Islands and the Delimitation of Ocean Space in the South China Sea

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Islands and the Delimitation of Ocean Space in the South China Sea

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1. Mark J. Valencia, "The South China Sea," Marine Policy 2 (April 1978): 87, citing Klaus Wyrtki, Physical Oceanography of the Southeast Asian Waters, Scientific Results of Marine Investigations of the South China Sea and the Gulf of Thailand 1950-1961, NAGA Report, vol. 2, (La Jolla: Scripps Institution of Oceanography, University of California, 1961), pp. 10-11; and John C. Marr, Fishery Resource Management in South- eastern Asia, Resources for the Future Paper no. 7, Program of International Studies of Fisheries Arrangements (February 1976), p. 4. 2. Choon-Ho Park, "The South China Sea Disputes: Who Owns the Islands and the Natural Resources," Ocean Development and International Law Journal 5 ( 1978): 28. 3. Ibid. 4. Valencia (n. 1 above), p. 88. 5. Carolyne La Grange, South China Sea Disputes: China, Vietnam, Taiwan, and the Philippines, Environment and Policy Institute Working Paper, East-West Center, Honolulu (1980), pp. 32-33, fig. 8. 6. Christopher S. Wren, "Who Are the Foreigners in the South China Sea?" New YorA. Times (9 February 1983): 2, col. 3. 7. Ibid.

8. La Grange (n. 5 above), p. 32. The Paracel Islands include the North Reef, the Iltis Bank (which includes the Amphitrite Group and Woody Island), the Crescent Group, Vuleddere Reef, the Discovery Group, Pesse Keeh, Trilein Island, Bombay Reef, the Bremen Bank, and Lincoln Island (fig. 8). See generally Marwyn S. Sam- muels, Contest for the South China Sea (New York: Methuen, 1982), pp. 183-87; Dieter Heinzig, Disputed Islands in the South Sea (Hamburg: Institute of Asian Affairs, 1976). 9. Geoffrey Marston, "Abandonment of Territorial Claims: The Cases of Bouvet and Spratly Islands," in 1986 British Yearbook of International Law (Oxford: Clarendon Press, 1987), pp. 337, 354, citing Far Eastern Economic Review (22 February 1980): 5. 10. Marston (n. 9 above), p. 354. 11. La Grange (n. 5 above), pp. 32-33. 12. Christopher S. Wren, "China Seizes Vietnamese Boat near Disputed Island Group," New York Times (12 March 1982): 10, col. 6, quoting the New China News Agency. 13. Ibid. The Vietnamese version of the incident, which was broadcast earlier by Radio Hanoi and the Vietnamese News Agency, asserted that the Chinese had dispatched 40 armed vessels into Vietnam's waters only 4 to 10 miles off the coast of Bonh Tri Thieun province. The Vietnamese charged that the Chinese presence in their waters was for the purpose of carrying out espionage activities as well as to disrupt the lives of Vietnam fishers. It was also alleged that the Chinese had damaged a Vietnamese fishing boat during the incursion into its waters.

14. Agence France Presse, China Sets Up Air Traffic Control Centres to Cover Spratlys (10 June 1988, 03:46:20). 15. See, for example, J. R. V. Prescott, Maritime jurisdiction in Southeast Asia: A Commentary and Map, East-West Environment and Policy Institute Research Report no. 2 (Honolulu, 1981), p. 30. 16. Ibid. See table 1 for the location, description, and names given to several of the islands, dunes, and cays by China, Vietnam, and the Philippines. 17. Ibid., p. 31. The Spratly group also includes 13 unoccupied cays. The Philippines occupied the following seven islands as of April 1978: Pagasa (Thitu Island), Lawak (Nanshan Island), Patag (Flat Island), Likas (West York Island), Kota (Loaita Island), Parola (Northeast Cay), and Panta (Loaita Cay). It was estimated that the Philippines have approximately 1,000 marines stationed throughout the is- lands. The total land area of the Philippine-occupied islands is approximately 112 ha. Pagasa is the primary Philippine stronghold in the Spratlys: "It is equipped wth a 5,500-foot runway used regularly by 'aging' T-28 fighters and C-47 Hercules Trans- ports as well as by commercial planes which make twice-weekly visits. It also has a marina and 10-ton refrigeration unit for fishing boats and their catches. Approxi- mately 100 civilians-mostly government fisheries and weather men-live on Pa- saga.... Lawak is serviced by a small airstrip" (p. 20). Vietnam then occupied the following islands or cays within the Spratlys: Song Tu Tay (Southwest Cay), Nam Yit (Namyit Island), Sinh Ton (Sin Cowe Island), An Bang (Amboyna Cay), and Truong Sa (Spratly Island). In April 1978 the Vietnamese

had approximately 350 troops stationed on Song Tu Tay, Nam Yit, and Sinh Ton. The total land area of the Vietnamese-occupied islands was approximately 60 ha. In April 1978 Taiwan had a 600-troop garrison on the only island that it occupies, Tai Ping Dao (Itu Abe). This island is the largest of the Spratlys, consisting of approxi- mately 46 ha (see pp. 29-39). 18. Ibid., p. 21. 19. Ibid., pp. 21-22. By 1980 it was reported that Vietnam and the Philippines were in the process of reinforcing their military forces on the islands they occupied. The Philippines had approximately 1,000 marines stationed throughout the seven islands it occupies. Airstrips have been built on two of these islands. The Philippines has large military installations at Puerto Princesa and Palawan. It was reported that Palawan was staffed by a force of 500 troops, with fighter and patrol aircraft as well as a naval base and training camp for marines on the west side of the island. Philippine aircraft were flying air patrols twice a day over the islands from Puerto Princesa. The Philippine navy engages in regular patrols in the area. The Marcos government saw its military efforts and presence in the Spratlys as a deterrent to the Vietnamese and the Soviets from exerting any further control over the area. In 1980 Vietnam had a garrison of only 350 troops stationed on Song Tu Tay, Nam Yit, and Sinh Ton. The main garrison of Vietnam was located on Song Tu Tay, only 25 nm northwest from the main garrison of the Philippines at Pagasa. Because of the close proximity of these two garrisons, it was reported that the Vietnamese had fortified their island with anti-aircraft and heavy coastal artillery. Although not confirmed, it was theorized that the Vietnamese had the Soviets build an airstrip on the island. In 1980 Soviet aid to the Vietnamese was reported to be US$3 million per day. 20. See, for example, Chistopher S. Wren, "Conflicting Claims Befog China- Vietnam Fighting," New Yorb Times (13 May 1984): 20, col. 4. 21. Agence France Presse, China Sets Up Air Traffic Control Centres (n. 14 above), quoting Vietnamese sources. 22. Agence France Presse, China Strengthens Air and Naval Forces in Spratlys (26 May 1988, 03 : 04 : 05), quoting the Chinese newspaper Ta Kung Pao.

