Application of the Principles of International Law to the Chinese and Vietnamese Claims to the Vanguard Bank and Blue Dragon Areas

By Brice M. Clagett
Covington & Burling, Washington, DC

   The Chinese Claim Based on Its Alleged Sovereignty Over the Spratlys

   Table 1: Proportionality Study Results Based on Figure 1.

   'Historic Waters'

Analysis of Vietnam's Potential Claims

   200-Mile Minimum

   Natural Prolongation Beyond 200 Miles

   Equidistance Between Opposite Coasts

   Table 2: Proportionality Study Results Based on Figure 3.

Prospects for Resolution of the Dispute

Analysis of Chinese Claims

The extent of the Chinese claims in the South China Sea was outlined in Part I. As was explained, China not only asserts its rights to sovereignty over all of the Spratlys and Paracels, but apparently asserts claims to virtually all of the waters in the South China Sea.121 The Chinese claims would slice off all but approximately 60 nautical miles of Vietnam's continental shelf, including the Vanguard Bank and Blue Dragon areas. The fact that China claims the Blue Dragon block is confirmed by the fact that China contested Vietnam's licensing that field in the spring of 1994. 122

Does international law provide any support for China's extensive claims to virtually the entire South China Sea? Chinese spokesmen appear to offer two bases for China's claims; first, its alleged sovereignty over the Spratlys and Paracels and its concomitant right to their territorial waters and continental shelf, and second, a cryptic suggestion that almost the entire South China Sea constitutes "historic waters' that belong (in some undefined sense) to China. 123

The Chinese Claim Based on Its Alleged Sovereignty Over the Spratlys

China claims that it is the legitimate sovereign of the Spratlys and Paracels, and that those islets are entitled to full credit as basepoints in an equidistance delimitation.124 Most disinterested scholars prefer not to take a definitive position with respect to which country has the better claim to sovereignty over the islets.125

The Spratly land formations located closest to the Blue Dragon block and the Vanguard Bank area - Spratly Island and one or more high-tide elevations in the London Reefs - are occupied by Vietnam, not China. Indeed, while Vietnam occupies at least nine high-tide elevations in the Spratlys, China does not occupy a single one of those which have been seen here to be clearly in that category, and has never occupied any of them, at least in modern times.126 While China in the last few years has placed certain military installations at several locations in the Spratly area, some and perhaps all of those locations have been submerged reefs or, at most, low-tide elevations, which under international law are entitled to command no maritime space.

Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.127

To the extent that China has transformed any of these locations into high-tide elevations, such fixtures are not recognised or given any effect by international law.128

Each of the Spratly natural high-tide elevations probably falls within the provisions of Article 121(3) of the LOS Convention, which denies any entitlement to seabed, beyond the 12-mile territorial sea, to '[r]ocks which cannot sustain human habitation or economic life of their own'. However, because of an arguable ambiguity in the term 'rocks', and because Article 121 has not yet been the subject of any interpretation by courts or other authoritative bodies, that conclusion cannot be taken as certain, and some commentators have expressed doubt as to whether Article 121(3) would be applied to all of the Spratlys.129

As has been shown, however, 130 wholly aside from Article 121(3), application of the fundamental principles of maritime-boundary delimitation requires that tiny islets such as the Spratlys not be allowed to command substantial areas of maritime space when that result would create a 'disproportionately distorting effect'.131 The weight of the scholarly literature concludes that, for that reason, the Spratly high-tide elevations would be limited to narrow maritime belts, such as 12-mile territorial seas.132 In fact, it is difficult to find a reasoned analysis that takes a contrary view.133

It can readily be demonstrated that a South China Sea delimitation of the type implicit in China's claim would produce a 'disproportionately distorting effect'. Figure 1 shows a hypothetical delimitation in which it is assumed that China is the sovereign of all the Spratlys and Paracels, as it claims to be, and in which equidistance lines are drawn that give each undoubted Spratly and Paracel high-tide elevation full effect as a basepoint.134 In this scenario, Vietnam's Catwick Islands are also given full effect, since plainly the Catwicks are entitled to no less favourable treatment than are the Spratlys and Paracels. All other high-tide elevations, however small, are likewise given full effect.

