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The Asia-Pacific Journal | Japan Focus Volume 13 | Issue 43 |
Number 2 | Article ID 4391 | Oct 26, 2015
1
China, the Philippines, Vietnam, and International Arbitrationin
the South China Sea
Alex Calvo
International Law, another weapon in the battle forthe South
China Sea
Introduction: a moment to take stock ofthe ongoing legal
battle
This summer, the Permanent Court ofArbitration (PAC) held the
first oral hearings inthe case brought by the Philippines
againstChina concerning the South China Sea. Beforeconsidering any
substantive issues, the PAChas to decide whether it has
jurisdiction toissue a ruling.1 Earlier, the closing weeks of2014
had seen three significant developments,with Hanoi making a
submission to the PAC,Beijing publishing a position paper (while
notsubmitting it to the Court), and the UnitedStates issuing a
position paper of its own. Wecan also mention the continued
interest in theSouth China Sea by other countries, includingIndia
and Russia. Taken together, it means thatthe time may have arrived
to take stock of thearbitration case, updating our previous
summerof 2013 piece Manila, Beijing, and UNCLOS: ATest Case?". 2 At
stake is not only thisarbitration case, or even the entire South
ChinaSea, but the role of international law in
contributing to peaceful solutions to territorialconflicts,
specifically whether it can helpaccommodate changes in relative
powerwithout recourse to military conflict.
Beyond the Philippines and China:Vietnam Makes a Move
After constant speculation on whether Vietnamwould join forces
with the Philippines and seekan international ruling on the South
China Sea,Hanoi finally decided to make a submission3 tothe
Permanent Court of Arbitration (PAC)without joining Manila as a
co-plaintiff.4 In itssubmission, Vietnam asked the PAC to assertits
jurisdiction, give due regard to thecountry's rights and interests
in the Spratlysand Paracels, as well as in her EEZ andcontinental
shelf, and declare China's nine-dashline without legal basis.
Hanoi's submissioncould be seen as a response to Beijing'sposition
paper5 of 7 December 2014, spellingout the Chinese position, but
not submitting itto the PAC in the Hague concerning Manila'srequest
for arbitration under UNCLOS (theUnited Nations Convention on the
Law of theSea).6 At the time of writing, the court is
stillconsidering whether it has the authority to ruleon the case. A
third relevant development inthe last days of 2014 was a study7 by
the USState Department, released on 5 December.Once again, it is
clear that the legal battlelaunched by Manila is being closely
followed byall the capitals concerned. In October 2015 USAssistant
Secretary of State for East Asian andPacific Affairs Daniel Russel
said that shouldthe PAC rule it had jurisdiction, both
thePhilippines and China should abide by itsdecision, adding that
this was what the United
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2
States and the international communityexpected.8
Manila sent a top level delegation to the oralhearings on
jurisdiction this summer, which included(clockwise from top left)
Senate President FranklinDrilon, Senior Associate Justice Antonio
Carpio,House Speaker Feliciano Belmonte Jr., ForeignAffairs
Secretary Albert Del Rosario, JusticeSecretary Leila De Lima, and
former AFP Chief ofStaff Manny BautistaView of the Philippines'
delegation at the PeacePalace, in The Hague (the Netherlands)
From day one, China has rejected thePhilippines' resort to
international arbitration,arguing that the country had opted out
ofcompulsory arbitration on sovereignty issuesand that the suit
violates bilateral agreementsto solve disputes by negotiation.
These wereamong the main arguments in Beijing'sstatement laying
down its position, a paperwhose release some observers believe
indicatesthat China cannot ignore international legal
proceedings despite the fact that it has notbeen submitted to
the PAC. The reaction toChina's paper was not l imited to
thePhilippines; it also seems to have finallyprompted Hanoi's
decision to join the battle onits own terms. On 11 December
2014,Vietnamese Foreign Ministry Spokesman LeHai Binh made the
following remarks9 inanswer to questions from the press:
Once again, Viet Nam reiteratesthat Viet Nam has full
historicalevidence and legal foundation toreaffirm its sovereignty
over theHoang Sa [Paracel Islands] andTruong Sa [Sprat ly Is
lands]archipelagoes, as well as otherlegal rights and interests of
VietNam in the East Sea [Bin ng]. Itis Vietnam's consistent
position tofully reject Chinas claim over theH o a n g S a a n d T
r u o n g S aarchipelagoes and the adjacentwaters, as well as
China's claimingof 'historic rights' to the waters,sea-bed and
subsoil within the'dotted line' unilaterally stated byChina. The
spokesman alsoconfirmed that Hanoi hadexpressed its position to
theTribunal regarding this case, andrequested the Tribunal to pay
dueattention to the legal rights andinterests of Viet Nam.
It should be noted that Hanoi did not joinManila as co-plaintiff
in the case, choosinginstead simply to lodge a statement with
thePermanent Court of Arbitration. Someobservers took this as
indicative of a desire notto alienate Beijing,10 while at the same
timedefending the countrys position. Furthermore,an un-named
regional source told the SouthChina Morning Post11 that Vietnam's
action isas much to protect Vietnamese interests vis--vis the
Philippines as it is directed against
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3
China, with another adding that There isreportedly no consensus
in the VietnamesePolitburo on this subject. This is probably as
faras the Politburo is prepared to go. The sameHK newspaper also
quoted Rodman Bundy, alawyer who believes that Hanoi's
statementshould be ignored by the tribunal given thatVietnam has no
standing in the arbitration,adding that the move was a
cat-and-mousegame going on outside the strict procedure ofthe
arbitration. Australian Professor CarlyleThayer also spoke to
theSouth China MorningPost, saying that Vietnam's move was a way
forthe country to put forward her interests, addingthat this
amounted to a cheap way of gettinginto the back door without
joining thePhilippines' case. Gregory Poling, South EastAsia
analyst at Washington-based think tankCenter for Strategic and
International Studies,believes that Vietnam's statement had the
samegoal as the Chinese position, namely toensure that the justices
hearing the caseconsider the arguments contained in thedocument,
but do so in a way that is lessprovocative than Vietnam actually
joining.12
On 12 December 2014 Foreign MinistrySpokesperson Hong Lei
responded to a mediaquestion on Hanoi's move. After
repeatingBeijing's mantra about China's indisputablesovereignty
over the Nansha Islands and theiradjacent waters and the
indisputable factthat the Xisha Islands are an integral part
ofChina's territory, he said that China will byno means accept
Vietnam's illegal and invalidsovereignty claims over Nansha and
XishaIslands. Hong called on Hanoi to work withChina to resolve
relevant disputes over theNansha Islands through consultation on
thebasis of respecting historical facts andinternational law so as
to jointly safeguardpeace and stability in the South China
Sea,insisting that Beijing would not take part in thearbitration
proceedings for reasons previouslyexplained in detail in the 7
December positionpaper, and that Chinas position will
notchange.13
Hanoi's decision to address the PAC may havebeen a compromise
outcome directed not justat Beijing but also at Manila. The
decision tookplace in parallel with high-level meetings withChina
and others in the South China Sea.Perhaps a good starting point to
look at thesecontacts would be the trip to Beijing in Augustlast
year by Le Hong Anh, a special envoy ofthe Secretary General of the
VietnamCommunist Party (VCP). As Carl Thayer notes,this marked an
important inflection point inSino-Vietnamese relations following
the HD981 oil rig crisis of the preceding threemonths.14 Anh met Xi
Jinping, Liu Yunshan(secretary of the CCP Central Committee and
amember of the Politburo Standing Committee),and Wang Jiarui (vice
chairman of the NationalCommittee of the Chinese Peoples
PoliticalConsultative Conference). These meetings ledto more
concrete agreements, and in particularin the words of Vietnams
Foreign AffairsMinistry three important points, namelyenhanced
bilateral ties between parties andstates, boosting sound and
stabilised relationsbetween the two countries, promotingbilateral
visits, and working to restore andenhance bilateral relations in
all fields and toseriously implement the agreement on thebasic
principles guiding the settlement of searelated issues between Viet
Nam and China; toeffectively implement government-levelnegotiations
on Viet Nam-China borders andterritory; to seek basic and long-term
solutionsacceptable to both sides; to effectively controlsea
disputes and not act to complicate orexpand disputes; to maintain
peace andstability in the East Sea; and to maintainoveral l Viet
Nam-China relat ions. 1 5
Furthermore, the meetings led to theresumption of bilateral
contacts, high-levelvisits and a meeting of government leaders.
Inaddition to the 16-18 October Vietnamesesenior military
delegations trip to China,discussed below, State Councilor Yang
Jiechitraveled to Hanoi to co-host the 7th JointSteering Committee
meeting on October 27plus the 10 November meeting, on the
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4
sidelines of the APEC Summit in Beijing,between Chinese
President Xi Jinping and hisVietnamese counterpart.16
In December 2014, the first visit to Vietnam bya leading Chinese
official that year took place.Yu Zhengsheng (chairman of the
NationalCommittee of the Chinese People's PoliticalConsultative
Conference) traveled to thecountry, invited by the Communist Party
ofVietnam Central Committee and the FatherlandFront of Vietnam.
