‘Occupant’ Status for China in South China Sea Islands?

[Nguyen, Quoc Tan Trung is a PhD candidate at University of Victoria, Canada and lecturer on public international law in Vietnam. He currently pursues research interests including international legal framework on non-recognition, use of force and human rights.]

[https://orcid.org/0000-0001-7293-1822]

Photo credit: Reuters

The South China Sea arbitration award between the Philippines and China clearly favours the principles of the United Nations Convention on the Law of the Sea (UNCLOS) and the Philippines’ argument. From rejecting artificial islands that China has been furiously building are entitled to have the 200 nautical miles “exclusive economic zone” (EEZ), to concluding that there was no evidence that China had historically exercised exclusive control over the waters or their resources, the award will allow the international community to disprove China’s unrealistic claim to the entire 9-dash maritime territories. Third parties like Vietnam, although was effectively doing nothing, enjoy certain benefits from Philippines’ effort.

However, China’s claims in the South China Sea do not only include artificial islands. Many contested maritime territories currently held by the Chinese government are natural islands with its lawful adjacent waters. Vietnam has long denied the legality of Chinese presence in the natural islands of Paracel islands and Spratly islands, but they never present these denials in a communicable international legal language. If the Chinese possession of the islands is to be called unlawful, what area of international law are we referring to? Both UNCLOS and the aforementioned tribunal award do not (and cannot) deal with the specific question of who has the legitimate sovereign authority over a natural island.

Considering Chinese’s extensive and deadly military campaigns in the South China Sea for the last 40 years, to the author, embracing the law of occupation seems to be the best option.

Have All the Requirements Been Met?

The law of occupation is one of the oldest and most established fields of international law. Its implementation concerning Palestinian territories or Western Sahara is illustrative in understanding its effectiveness against unlawful behaviours. For the determination as to whether a situation amounts to an occupation, international law offers the two-threshold test. Firstly, the new power obtains territory from a legitimate administrator via hostility. Secondly, the new power exercises effective control over said territory. 

The fact that the Chinese government obtained significant control of the South China Sea through force is universally known and is the subject of extensive documentation. For Vietnam-managed territories, the Chinese military only gained complete control of the Paracel Islands and its waters thanks to the invasion that ousted the Republic of Vietnam’s troops from their garrisons in Paracel Islands in 1974 (Battle of the Paracel Islands). Again, in 1988, China’s first armed conflict over the Spratly archipelago killed seventy-four sailors of the Socialist Republic of Vietnam (Battle of the Spratly Islands). This operation extended Chinese presence to a large portion of the Spratly islands, upsetting the established status-quo of the area.

But can we contend that Vietnam is the legitimate administrator of these islands without resorting to the so-called “historical sovereign rights” like China?

Many of the existing natural islands in these territories were under the effective administration of the French Union on behalf of its protected state – Annam – from at least 1930.  In the Paracel Islands, among the claimants such as China, Great Britain and even the Empire of Japan, only France was able to sustain and effectively control the major islands such as the Pattle Island, Duncan Island in Crescent Group and the Woody Island, Rocky Island in the Amphitrite Group. Natural islands in Spratly Islands, on the other hand, were directly ruled by French colony Cochinchina (without prejudice to Philippines claims).

Location of the Paracel Islands and its natural islands (Source: Google Map). They are lawfully administered by France throughout the first half of the 20^th century.

It should be noted that from 1939 to 1945, Japan invaded the Paracel and Spratlys administered by France and placed them under the administrative control of the Government-General of Taiwan (Japanese: 台湾総督府, Taiwan: Soutokufu), the regime governing Taiwan under Japanese rule from 1895 to 1945. In the aftermath of World War 2, Japanese forces retreated from all major garrisons in the area. Indeed, Japan’s status after the war and the international recognition of France’s legal continuity in Vietnam did not allow Japan to further any territorial assertion.

However, the Republic of China took advantage of the first Indochina War, when France was busy in the Vietnam mainland and yet to re-establish control over Paracel Islands, to take over the “empty” Woody Island and the eastern part of the Paracel Islands. This situation maintained throughout the decolonisation process in Vietnam until 1974, when the People’s Republic of China again resorted to the use of force to annex the rest of the Paracel. In Spratlys, on the other hand, major natural islands have been under Vietnam’s continuous control until China’s invasion in 1988.

This is where the universally-accepted customary rule of international law uti possidetis juris becomes handy. As a vital principle of international law for decolonialisation, it provides that newly-formed sovereign states should retain the borders that their preceding dependent area had before their independence. Here, we can see that the French Union was the only effective administrator of the natural islands in both Spratly Islands and Paracel Islands. Therefore, the Socialist Republic of Vietnam, the Republic of Vietnam’s successor after 1976, whom in turn was the successor of French Union after 1956, is the rightful territorial beneficiary, in accordance with the principle of uti possidetis juris.