23. Agence France Presse, Malaysia Has Troops on Three Spratly Islands. (27 June 1988, 23:52:49), quoting Malaysian deputy foreign minister Abdullah Fadzil Che Wan. 24. Deutsche Presse-Agentur, Malaysian Minister Calls for Talis on Spratlys (2 July 1988,06:57:29). 25. Agence France Presse, China Pledges to Join Taiwan in Defending Spratly (16 December 1988, O1: 15:36). 26. Ibid. 27. La Grange (n. 5 above), p. 23. See generally Hungdah Chiu and Choon-Ho Park, "Legal Status of the Paracel and Spratly Islands," Ocean Development. and Interna- tional Law 1, no. 1 (1975): 9-20. 28. La Grange (n. 5 above), p. 23, citing "China's Indisputable Sovereignty over Xisha and Nansha Islands," Beijing Review (18 February 1980): 15-16.

29. Sammuels (n. 8 above), p. 10. 30. Ibid. 31. "Though recent archaeological finds in the Paracel Islands confirm some contact with the islands as early as the Wang Mang interregnum (CE 9-23), there is no proof that such contact was exclusively Chinese. On the contrary, the sea route connecting T'ien-chu (India) and Fu-uan (Cambodia) with Canton (known as Nan-hai chun or commandary of the Southern Sea) was well established by the first century, but was dominated by non-Chinese seamen for many centuries thereafter. Even as the importance of the Southern Sea trade grew in the third and fourth centuries, there is only the barest textual evidence to suggest any official Chinese cognizance of the island atolls. Indeed, not even the otherwise well chronicled voyages of the monks Fa Hsien (CE 44) and I Ching (CE 689-95) offers indirect, let alone unequivocal mention of the islands of the South China Sea" (ibid., pp. 10-11). See generally, with respect to archaeological finds in the Paracels, Hsi-sha-wen-wu (Cultural relics of the Paracels, 1974; available in the Kuangtung Province Museum). 32. Sammuels (n. 8 above), p. 15, citing Chou Ch'u-fei, Ling-wai tai-ta (Informa- tion on what lies beyond the passes, 1178). 33. Sammuels (n. 8 above), p. 15. 34. "The idea of 'sovereignty' as an internationally recognized principle defining the wall of 'legitimate' authority around political space has no exact parallel in East Asian legal and political history. Territorial control by boundary delineation and ad- ministrative jurisdiction was an ancient tool of the Confucian bureaucracy both within China and between China and foreign states, but the abstract concept of state territo- riality ... was not part of the traditional Confucian-literati cognitive map. The area of a state (kuo) and its various compartments was not a function of legal limit but of

social organization, history, and the loyalty of subjects. The Confucian order de- manded loyalty to the person of the Emperor, his representatives, and most of all to the hierarchical system of relationships patterned on the family, ... and symbolized by the imperial-bureaucratic establishment .... [T]here was no traditional Chinese equivalent to the mid-nineteenth-century western doctrine of the 'high seas' as non- appropriable res nullius. Neither was there a traditional concept equivalent to the western doctrine of coastal-state jurisdictional limits. However, with the rise of the Treaty Port System after 1842, these and other western maritime rules and regulations eventually became part of the Chinese milieu .... Finally, in 1931 a relatively indepen- dent coastal state policy emerged with the formal declaration of a 'territorial sea' limited to 3 miles, and a special-purpose, anti-smuggling zone limited to 12 miles.... In the process, one of the earliest attempts by China to assert legal title to ocean space occurred in the South China Sea" (ibid., pp. 51-52). 35. Ibid., p. 52. 36. Chiu and Park (n. 27 above), p. 1, citing Ling Ch'un-shen, "The Triangular Relationship among China," Fan-chin yueh-k'am (Geography monthly, Nanking) 4, no. 2 (1 April 1934). 37. Chiu and Park (n. 27 above), pp. 11-12.

38. Ibid., p. 13: "It further stated that China purported to incorporate the islets as late as 1909 (actually it was 1907), when Admiral Li Chun's naval contingent was sent to the Paracels for investigation, while Vietnam claimed them as early as 1816. With respect to the act of the French delegation at the 1930 Far Eastern Meteorologi- cal Conference, the French note said that the conference was a scientific one and did not deal with political questions. It did not respond to the arguments given the Chinese note of September 29, 1932. Thereafter, the Chinese, on March 20, 1934, sent another note to the French through their legation in Paris in an attempt to refute the argu- ments advanced by the French. The French did not respond to this note. Nothing further happened until July 1937 when the French seized on the preoccupation of the Chinese fighting the Japanese by occupying the Paracels." See notes 48-57 below and accompanying text for a more detailed discussion of France's activities. 39. Ibid., p. 14, citing Collection of Documents relating to the Foreign Relations of the People's Republic of China (1951-53), p. 2. 40. Chiu and Park (n. 27 above), p. 14. 41. Ibid., pp. 15-16. 42. La Grange (n. 5 above), p. 33.