According to Xinhua, the tripwas designed to to further mend
bilateral tiesafter recent tensions and the May 2014 anti-Chinese
riots. The report stressed the commonborder, similar culture and
high economiccomplementarity with China, Vietnam'slargest trade
partner for nine years in a row,while Vietnam has become China's
secondlargest trade partner in the Association ofSoutheast Asian
Nations. The text concludedsaying that there is reason to believe
that ifthe two nations, especially Vietnam, cast theireyes on
improvement and development ofrelations instead of aggravating
differences,benefits will not only be brought about tothemselves
but also to the whole region.17 Thisis in line with many Chinese
injunctions toneighbors to work together to improverelations, while
not offering any concretesolution to the territorial disputes in
the SouthChina Sea. Reporting on Yus meeting withVietnamese Prime
Minister Nguyen Tan Dungin Hanoi on 26 December, Xinhua chose
theheadline China, Vietnam agree to properlysettle maritime
disputes.18 Here the wordproperly may perhaps be a
thinly-disguisedcriticism of international arbitration and
otherdispute resolution mechanisms not to Beijing'sliking. Yu
described the maritime issue ashighly complicated and sensitive,
whichrequires negotiations to manage and controldifferences, adding
Megaphone diplomacycan only trigger volatility of public
opinion,which should be avoided by both sides. 19
Commenting on the succession of high-level
meetings, last year, and in particular thesuccession of two
joint Steering Committee forBilateral Relations meetings just a few
monthsapart (in June and October), Thayer pointed outthat this was
an indication that China's topleaders are willing to engage with
Vietnam toreset their bilateral relations, which wereseverely
strained by the oil rig crisis.20 Aftersome rumors, 2 1 i t was
confirmed thatVietnamese Communist Party leader NguyenPhu Trong
would be visiting China in earlyApril.22
At a lower level, but providing opportunities fordiscussion, was
the 65 anniversary of Sino-Vietnamese diplomatic relations in
January,23
where both countries' friendship associationheads stressed their
wish for closer relations,chairman of the Viet Nam Union of
FriendshipAssociations Vu Xuan Hong saying it'snecessary to have
more friendly exchangesbetween Vietnam and China to improve
trustand narrow differences. Lets work for moreappropriate
cooperative measures for mutualbenefit and implement an action
program forthe Vietnam-China strategic partnership.24
In addition, Vietnam and China regularly holdbilateral
cooperation meetings on a number ofissues, including the fight
against drugtrafficking.2526.27
In the military sphere, the last days of 2014brought news that
the Chinese andVietnamese navies will continue their jointpatrol in
the Beibu Gulf in 2015 to safeguard itssecurity and stability.28
Earlier in October2014, following an unexpected three-day visitto
Beij ing by a 13-member high-levelVietnamese military delegation
from October16-18, led by Minister of National DefenseGeneral Phung
Quang Thanh the two DefenseMinistries agreed to set up a direct hot
line.According to Thayer, This is an indication thatboth sides
realized how quickly an incidentcould spiral out of control and
lead to deadlyforce. He also noted that From Vietnams
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5
point of view, it was important to demonstratedomestic political
unity by bringing such alarge delegation to Beijing, 2.29
In short, both China and Vietnam have engagedin major efforts to
prevent tensions fromgetting out of hand. Yet no progress is
apparentin the ultimate factor fanning the flames, that isthe
maritime territorial dispute between thetwo countries. Some
observers have noted thatHanoi may be split on how to deal with
China,and more generally the direction of thecountrys foreign
policy and military alliances.While this seems to be the case, we
should becareful not to confuse disputes on how tomanage a complex
set of relations in search forbalance and a maximization of
national power,with disputes over ultimate goals. It is morelikely
that Vietnamese leaders are split on howto deal with China, and
other countries such asRussia, the US, and India, rather than on
theultimate goal of embracing a wide range ofalliances in order to
prevent falling prey to abigger neighbor. This is a traditional
pillar ofthe country's foreign policy, hence Vietnamseeks to
develop bilateral relations with a widerange of actors, playing one
off against theother when necessary, including China andIndia.30
Stephen Blank notes that Vietnam notonly enjoys strong U.S.,
Russian, and Indiandiplomatic and military support, it is
buyingweapons from Russia, Sweden, and Israel,among others.31 To
this we must add activeparticipation in a large number of
internationalorganizations. At a conference in August,
PrimeMinister Dung described the country's foreignpolicy as resting
on independence, self-reliance, multilateralism, diversification,
andinternational integration.32
In addition to the already noted lack ofsubstance in many
Sino-Vietnamesestatements, it is not clear to what extent
eitherside has margin for compromise. Many voicesin both China and
Vietnam stand ready tocriticize their respective governments for
anyperceived softening and betrayal of the national
interest. For example, in August 2014, in thewake of the
announcement of a trip to China byPolitburo member Le Hong Anh,
Nguyen TrongVinh (former Vietnamese ambassador to China)said China
will never compromise. Theirremoval of the oil rig was only
temporary. Theywill never abandon their wicked ambitions oftaking a
monopoly over the East Sea, whileNguyen Quang A (an economist
opposed to thegovernment) said he welcomed the talks butwas
concerned that Beijing might be trying topersuade Hanoi to drop its
threat of takinginternational legal action against
China'sterritorial claims.33 Vietnamese dissentersoften attack
Hanoi for the alleged failure tostand up to Beijing, while not a
few Chinesenetizens voice strong criticisms on foreignpolicy. There
seems to be a recognition inleadership circles on both sides that
domesticpublic opinion, if unchecked, may provedestabilizing,
restricting room for maneuver. Asfreelance journalist Roberto
Tofani noted in2013 Beijing and Hanoi must now also facerising
nationalism among their citizens,including periodic anti-China
street protests inVietnam and widespread anti-Vietnam rhetoricon
Chinese citizens' private blogs andFacebook pages related to the
South China Seadisputes.34
In support of Vietnamese claims in the SouthChina Sea, Hanoi has
often employed Frenchmaps and French documentation to
emphasizecontinuity of territorial boundaries from thecolonial to
the post-colonial era. Vietnameseobservers have stressed the need
to examinehistorical evidence, in a wide sense of the term,to
counter similar efforts by Beijing, in a viewalso supported by some
experts in othercountries. For example, following Bill Hayton'sThe
Paracels: Historical evidence must beexamined and subsequent
response by LiDexia and Tan Keng Tat (South China Seadisputes:
China has evidence of historicalclaims)35, Vietnam's Nguyen Hong
Thao wrotein support of Hayton, arguing that Chineseevidences
should not be accepted without
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6
debating and examining, and defending theview that Song Dynasty
maps unanimouslydescribed Hainan island as the Southernterminus of
China.36
Nguyen Hong Thao refers to the 13thcenturySong Dynasty Chinese
book Chu Fan Chi / ZhuFan Zhi (Notes for Foreigners or Records
ofForeign Peoples) by Chao Ju-kuo (Zhao Ju Guo).He rejects Chinese
claims that the book provesthat the Paracels were part of Chinas
territoryat the time, noting that Chu Fan Chi wasabout vassal
kingdoms or barbarous tribes Consequently, it is obvious that the
landsrecorded in this book were not Chinese. Whilethe original text
of the book has been lost,some commentators, writing in other
contexts,such as Chinas contacts with Africa, havenoted that it
addressed what were consideredforeign lands.37
Like their Chinese counterparts, Vietnameseauthors use public
displays of maps anddocuments as another weapon in this
struggle.For example in September 2015 one suchexhibition took
place in Da Lat city, with thegoal of proving Vietnamese
sovereignty overthe Hoang Sa (Paracel) and Truong Sa
(Spratly)archipelagos and featuring UNESCO-recognized woodblocks
from the NguyenDynasty, bibliographies and atlas
collectionspublished by many countries in different times,notably
an atlas issued by Chinas Qing dynastyin 1906 and subsequently used
by the Republicof China, as well as documents from
differentVietnamese dynasties, the Republic of Vietnam,the
Socialist Republic of Vietnam, and Westerncountries.38
Vietnam relies on two kinds of Westernsources. On the one hand,
records ofmissionaries and traders, and, as noted, onofficial
documents from the French colonialadministration and other
powers.
Duy Chien, in a 2014 article draws on thewrit ings of foreign
missionaries and
navigators.39 For example, a French missionarytraveling to China
onboard the ship Amphitritewrote in a 1701 diary: Paracel is
anarchipelago belonging to the Kingdom ofAnnam. Its a terrible
submerged reef,stretching hundreds of miles.40 More directlyrelated
to sovereignty, or at least tosovereignty claims, are Notes on
thegeography of Southern Vietnam, by PriestJean-Louis Taberd
(former apostolic vicar ofCochinchina from 1824 to his death in
184041
and interpreter of King Gia Long). Published in1837, the Notes
describe the 1816 flag-raisingceremony on the Paracels by King Gia
Long:Paracel or Hoang Sa islands is an areacrisscrossed by small
islands, reefs and sand,seems to be extended to 110 North latitude
andaround 1070 longitude... Although this is anarchipelago covered
by nothing else but islandsand reefs, and the depth of the sea
promises[more] inconveniences than advantages, KingGia Long still
thought that he had the right toexpand his territory by that
pathetic merger. In1816, the King held a solemn flag
hoistingceremony and formally took possession of thereefs, with a
certain belief that no one wouldstruggle with him... J.B. Chaigneau
alsomentions the 1816 ceremony.42
The Nguyen Dynasty's exercise of tax powersover foreign ships
passing through the HoangSa (Paracels) area is perhaps among
thestrongest pieces of historical evidence that theVietnamese
advance, reinforced by the fact thatit was recorded in
non-Vietnamese sources.Thus Gutzlaff , a member of the
RoyalGeographic Society of London, in 1849 wrote inthe Society's
Journal that Katvang lies 15 - 20nautical miles from Annam coast
and spreadson 15 - 17 degrees north latitude, 111 - 113longitude,
then the King of Annam claimsownership of these islands, including
rocks andreefs dangerous to marine navigation... Annamgovernment
benefits from setting up a patrolboat and a small garrison to
collect taxes andprotect fishermen operating in their water.This
source is interesting because Gutzlaff
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7
acknowledges both a long-standing presence byChinese fishermen
in the area, as often insistedon by Beijing, and the exercise of
state powerby the Vietnamese in the region: From timeimmemorial,
junks coming largely from Hainanhave annually visited all these
shoals, andproceeded in their excursions as far as thecoast of
Borneo. .
