International legal experts offer legal expertise of South China sea claims

Commentary: These legal experts say there is “Much Ado About Nothing” regarding the disputed claims of the Spratly Islands, which are uninhabitable and thus do not enjoy the entitlement of  an exclusive economic zone (EEZ)  or continental shelf (CS) under the Law of the Sea Convention.  Regarding to the Paracels Islands, of which some islets can be habitable and can be arguably enjoy some form of EEZ; however, China has used force evict Vietnam from the islands 1974. This dispute should be settled by the 2 countries.

The Chinese claims of the whole South China Sea with a “9-dotted line,” tongue like shape, which are only dated back as far as in 1947 and are vague and groundless on historical and legal terms. This unreasonable and excessive claim is dangerous because it will be a source of armed conflicts in the region.


Prof. Jerome Cohen

Of the many signs of China’s increasingly assertive foreign policy, none has troubled its neighbors — and the United States –more than its claim to some form of jurisdiction over much of the South China Sea. Yet the People’s Republic has never explained exactly what it is claiming or why regarding these strategically important waters so rich in mineral, fishery and other resources.

Determining sea boundaries is the name of the game in this huge area. Yet much of the attention of contesting states has revolved about their conflicting claims to

Prof. Jon Van Dyke (1943-2011)sovereignty over two sets of tiny islets that, properly viewed under international law, should not significantly influence maritime delineation.

  • The Paracels (Xisha/ Hoang Sa), in the north of the South China Sea near China and Vietnam, have long been claimed by both.
  • The Spratlies (Nansha/Truong Sa), in the south near Vietnam, Malaysia, the Philippines, Indonesia, and Brunei, are even tinier, but have long attracted claims by all those countries in addition to China.

China claims sovereignty over both sets of islets based on historical linkages to them during the past millennium, although traditionally it did not exercise “effective occupation and control” over them. The other coastal countries make similar claims. None of these islets had been inhabited historically, but in the recent half century the competing countries have put military garrisons on many of them. The People’s Republic did not take an active interest in these islets until about 1970. By then, most of the features above water at high tide were controlled by others. In 1974, China used force to oust the South Vietnamese government from the Paracels shortly before its collapse, and in 1988, when China began to “occupy” some of the low tide elevations in the Spratlies, it forced Socialist Vietnam from Fiery Cross Reef.

The breadth of China’s claim to the sea area is usually attributed to a map published in 1947 by Chiang Kai-sheks’s Nationalist government, shortly before the Communist revolution chased it from the mainland to Taiwan. The map drew 11 dashed lines extending all the way to the southern part of the South China Sea. Later, Communist-era maps eliminated the two dashes in the Gulf of Tonkin, but the other nine lines have appeared repeatedly in a tongue-like configuration swinging deep through the South China Sea. Last year, China attached a version of this map to its official protest against a joint Malaysia-Vietnam claim to part of the continental shelf in the central-southern part of the area.

It seems that China is putting forward an “historic” claim to much of the South China Sea, but it has never clarified whether it is claiming these waters as internal waters, territorial sea, exclusive economic zone, extended continental shelf, or some status unique to the region. It has merely published straight baselines for delineating the 12 nautical-mile territorial sea boundary to which the Paracels are entitled, but has never done so for the Spratlies.

Last year, the Philippines filed with the UN Commission on the Limits of the Continental Shelf a formal claim to shelf areas around those islets in the eastern part of the South China Sea that it claims, and Malaysia and Vietnam filed their unusual joint continental shelf claim. China vigorously protested both actions.

This year, after U.S. Secretary of State Hillary Clinton’s famous July 23 ASEAN Regional Forum challenge to China’s broad but vague claims and Beijing’s angry response, China provided symbolic support for its position by announcing in late August that its national flag had been planted in the seabed at one of the deepest points in the South China Sea. When, soon after, China applied fierce pressures against Japan for arresting a Chinese fishing captain offshore the disputed Senkaku/Diaoyu islets in the East China Sea, it alerted the world to the increasing danger of conflict in the South China Sea as well.