With the assistance of cartographers (mentioned in Part I), the author has made a proportionality study of the tentative boundaries shown on Figure 1, using the following assumptions and procedures, in conformity with the legal principles established by the decided cases:

The relevant area has been defined as it is believed a court would define it. It is bounded by the coastlines of the states surrounding the South China Sea and by lines across the Formosa Strait, within the Philippines, across the Gulf of Tonkin, and from the southern tip of Vietnam to Borneo to exclude the Indonesian archipelagic waters and the Gulf of Thailand lying west and southwest of that line. The excluded areas should not be deemed relevant to a South China Sea delimitation, because they involve different geographic relationships between or among states and because excluded coastlines cannot command any of the relevant area on equidistance or other principles.

The relevant coastlines have been identified (along with the boundaries of the relevant area) and have been measured by the general-directional dashed lines on Figure 1.135 Courts exercise considerable discretion both in determining the relevant area and in selecting general-directional lines to represent the relevant coastlines. It is believed that a court would make selections quite similar to those made here. For purposes of a proportionality study, such similarity is entirely adequate, because as has been seen, only a rough degree of proportionality is required.136 Minor variations in the identification of the relevant area or in the selection of general-directional lines to represent the coasts cannot cause enough difference in the results to change the outcome of a proportionality study.

As has been noted, for the limited purpose of this study it has been assumed that China owns all of the Spratlys and Paracels. The total coastlines of those islets (a total of approximately 29 miles) have therefore been included in measuring china's coastline.137

Using these boundary assumptions most favourable to China, the proportionality results are as shown in Table 1.

Table 1: Proportionality Study Results Based on Figure 1.

The 'disproportionately distorting effect' of the Spratlys and Paracels on the Figure 1 hypothetical boundaries is obvious. China, with 29.9 per cent of the relevant coastline, receives almost twice as much - 54.6 per cent - of the relevant area. Vietnam, with 24.1 per cent of the coastline, receives little more than half as much - 14.8 per cent - as would be appropriate on the basis of proportionality. Malaysia and the philippines are similarly disadvantaged. Only Indonesia, because of its location outside the area of any possible effect of the Spratlys, escapes from the disproportionality to which the other three non-Chinese states are subjected.

It is certain that a court, when confronted with the consequences of giving equidistance effect to the Spratlys and Paracels as demonstrated on Figure 1, would conclude that such a method results in a wholly unacceptable degree of disproportionality and produces a solution that is patently and grossly inequitable. Testing the consequences of accepting China's position, therefore, would confirm the court in deciding to limit the Spratlys and Paracels to 12-mile territorial seas.138

 It is notable, of course, that even the hypothetical boundaries on Figure 1 fall considerably short of giving China everything it claims. In particular, the Figure 1 lines, while awarding China approximately three-fifths of the Vanguard Bank area, leave the rest of that area to Vietnam. The Blue Dragon field is entirely within - and well within - Vietnam's waters even pursuant to the Figure 1 hypothetical boundaries. Since the Figure 1 lines are the most aggressive that China could claim on any rational theory whatever, Figure 1 demonstrates that China's claim to the entire Vanguard Bank area, and to Blue Dragon, has no substance or merit whatever.

The more important conclusion from the exercise just performed, however, is that China's claim, based on using the Spratlys and Paracels as equidistance basepoints, would be rejected by any court applying either the LOS Convention or customary international law. The Chinese claim is radically in conflict with the most fundamental principles of the international law that governs continental-shelf entitlement and maritime-boundary delimitation.

It is also useful to consider the Chinese and Vietnamese claims to the Blue Dragon and Vanguard Bank areas with reference to the Beijing South China Sea Institute bathymetric chart discussed in Part I.139 When the co-ordinates for the Blue Dragon and Vanguard Bank areas are plotted onto the Chinese chart, the implausibility of a claim based on a shared 'continental shelf' between Spratly Island and Blue Dragon or the Vanguard Bank area is clear.

The Blue Dragon block lies between the 100- and 150-metre isobaths. Thus, Blue Dragon rests squarely on Vietnam's shelf even in the narrow sense of that term.140 China cannot plausibly argue that it is entitled to Blue Dragon based on any claim to ownership of Spratly Island. (For the sake of argument, ignore the fact that Vietnam occupies Spratly Island and assume that China owns it; also ignore the fact that Blue Dragon is much closer to Vietnam's Catwick Islands than it is to Spratly Island.) Spratly Island is the tip of an underwater plateau that rests on an 1800-metre abyssal plain. Thus, to trace the bathymetric path between Spratly and Blue Dragon, one would need to start on the Spratly shoreline, descend 1,800 metres to the abyssal plain, cross the abyssal plain, and then climb 1,600 metres past Vietnam's continental rise, up Vietnam's continental slope, and onto Vietnam's continental shelf (in the narrow sense) to reach Blue Dragon. Thus it can be concluded that, on any definition of a continental shelf, or on any reasonable view of international law, China's claim to Blue Dragon is absurd.