43. Ibid., p. 24, citing Lee Lai-to, "The PRC and the South China Sea," Current Scene 15, no. 2 (February 1977): 6. 44. La Grange (n. 5 above), pp. 33-34; see n. 17 above and accompanying text. 45. Marston (n. 9 above), p. 350. 46. Ibid., p. 348. 47. Ibid., p. 344. After review of the claim, the Colonial Office determined that the islands were not within the cognizable territory of the colony of Labuan. Accord- ingly, it was suggested that the claim should be appropriately registered with the British consul general's office in Borneo. The claim was registered as suggested by the Colonial Office. Thereafter, the consul general of Borneo published a notice of the claim in the government gazettes of the colonies of Hong Kong and the Straits Settlements. In the 1880s the Central Borneo Company, another potential guano exploiter, decided to start a guano operation on Spratly Island and Amboyna Cay. After this venture demonstrated that the previous licensees had abandoned their claim and that the two islands were not inhabited or occupied, it was granted a guano lease by the Colonial Office and the Foreign Office in 1889. Nevertheless, there is nothing further recorded in the archives of the British Foreign Office with respect to whether this particular licensee ever commenced operations at either of the two islands. 48. Chiu and Park (n. 27 above), p. 8.

49. Ibid., p. 24 n. 30: "According to the Chinese version of the event, the French flag was planted on Storm (Spratly, or Nanwei in Chinese) Island, but after the French left the island, Chinese fishermen from Hainan Island replaced it with a Chinese flag." 50. Marston (n. 9 above), p. 344. 51. On 21 May 1930 the British embassy in Paris delivered a note addressed to the French ministry of foreign affairs. The note stated, in part, that "[t]he claim lodged in 1877 having thus been confirmed by formal licence by the Crown, the islands in question remain British territory unless definitely abandoned by the Crown.... No such abandonment has ever taken place and His Majesty's Embassy is accordingly directed to request the Ministry for Foreign Affairs to be so good as to notify the authorities in Indochina of the fact that Spratly Island is British territory." (ibid., p. 345). 52. Ibid. The French viewed the 1877 registration of title as nothing more than an act of a private character and argued that there was no evidence that any of the guano exploiters had ever raised the British flag over Spratly Island or Amboyna Cay or taken possession of either of the islands on behalf of the British Crown. France stressed that Spratly Island had not been administratively attached to an existing colony of the British Crown, but rather all of the details had been handled by the British consul general in Borneo. 53. For the Philippine treaty zone, see Art. 3 of the Treaty of Peace between the United States of America and the Kingdom of Spain (10 December 1898), Statutes at Large 30 (1898): 1754. The French claim, in addition to Spratly Island and its adjacent islets, included Trident Reefs, Thitu Island, Loaita Island, Tizard Reef, Discovery Reef, Fiery Cross Reef, London Reefs, Amboyna Cay, Rifleman Bank, Ardaisier Bank, and Swallow Reef (Marston [n. 9 above], p. 346). 54. Marston (n. 9 above), p. 351. The Foreign Office concluded that Great Brit- ain had no practical use for either of the two islets. It was noted that Britain desired to be entitled to use a number of atolls, reefs, and lagoons east of Spratly Island as potential advance seaplane bases in the event of war.

55. Chiu and Park (n. 27 above), pp. 8-9. See, generally, White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands (Saigon: Republic of Vietnam, Ministry of Foreign Affairs, 1975), pp. 70-75 (available in the Hamilton Library, University of Hawaii, Manoa Campus). In 1933 three ships, the Alerte, the Astrolabe, and the De Lanessan, were dispatched to the Spratlys. Upon their arrival at the archipelago, the French discovered the presence of Chinese fishers and abandoned mining machinery that had been used by Japanese guano-phosphate extractors. At the conclusion of the expedition, the French government placed six groups of the Spratlys under its control. 56. White Paper (n. 55 above), pp. 71-73, citing Journal Officiel (26 July 1933): 7837: "The French government has caused the undermentioned isles and islets to be occupied by French naval units: 1. Spratley Island, situated 8 degrees 39 minutes latitude and 111 degrees 55 minutes longitude east of Greenwich, with its dependent isles (Possession taken April 13, 1930). 2. Islet caye of Amboine, situated at 7 degrees 52 minutes latitude north and 112 degrees 55 minutes longitude east of Greenwich, with its dependent isles (Possession taken April 7, 1933). 3. Itu Aba Island situated at latitude 10 degrees 22 minutes north and longitude 114 degrees 21 minutes east of Greenwich, with its dependent isles (Possession taken April 10, 1933). 4. Group of two islands situated at latitude 11 degrees 29 minutes north and longitude 114 degrees 21 minutes east of Greenwich with their dependent isles (36) (Possession taken April 10, 1933). 5. Loaita Island, situated at latitude 10 degrees 42 minutes north and longitude 114 degrees 25 minutes east of Greenwich, with its dependent islands (Pos- session taken April 12, 1933). 6. Thi Thu Island, situated at latitude 11 degrees 7 minutes north and longitude 114 degrees 16 minutes east of Greenwich, with its dependent islands (Possession taken April 12, 1933). The above-mentioned isles and islets henceforward come under French sovereignty (this notice cancels the previous notice inserted in the Official Journal dated July 25, 1933, page 7784)." 57. Ibid., pp. 73-74. The United States, China, and the Netherlands did not protest the French action. Japan protested the French occupation on the ground that a Japanese subject had engaged in exploitation of phosphate deposits of several of the Spratly Islands. The Japanese had operations in the Spratlys without the knowledge or consent of France or of any other country, and they may have had a coextensive claim to the islands. 58. Marston (n. 9 above), p. 354, citing Hansard Parliamentary Debates, Commons, 5th series, vol. 345, col. 2988. 59. See text at note 44 above.

