The South China Sea: Challenges and Promises

By James Borton

The world knows there are troubled waters in the South China Sea. This vital sea has long been regarded as a major source of tension and instability in Asia. The tense geopolitical standoff between China and Vietnam continues to create confusion for many observers since both nations invoke both history and international law to justify their respective claims of sovereignty.

The complex and deeply rooted relationship of these two nations and their prominently argued issues over atolls, oil rigs, exclusive economic zones (EEZs), freedom of navigation, military surveillance, security interests, unexplored vast oil and gas reserves, and fisheries has only succeeded in forging a closer tie between two former enemies: the United States of America and the Socialist Republic of Vietnam.

• Language: English
• Publisher: Xlibris US
• Release date: Jan 29, 2015
• ISBN: 9781503537378

James Borton

James Borton is an independent journalist, a senior fellow at the US-Asia Institute and the past editor of The South China Sea: Challenges and Promises.

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Contents

Acknowledgements

The South China Sea: Challenges And Promises

Lawfare Or Warfare? Let Impartial Tribunals Cool Asia’s Maritime Disputes

The Paracel Islands And International Law

The Paracel Islands Dispute: Geo-Strategic Issues And The Role Of International Law In Promoting Cooperation

Promoting A Regional Approach To The Paracels Dispute

The Rise Of Tailored Coercion In The South China Sea

Legality And Power In China’s Claim To The South China Sea

Historical Rights Of Vietnam On Paracel And Spratly Islands

Paracel And Spratly Archipelagos: Vietnam’s Historical Claims

Paracel Islands And Spratly Islands Conflict Resolution Impeded By China’s Strategic Calculus

The Legacy Of The Nine-Dashed Line: Past, Present, And Future

Archives Reveal China’s Use Of The Disguised Fishermen And Unorthodox Tactics To Strike Vietnam’s Paracel Archipelago

The Continuous And Peaceful Establishment, Practice, And Protection Of Vietnam’s Sovereignty In The Spratly And Paracel Archipelagos

Da Nang’s Role In The Process Of Establishment And Execution Of Vietnam’s Sovereignty Over The Paracel Islands

From 20Th-Century History To Current Geopolitics: Towards Regional And Global Peace And Security In The Paracel And Spratly Maritime Region

The World Atlas Of Philippe Vandermaelen And The Issue Of Sovereignty Over The Archipelagos In The South China Sea

Contributors

Endnotes

ACKNOWLEDGEMENTS

This collection of timely and valuable essays would not have been possible if it were not for the generous support and direction from Associate Professor Dr. Nam Tran Van of Da Nang University and Associate Professor Dr. Phuoc Pham Dang of Pham Van Dong University.

It’s also equally important to recognize the contribution of the domestic and international prestigious scholars to the success of the South China Sea workshop.

The completion of this eBook was also made possible from the support received from the sponsors and other supporters.

The book is also dedicated to the thousands of fishermen who daily cast their lines into the churning South China Sea. They remain caught up in the ocean’s fray and on the frontlines of one of Asia’s ongoing flashpoints.

THE SOUTH CHINA SEA: CHALLENGES AND PROMISES

by James Borton

The world knows there are troubled waters in the South China Sea. This vital sea has long been regarded as a major source of tension and instability in Asia. The tense geopolitical standoff between China and Vietnam continues to create confusion for many observers, since both nations invoke both history and international law to justify their respective claims of sovereignty.

The complex and deeply rooted relationship of these two nations and their prominently argued issues over atolls, oil rigs, exclusive economic zones (EEZs), freedom of navigation, military surveillance, security interests, unexplored vast oil and gas reserves, and fisheries has only succeeded in forging a closer tie between two former enemies: the United States of America and the Socialist Republic of Vietnam.

Dwarfed by its communist-run neighbor, Vietnam has turned to the U.S. to counterbalance the aggressive, expansionist tactics of China, which has defended its earlier deployment of a $1 billion, forty-story deep-water rig within Vietnam’s exclusive economic zone by firing water cannons at Vietnamese patrol vessels and ramming and sinking a Vietnamese fishing boat.