The white paper published by the Republic ofVietnam in 1975
insisted on the actionsdescribed in French sources,43and the
SocialistRepublic of Vietnam has followed the same
line.Furthermore, Hanoi has been keen toemphasize that French
domination overIndochina not only did not interrupt theexercise of
sovereign powers but actuallyreinforced it, since the new
authorities keptexercising sovereign rights After France andVietnam
had signed the Protectorate Treatiesof March 15, 1874 and June 6,
1884, includingbuilding and operating lighthouses andmeteorological
stations, establishingadministrative delegations responsible for
thearchipelago attached to Thua Thien Province(Annam), and granting
birth certificates toVietnamese citizens born in the
archipelago.France went as far as requesting that Chinasolve the
dispute by international arbitration(French Note Verbale dated
February 18, 1937addressed to China), but the proposal wasrefused.
Paris also protested in 1947 after theRepublic of China occupied
the year before PhuLam (Woody) Island, in the Paracels, andalthough
a request for negotiations and third-party adjudication was
refused, ROC forceslater withdrew.44. Having said this,
someVietnamese accounts of the colonial yearscomplain that French
authorities were toopassive in light of Chinese, and later
Japanese,attempts to encroach on islands considered tobe
Vietnamese, and explain how it was onlyafter such attitude was
denounced in the pressthat they firmed it up. From 1931 to
1933journalist Cucherousset published sevenarticles in Lveil
conomique de LIndochine(issues 685, 688, 743, 744, 746, 777 and
790)
criticizing Governor Pasquier for his feebledefense of
sovereignty over Hoang Sa. Hewrote Annams sovereignty over the
ParacelIslands is undeniable, while asking thegovernor Which
obstacles have preventedAnnam from claiming sovereignty over
theParacel Islands, which they have owned forhundreds of years? Do
we have to wait until theJapanese exploit the last tons of
phosphate? Oris it true that the Japanese have paid areasonable
commission?. Many othernewspapers, both in metropolitan France
andIndochina (the latter in both French andVietnamese), regularly
reported on thedisputed islands, listing the grounds to
opposeChinese and Japanese designs.45
Vietnam's South China Sea narrative also relieson international
treaties signed by Paris, suchas the 1887 Conventionon the land
border,signed by France and theQing dynasty, andaccording to which
islands located east of a redline (described on a map attached to
the treaty)belonged to China. Duy Chien argues that Thisred line
described on the map attached to theConvention was only 5
kilometers long,compatible with the width of the territorialwaters
of 3 nautical miles at that time, andfunctioned to demarcate the
onshore islandswithin Tonkin Gulf. If following the
[Chinese]authors interpretation, this line could beextended
boundlessly, crossing the Tonkin Gulf,and not only Paracels and
Spratlys but alsoHue, Da Nang and even all the islands alongthe
Central Coast of Vietnam or Con Daoisland, also belonged to China
consequently. 46
Concerning the 1943 Cairo Declaration,Vietnam's position is that
it did not imply anytransfer of disputed islands or other features
inthe South China Sea to China, stressing thatno mention was made
of Truong Sa (SpratlyIslands) and Hoang Sa (Paracel Islands)
andthat the Republic of China a party to theConference ...did not
have any reserve or anystatement of i ts own on the
restoredterritories. 4 7
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8
As is clear in a recent documentary by Ho ChiMinh City TV,
Vietnam sees the East Sea,including the recovery of lost islands
andfeatures, as a matter of vital space (khnggian sinh tn) and
struggle for existence(tranh u sinh tn), expressions that
appearoften in the script. Commenting on thedocumentary, Franois
Guillemot notes thatthe documentary film prioritizes the history
ofthe Paracels (Hoang Sa), the Vietnamese isletslost in 1974, while
people are aware that Chinahad effective control of that territory
after thatdate, concluding that Vietnam has put its'struggle for
existence' in a long-termperspective, which, in the past, has shown
acertain efficacy.48
The Malaysian angle: Manila tempts KualaLumpur with a downgrade
of its Sabahclaims
Another Filipino move connected to theinternational arbitration
case is the offer toMalaysia, in a Note Verbale, to review
itsprotest against the 6 May 2009 jointVietnamese-Malaysian
submission to the UNCommission on the Limits of the
ContinentalShelf (CLCS), containing a claim by KualaLumpur of an
extended continental shelf (350nautical miles from the baselines)
projectedfrom Sabah. In exchange for this, Manila isrequesting two
actions that it believes wouldreinforce her case against China:
First, toconfirm that the Malay claim of an extendedcontinental
shelf is entirely from the mainlandcoast of Malaysia, and not from
any of themaritime features in the Spratly islands.Second, to
confirm that Malaysia does notclaim entitlement to maritime areas
beyond 12nautical miles from any of the maritimefeatures in the
Spratly islands it claims.According to former Philippine
permanentrepresentative to the United Nations LauroBaja Jr., if
Malaysia accepts the deal, thePh i l ipp ines ' c la im to Sabah wi
l l beprejudiced, adding We are in effectwithdrawing our objection
to Malaysias claim
of ownership to Sabah.49
Manila's proposal is important for severalreasons. First,
because it illustrates how thePhilippines is trying to involve as
manycountries as possible in its attempt to have the9-dash line
declared to be incompatible withinternational law. Second, because
in so doingit is ready to compromise one of their ownterritorial
claims, thus showing they are awarethat they may have to sacrifice
some of theirlong-standing policies in order to arrest whatthey
consider to be the main threat to theirterritorial integrity.
Third, given Malaysia'sreluctance to follow the road suggested by
thePhilippines, this confirms the fact that SouthChina Sea coastal
states remain reluctant toopenly coordinate to oppose Chinese
claims.Finally, by appearing ready to drop or at leastdowngrade
claims to Sabah, Manila is showingthat it is more confident in
UNCLOS than inhistorical claims when it comes to defending
itsterritorial claims over the Spratlys. The reasonis that, while
Manila's claims are understood tobe grounded in post-WWII
developments, analternative route for the Philippines would beto
say that the features involved used to be partof the Sultanate of
Sulu even before theSpanish conquest, a route which would
demandthat Manila not only retains but reinforces theclaim to
Sabah.
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9
LNG flows, one of the many reasons why the SouthChina Sea is
widely considered to be strategic
Rearmament and widening alliances: thebackground to Manila's
arbitration bid.
Manila's legal bid to cut short Chinas maritimeexpansion is part
of a wider strategy involvingrearmament (among others, purchasing
FA-50light fighters from South Korea)50 and closerdefense links
with the US and regional powerslike Japan and Vietnam. In the case
of relationswith Washington, the impact of rising tensionsin the
South China Sea is twofold andseemingly to some extent
contradictory. On theone hand, the Philippines and the United
Stateshave grown tighter, while on the other Manilahas diversified
and widened her alliances, nolonger relying almost exclusively
onWashington. A l though th is para l le lreinforcement and
diversification may not bewithout its contradictions in the future,
for thetime being it seems to be fitting reasonablywell with the US
dual Pacific policy ofreengagement and increasing reliance
onregional allies for military support. We couldalso note that the
need to upgrade externaldefense and invest more in the air force
andthe navy may have provided Manila with anadditional reason to be
flexible in continuingthe long and difficult path toward a
peacefulsettlement with Muslim rebels in the country'ssouth. While
there are many other reasons towish the peace process in Mindanao
toconclude successfully, friction in the SouthChina Sea is clearly
one, and this has not beenlost on regional allies like Japan, which
retainsa discrete but clear interest in developments inthe
island.