60. La Grange (n. 5 above), pp. 24-25, citing Viet Nam's Sovereignty over the Hoang Sa and Truong Sa Archipelagoes, UN document A/34/541/S/13565 (19 October 1979), p. 7. Another version of the Vietnamese claim is as follows: "In the course of history, the Vietnamese people have had intermittent contact with (the Spratlys).... Unlike the case of the Hoang Sa (Paracel) islands, the former emperors of Vietnam did not have the time to strengthen these contacts through the organization of an administra- tive jurisdiction. However, the French, who occupied the southern part of Vietnam known as Cochinchina, took all those measures necessary for the establishment of the legal basis for possession of the Spratly islands. In 1933, the Spratlys were incorpo- rated into the French colony of Cochinchina and from that year forward have had an adequate administrative structure" (La Grange [n. 5 above], p. 25, quoting from White Paper [n. 55 above], p. 67). 61. While Paper (n. 55 above), p. 67. 62. Treaty of Peace with Japan (8 September 1951), Chap. 2, Art. 2(f), United States Treaty Series, (UST) 3:3172, Treaties and other International Acts Series 2490, entered into force 28 April 1952.

63. C. Rousseau, Revue Ggnirale de Droit International Public (July 1972): 830. The British claim also had some life left in it as of 1956, but it was recognized as weak. In response to an inquiry, the British Foreign Office sent the following telegram on 12 June 1956: "Our claim to Spratly Island has never been abandoned but has also never been pressed, as it is considered too weak, in view of the lack of effective exercise of sovereignty, ever to be likely to win acceptance before the International Court" (Marston [n. 9 above], p. 356). 64. White Paper (n. 55 above), p. 81. On 15 June 1956 Foreign Minister Vu Van Mau of Vietnam again reaffirmed his nation's rights and interest in the Spratlys. Van Mau noted, among other things, that during the course of the negotiations regard- ing the peace treaty with Japan in 1951, he, as the chief spokesman for the Vietnam- ese delegation, had solemnly reaffirmed Vietnam's sovereignty over the Truong Sa (Spratly) archipelago. During the course of the peace treaty conference the assertion of Vietnam had not been challenged by any of the participating nations, including China and the Philippines. 65. Ibid., pp. 80-81. Steles were placed on 19 May 1963 on Truong Sa; on 20 May 1963 on An Bang; on 22 May 1963 on Thitu and Loaita islands; on 24 May 1963 on Song Tu Dong (Northeast Cay) and Song Tu Tay. 66. Ibid. 67. Ibid., p. 27. 68. Chiu and Park (n. 27 above), pp. 6-7, citing Fact Sheet (28 January 1974), a paper issued by the Vietnamese embassy in Washington, D.C.

69. Chiu and Park (n. 27 above), pp. 6-7. 70. Ibid., p. 7. 71. Ibid. 72. White Paper (n. 55 above), p. 27. "The Paracel ... is a labyrinth of small islands, rocks and sand-banks, which appears to extend up to the 1 lth degree of north latitude, in the 107th parallel of longitude from Paris. Some navigators have traversed part of these shoals with a boldness more fortunate than prudent, but others have suffered in the attempt. The Cochin Chinese called them Con-uang. Although this kind of archipelago presents nothing but rocks and great depths which promise more inconveniences than advantages, the King GIA LONG thought he had increased his dominions by this sorry addition. In 1816, he went with solemnity to plant his flag and take formal possession of these rocks, which it is not likely any body will dispute with him" (White Paper [n. 55 above], p. 27, quoting J. Taberd, Journal of the Royal Asiatic Society of Bengal, India [April 1837]: 737-45). In 1834 the emperor dispatched garrison commander Truon Phuc Si, together with 20 men, to the Paracels for the express purpose of making a map of the area. In 1836 the minister of public works reported to the emperor that the results had not been favorable, as only one island in the entire area had been drawn on the map, which was neither precise nor detailed. Consequently, the emperor was advised that missions be dispatched each year to explore the entire archipelago and to become acquainted with the sea routes in the area. It was noted that care should be taken by the missions to survey and describe all of the islands, islets, and sand banks and to obtain their respective coordinates and distances. This plan was approved by the emperor, and a navy team was dispatched to the Hoang Sa islands to execute this specific mission (White Paper [n. 55 above], pp. 29-31, and see Dai Nam Thuc Luc Chinh Bien (History Annals), vol. 165, cited p. 31. 73. Chiu and Park (n. 27 above), p. 7.

74.WhitePaper (n. 55 above), p. 36. 75. See notes 48-57 above and accompanying text. 76. White Paper (n. 55 above), p. 41. This document notes that the Chinese had previously made claims to the Paracels on a rather sporadic basis. "Since 1909, China has made sporadic claims over the islands. On one occasion during that year, the provincial authorities of Kuan Tung sent gun-boats to conduct a reconnaissance mis- sion there. On March 21, 1921 the Governor of Kuang Tung signed a peculiar decree annexing the Hoang Sa islands to the Chinese island of Hainan. However, his action went unnoticed because it was recorded only in the provincial gazette; therefore, nobody could know about it in order to make comments or to protest. Although not followed by occupation of any sort ..." (pp. 40-41). 77. Vietnam responded to this Chinese claim as follows: "It may be true that, as in other periods of history, Vietnam was then a nominal vassal of China (although it was never quite certain that by this reply China implicitly recognized that Vietnam had asserted its claim to the Hoang Sa islands). The Chinese government also ap- peared confused about the legal distinction between suzerainty and sovereignty; even if Vietnam was a vassal state of China in 1816, the formal relationship of suzerainty could not preclude such Vietnamese acts of sovereignty as the incorporation of new territories" (ibid.). 78. The column on Pattle Island bears the following inscription: "R6publique Francaise/Empire d'Annam/Archipel des Paracels/1816-Ile de Pattle-1938" (ibid., pap.40-41). ).

79. Ibid., p. 43. 80. Ibid. 81. Ibid., pp. 47-52. 82. Ibid., p. 54. 83. Ibid. 84. Ibid., pp. 90-93: "In the naval battle, the soldiers of the Republic of Viet- nam ... were outnumbered and outgunned. They suffered 18 deaths and 43 wounded, and, in addition, 48 Vietnamese personnel were ... detained by the PRC's invaders. Among those were four civilian employees of the Pattle Meteorological Station." 85. La Grange (n. 5 above), p. 32.

