that China has prior and stronger claim than any of them. In the East China Sea, China had agreed to the 12 nm territorial sea and 200 nm EEZ and other provisions under the UNCLOS. But in S. China Sea, China had already established its sovereign sea boundaries since ancient times and have historical documents to validate them. Therefore, China must claim sovereignty over portions of the S. China Sea according to its historical documents while in other parts of China’s coast it can agree to the provisions of the UNCLOS.
This means that since China’s territorial sea boundaries in the S. China Sea is based on its historical documents, it is not claiming any EEZ based on the provisions of the UNCLOS. Some people have argued that since some rocks that China currently occupy are submerged during high tide therefore China is not allowed to claim 200 nm of EEZ based on them. But China is not claiming EEZ based on the UNCLOS but is claiming territorial sea based on its historical documents. Therefore, their arguments are invalid. Moreover, China claims all the features within the Nansha A. as its sovereign territories according to its historical maps and other documents and evidence. That means just because some of the rocks that China is currently actually occupying within Nansha A. may be submerged during high tide does not mean all the features within the Nansha A. are submerged during high tide. There are many other features within the Nansha A. that are above high tide. So even if the sea boundaries as demarcated on the Chinese maps were ultimately not allowed, still the sovereignty of China over all features within the Nansha A. would allow it to establish 200 nm from the outermost limit of its outermost qualifying features. The result would be substantially the same as the current sea boundaries on its ancient maps.
Therefore, China can object to Japan’s establishment of 200 nm of EEZ over Okinotorishima which is not qualified because of the Article 121 of UNCLOS which requires an island to be “a naturally formed area of land, surrounded by water, which is above water at high tide” and that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Since Japan is claiming 200 nm of EEZ around Okinotorishima based on UNCLOS provisions and since UNCLOS provisions disqualified it based on its Article 121, therefore, Japan cannot have 200 nm of EEZ around Okinotorishima. But China can claim all its territorial sea boundary in S. China Sea based on its historical documents and evidence.
Israel claims sovereignty over Palestine arguing that God had given it to their ancestors. Nobody can substantiate this because no one has ever demonstrated that God exists. And God obviously had never come to earth, proved that he is indeed God and then proclaimed that he had given Palestine to the Israelites. But Israel is a member of the UN. The point is sovereignty is not based on any definable law but based on force to maintain occupation and control. In other words, it is your land if you can occupy it and control it. Therefore, if Israel can gain sovereignty over Palestine by claiming God had given it to them then China’s claim over S. China Sea is much more substantial based on abundant factual, tangible and genuine historical and documentary evidence and proofs.
But even though Israel claimed Palestine based on its being gift from God, yet Israel did not rely on it to convince the Arabs to let them keep it. The Arabs understandably demurred. And Israel fought many wars to maintain occupation and control over Palestine. Therefore, China should learn a lesson from the Israelites. China has rightful sovereignty over S. China Sea. But many countries are trying to take it from China. Therefore, China must fight to take it back and maintain effective occupation and control over them. In the end, whether the Jewish people are right or the Arabic people are right is not germane. What is germane is that only force can maintain sovereignty. This is the reality. And the Chinese government should take cognizance of it and act accordingly.
This brings me back to what I said earlier about possession being nine-tenth of the law and uti possidetis as one of the principles in international law for determining sovereignty over disputed territories. When several claimants dispute over a territory with conflicting laws and reasons, ultimately the only way to solve it is to allow the country in possession of the territory to keep it. For the last several decades the CPC government had been derelict in its duty to maintain occupation and control of the S. China Sea. To some degree this could be excused due to the weakness of China and the wars raging within it or around it. But since China regained its power starting in the 1980’s it should have made determined efforts to regain occupation and control of this vital part of China’s sovereign territories. But the CPC is much more concerned with suppressing the rebellion of the Chinese people and much less concerned with defending China’s sovereign territories. This is a repeat of the Sung Dynasty where China’s sovereign territories were traded off to gain peace that benefited only one man, the emperor of China. The CPC desperately tries to avoid conflict with other countries because it is afraid engaging other countries in wars will unleash internal rebellion. Therefore, the CPC would rather give away China’s sovereign territories to foreign aggressors than to risk losing dominance over the Chinese people. This is contemptible and reason why the CPC is unfit to rule China.
China is now obsessed with soft power. It spends hundreds of billions of yuan to put up fantastic shows of Olympics, World Expo, futuristic airports, etc. to dazzle the world while China’s military, especially the navy, languished. This is a repeat of Qing Dynasty where the Empress Dowager Cixi squandered the money earmarked for rebuilding the navy to build a luxurious summer palace. As a result China was not able to safeguard its seas and ultimately allowed Japan to invade and take Manchuria and Taiwan and ultimately to invade and occupy China‘s mainland. I’m not saying Olympics, World Expo, modern airports, etc. are not important things. But they are not the kind of things that will protect China from external aggression. The only effective things that can enable China to defend its sovereignty is a powerful military. Therefore, China must not be lulled into complacency that it can dazzle the world with its modernity and thereby stop its enemies from attacking and taking its sovereign territories.