Similarly, Hanois decision to join theinternational arbitration
case should not beseen in isolation, but rather as part of a
multi-faceted strategy which like Manila's alsoinvolves rearming
and developing closer ties toother countries, including Japan
(which isproviding patrol boats to her coastguard), India
(a key partner in developing offshore oil andalso a patrol boat
supplier),51 Russia (essentialweapons supplier and energy industry
partner),and the United States (whose Pacific Fleetcommander
visited Vietnam in December2014).52
Concerning bilateral relations between Vietnamand the
Philippines, their respective territorialclaims are to some extent
overlapping, hencethe two countries are not completely at
one.However, there is some evidence for tighterlinks, not least of
which the port visit inNovember 2014 by two Russian-builtVietnamese
frigates to Manila, the countrysfirst ever.53 The 29-30 January
2015 trip to thePhilippines by Viet Nams Deputy PrimeMinister and
Minister for Foreign Affairs PhamBinh Minh inaugurated discussions
towardsthe establishment of a Strategic Partnershipand its elements
with a view to elevating thelevel and intensity of bilateral
exchangesbetween the two countries. According to thePhilippines'
Government, concerning the SouthChina Sea, Minh and Secretary of
ForeignAffairs Albert F. del Rosario agreed thatconcerned Parties
should adhere to the ASEAN-China Declaration of Conduct of Parties
in theSouth China Sea (DOC) and soon conclude aCode of Conduct
(COC) and reaffirmed theircommitments to a peaceful resolution
ofdisputes in the SCS in accordance withinternational law and the
1982 United NationsC o n v e n t i o n o n t h e L a w o f t h e S
e a(UNCLOS).54 Commenting on this trip, CarlThayer wrote that it
was likely that a formalstrategic partnership agreement could
bereached this year, adding that negotiationsconstitute a
determined diplomatic effort toshore up Vietnam's relations with
fellowmembers of the Association of Southeast AsianNations (ASEAN),
and underlining thatGrowing Chinese assertiveness in the SouthChina
Sea in recent years has led to a growingconvergence of strategic
interests betweenManila and Hanoi. Concerning the meaning ofthe
term strategic partnership agreement, he
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10
cautions that Both sides, however, want tobroaden cooperation in
order to avoid theappearance that the strategic partnership is
amilitary pact by another name, adding thatexisting trade and
investment links are weak.55
In more concrete terms, he mentions thatVietnam could seek to
leverage off therecent ly inaugurated U.S. Poseidonsurveillance
flights from the Philippines, forexample.56 As noted by Del
Rosario, this wouldbe the third such agreement for Manila,following
similar deals with Tokyo andWashington.
There are many obstacles to meaningfulcooperation between the
Philippines andVietnam, going beyond generic statements ofsupport
for the rule of law at sea. They includepoor interoperability and a
weak record of pastmilitary cooperation. However, there is agrowing
realization in both Hanoi and Manilathat closer links may allow
them to reinforcethe credibility of their defense posture, andmore
widely, their diplomatic stanceconcerning the South China Sea.
ASEAN mayseem the perfect forum for this closercooperation to take
place at the political level,while better interoperability would
demand theregular holding of drills and exchanges,bilaterally or
within a wider frameworkprobably including the United States
andJapan. This regional cooperation could perhapstake the place of
joint air patrols.57 In order toavoid being seen as squarely
confrontingChina, such joint air patrols may focus onsearch and
rescue, and environmentalmonitoring. The interoperability and
jointoperational experience gained, however, couldthen be applied
to other scenarios.
Beijing puts forward its own views of theconflict
Post-Mao China has followed a somewhatcontradictory approach to
international law. Toa large extent, this mirrors the
country'scomplex domestic relationship with the concept
of the rule of law. On the one hand, China'sreopening of her law
schools after the CulturalRevolution and huge expansion of the
legalprofession and the practical, day to day,presence of the law,
has led to a similar movein the international arena. However,
thisgreatly expanded role of the law bothdomestically and
internationally has beenaccompanied, in the internal domain, by
apersistent rejection of the concept of rule oflaw, authorities
rather leaning towards ruleby law. In Chinese foreign
relations,international law has had to contend with twoobstacles.
First, there is a mistrust ofinternational tribunals, and the fear
that theymay impinge on Chinese sovereignty.Moreover, the South
China Sea has beendefined as a core national interest58,
althoughthe exact meaning of this term may not becompletely clear
.59 Second, with the notionthat public international law is a
creature of theWestern nations and thus inextricably linked toa
historical period of foreign domination thatonly began to be
reversed after the 1949Communist victory.60 This applies
particularlyto the law of the sea, seen as unfairlyconstraining the
legitimate aspirations of anation that has grown increasingly
dependenton maritime trade and which feels surroundedby a chain of
islands in hostile hands.
Throughout the international arbitration saga,China has
repeatedly proclaimed that it wouldnot accept the court's
jurisdiction. However,China has finally deemed it necessary to
issue aformal document stating her posture. Some seethis as a
simple restatement of China's position,confirming that it will not
take part in theproceedings. Others see it as a small victory
forthe Philippines and international arbitration,since China has
not been able to staycompletely aloof from the case. Regardless, it
isusefull to examine the document,61 dated 7December 2014, some of
whose main points aresummarized here, noting in brackets
theparagraph quoted or commented on. A moredetailed analysis of
Beijing's response can be
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11
found in Appendix I to this paper.
The paper opens making it clear that issuing itis not equivalent
to taking part in the arbitralproceedings, and then lists
(Paragraph 3) itsmain purposes, each covered in one
section,numbered from II to V.
These goals are first of all (Section II,Paragraphs 4-29) to
stress that the caseconcerns the territorial sovereignty
overseveral maritime features in the South ChinaSea, which,
contrary to Filipino assertions, isbeyond the scope of the
Convention and doesnot concern the interpretation or application
ofthe Convention. Next (Section III, Paragraphs30-56), to explain
that China and thePhilippines have agreed, through
bilateralinstruments and the Declaration on theConduct of Parties
in the South China Sea, tosettle their relevant disputes
throughnegotiations and the arbitration proceedingsare thus a
breach by Manila of its obligationunder international law. Third
(Section IV,Paragraphs 57-75), assuming, arguendo, thatthe
subject-matter of the arbitration wasinterpreting or applying
UNCLOS, the paperargues that it would still be an integral part
ofmaritime delimitation thus falling squarelywithin China's
derogation from compulsoryarbitration. Fourth (Section V,
Paragraphs76-85), the text underlines that, in Beijing'sview, the
Arbitral Tribunal manifestly has nojurisdiction over the present
arbitration anddefends the view that China's refusal to takepart in
the proceedings stands on solid groundin international law.
In Section II, the document (5) sums up thedifferent Filipino
constitutional and legalprovisions defining her national
territory,including references to all the territory cededto the
United States by the Treaty of Parisconcluded between the United
States andSpain in Article 1 of the 1935 Constitution.This is
interesting because it implicitlycontradicts Washington's claim to
take no sides
in territorial disputes in the South China Sea,stressing only
peaceful resolution inaccordance with international law. The
problemwith this posture, in the case of the Philippines,is that,
given that they were under Americansovereignty, by saying it does
not take anyposition on sovereignty the US is saying that itdoes
not know the extent of its past territory.Therefore, we might ask
what Beijing'smotivation in bringing up such treaties may be.At
first glance it would seem better for China ifthe US sticks to this
policy of not commentingon territorial claims themselves. On the
otherhand, however, Beijing may perhaps hope toprompt Washington to
publicly comment on thematter in a way that may be detrimental
toManila, that is by stating that certain featuresclaimed by the
Philippines were not under USsovereignty in the past.
Taiwan and the One-China Principle are notabsent from China's
document either, the text(22) accusing Manila of committing a
graveviolation of the principle for omitting TaipingDao (Island)
from the list of maritimefeatures described as occupied or
controlledby China. Instead, the text describes it asbeing
currently controlled by the Taiwanauthorities of China. A reminder
that theconflict over the South China Sea is connectedwith that
over Taiwan, in a number of ways. Wemay ask ourselves whether
Manila wasdeparting here from her One-China Policy.Was this a
warning shot, or merely anotherexample of how state practice
concerningTaiwan is moving (sometimes inadvertently)away from
Beijing's strict position in manycountries.62
Section 28 stresses that China always respectsthe freedom of
navigation and overflightenjoyed by all States in the South China
Sea inaccordance with international law. While thisis in line with
repeated assertions by Chineseauthorities, it prompts further
doubts on theexact nature of Beijing's claims, for if all Chinawas
demanding was an EEZ then freedom of
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navigation and overflight would simply flowfrom international
law, without the need forany concession by the coastal state. The
issueis made more complex by the fact that inBeijing's view the
rights of coastal states aremore extensive than in the eyes of
countriessuch as the United States, going as far asincluding the
right to authorize or deny militaryactivities such as electronic
intelligencegathering, which has been the source of anumber of
incidents, some of them fatal. Thus,if what China is claiming is an
EEZ, is Beijingmaking a concession and accepting a lesser setof
coastal state rights in the particular case ofthe South China Sea?
Alternatively, should weread freedom of navigation and overflight
asbeing restricted to civilian ships and planes, orat least not
including any activities such asELINT (electronic intelligence)
gathering thatmight be prejudicial to the coastal state?
Otherquestions may be prompted by China'sassertion. For example,
does this also apply toterritorial waters around Chinese islands in
theSouth China Sea? A question made morecomplex by the fact that
there is no agreementover which islands are legally recognized
asislands given the extensive reclamation worktaking place.