86. See Prescott, Maritinze Jurisdiction (n. 15 above), pp. 39-41. 87. Ibid., p. 40. See also Sammuels (n. 8 above), pp. 162-63: "The possibility of a dispute between China and Malaysia over the southern reaches of the Chinese claim to the Spratlys is made evident by Malaysia's use of the 200-meter contour line to delineate the continental shelf-a line that overlaps the area claimed by China. The importance of the latter is itself largely a function of the increasingly important role played by the Sarawak fields, in the rise of Malaysia's status as a major oil producer in Southeast Asia. According to one report in 1979, for example, Exxon and Royal Dutch Shell were given instructions to increase output in the Sarawak fields to 300,000 b/d. Perhaps for this reason Kuala Lumpur and Peking have avoided any public confrontation over their respective claims, choosing instead to seek closer relations since 1974. For that matter, except to include Tsengmu and several other shoals, China has never carefully delineated its claim in the area. And, perhaps by the way of some compromise, all ROC and the occasional PRC maps of the area indicate a boundary approximately mid-way between Tsengmu and two smaller shoals in Malay- sian waters." 88. Sammuels (n. 8 above), pp. 154-55: "The actual or potential offshore oil reserve of the South China Sea is ... a principal factor in the dispute over the islands and their waters. Indeed, for many analysts, this alone suffices to provide the essential incentive to conflict over the area." 89. Ibid., p. 155.

90. Ibid., pp. 155-56. 91. Agence France Presse, Malaysia Has Troops (n. 23 above). This was the first acknowledgment by Malaysia of military occupation of any of the islands in the Spratlys. There were two officers and 25 men stationed on Turumbu Layang-Layang (Swallow Reef). In addition, one officer and eight men landed on an island identified as Turumbu Matanani, and a contingent of equal number landed on Turumbu Ubi in November 1986. At the time of this announcement, the deputy foreign minister indicated that his government was quite willing to negotiate with the Republic of China over their competing claims to the disputed South China Sea archipelago. In spite of this conciliatory posture, the Malaysian position has been that its decision to occupy the three atolls is founded in international law and practice. 92. Deutsche Presse-Agentur (n. 24 above). 93. La Grange (n. 5 above), p. 25, citing Presidential Decree no. 1596, Official Gazette (Republic of the Philippines) 75, no. 8 (19 February 1979): "WHEREAS, by reason of their proximity the cluster of islands and islets in the south China Sea situated within the following (boundaries) are vital to the security and economic survival of the Philippines; WHEREAS, these areas do not legally belong to any state or nation but, by reason of history, indispensable need, and effective occupation and control established in accordance with international law, such areas must now be deemed to belong and subject to the sovereignty of the Philippines; WHEREAS, while other states have laid claims to some of these areas, their claims have lapsed by abandonment and cannot prevail over that of the Philippines on legal, historical, and equitable grounds." 94. See note 17 above and accompanying text. 95. La Grange (n. 5 above), p. 26, citing Lee Lai-to, "The PRC and the South China Sea," Current Scene 15, no. 2 (February 1977): 6.

96. La Grange (n. 5 above), p. 26. 97. Ibid., p. 19. 98. United Nations Convention on the Law of the Sea (10 December 1982), UN document A/Conf. 62, reprinted in International Legal Materials 21 (1982): 1261, hereinafter 1982 Convention. See Law of the Sea: United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea, UN document A/Conf. 62/122, sales no. E.83.V.5. 99. 1982 Convention (n. 98 above), Art. 121: "Regime of Islands: 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."

100. See, for example, Derek Bowett, The Legal Regime of the Islands in Interna- tional Law (Dobbs Ferry, New York: Oceana Publications, 1979), pp. 8-9, 33-34, 284; Jon M. Van Dyke and Robert A. Brooks, "Uninhabited Islands: Their Impact on the Ownership of the Ocean's Resources," Ocean Development and International Law 12 (1983): 265. For an interesting discussion of the relationship between some of the issues not addressed by the 1982 Convention, see Robert L. Friedheim and Robert E. Bowen, "Neglected Issues at the Third United Nations Law of the Sea Conference," Law of the Sea: Neglected Issnes, ed. J. K. Gamble, Jr. (Honolulu: Law of the Sea Insti- tute, 1979), pp. 2-36. 101. See Joseph R. Morgan, "Marine Regions and Regionalism in Southeast Asia," Marine Policy 8 (1984): 299, 300. See also Jon M. Van Dyke, Joseph R. Morgan, and Jonathan Gurish, "The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?" San Diego Law Review 25 (1988): 425, 433-35. Part of the discussion that follows builds upon the analysis in this article, adopted as appropriate. 102. League of Nations Conference for the Codification of International Law, League of Nations document C 230.M.117.1930.V (1930), p. 219. 103. Convention on the Territorial Sea and Contiguous Zone (29 April 1958), Art. 10(1), UST 15:1606, TIAS 5639, United Nations Treaty Series (UNTS) 516:205. 104. See Art. l(b) of the Convention on the Continental Shelf, done in Geneva (29 April 1958), UST 15:471, TIAS 5578, UNTS 499:311. 105. Ibid., Art. 6. 106. Ibid., Art. 6(1). See, for example, Case concerning the Delimitation of the Conti- nental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (decision of 30 June 1977), Par. 202 (location of the Channel Islands constitutes a "special circumstance"), reprinted in International Legal Materials 18 (1979): 397, hereinafter Anglo-French arbitration. Although the term "special circumstances" was left undefined in the Continental Shelf convention, at least one delegate to the First United Nations Conference on the Law of the Sea (UNCLOS I) in Geneva noted that "size, position and importance may well be deciding criteria in assessing whether or not any particular island should be