This timely eBook features contributions from leading scholars on the South China Sea as they weigh in on the complicated disputes over these embattled sovereignty rights to the Paracel and Spratly chains, complex international law issues, conflicting historical references, and contested fisheries.

The Paracels - an archipelago consisting of over thirty islands, islets, and reefs scattered across almost 16,000 square kilometers of the ocean surface - only serve to exacerbate the bad blood between Vietnam and China. China and its neighbor, Vietnam, claim sovereignty over this chain of islands, from which China evicted Vietnam in 1974, during the waning dark days of the Vietnam War.

The Spratlys comprise hundreds of reefs, rocks, sandbars and tiny atolls sprawling across some 160,000 square miles. These islands are surrounded by rich fishing grounds and potentially by gas and oil deposits with one of the busiest international sea lines nearby. China’s use of military forces to occupy some islands of Vietnam (Cuarteron Reef, Fiery Cross Reef, Gaven Reefs, Johnson South Reef, Hughes Reef, Subi Reef) in 1988 and other islands of the Philippines (Mischief Reef, Scarborough Shoal) in 1995 and 2012, is not lost on the global community; nor on the International Court of Justice. Although China’s current reclamation efforts on Johnson South Reef are well publicized, it’s noteworthy that of the islands and sandbars, China only controls a small percentage. Furthermore, the Chinese dredging operations and reclamation projects are in clear violation of a code of conduct signed by all claimants in the South China Sea. According to many South China Sea observers and scholars, China’s assertion of sovereignty over the Spratly and Paracel Islands, is based on dubious historical claims. This collection of scholarly essays reinforces that China’s claims are invalid. The contributors lay out compelling and substantive research about Vietnam’s sovereignty claims in the South China Sea in both the Paracel and Spratly archipelagoes based on several salient factors, including history, economic development, effective administration and international recognition. What is clear is that after the Second World War, China redefined borders, assembled historical evidence, and exercised military force to create their territorial claims, including the renaming of islands. Subsequently, the Islands remain in dispute by China, Taiwan, Vietnam, Malaysia, the Philippines and Brunei.

Vietnam, a war-hardened nation, has suffered maritime disputes with the Middle Kingdom that spans centuries. The Vietnamese feel China’s threats far more acutely than other member nations of ASEAN (Association of Southeast Asian Nations). After all, Vietnam’s history is marked by almost one thousand years of subjugation by China.

Although environmental issues were not part of a South China Sea conference hosted by Pham Van Dong University and Da Nang University, held in June 2014 at the height of the contested maritime face-off between China and Vietnam, this conversation on sustainability appears now to be part of a widening dialogue on how the sea needs protection from over-fishing and gas and oil exploration.

While many of the august contributors to this South China Sea program call for regional approaches to manage or even attempt to resolve complicated disputes above the din of noise from the increasing chorus of policy shapers and actors engaged in this unfolding drama, it is the sea itself and the once seemingly boundless marine life that may offer some reasonable chance for peace and sustainability in the churning sea.

Because of increasing concern of the over exploitation of the biological resources in the region, the environmental perspective can no longer be ignored. For sure, the historical, political and economic territorial claims in the region are mired in a complex and tangled web of nationalism. Perhaps the best marker for the future of the these islands is recognizing the country or countries that are most equipped and qualified to sustainably develop and protect the islands’ resources and diverse marine ecosystems.

Within the disputed territory, there are more than 1.9 billion people, seventy-seven percent of them living within one hundred kilometres of the coast. For sure, eighty-five percent of the world’s fishers are concentrated in Asia, particularly in the South China Sea, according to the Food and Agriculture Organization of the United Nations. China has the largest number of fishermen, followed by Vietnam, Indonesia and the Philippines. In total, at least 31 million people are engaged in the fisheries and aquaculture sector and related industries in the region. This industrialized fishing development has led to depleted stocks and increasing conflicts between Vietnamese and Chinese fishermen. Currently, the South China Sea accounts for one-tenth of the world’s global fisheries catch, and plays host to a multi-billion dollar fishing industry.

Subsequently, fishing remains a politically sensitive and emotionally charged national security issue for all claimant countries.