In Section III Beijing provides a long list ofbilateral
agreements and statements, andASEAN documents, stipulating
commitments tosettle disputes by negotiation and agreement,in order
to prove Manila is therefore debarredfrom unilaterally initiating
compulsoryarbitration. With regard to the absence of anexplicit
exclusion of third-party settlement,which as pointed out the text
acknowledges,China cites the Southern Bluefin Tuna Case,63
where the arbitration tribunal stated that theabsence of an
express exclusion of anyprocedure ... is not decisive, that is the
factthat a treaty commits parties to negotiaterather than resort to
other, non-consensual,dispute settlement techniques prevents
thelatter from coming into play, without the needto specifically
list all the possibilities. In that
case, the applicable treaty required the partiesto consult among
themselves with a view tohaving the dispute resolved by
negotiation,inquiry, mediation, conciliation, arbitration,judicial
settlement or other peaceful means oftheir own choice, and the ICJ
determined thatThat express obligation equally imports, in
theTribunal's view, that the intent of Article 16 isto remove
proceedings under that Article fromthe reach of the compulsory
procedures ofsection 2 of Part XV of UNCLOS, that is, toexclude the
application to a specific dispute ofany procedure of dispute
resolution that is notaccepted by all parties to the dispute.
ForChina, bilateral agreements and statementswith the Philippines
and the DOC are notseparate realities, but (39) mutually
reinforceand form an agreement between China andthe Philippines,
giving rise to a mutualobligation to settle their relevant
disputesthrough negotiations. Beijing is very keen toinsist not
only that it prefers bilateral (asopposed to multilateral, or
arbitration)dealings, but that Manila has agreed to this.
We can thus see how the document, despitestressing that it is
not a formal reply,systematically rejects all of Manila'sarguments,
while summarizing China'sposition. While China emphasizes
thePhilippines' alleged commitment to deal withthe issue
bilaterally, the text refers to treatiesbetween the country's
former colonial masters,and touches upon the sensitive issue of
Taiwan.It is a reminder of how difficult it is to keepthings
bilateral in this corner of the world.
US Interpretations of China's 9-Dash Line
Despite repeatedly stating that it will not takesides in
territorial disputes in East Asia,Washington remains keenly
interested in theultimate fate of the South China Sea. Inaddition
to perennial calls to settle disputespeaceful ly, regular reminders
of theimportance of freedom of navigation, militaryaid to regional
actors like the Philippines, and
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support for a more active policy by non-littoralmaritime
democracies like India and Japan, theUS Department of State took a
further step latelast year by issuing a document64, part of
itsLimits in the Seas series. The text seeks toexplain the
different ways in which one mayinterpret Chinese maritime claims in
the SouthChina Sea (that the dashes are (1) lines withinwhich China
claims sovereignty over theislands, along with the maritime zones
thoseislands would generate under the LOSConvention; (2) national
boundary lines; or (3)the limits of so-called historic maritime
claimsof varying types). It concludes that thedashed-line claim
does not accord with theinternational law of the sea unless
Chinaclarifies that it reflects only a claim to islandswithin that
line and any maritime zones. Thetext explains that it includes
supportingChinese official views, without attributing toChina the
views of analysis of non-governmentsources, such as legal or other
Chineseacademics.65 Concerning this latter restriction,although it
is of course official sources whichmay be considered to be most
authoritativewhen it comes to interpreting a government'spos i t
ion , we shou ld not forget thatadministrations in different
countries will oftenresort to two-track diplomacy or employ semior
non-official back channels to test the watersand lay the groundwork
for future formalnegotiations.
Nine-dash map attached to China's two 2009Notes Verbales
We should note that the American policy of nottaking sides
concerning the ultimate issue ofsovereignty could be challenged
givenWashington's past sovereignty over thePhilippine Archipelago.
While this has not beenpublicly stressed by Manila to date, it
couldenter the debate as a means of putting morepressure on
Washington to adopt a more robustposture.
The 7 December 2014 paper by the Departmentof Statebegins by
stressing that China has notclarified through legislation,
proclamation, orother official statements the legal basis ornature
of its claim associated with the dashed-line map, explains the
origins and evolutionof the dashed-line maps, provides a summary
of
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the different maritime zones recognized andregulated by UNCLOS,
and then proceeds toexp la in and d i scuss three poss ib
leinterpretations of that claim and the extent towhich those
interpretations are consistent withthe international law of the
sea.6 6 Thedocument contains a number of maps,including (Map 1)
that was referred to inChina's two May 2009 notes verbales to the
UNSecretary General,67 which stated that Chinahas indisputable
sovereignty over the islands inthe South China Sea and the adjacent
waters,and enjoys sovereign rights and jurisdictionover the
relevant waters as well as the seabedand subsoil thereof . The
above position isconsistently held by the Chinese government,and is
widely known by the internationalcommunity.68
The text first outlines the history of China'smaps of the South
China Sea containing dashedlines, starting with a 1947 map
published bythe Nationalist government, noting that laterPRC maps
appear to follow the old maps69
with two significant changes: the removal oftwo dashes inside
the Gulf of Tonkin (in an areapartly delimited by Vietnam and the
PRC in2000) and the addition of a tenth dash to theEast of
Taiwan.70 These two changes can beinterpreted in different ways, to
some degreecontradictory. On the one hand, the partialdelimitation
agreement with Vietnam could beseen as evidence of Chinese
pragmatism andflexibility, and proof that it is possible
forcountries in the region to at least partly settletheir disputes
by diplomacy. On the other,explicitly encompassing Taiwan with an
extradash may be seen as a reinforcement ofChinese claims on the
island not necessarilybased on the wi l l o f her populat
ion.Alternatively, it could simply be a way to morecomprehensively
encompass the waters andfeatures that Beijing (either directly or
viaTaipei) wishes to master.
The paper then examines successive Chinesemaps from a
cartographic perspective,
stressing that China has not publishedgeographic coordinates
specifying the locationof the dashes. Therefore, all calculations
in thisstudy relat ing to the dashed l ine areapproximate. This
same criticism has beenmade of the San Francisco Treaty.71This
sectionof the paper stresses that Nothing in thisstudy is intended
to take a definitive positionregarding which features in the South
ChinaSea are 'islands' under Article 121 of the LOSConvention or
whether any such islands are'rocks' under Article 121(3). This is
in line withWashington's refusal to take sides concerningthe
ultimate sovereignty disputes in the region.The text notes that the
dashes are located inrelatively close proximity to the
mainlandcoasts and coastal islands of the littoral
Statessurrounding the South China Sea, andexplains that, for
example, Dash 4 is 24 nmfrom Borneo's coast, part of
Malaysia.Generally speaking, the dashes are generallycloser to the
surrounding coasts of neighboringStates than they are to the
closest islandswithin the South China Sea, and as explainedlater
this is significant when it comes tointerpreting the possible
meaning of China'sdashed line, since one of the principles of
theLaw of the Sea is that land dominates the sea,and thus maritime
boundaries tend as a generalrule to be equidistant. That is,
maritimeboundaries tend to be roughly half waybetween two shores
belonging to differentstates. To hammer home this point, the
studyincludes a set of six maps (Map 4) illustratingthis. The
report criticizes the technical qualityof the PRC maps, saying that
they areinconsistent, thus making it complicated todescribe the
dashed line, whose dashes aredepicted in different maps in varying
sizes andlocations. Again, this is important in light ofpossible
interpretations of Chinese claims,since this lack of consistency
and quality notonly obfuscates Chinese claims, introducing
anadditional measure of ambiguity, but alsomakes it more difficult
to ascertain whetherhistorical claims are being made and
whetherthey are acceptable in light of international
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15
law. .72
11-dash map of the South China Sea issued by theKMT regime in
1947South China Sea map first published in January 2013by China's
state mapping authority Sinomap Press,
featuring 10 dashes instead of the previous nine
The paper's second section basically consists ofa summary
explanation of Maritime Zones,Maritime Boundaries, and 'Historic'
Baysand Title according to UNCLOS. Three aspectsare of particular
significance. First of all, thatthe interpretation provided is not
necessarilythat considered correct by China. Although thisis not
always squarely addressed, whendiscussing whether Chinese claims in
the SouthChina Sea are or are not in accordance withinternational
law we should first defineinternational law, and there is the
possibilitythat as China returns to a posit ion ofpreeminence she
may interpret some of its keyprovisions in a different way. Second,
as thepaper itself notes, while China ratifiedUNCLOS in 1996, the
United States has not,although she considers the
substantiveprovisions of the LOS Convention cited in thisstudy to
reflect customary international law, asdo international courts and
tribunals. Not allvoices take such a straightforward view
ofWashington's failure to ratify the conventionwhile claiming that
it is mostly a restatement ofcustomary law and therefore
applicableanyway.73 Some critical observers see theUnited States as
being, together with Japan,among the largest beneficiaries of
UNCLOS, inaddition to being the driving force behind it,even while
refusing to ratify a convention fromwhich China has gained almost
nothing.