taken into account when forming a sea boundary" (statement of H. R. Kennedy, delegate to UNCLOS I, reprinted in Van Dyke and Brooks [n. 100 above], p. 276). Factors relevant to determining when an island is to be given a reduced effect on maritime boundaries have been dealt with on a case-by-case basis. "The experience at Geneva [leading to UNCLOS I] reveals that while there was widespread agreement that the presence of islands might be a special circumstance, there was no agreement concerning possible criteria that might be used to determine whether any islands should be included or not" (Clive R. Symmons, The Maritime Zones of Islands in Interna- tional Law [The Hague: Martinus Nijhoff, 1979], p. 282 n. 128, quoting David J. Padwa, "Submarine Boundaries," International and Comparative Law Quarterly 9 [ 1960]: 628, 648). For a summary of the controversy over whether the "equidistance" or "equitable" approach should be applied to the maritime boundaries of offshore is- lands, see Sherry Broder and Jon M. Van Dyke, "Ocean Boundaries in the South Pacific," University of Hawaii Law Review 4 (1982): 1, 4-5. 107. For a more detailed account of proposals on the regime of islands, see Van Dyke and Brooks (n. 100 above), pp. 280-85 and accompanying notes. 108. Ibid., p. 281. 109. 1982 Convention (n. 98 above), Art. 121(1). ). 110. Vienna Convention on the Law of Treaties (23 May 1969), Art. 31(1), UN document A/Conf. 39/27, reprinted in American Journal of International Law 63 (1969): 875. 111. See, for example, Robert D. Hodgson and Robert W. Smith, "The Informal Single Negotiating Text (Committee II): A Geographical Perspective," Ocean Develop- ment and International Law 3 (1976): 225.

112. Webster's Third New International Dictionary (Springfield, Mass.: G. and C. Merriam Co., 1971). See also Hodgson and Smith (n. Ill above), p. 230 ("it is fairly obvious that 'rock' is intended to refer to a small-sized island"). 113. United States Naval Oceanographic Office, Navigation Dictionary, 2d ed. (1969). 114. Ibid., p. 114. 115. Ibid. 116. Ibid. 117. For example, Gidel criticized one of the first definitions offered by the International Law Commission, which was stated in purely geographical terms. He proposed instead that an island be required to have natural conditions "permettent la residence stable de groupes humaines organises" (permitting stable residence of organized human groups; Van Dyke and Brooks [n. 100 above], p. 272, citing B. Gidel, Le Droit International Public de la Mer 3 [1934]: 684). 118. Article 121(3) indicates that two categories of "rocks" exist: (1) those that cannot sustain human habitation or economic life of their own, and (2) those that can sustain either or both (1982 Convention [n. 98 above], Art. 121[3]).

119. Van Dyke and Brooks (n. 100 above), pp. 272, 288; Jenny Heins, "The Role of Insular Formations in the Generation and Delimitation of Maritime Zones," Sea Changes (Cape Town) 2 (1985): 63, 72. 120. Symmons recognizes the importance of "habitability" when he discusses the complaint made by the delegate of Fiji. Fiji argued that the adoption of a habitability requirement would discriminate against island nations because no one had suggested that a continental nation should be deprived of ocean resources adjacent to any of its uninhabited land areas. Symmons responds by observing that "even if a continental territory has no coastal settlements, it will at least have some populated area as in a unitary land mass. Where there is no unitary land mass, however, as in the case of an island group, it is by no means self-evident on grounds of fairness and equity that the uninhabited 'islands' of the group should be treated as generously as those inhabited, particularly in light of the development of the 200-mile EEZ" (Symmons [n. 106 above], p. 48). 121. An analogy can be drawn from the way in which artificial islands are treated in the 1982 Convention (n. 98 above). Article 60(8) explicitly states that artificial islands, installations, and structures do not generate Territorial Seas of their own or "affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf." The obvious reason for this provision was to discourage nations from building artificial islands solely to expand their jurisdiction over ocean resources. Similarly, Article 121(3) should be interpreted to discourage nations from populating their uninhabited insular possessions solely to expand their jurisdiction over ocean resources.

122. A historic claim to surrounding waters could be based on facts showing that (1) surrounding communities have relied on the waters for fishing and navigation, (2) the waters were previously unclaimed prior to the drafting of the 1982 Convention, and (3) other states have acquiesced to such extended and exclusive usage. Cf. Fisheries Case (United Kingdom v. Norway), International Court of Justice (1951): 115, 133 ("[O]ne consideration not [to] be overlooked, the scope of which extends beyond purely geo- graphical factors, [is] that certain economic interests [are] peculiar to the region, the reality of which are clearly evidenced by long usage"). Many island communities in Micronesia, for instance, have used nearby uninhabited atoll islands for fishing bases. The growing population in this area will make these fishing areas increasingly im- portant. 123. Cf. Secretariat, International Law Commission, "Judicial Regime of Histori- cal Waters, including Historic Bays," UN General Assembly, Official Records 14, UN document A/Conf. 4/143 (1962), p. 52. 124. For example, negotiations have taken place between the United States and Venezuela over islands in the Caribbean; see Kaldone G. Nweihed, "EZ (Uneasy) Delimitation in the Semi-enclosed Caribbean Sea: Recent Agreements between Vene- zuela and Her Neighbors," Ocean Development and International Law Journal 8 (1980): 1, 21; between Japan and Korea over the Danjo Gunto and Toishima formations, see Choon-Ho Park, "Oil under Troubled Waters: The Northeast Asia Sea Bed Contro- versy," Harvard International Law Journal 14 (1973): 212, 223, 239; between Italy and Yugoslavia over the Pelagruz (Pelagasa) and Cailoa islands, see Symmons (n. 106 above), p. 194; and between Saudi Arabia and Iran over Al 'Arabia, see Symmons (n. 106 above), p. 194, and International Legal Materials 8 (1969): 493. There have been several disputes submitted to international arbitration. See, for example, Anglo-French arbitration (n. 106 above). Norway and Iceland submitted the problem of delimiting the maritime boundary between Iceland and the Norwegian island possession of Jan Mayen to conciliation. See "Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Committee on the Continental Shelf Area between Iceland and Jan Mayen" (1980), International Legal Materials 20 (1981): 797. Chile and Argentina submitted the Beagle Channel dispute to the Vatican for determination of the territorial and maritime boundary in the area (Treaty of Peace and Friendship, International Legal Materials 24 [1985]: 11).