What can be done to improve the situation? China seems to prefer negotiating territorial and boundary claims with each of the other contending countries in a series of bilateral negotiations. Presumably, these would be similar to the Sino-Vietnam negotiation that in 2004 resulted in China’s first maritime boundary agreement, a mutually satisfactory compromise that approximately divided jurisdiction over the adjacent Gulf of Tonkin. The other contending states, undoubtedly finding security and bargaining power in numbers, prefer a collective negotiation, which Secretary Clinton described as “a collaborative diplomatic process by all claimants for resolving the various territorial disputes without coercion”.

Although many have interpreted the 2002 “Declaration on the Conduct of Parties in the South China Sea” signed by the ASEAN members and China as calling for a collective settlement, the Declaration only prescribed settling disputes “through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea”. The parties further agreed to continue their consultations and dialogues “through modalities to be agreed by them”. It should not strain the imagination of Chinese and ASEAN diplomats to find a formula that will take account of the virtues of both bilateral and collective negotiations.

Just as in the East China Sea, the first substantive step that should be taken is for the parties to agree on the unimportance, for purposes of sea boundary delimitation, of the disputes concerning sovereignty over the islands in question.

  • The Spratlies are uninhabitable and incapable of sustaining economic life of their own, and hence they are not entitled to an exclusive economic zone or continental shelf under the Law of the Sea Convention.
  • Although the Paracels may now be deemed habitable, parties bent upon compromise should be able to negotiate limits to the claims this status might generate. It will be much easier to compromise upon sea boundaries if all the neighboring countries agree, as China apparently has regarding the comparable Senkaku/Diaoyu problem, that these tiny islets and reef features should not become the tail that wags the dog in maritime delimitation.

Following this approach, a fair delimitation can take place drawn from the land boundaries of the continental and large island land masses of the adjacent states, recognizing the Paracels as relevant features and thus giving China substantial ocean space in the area nearest to it. This would permit the countries of the region to work together to exploit the mineral, fishery, and other resources of the South China Sea for the benefit of their citizens and bring about the “peace, stability, economic growth and prosperity” as well as the “freedom of navigation and overflight”that their 2002 Declaration endorsed.

Who owns the South China Sea? Clearly of all the nations in the region.

Look at the distance of Spratly to China. At almost 1/4 mile long, Namyit is one of the larger Spratly Islands. It even has a heliport! The people there better keep their inflatable lifeboats handy, though, because it wouldn’t take much of a typhoon to swamp the entire island

This huge member of the Union Reefs group is almost 800 feet long and 300 feet wide at low tide. If they're serious about pumping the neighborhood's oil into the atmosphere, they need to start building on stilts while it still stays dry at high tide.


China's closest big landmass is Hainan island, more than 900 kilometres away.

Chinese installation on islets, easily submerged.

Chinese installation on islets, easily submerged.

Vietnamese installation on islets, easily submerged.

A picture of artificial structures at Vietnam occupied West London Reef

A view of a dock at Vietnam occupied Pearson Reef

A aerial shot of Malaysia occupied Swallow Reef

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at NYU School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. Jon M. Van Dyke (1943-2011) is professor and Carlsmith Ball Faculty Scholar at the William S. Richardson School of Law at the University of Hawaii at Manoa.


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2 Responses to International legal experts offer legal expertise of South China sea claims

  1. Rigthfull Comment says:

    Philippines is the the rightful claimant of Spratley and all of this islets. No matter how many lies, fabrication, propaganda, and ancient baseless map China has to claim. If China so arrogantly want to start war/conflict to ASEAN or specific country go a head — and see what happen. I can’t not wait till you’re communist country fall apart. And so for this communist Vietnam who wants to still somebody else property cause of its GREED. Taiwan what the F**k why won’t you just join PRC so you could also have falsified claim. And MALAYSIA ——> “SHAME ON YOU!” what? you are going to claim part of Spratley cause you annexed Northern Borneo. Legally that is part of our country and that’s a fact you cannot change. May Karma hit you in the back! God bless.

  2. reaf says:

    If the chinese really discovered or claimed the spratley island since ancient time, why they were not able to discover the philippines? I’m sure wala pang civilization ang Pilipinas noon kaya dapat nakita nila ito at naging china’s annex. You know what i mean? use your logic!!!

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