Third, the page devoted to 'Historic' Bays andTitle. The text
stresses that The burden ofestablishing the existence of a historic
bay orhistoric title is on the claimant, adding thatthe US position
is that in order to do this thecountry in question must demonstrate
(1)open, notorious, and effective exercise ofauthority over the
body of water in question;(2) continuous exercise of that
authority; and(3) acquiescence by foreign States in theexercise of
that authority.74 The text explainsthat this traditional American
perspective is inline with the International Court of Justice75
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and the 1962 study on the 'Juridical Regime ofHistoric Waters,
Including Historic Bays,'commissioned by the Conference that
adoptedthe 1958 Geneva Conventions on the law of thesea.76 It then
turns its attention to theregulation of historic claims in Articles
10 and15 of UNCLOS,77 saying that they are strictlylimited
geographically and substantively andapply only with respect to bays
and similarnear-shore coastal configurations, not in areasof EEZ,
continental shelf, or high seas.78 Justlike, when examining China's
posture we musttake into account, as discussed later, thecountry's
history, and in particular the OpiumWars and their aftermath,
American history hasalso shaped Washington's perceptions
andprinciples. The Barbary Wars79 were widelyseen as laying down
fundamental principles ofnational policy such as rejection of
blackmail,freedom of navigation, and the right and dutyto intervene
far from American shoreswhenever the country's interests,
principles,and prestige were at stake.80 Thus, whileChina's
position concerning the South ChinaSea may end up resting at least
in part, on theconcept of historic waters, even if this is notthe
case history and perceptions of history willsurely st i l l play an
important role indetermining Beijing's policy. This, however, isnot
something only taking place within China,since no regional or
extra-regional actor isimmune to the phenomenon, adding to
thealready tense situation in South East Asia. Inparticular, a
couple of centuries later, both theBarbary Wars and the Opium Wars
remainpowerful factors projecting their shadow onAmerican and
Chinese foreign and defensepolicy.
Let us move to the three interpretations putforward by the US
Department of State.
1.- Dashed Line as Claim to Islands81
This would mean that all Beijing was claimingwere the islands
within the dashed lines, andthat any resulting maritime spaces
would be
restricted to those recognized under UNCLOSand arising from
Chinese sovereignty overthese islands.
As possible evidence for this interpretation, thestudy cites
some Chinese legislation,cartography, and statements. The
formerincludes Article 2 of the 1992 territorial sealaw, which
claims a 12-nm territorial sea beltaround the Dongsha [Pratas]
Islands, Xisha[Paracel] Islands, Nansha (Spratly) Islands andother
islands that belong to the PeoplesRepublic of China.82 The
Department of Statealso stresses that China's 2011 Note
Verbalestates that Chinas Nansha Islands is fullyentitled to
Territorial Sea, Exclusive EconomicZone (EEZ), and Continental
Shelf,83 withoutlaying down any other maritime claim.Concerning
cartography, the study cites as anexample the title of the original
1930s dashed-line map, on which subsequent dashed-linemaps were
based, which reads, Map of theChinese Islands in the South China
Sea(emphasis in the DOS study). With regard toChinese statements,
the study cites thecountry's 1958 declaration on her
territorialsea, which reads and all other islandsbelonging to China
which are separated fromthe mainland and its coastal islands by the
highseas84 (emphasis in the DOS study). The textargues that this
reference to high seas meansthat China could not be claiming the
entirety ofthe South China Sea, since should that havebeen the case
there would have been nointernational waters between the
Chinesemainland and her different islands in theregion. This is a
conclusion with which it isdifficult to disagree, although we
should notforget that it was 1958, with China havingbarely more
than a coastal force rather thanthe present growing navy.
Therefore, while thestudy's conclusion seems correct, andprecedent
is indeed important in internationallaw, it is also common to see
countries changetheir stance as their relative power
andcapabilities evolve. Thus, if China had declaredthe whole of the
South China Sea to be her
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17
national territory in 1958 this would haveamounted to little
more than wishful thinking,given among others the soon to be
expandedUS naval presence in the region and extensivebasing
arrangements. Now, 50 years later, withChina developing a blue
water navy, and theregional balance of power having evolveddespite
the US retaining a significant presence,Beijing can harbor greater
ambitions.85
2.- Dashed Line as a National Boundary86
This would mean that Beijing's intention withthe dashed line was
to indicate a nationalboundary between China and neighboringStates.
As supporting evidence for thisinterpretation, the DOS report
explains thatmodern Chinese maps and atlases use aboundary symbol
to depict the dashed line inthe South China Sea, adding that
thesymbology on Chinese maps for landboundaries is the same as the
symbology usedfor the dashes. Map legends translateboundary symbols
as either 'nationalboundary' or 'international boundary'
(,romanized as guojie). Chinese maps alsoemploy another boundary
symbol, which istranslated as 'undefined' national orinternational
boundary (, weidingguojie) but this is never employed for thedashed
line.
The report stresses that, under internationallaw, maritime
boundaries must be laid downby agreement (or judicial decision)
betweenneighboring States, unilateral determinationnot being
acceptable. The text also notes thatthe dashes also lack other
important hallmarksof a maritime boundary, such as a published
listof geographic coordinates and a continuous,unbroken line that
separates the maritimespace of two countries. The latter is indeed
anoteworthy point, since border lines wouldindeed seem to need to
be continuous by theirvery nature, rather than just be made up of
anumber of dashes. This is one of the aspectsmaking it difficult to
fit Beijing's claims with
existing categories in the law of the sea.Moving beyond the law,
however, and this issomething that the DOS report does notaddress,
a certain degree of ambiguity may beseen as beneficial by a state
seeking togradually secure a given maritime territory.Some voices
have noted this may have been theUS calculus in the San Francisco
Treaty. Thus,the technical faults, from an international
legalperspective, in China's dotted line are notnecessarily an
obstacle to Beijing's claims, froma practical perspective.
3.- Dashed Line as a Historic Claim87
The third way to see the dashed-line, accordingto the Limits in
the Seas series paper, would beas a historic claim.
Concerning evidence for the possibleinterpretation of Beijing's
claims as historic,the report cites as most notable China's1998 EEZ
and continental shelf law88, whichstates without further
elaboration that '[t]heprovisions of this Act shall not affect
thehistorical rights of the Peoples Republic ofChina' (emphasis
added in the DOS report).China's 2011 Note Verbale89 says that
Beijing'sclaims are supported by historical and legalevidence, but
while the DOS report addsemphasis to historical, one should be
carefulnot to confuse a historical claim with a claimsupported by
history. A country may putforward historical evidence in both
negotiationsand arbitration or adjudication in areas whereUNCLOS
refers to equitable solutions. Thetext also notes how many Chinese
institutionsand commentators have considered that thedashed-line
maps depict China's historic title orhistoric rights.
The DOS reports explains that some ChineseGovernment actions and
statements which areinconsistent with UNCLOS, while notamounting to
express assertions of a historicclaim, they may indicate that China
considersthat it has an alternative basis such ashistoric title or
historic rights for its maritime
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18
claims in the South China Sea, and providessome examples, such
as the assertion by a MFAspokesperson that the Second Thomas
Shoal(Ren'ai Reef) is under Chinese sovereignty.90
This mantra about sovereignty, together withrepeated appeals to
history, could indeed beconsidered as evidence that what Beijing
has inmind is a historic claim. Furthermore, it maywell be a claim
going beyond the provisions forsuch term in UNCLOS.
Next the DOS report examines two issues:whether China has
actually Made a HistoricClaim, and whether it would have
Validity.Concerning the former, the text states thatChina has not
actually made a cognizableclaim to either 'historic waters' or
'historicr ights ' , the reasons being a lack ofinternational
notoriety and the statement inher 1958 Territorial Sea Declaration
that highseas separate the Chinese mainland andcoastal islands from
all other islandsbelonging to China. The text admits that
theexpression historic waters appears in someChinese legislation
and statements, andactually cites some of them, but believes
thatthis does not amount to notoriety to a degreesufficient to at
the very least allow otherstates to have the opportunity to deny
anyacquiescence with the claim by protest etc.91
s ince no Chinese law, declarat ion,proclamation, or other
official statement existsdescribing and putting the
internationalcommunity on notice of a historic claim.
Whereas the assertion that China has notactually made a claim
may not be shared byeverybody, in particular given the
languageflowing from Beijing which the DOS reportitself cites, the
reference to the high seasbetween mainland China and some
islandsseems stronger proof that Beijing was notmaking a historic
claim. However, we mustagain stress that this would be the case if
wefollowed the prevailing interpretation of thelaw of the sea, but
there is no reason whyChina should adhere strictly to it, and even
less
that Beijing should not have changed her mindsince 1958, when
she had little more than acoastal navy and her economy was closed
andin tatters. It may be true, as the report notes,that the 1958
Declaration only made a historicclaim to the Bohai (Po-hai) gulf in
northeasternChina, but again this should perhaps be judgedfrom a
wider historical perspective. After 1949the PRC took a much more
uncompromisingstance concerning its North-East than itsSouth-East
(and wider maritime) borders. Witha pragmatic arrangement in place
with theUnited Kingdom concerning Hong Kong, and astrong economic
and political relation with theSoviet Union, it was at the other
end of thecountry where, in 1950, Beijing (not without anintense
internal debate given the state of thecountry), decided to resort
to force to preventthe presence of hostile forces close to
herborder, intervening in the Korean War, pushingback the advancing
Allied forces and reversingthe impact of the Inchon landing,
ultimatelyforcing a stalemate on the ground. In 1958, justfive
years after the Korean armistice, nearbywaters may have thus been
much more presentin Chinese leaders' minds. In addition, thesewere
also the waters directly leading to Tianjinand Beijing, the venue
for foreign interventionsin both the Opium Wars and the
TaipingRebellion. It would not be until the late 1970sthat China's
South-Eastern flank would begin toreceive more attention, in part
thanks to therapprochement with the United States and inparticular
once economic growth and thecountry's move to become a net energy
andcommodity importer turned the waters of theSouth China Sea into
a vital venue andpotential choke point. It is true that inDecember
1941 the loss of HMS Prince ofWales and HMS Repulse in the South
ChinaSea had enabled the Japanese to land in Malayaand ultimately
conquer Burma, closing the lastland route to besieged Nationalist
China, butthis did not result in a comparable imprint onChina's
historical consciousness, among otherreasons because the episode
did not involveChinese naval forces and was subsumed into a
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much larger, dramatic, and quickly-developingpicture.