125. See, for example, the statements of the Iranian and Italian delegations at the 1958 Geneva negotiations, where they both argued that maritime boundaries should be the median lines between the continental areas of countries and that islands should not have any influence on the boundaries (Gerard J. Tanja, The Legal Determina- tion of International Maritime Boundaries [Deventer, The Netherlands: Kluwer, 1990], p. 41 n. 114, quoting from the 32d meeting, Committee IV (9 April 1958), Off. Rec., VI, pp. 93-94, and 33d meeting, Committee IV, ibid., p. 96). See also Tanja's (pp. 78-80) summary of the views of other commentators, such as Shigeru Oda (now judge on the International Court of Justice), who wrote in 1968 that "taking into account the existence of all islands in drawing the median line is not conceivable" (Shigeru Oda, "Boundary of the Continental Shelf," Japanese Annual of "International Law 12 [1968]: 280-83). 126. International Court of Justice (1969): 3. 127. Ibid., pars. 43, 45. 128. Ibid., par. 57. 129. Anglo-French arbitration (n. 106 above). 130. Ibid., 408-9, par. 6.

131. Ibid. 132. Ibid., p. 440, par. 173. Geological evidence indicates that the Channel Is- lands are part of the physical landmass of Brittany and Normandy. See Symmons (n. 106 above), p. 138. These islands have a total land area of 195 km2 and a population of 130,000. See Bowett (n. 106 above), p. 195. Politically, the Channel Islands are British dependencies, not constitutionally part of the United Kingdom (p. 441, par. 184). 133. This solution created the first true total enclave of a Continental Shelf in state practice (Bowett [n. 100 above], p. 206). 134. Anglo-French arbitration (n. 106 above), p. 442, par. 189. "In the opinion of the Court ... such an interpretation of the situation in the Channel Islands region would be as extravagant legally as it manifestly is geographically" (par. 190). 135. Ibid., p. 443, par. 194. 136. Ibid., p. 441, par. 184. 137. Ibid., pp. 450-51, par. 227. 138. Ibid., p. 455, par. 249. 139. Bowett (n. 100 above), p. 215, citing International Legal Materials 18: 455, par. 251. 140. Bowett (n. 100 above), pp. 223-24.

141. Northcutt Ely, "Seabed Boundaries between Coastal States: The Effect to Be Given Islets as 'Special Circumstances,"' International Law 6 (1971): 219, 227-28; Hiran W. Jayewardene, The Regime of Islands in International Law (Dordrecht, The Netherlands: Martinus Nijhoff, 1990), pp. 412-13. 142. Ely (n. 141 above), p. 229; Bowett (n. 100 above), p. 215, citing U.S. State Department Office of the Geographer, Limits in the Sea, no. 24; Jayewardene (n. 141 above), pp. 403-4. 143. J. R. V. Prescott, The "Maritime Political Boundaries of the World (London: Methuen, 1985), p. 191. 144. Australia-Papua New Guinea: Treaty on Sovereignty and Maritime Bound- aries in the Area between the Countries (18 December 1978), International Legal Materi- als 23 (1984): 291. 145. Prescott, Maritime Political Boundaries (n. 143 above), p. 191. 146. See map in ibid., pp. 194-95. 147. Tunisia-Libya Continental Shelf Case, in lnterreational Court of Justice (1982): 89, par. 129. 148. The court drew a delimitation line between Tunisia and Libya in two sectors to adjust for a change in the general direction of the Tunisian coastline. The first sector extended seaward from the land boundary between Tunisia and Libya at Ras Ajdir, roughly perpendicular to the coast at an angle approximately 26° east of north. Instead of continuing the line at that angle to the edge of the shelf, the court deflected the line eastward in a second sector to give Tunisia more Continental Shelf area because of the change in Tunisia's coastline. The angle of deflection, however, was less than it would have been had the seaward boundary of the Kerkennah Islands been used to represent the direction of the coast. The Kerkennah boundary-line angle

was averaged together with a hypothetical coastline angle that would properly have represented the coast were no islands present. See, generally, Donna R. Christie, "From the Shoals of Ras Kaboudia to the Shores of Tripoli: The Tunisia/Libya Conti- nental Shelf Boundary Delimitation," Georgia Journal of International and Comparative Law 13 (1983): 1, 19. 149. Gulf of Maine Case, in International Court of Justice (1984): 246, 336-37, par. 227. 150. Ibid., p. 336, par. 221. 151. Ibid., par. 222. 152. The court stated: "The Chamber considers that Seal Island (together with its smaller neighbour, Mud Island), by reason both of its dimensions and, more partic- ularly, of its geographical position, cannot be disregarded for the present purpose. According to the information available to the Chamber it is some two-and-a-half miles long, rises to height of some 50 feet above sea level, and is inhabited all the year round. It is still more pertinent to observe that as a result of its situation off Cape Sable, only some nine miles inside the closing line of the Gulf, the island occupies a commanding position in the entry to the Gulf" (ibid., pp. 336-37, par. 222). 153. No explanation was given for the determination that "it would be excessive" (ibid). 154. Ibid. 155. Libya-Malta Continental Shelf Case, in International Court of J�ustice ( 1985): 13. 156. Ibid., 48, par. 64. After referring to the statement in the North Sea Continen- tal Shelf Case quoted in the text at note 128 above, the court stated: "The Court thus finds it equitable not to take account of Filfla in the calculation of the provisional median line between Malta and Libya." Filfla has been used for target practice in previous years and is now a bird sanctuary (interview with Arvid Pardo, Honolulu [ 18 May 1988]).