The author argues that it is more than probable to assert Vietnam sovereignty over a large portion of Paracel Islands and Spratly Islands (even if we exclude Woody Island the eastern part of the Paracel Islands). Such territorial situation is the colonial heritage that has been lawfully protected by international law at its dawn, regardless of the so-called historical rights.

One may safely assert that China only recently turned into the most dominant player in the disputed area, and did so via armed conflicts. It also means that the situation meets the first stipulation (pages 231 – 320) for applying the law on occupation: that the original and legitimate government is unable to exercise its authority in the relevant area as a consequence of hostilities.

The second threshold envisages the effective control of the occupant over the territory. While there are still debates on whether such control must include governmental functions or merely de facto capacity, scholars generally agree to refer to the Naletilic Decision of the International Tribunal for the former Yugoslavia (ICTY) for more detailed guidelines on determining whether or not the occupation has been established. Herein, as long as the

‘enemy’s forces have surrendered, been defeated or withdrawn’ and ‘the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt’,

the occupation status can be confirmed (para 217). With these criteria, one can say that China has done everything possible to make sure that there is no debate on their presence in South China Sea.

The establishment by the Chinese of Sansha City as a prefecture-level city belonging to Hainan province in July 2012, together with the construction of permanent housing facilities and the promotion of measures that normalised residency; then the annual blanket ban on fishing to ‘conserve’ stocks above the 12th parallel – including all maritime territories near the Scarborough Shoal, the Paracel Islands, and the Gulf of Tonkin – all these actions make crystal clear China’s intention to consolidate governmental capacities over the disputed islands and waters.

Concerning military activities, China was the first to start the militarisation process in the area. Writing on Foreign Policy, Steven Stashwick asserts that the country has implanted a huge military footprint on the South China Sea, with more than 3,000 dredged-up acres now studded with long-range sensor arrays, port facilities, runways, and reinforced bunkers for fuel and weapons. As observed by Derek Grossman from the RAND Corporation, the permanent deployment of the People’s Liberation Army Navy (PLAN) or People’s Liberation Army Air Force (PLAAF) forces to their forward operating bases is inevitable. In addition, their plans for the South China Sea air defence identification zone (ADIZ) covering the entire ‘9-dash-line’ have been announced, although not yet implemented. However, what is indisputable is the breathless pace of Chinese military advancement and their capacity to enforce an effective ADIZ in the area.

Why Push for Occupied Status of the East Sea?

The author argues for the two main contributions of this legal strategy.

Giving occupied status to the East Sea confirms a form of official non-recognition of unlawful situations in international law.

The principle was successfully implemented for the first time during the Manchurian crisis in 1933, when the members of the League of Nations unanimously refused to recognise the creation of a new state (page 144) in Manchuria, effectively under Japanese control and against China’s will. Soon dubbed ‘the Stimson doctrine’ after the name of the American Secretary of State, Henry L. Stimson, the principle of non-recognition has played a vital role in stabilising international order and protecting the rights of marginalised states. The International Court of Justice’s voice in the case of Legal Consequences for States of the Continued Presence of South Africa in Namibia and then the Legal consequence of the construction of a Wall in the Occupied Palestinian Territory, while not necessarily an enforcement in international law, nevertheless serve as an universal reminder that legal rights shall not derive from an illegal act (ex injuria jus non oritur).

Here, China’s occupation of these specific islands is a fait accompli resulting from alleged illegalities, and non-recognition will prevent it from consolidating and crystallising over time. Politically, it also allows involved parties to stay calm without the need to resort to military action, knowing that the territorial situations are yet to be settled.

The other benefit is that Vietnam and other countries that have interests in the disputed waters can challenge China’s so-called ‘national laws’ by pointing out their incompatibility with international humanitarian law. China’s new coastguard law has been the subject of criticism on the grounds that it sanctions the right of the coastguard to employ ‘all means necessary including the use of force’ to stop foreigners found to have been infringing Chinese ‘sovereignty, sovereign rights and jurisdictional rights.’ Of course, there is nothing new about actions of this kind. Chinese vessels have frequently rammed, attacked or confiscated fishing boats and equipment and left fishermen of all nationalities to die in the South China Sea.

If applied, the international law would step in and oblige China to uphold the basic principles of humanitarian law laid down in the Fourth Geneva Convention 1949 and Protocol I additional to the Geneva Conventions. These include protection and aid in cases of shipwreck, distinction between combatants and non-combatants, prohibition of the use of force against non-combatants, prohibition of corporal punishment and torture or any measure of such a character as to cause the physical suffering or extermination of protected persons; and prohibition of the confiscation or destruction of private property.

The author acknowledges that proper consideration concerning the application of humanitarian laws to occupied maritime territories needs more time and resources to explore. However, with all the arguments presented above, the author strongly believes that applying the law of occupation would help to bring about a resolution of the South China Sea dispute.

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