In recent years, China’s assertive behaviour and increasingly frequent conflicts with other claimant or competing nations over fishing in the disputed area contribute frequently to diplomatic tensions and sometimes heightened mutual public hostility. China and Vietnam have both adopted concerted media campaigns amidst claims that fishermen have engaged in illegal fishing in areas surrounding the Paracel Islands, resulting in attacks, injuries, and imprisonment.

If neither China nor Vietnam offers maritime management solutions, then the complex sovereignty claims and food security issue remains at an impasse. Since the 1960s, the number of fish species in the South China Sea has markedly declined from 487 to 238. Excessive and unsustainable fishing practices, as well as land-based pollution, coral reef damage, and other factors, have exacerbated the depletion of fisheries. It’s no surprise that policy experts are concerned about the implications of escalating tensions.

Gregory Poling, in his article Promoting a Regional Approach to the Paracels Dispute, recommends that the claimants focus on limiting the maritime disputes and find ways to jointly steward those areas that remain.

While there are many policy shapers in Washington who agree that stewardship of the South China Sea is essential for the future of the region, the Obama administration’s slow-moving pivot to Asia remains long on reassurances and short on concrete actions. Officials have long said the pivot’s goal is to refocus attention and resources on the region, not to challenge China, which has used its position as Asia’s top military and economic force to coerce its smaller neighbors.

Beijing’s aggression in the South China Sea offers Hanoi and Washington the impetus for reshaping a relationship that has evolved significantly since U.S. helicopters evacuated the last Americans from Saigon thirty-nine years ago. Already enjoying economic ties for twenty years since normalization, Vietnam and the U.S. now have come to view potential threats in the region in a similar light.

Dr. Patrick Cronin, one of the contributors in this collection of essays, effectively weighs in on China’s tailored coercion in the region from the placement of their deep-sea drilling platform off the Paracel Islands, well within the exclusive economic zone of Vietnam, to Chinese vessels ramming of a Vietnamese fishing boat and a coast guard vessel. He writes, these twin actions in the South China Sea mirror similarly brazen moves in the East China Sea and are part of a deliberate policy calculus in Beijing.

The environmental and security issue escalates as China utilizes advanced dredging machinery, barges and supply vessels to move sand to expand the size of the small islets and reefs held by the Chinese in the disputed Spratly Islands. Marine scientists can only surmise the damage that is being done to coral reefs and the impact on ecosystems as these mere outposts are expanded. The dredging and island construction continues at Gaven Reef and Johnson North Reef. No matter how much sand is added to these reefs, China’s historical claims remain in doubt.

For sure, China’s present actions only serve to drive Vietnam closer into exploring military cooperation with America. Although relations between America and Vietnam were normalized in 1995, the convergence of Vietnam’s foreign policy activism and the U.S. rhetorical shift towards an Asia-Pacific strategy seems to signal a congruent state for both countries.

While much has been written about the impressive economic relationship between America and Vietnam with bilateral trade in goods reaching $25 billion in 2012, it is in the area of security that the two countries are quietly engaged in conversations and issuing discrete memorandums of understanding to establish a framework for the expansion of a comprehensive partnership: one that already includes military exchanges, defense policy, political, and security dialogues, leading up to a future Trans-Pacific Partnership.

Professor K. Raja Reddy, former director of the Centre for Southeast Asia & Pacific Studies at Sri Venkateswara University, examines closely China’s historical claims on the archipelagos and believes that they are not convincing. Reddy claims, Vague names as references and the absence of Chinese effective control of these islands were well evident.

The ambiguity associated with China’s historical claims, and their troubling actions to control the South China Sea, serves as one of the myriad catalysts propelling Hanoi’s closer security ties to Washington. Earlier in 2014, Vietnam announced it would participate in the Proliferation Security Initiative (PSI), reversing its earlier opposition to the effort to stop the spread of weapons of mass destruction promoted by the U.S. and its allies. The move opens the door for the two sides to conduct joint maritime surveillance, a potential partnership not lost on the Chinese.