There are many conflicting laws in the world. UNCLOS provisions and international laws are often contradictory. The International Court of Justice also take into consideration when applying international law such things as international conventions, international custom, general principles of law, judicial decisions and the teachings of the most highly qualified publicists of the various nations to determine what the rules of law should be. Therefore, it is possible to find some law to substantiate any claim. This means China should not give credence to laws that seem to support other countries’ claims. It must rely on its own historical documents and proofs and disregard all other countries’ proofs. This means China must immediately regain possession of its sovereign territories and thereby remain in possession of it.
In the final analysis, China has the rightful claim for sovereignty over S. China Sea as proven by its long history and many historical documents. It is the duty of the Chinese government to protect that sovereignty against foreign aggressors. Vietnam clearly cannot establish sovereignty over Nansha A. on the basis of discovery in the 17th Century since China had discovered it in the 3rd Century B.C. And its claim of succession from France is invalid since China had protested against France’s baseless and illegal claim of sovereignty over China’s sovereign territories. China had also regained its sovereignty from the Cairo Declaration of 1943 and the Potsdam Proclamation of 1945. The claim of the Philippines is facetious because proximity is never a valid reason for sovereignty; the discovery of Nansha A. by Tomas Cloma is nonsensical farce; annexing Nansha A. because its proximity is a threat is baseless; the treaties it signed with other countries simply cannot give it what rightfully belonged to China. Therefore, the Philippines has no credible claim of sovereignty over Nansha A. Malaysia is claiming sovereignty over Nansha A. based on continental shelf by passing a law in 1966 and publishing a map in 1979 that predates Nov. 16, 1994 when the convention of the Third United Nations Conference on the Law of the Sea that formalized continental shelf came into force. But UNCLOS cannot determine sovereignty. Therefore, Malaysia has no credible claim on Nansha A. Finally, it is not clear whether Brunei is actually claiming sovereignty over Louisa Reef and Riflemen Bank or just claiming EEZ or rights of continental shelf under the UNCLOS. But like Malaysia, UNCLOS cannot confer sovereignty to any claimant. Therefore, Brunei’s claim is just as baseless and untenable as Malaysia’s. Even the most cursory examination of the arguments provided by Vietnam, the Philippines, Malaysia and Brunei reveal that they are all facetious and untenable. Therefore, China’s sovereignty is incontestable and the Chinese people and the Chinese government must not give away one single inch of their sovereign territories. China must not unjustifiably invade and take even one single inch of other countries rightful sovereign territories. But it also must defend every inch of its own sovereign territories.
These four invasive countries have already established facilities over many islands and other features of Nansha A. If China did not immediately evict them then their argument based on effective occupation and control will strengthen with the passage of every day. It has been excusable for China to have been unable to evict them before due to its military weakness and turbulence due to wars. But China is now relatively strong and is perfectly capable to retake these territories with force if necessary. If it still did not take back these territories then the invaders can argue reasonably that China had abandoned its sovereign territories and they can then treat them as terra nullius and establish their sovereignty by effective occupation and control.
The Chinese government has been trying to negotiate joint development of Nansha A. This is extremely foolish and will not work. All the claimant want the oil desperately due to their poverty. Therefore, they will not agree to anything short of total control. They will see China’s offer of joint development as infringement on their rightful territories. Even if China gave up its sovereignty, it will not garner any gratitude from these aggressive countries. They will simply argue that they had sovereignty to begin with and therefore owe nothing to China. And China will come away looking like a thief who got chased away by the rightful owners. Therefore, China will not garner any gratitude or consolidate any harmony by giving up its sovereignty.
Ultimately, it is the duty of the Chinese government to protect the sovereign territories of China. Therefore, there is no need to think so much. Just enhance the military power of the Chinese navy, air force, and all other branches of the Chinese military and evict the invaders immediately. That is the only way to protect China’s sovereignty and the realistic way to establish peace and harmony in the S. China Sea.
1. The Second International Workshop
The South China Sea: Cooperation for Regional
Security and Development; 10-12 Nov 2010, Ho
Chi Minh City, Viet Nam; CLCS Submissions and
Claims in the South China Sea
2. Jurisprudential Evidence To Support China's
Sovereignty over the Nansha Islands
3. Spratly Islands History Timeline
4. The Philippines' Illegal Claims in the Spratlys (Spratly Islands) --The Lies and the Groundless Invasion into China's Spratly Islands of South China Sea