Concerning whether, if China Made a HistoricClaim, it would have
Validity, the DOS paperinsists that such a claim would be contrary
tointernational law. The text does not stop atarguing that it is
not open to a state to makehistoric claims based not on UNCLOS but
ongeneral international law, laying down a secondline of defense.
It explains that, even assumingthat a Chinese historic claim in the
South ChinaSea were governed by 'general internationallaw' rather
than the Convention, it would stillbe invalid since it would not
meet thenecessary requirements under generalinternational law,
namely open, notorious, andeffective exercise of authority over the
SouthChina Sea, plus continuous exercise ofauthority in those
waters and acquiescenceby foreign States in such exercise of
authority.Furthermore, it explains that the United States,which is
active in protesting historic claimsaround the world that it deems
excessive, hasnot protested the dashed line on thesegrounds,
because it does not believe that sucha claim has been made by
China, withWashington choosing instead to request aclarification of
the claim. Whether this view isalso meant to avoid a frontal clash
with Beijing,in line with the often state policy goal ofmanaging
rather than containing China'srise, is something not discussed in
the text.
The Spratly Islands, a bone of contention between
China and the Philippines
Two Further Aspects to the US Position
The Department of State's paper emphasizesthat The United States
has repeatedlyreaffirmed that it takes no position as to
whichcountry has sovereignty over the land featuresof the South
China Sea92
The trouble with this view, apart from thepossibility that a
measure of ambiguity in theSan Francisco Treaty may be in
Washington'sinterest, is that the United States is no mereexternal
power in the South China Sea, giventwo essential historical facts
that theDepartment of State's paper never mentions.The first is the
period of US sovereignty overthe Philippines following the
Spanish-AmericanWar of 1892, and the resulting Treaties ofParis93
and Washington,94 which among othersdetermined the territorial
extent of theArchipelago. The second is the SecondIndochina War,
more often known as theVietnam War, when American forces
togetherwith those from other Allied nations operatedin the region
in support of the Republic ofVietnam.
The Treaties of Paris and Washington areimportant because they
amount to the UnitedStates be ing, at least unt i l F i l ip
inoindependence, a littoral state in the SouthChina Sea.
Furthermore, the territory of theRepublic of the Philippines is
inherited from theUnited States, precisely around the time
whenChina, at that time the Republic of China, isbeginning to
publicly assert its claims in theSouth China Sea. While this paper
will notexamine this issue in depth, it seems clear thatAmerican
authorities are in no position tosimply claim that they have
nothing to say onthe ultimate issue of sovereignty, as if thePhil
ippines had never been under USsovereignty and Washington had never
signedany treaty dealing with the extent of itsterritory.
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The Second Indochina War is not as significant,but it still
means that for years US forcesoperated in some of the regions under
dispute,following agreements with the Republic ofVietnam and other
states in the region,including the Philippines. Although again
notthe purpose of this paper, any examination indepth of American
policy concerning theterritorial dispute over the South China
Seacannot ignore this episode. Instead, thediplomatic history of
the period should beexamined in the search for evidence of anyevent
or document of legal significance.
Map showing the location, within the South ChinaSea, of the
Paracels, the Spratlys, and ScarboroughShoal
Russia: Just a Silent Observer?
A look at Russian policy towards the SouthChina Sea may begin
with the observation that,while all other regional and
extra-regionalactors seem to have growing geopoliticaltensions with
China, Moscow appears to bestrengthening ties with Beijing at a
time ofincreasing isolation and economic trouble, as inareas
including energy, the Ukraine, and theArctic. However, it is
necessary to examineRussian national interests and actual
decisionson the ground, while being aware that Russiansources are
most reluctant to deviate from the
official narrative of friendship with China. Thisreluctance was
clear in last year's new militarydoctrine, which did not
contemplate a possibleconflict with Beijing95 despite recognition
ofmilitary imbalance in the Far East, one of thefactors behind the
Russian military reforms.Russian military doctrine may not refer
toChina, but counter-terrorism drills in the FarEast usually
feature the simulated employmentof tactical nuclear weapons, hardly
the first toolthat comes to mind when confronting aterrorist
attack. Although Chinese leadersavoid referring to it in public, a
significantportion of Russia's Far East remains an unfairlylost
land in their eyes.96
Even before the current spike in tensions in theEuro-Atlantic
Region, Russia had determined todiversify energy exports,
increasing the shareof oil and natural gas exports going to the
Asia-Pacific. While agreements with China haveattracted the most
media and scholarlyattention, Moscow has been working on a
widerange of projects, including a possible naturalgas pipeline to
South Korea through the DPRK97
and civilian nuclear cooperation with Vietnam.Concerning Japan,
Moscow was quick to offersupport through increased LNG exports in
thewake of Fukushima,98 and while observersdiffer on the realistic
prospects of a grandbargain, some cautioning that relations
withRussia are the most difficult dossier on PrimeMinister Abe
Shinzo's table, a strong rationaleremains for closer links between
Russia andJapan. This does not mean that this rationalewill
overcome bilateral obstacles such as theterritorial conflict over
the Northern Territories/ Southern Kuriles and challenges
associatedwith Japan's difficulties in maneuvering awayfrom
American positions in the face of growingtensions with China, but
it should at leastcaution against simplistic
explanations.Furthermore, while Prime Minister DmitryMedvedev's
latest visit to the Kurile Islands /Northern Territories in August
201599 againprompted criticism in Japan, this has notprevented
Medvedev himself from signing into
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Russian law the extension of the countryscontinental shelf into
the Okhotsk Sea, asagreed with Japan and in line with
Moscow'sFebruary 2013 application to the UNCommission on
continental shelves.100 Russiamay have traditionally looked
Westward, fromPeter the Great101 to Lenin,102 but it is indeed
aPacific power, and its diplomacy features awide range of relations
with countries in theregion. Faced with the need to develop her
FarEast, diversify away from Europe, avoid overreliance on China,
and generally speakingmaximize national power and influence
andeconomic exchanges, we could perhaps talkabout Russia's own
Pivot or Rebalance tothe Pacific.103 According to Stephen
Blank(Senior Fellow for Russia at the AmericanForeign Policy
Council), Justified emphasis onthe current Ukraine crisis should
not lead us tomake the mistake of overlooking Russiaspolicies in
East Asia. This author points outhow Russia is using energy and
weapons salesin the region, in line with Moscow's
traditionaldiplomatic practice, adding that like otherpowers,
Russia is pursuing what may be calleda hedging strategy against
China in Asia. Onthe one hand it supports China against the USand
on the other works to constrain Chinesepower in Asia. Blank
concludes that Sino-Russian amity, at least in regard to the
Asianregional security agenda, is something of afacade, meaning
that Russo-Chinese ties maynot be as dangerous for the US as some
havefeared, although there is no reason forcomplacency since the
two governments willclearly collude to block numerous
Americaninitiatives globally.104
Among other areas, Moscow may be seekinggreater influence on the
Korean Peninsula,105
the participation of Asian powers other thanChina in the Russian
Arctic,1 0 6 greatercooperation with Indonesia, and,
althoughregularly denied, the sale of Russiansubmarines (or
transfer of technology) toTaiwan.107 One of the most striking
aspects ofthe Russian presence in the Pacific, and in
particular the South China Sea, is Moscow'scontinued support for
Hanoi and sale ofadvanced weapons, chief among them Kilo-class
submarines. Russia is not just an essentiallynchpin in Vietnam's
asymmetrical warfarestrategy, it has avoided publicly
supportingChina's stance in the region. This failure tospeak out in
favor of Beijing is not restricted tothe South China Sea, as noted
by Mu ChunshanEven on the Senkaku/Diaoyu dispute betweenChina and
Japan, Russia has kept an ambiguousposition. Mu lists four reasons
for this. First,China and Russia are not allies. There is
noalliance treaty between them, so Moscow isnot bound to support
Beijing politically ormilitarily, still less in The South China
Sea,which is not a place where Russia can expandits interests, nor
is it necessary for Russia tointerfere in this region absent a
formal alliancewith China. Second, Russia enjoys goodrelations with
countries bordering the SouthChina Sea and does not need to
offendSoutheast Asia for the sake of China. This doesnot just apply
to Vietnam, since for exampleRussia also enjoys a good relationship
with thePhilippines. Third, with Moscow focused onEurope and the
Ukrainian crisis, Russia hasneither the desire nor the ability to
confrontthe U.S. in the South China Sea. Finally, thedevelopment of
China has actually caused someworries within Russia, with concerns
centeredon possible encroachment in the Russian FarEast. However,
according to Mu Chunshan thisdoes not mean that there is a split
betweenMoscow and Beijing, since the two countriesknow each other
well and Russia's silence onthe South China Sea, like China's on
theCrimea, does not mean they oppose each other.Beijing's
abstention at the UNSC on Crimeadoesnt mean that China opposes
Russiasposition. By the same logic, Russias neutralstance in the
South China Sea disputes doesntmean that Russia doesnt support
China.Generally speaking, China and Russia leaveeach other ample