In its coordinated media campaign, Vietnam offers through the voices of these contributing academics evidence that the Paracel archipelago and the surrounding fishing grounds are traditional fishing areas of Vietnamese fishermen. Luu Anh Ro, General Secretary of the Da Nang Historical Science Association also confirms that China has used its fishermen for decades to build infrastructure on Woody and Lincoln islands by deploying fishing boats to carry cement, steel and sand to construct a military presence in the Paracels.

This nefarious use of Chinese fishing vessels to bolster China’s territorial claims continues to lead to international incidents including an incident in 2010 when diplomatic relations between China and Japan were temporarily suspended after a Chinese fishing vessel rammed a Japanese patrol boat. This action and China’s attempted brash fishing regulations handed out earlier in 2014 from the government of Hainan in the southernmost province required all vessels planning to fish in waters under their jurisdiction to seek permission from Chinese authorities only proves more provocative to other claimants.

This expansionist Chinese behavior offers an array of defensive challenges not only to Vietnam and other ASEAN nations but also for Washington. For the international community cannot ever accept the prospect that one nation has the right to nationalize the open sea for its strategic purposes. After all, the ocean itself and the marine resources are indeed transnational in nature and this transcends national maritime jurisdictional boundaries. There are more academic voices and policy shapers who argue that it’s time for those claimants in the South China Sea to establish a cooperative marine peace park for all coastal states.

Unlike post storms scenarios, where the fishing is always good, here in the South China Sea it seems much more likely that there may be irrecoverable damage not only from the loss of fragile coral reefs, ecosystems and fish, but also from the gathering political clouds and the looming perfect storm blowing in.

James Borton is an independent journalist and teaches writing to Marine Science students at Coastal Carolina University in South Carolina.

LAWFARE OR WARFARE? LET IMPARTIAL TRIBUNALS COOL ASIA’S MARITIME DISPUTES

by Jerome A. Cohen

It has been long known that the many disputes relating to the South China Sea (SCS) are far too complex to allow for simple solutions. Several methods of dispute resolution are necessary for dealing with different times, places, and issues. In principle, of course, negotiation, whether multilateral or bilateral, remains preeminent. Yet, as is obvious to all, negotiation has its limits and often needs to be supplemented. This writing serves as a plea for the disputing countries to give higher priority to the role that international adjudication and arbitration may play in the settlement process.

Of course, I am familiar with the traditional refusal of states, especially powerful states including the United States, to lose control over the outcome of major disputes by allowing an impartial third party to make a final determination. The time has come for all the main players in the SCS to recognize, as the Philippines already has, that, in some of the situations currently confronting them, the advantages of resorting to impartial third party determination may outweigh the risks.

The current increasingly dangerous Sino-Vietnamese standoff concerning sovereignty over the Paracel Islands is such a situation. China maintains that it is prepared to negotiate with Vietnam over the crisis created by its placement of an oil rig offshore the Paracels. However, Beijing reportedly refuses to negotiate about its asserted territorial sovereignty over the Paracels, the very issue at the heart of the offshore dispute.

The People’s Republic of China and Vietnam have successfully negotiated boundary disputes in the Gulf of Tonkin and on their land border, but China, the occupier of the Paracels, maintains that sovereignty over these maritime features is not open for discussion. China refuses to recognize the existence of a dispute over the Paracels since it claims indisputable sovereignty over them. This posture, which is similar to that of Japan’s position on the Senkaku/Diaoyu islands that it occupies, would also exclude mediation or conciliation, even by the Association of Southeast Asian Nations (ASEAN), assuming that ASEAN were prepared to make the effort.

Many observers have suggested that the parties could resolve this territorial dispute by shelving it but nevertheless agreeing to jointly develop the presumably valuable undersea resources lying offshore. Yet this idea is much easier to suggest than to implement, precisely because of the deep disagreement and distrust generated by the conflicting territorial claims.

Indeed, the evident failures of the 2011 and 2013 Sino-Vietnamese agreements calling for cooperation in mutual development vividly demonstrate this truth. Although the brief 2011 agreement emphasized no fewer than a dozen times that cooperation would be limited to sea-related matters that cooperation failed to materialize because the most important sea-related matter inevitably turned out to be sovereignty over the adjacent land.

Resorting to force, ever on the horizon today, seems tempting to both parties, especially China, which used force to wrest control over the Paracels in 1974 and