157.Libya-MaltaContinentalShelfCase (n. 155 above), p. 49, par. 66. 158. Ibid., p. 52, par. 73. One commentator has described what the court did as follows: "To determine the amount the boundary must be shifted toward Malta, the Court calculated a minimum displacement (that is, pure equidistance), a maximum (the equidistant line between Libya and Sicily, determined by ignoring Malta alto- gether), and a splitting of the difference between the two. The Court finally declared, without explanation, that shifting the equidistance line between Malta and Libya due north by a distance of 75 percent of the difference would be 'equitable'" (John Briscoe, "The Use of Islands in International Maritime Boundary Delimitation," in Rights to Oceanic Resources, ed. D. G. Dallmeyer and L. DeVorsey, Jr. [Dordrecht, The Nether- lands: Martinus Nijhoff, 1989], pp. 115, 141). 159. Libya-Malta Continental Shelf Case (n. 155 above), p. 53, par. 74. 160. Ibid., par. 75. 161. Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (award of 14 February 1985), International Legal Materials 25 (1986): 252. 162. Ibid., pars. 103, 106-7. 163. Ibid., par. 120.

164. See notes 141 and 143-46 above and accompanying text. 165. Jayewardene (n. 141 above), pp. 372-488. 166. Ibid., pp. 408-9, 437-38, discussing the agreement of 20 March 1969, published in International Boundary Series, series A, no. 18, U.S. Geographer, Depart- ment of State. 167. Jayewardene (n. 141 above), pp. 439-40, discussing the agreement signed on 20 August 1971, which entered into force on 6 December 1978. 168. The Italy-Tunisia treaty gives three of the four Italian islands on the Tuni- sian side a 1-nm Continental Shelf in addition to their Territorial Seas. 169. See Jayewardene (n. 141 above), pp. 418-19, referring to the agreement of 27 October 1969, International Boundary Series, series A, no. 1, U.S. Geographer, Department of State. 170. Jayewardene (n. 141 above), pp. 450-51, referring to the agreement of 20 November 1976. 171. Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, International Legal Materials 20 (1981): 797; see ibid., pp. 457-61; Briscoe (n. 158 above), pp. 135-36; Tanja (n. 125 above), pp. 274-78.

172. See Presidential Declaration concerning the Continental Shelf (23 June 1947), Art. 1, reprinted in A. Szekely, "Chile," p. 13, and law no. 17, 094-M24 (29 December 1966), Art. 1, reprinted in A. Szekely, "Argentina," p. 20, both in Latin America and the Developments of the Law of the Sea (Dobbs Ferry, NY: Oceana, 1980). 173. Treaty of Peace and Friendship (Chile/Argentina), International Legal Mate- rials 24 (1985): 11, 12; "Papal Proposal in the Beagle Channel Dispute: Proposal of the President" (12 December 1980), International Legal Materials 24 (1985): 7. 174. See Treaty of Peace and Friendship (n. 173 above), Art. 7. The uninhabited islands of Evout, Barnevelt, and Horn generate only 12-nm zones ("Papal Proposal" [n. 173 above], Art. 4 [A] [b] [4]). 175. See Jayewardene (n. 141 above), pp. 373-74, referring to the agreement of 25 May 1973, International Boundary Series, series A., no. 60, U.S. Geographer, Department of State. 176. Jayewardene (n. 141 above), pp. 395, 402, referring to the agreement of 20 September 1969, International Boundary Series, series A, no. 25, U.S. Geographer, Department of State. 177. Jayewardene (n. 141 above), pp. 397-98, referring to the agreement of 22 February 1958, International and Comparative Law Quarterly 7 (1958): 518. 178. Jayewardene (n. 141 above), pp. 405-7, 426, referring to the agreement of 31 August 1974, Interreational Boundary Series, series A, no. 63, U.S. Geographer, Department of State. 179. Jayewardene (n. 141 above), pp. 431-32, 477, referring to the agreement of 17 December 1973, International Boundary Series, series A, no. 72, U.S. Geographer, Department of State. 180. A significant exception is the recent negotiations carried out by the United States with Venezuela and Mexico in which full effect was given to small islands. See Maritime Boundary Treaty between the United States of America and the Republic of Venezuela (done 28 March 1978, entered into force 24 November 1980), TIAS 9890; Treaty on Maritime Boundaries between the United States and the United Mexican States, S. Exec. Doc. F, 96th Cong., 1st sess. (1979); Mark Feldman and

David Colson, "The Maritime Boundaries of the United States," American Journal of International Law 75 (1981): ): 729, 735, 740. The United States accepted the Venezuelan and Mexican claims not out of altru- ism, but because it felt that it had much to gain in other maritime boundary disputes if all small islands were allowed to generate 200-nm zones without limitation. See generally Van Dyke, Morgan, and Gurish (n. 101 above). One commentator has said that the giving of full effect by the United States to "as tiny an island as [Venezuela's] Aves Island" is "without precedent in delimitation practice" (Tanja [n. 125 above], p. 136). For other examples of agreements that have used tiny insular formations as base points for determining equidistance lines in resolving boundary disputes, see Sym- mons (n. 106 above), pp. 190-91. 181. In 1992 tensions arose again between China and Vietnam when China's National People's Congress passed a territorial-waters law asserting China's right to use military power to control the Spratly and Paracel Islands and subsequently erected a new marker claiming sovereignty on one of the Spratly reefs (Los Angeles Times Service, "Vietnam, China Feuding," Honolulu Advertiser [4 July 1992]: p. B-1, col. 1; Associated Press, "Spratly Dispute Escalates," Honolulu Advertiser [9 July 1992]: p. D-1, col. 3). During this same period, a meeting was held in Jogjakarta, Indonesia-attended by representatives of Brunei, China, Indonesia, Laos, Malaysia, the Philippines, Singa- pore, Taiwan, Thailand, and Vietnam-at which the delegates pledged not to use force in resolving overlapping claims in the South China Sea and to study whether resources there could be developed jointly (Star Bulletin News Services, "Spratly Is- lands Rivals Urge No Force on Claims," Honolulu Star-Bulletin [2 July 1992]: p. A-15, col. 1).

182. See the text at note 7 above. Tai Ping Dao in the Spratlys apparently now has 600 Taiwanese troops. See note 17 above. 183. 1982 Convention (n. 98 above), Art. 121(3). 184. Ibid., Art. 121(1)-(2). 185. Van Dyke, Morgan, and Gurish (n. 101 above), pp. 437-39, 486-87. 186. 1982 Convention (n. 98 above), Art. 121.


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