room for ambiguous policies,which is actually proof of an
increasingly deeppartnership. This arrangement gives both
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China and Russia the maneuvering space theyneed to maximize
their national interests.108
Vietnam has not only recently received herthird enhanced
Kilo-class submarine, HQ 194Hai Phong,109 but is building four
Tarantul-classorMolniyacorvettes at Ba Son Shipyards, underlicense
from Russia's Almaz Central DesignBureau. Two corvettes were
previouslydelivered in June 2014.110 Furthermore, CamRanh Bay
remains of the utmost importance tothe Russian Navy, and in
November 2014Hanoi and Moscow signed an agreement tofacilitate the
use of the base by Russianwarships.111 According to this agreement,
infuture Russian warships will only have to notifyport authorities
immediately prior to theirarrival, the agreement privileging the
RussianNavy and giving it special access, whereasother navies are
restricted to one port visit peryear.112
Russia is also a nuclear energy partner forHanoi, and has
ignored Chinese injunctions toabandon offshore oil cooperation with
Vietnamin the South China Sea.113 Speaking to theVietnamese media
in advance of his official tripin April this year, Russian Prime
MinisterDmitry Medvedev confirmed plans for a freetrade area
agreement. It will likely be the firstsuch agreement to be signed
between theEurasian Economic Union and an individualcountry, while
identifying Vietnamese tourismin Russia and trade settlement in
theirrespective national currencies as areas forfurther work.114
While defense links with Russiaare a cornerstone of Vietnam's
multi-vectordiplomacy, they go hand in hand with growinglinks with
the United States. As often happenswith countries engaging a wide
range ofpowers which may otherwise be at odds, such abalancing act
is not always easy and may resultin pressure by one partner to
restrictcooperation with the other. Recently, use ofCam Ranh Bay
air facilities by Russian Il-78Midas tanker planes refueling Tu-95
Bearstrategic bombers, involved among others in
sorties to Guam, prompted a request byWashington to Hanoi to
terminate suchaccess.115
We can conclude that Moscow is determinednot to become too
dependent on Beijing, andthat despite many domestic and
bilateralobstacles it wishes to become a major Pacificpower. This
may offer some opportunities tothe United States in the event of a
turn for theworse in Sino-American relations, but inaddition to the
many challenges it would pose,right now this appears an unlikely
scenariogiven the deep mistrust of Russia in Westernquarters in
general and Washington inparticular.116 Together with the absence
of anymention of sanctions when discussing policyoptions in the
South China Sea, and theapparent disconnect between the USrebalance
and the country's nuclear posture,this deep schism between Russia
and the Westconstitutes a triad of factors objectivelyenhancing
China's position when dealing withher neighbors. Unlike Moscow,
Beijing seemsto be succeeding in preventing a regionalterritorial
conflict from having a major impacton bilateral relations with
Washington.
India: Looking East
As a quasi-island, vitally dependent on sealanes of
communication, India cannot afford toignore developments in the
South China Sea, abody of water connecting the country to,among
others, Japan. In recent years NewDelhi has supported Hanoi in two
crucial ways,first by cooperating in offshore oil explorationand
production, and second in helping build thecountry's maritime
security capabilities. Thismay be seen as part of New Delhi's Look
Eastpolicy,117 and also as partially motivated by adesire to make
it more difficult for China todominate the South China Sea and thus
moreeasily access the Indian Ocean and increasepressure on India.
However, while this maymake sense, and fit with other Indian
policiessuch as improving border infrastructures118 in
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the Himalayas and developing key weaponssystems such as
Brahmos,119 it does not meanthat it is necessarily part of any
grand designto encircle China. While true that India hasgradually
developed a wide range of relationswith other countries in the
region, includingjoint military drills, the often
grand-soundingwords employed to describe them rarely matchtheir
actual contents. For example, whilerelations with Japan are
important and benefitfrom the personal warmth between the twoprime
ministers,120 New Delhi and Tokyo areyet to conclude a civil
nuclear agreement,which would certify the end to India's
nuclearapartheid. New Delhi remains cautiousconcerning China, and
rather than engage in amultinational alliance against Beijing,
BrahmaChellaney has more accurately described thecountry as having
moved from nonaligned tomultialigned121 under a prime minister
whoseforeign policy hallmark is pragmatism.122
Furthermore, suspicions of the United Statesand more widely of
foreign entanglementsremain high among India's national
securitycommunity. Three recent tweets by Saurav Jha,a commentator
on energy and geopolitics, areindicative in this regard. On 24
January 2015he wrote All the 'pivot' posturing has alreadyserved
its purpose. All this Asian NATO talk isonly for those who want to
import expensiveplatforms and As usual Indian analystsmissed the
significance of the Obama-Jinpingmaryland retreat when they agreed
on Yuan-dollar dynamics., adding America has nodesire to fight
China and even overtly theykeep saying that they do not seek to
containChina or build alliances against it.123
While the January 2015 trip to India by USPresident Obama was
widely considered tohave been successful, with Dhruva Jaishankar(a
fellow with the German Marshall Fund)concluding that
Anti-Americanism is dead,124
still more than a few Indian voices are reluctantto enter into
any set of alliances that may led toentanglements or see the
country used as a
pawn against China. Thus, while Jaishankarexplained that Modi
has been unabashedabout deepening partnerships with countries inthe
Indo-Pacific region with which India sharesboth interests and
values, particularly Japanand Australia, seeking to manage China's
riseby diversifying regional security partnershipsand establishing
a closer relationship with theUS,125 Manimugdha Sharma, a
journalistspecializing in military history, tweeted Fordecades, US
propped up Pakistan to offset andupset its bigger neighbour. Let's
hope we don'tbecome Pak in US' scheme against China,126
adding that India, so far, has very wiselystayed away from grand
coalitions andalliances. Even in the aftermath of 9/11, whenthere
was pressure on India to join the waragainst terror, we very wisely
avoided sendingtroops. So logically speaking, India would
avoidbeing used we must set boundaries on thisnew friendship with
the Americans.127
The Joint Strategic Vision for the Asia-Pacific& Indian
Ocean Region released on theoccasion of Obama's visit referred to
the SouthChina Sea. Regional prosperity depends onsecurity. We
affirm the importance ofsafeguarding maritime security and
ensuringfreedom of navigation and over fl ightthroughout the
region, especially in the SouthChina Sea. It called on all parties
to avoid thethreat or use of force and pursue resolution
ofterritorial and maritime disputes through allpeaceful means, in
accordance with universallyrecognized principles of international
law,including the United Nations Convention on theLaw of the
Sea.128 Furthermore, the trip wasaccompanied by renewed commentary
aboutquadrilateral (Australia-India-Japan-US)maritime cooperation,
following Modi's wordsto that effect,129 with commentators such
asDavid Lang (analyst at ASPI and an editor ofThe Strategist)
stressing that India's Modi andJapan's Abe are both nat ional ist
ic ,conservative leaders elected with mandatesto restart their
economies and reclaim lostpride and playing for a greater role
in
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24
underwriting peace and stability in theAsiaPacific and therefore
seeking to engagemore with the US, regional partners
andmultilateral security architectures.130
However, as noted above, wariness ofentanglements and loss of
strategicautonomy still runs high in New Delhi andwhile democracies
in the Pacific generallyagree on the need to at least manage the
riseof China and defend the rule of law at sea, thiscoexists side
by side with a desire not toprovoke China, and a degree of
mistrustconcerning the real degree of commitment byother parties to
any collective endeavor toprevent Chinese territorial expansion. It
is adilemma well known by experts in game theory.Saurav Jha pulled
no punches in this regard,tweeting Does anybody seriously think
thatIndian participation in maritime coalition actionagainst China
will not lead to a Sino-Pak landattack? and wondering Will Japan
open anEastern front, during an Indian war with China.If not, what
the hell is all this quadrilateralpappi-jhappi about? This led him
to expressthe view that Unless India and Japan agree toa formal
nuclear alliance, I really do not see thepoint of all this bakwaas
quadrilateral pappi-jhappi.131
Concerning India-Philippines relations, whileManila has pointed
out that New Delhiwelcomed her arbitration bid, India has done
socautiously,132 and bilateral exchanges remainrelatively low key,
while unimpeded by anysignificant dispute.133
Therefore, while we can expect India to keepsupporting Hanoi in
the latter's quest todevelop offshore oi l and build up
hercoastguard, it is likely that India will keep heroptions open
and retain a prudent policytowards China, in a bid to prevent the
latter'sexpansion while avoiding provocations. Whileboth sides see
tighter India-Japan relations asnecessary, when envisioning an open
SouthChina Sea, they recognize that overlapping
values and interests are not enough toguarantee real progress,
although the politicalwill is clearly there and there is a
widespreadperception that India's role in the region willgrow.
Reclamation: Changing Facts on theGround?
Another important development during theyear 2014 has been
reclamation work ondifferent islands and reefs in the South
ChinaSea, mostly although not solely by China, whichsome sources
point out is also conductingsimilar activities in the Nanji
Islands, located inthe East China Sea, 300 km from
theSenkaku/Diaoyu/Diaoyutai Islands. 1 3 4
The