It can be concluded that China's claim to the Vanguard Bank area is only slightly less implausible than its claim to Blue Dragon. The Vanguard Bank area, which abuts Blue Dragon to the east, lies primarily on Vietnam's continental slope and (perhaps) its continental rise. The Vanguard Bank area begins approximately at the 150-metre isobath and descends to and terminates on the 1,800 to 2,000-metre abyssal plain that it shares with Spratly island. But China can scarcely derive any support from the fact that Spratly and the Vanguard Bank area share the same abyssal plain. The Spratly slope is opposite, not adjacent to, the Vietnamese slope.

'Historic waters'

So far as appears, the Chinese government has never explained the basis or the origin of its extended maritime claim to the South China Sea that is apparently represented by the nine broken lines appearing on the 1984 Beijing South China Institute chart and elsewhere.141 One scholar, who researched the issue, was unable to find any official interpretation, explanation or justification for these lines, which he found to have first appeared on Chinese maps in the 1950s.142 Others who have investigated the issue have been no more successful in pinning down the 'historic waters' claim.143 Nor has the Chinese government ever given any explanation of the nature of its claim; that is, what, if any, legal rights it claims in the water areas or seabed within the nine broken lines.144

Rather than propounding and supporting a 'historic waters' claim, China has in fact made statements, and taken official acts of great formality, that are plainly inconsistent with any such claim. On 4 September 1958, in the wake of the Convention on the Territorial Sea and the Contiguous Zone,145 and in the midst of the crisis over Quemoy and Matsu, China issued a Declaration on China's Territorial Sea that on its face is flatly inconsistent with a 'historic waters' argument. The Declaration reads in material part as follows:

The Government of the People's Republic of China declares:

The breadth of the territorial sea of the People's Republic of China shall be twelve nautical miles. This provision applies to all territories of the People's Republic of China, including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Tungsha Islands, the Hsisha Islands, the Chungsha Islands, the Nansha [Spratly] Islands, and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.

China's territorial sea along the mainland and its coastal islands takes as its baseline the line composed of the straight lines connecting basepoints on the mainland coast and on the outermost of the coastal islands; the water area extending twelve nautical miles outwards from this baseline is China's territorial sea. The water areas inside the baseline, including Pohai Bay and the Chiungchow Straits, are Chinese inland waters. The islands inside the baseline, including Tungyin Island, Kaoteng Island, the Matsu Islands, the Paichuan Islands, Wuchiu Island, the Greater and Lesser Quemoy Islands, Tatan Island, Ehrtan Island and Tungting Island, are islands of the Chinese inland waters.

The principles provided in paragraphs (2) and (3) likewise apply to Taiwan and its surrounding islands, the Penghu Islands, the Tungsha Islands, the Hsisha Islands, the Chungsha Islands, the Nansha [Spratly] Islands, and all other islands belonging to China.146

In this declaration, which the distinguished Chinese Law Professor Wang Tie-ya once called the "most important legal document concerning the sea which China has ever issued,"147 China did not claim the huge water area within the nine-broken-lines 'boundary', but claimed only the waters adjacent to the lands and specific islands over which it claimed sovereignty.148 Moreover, China expressly asserted that the Spratlys were among the 'islands belonging to China which are separated from the mainland and its coastal islands by the high seas.' That assertion is , of course, wholly inconsistent with any claim that the Spratlys are connected to the distant Chinese mainland by 'historic waters' rather than by 'high seas'.

China's failure to assert a 'historic waters' claim in 1958- and indeed its express repudiation of any such claim - is underscored by China's failure to articulate any position on the issue of the continental shelf before 1970.149 China asserted its first claim regarding the shelf that year in response to a proposal by Korea and Japan to develop their seabed. China's first elaborated statement on the continental shelf was not issued, however, until July 1973, in its proposed 'Working Paper on Sea Area Within the Limits of National Jurisdiction,'which was submitted to a subcommittee of the UNCLOS III Seabed Committee.150 Although the Chinese proposal limited the EEZ to a maximum breadth of 200 nautical miles, it suggested that no comparable limitation be made with respect to the continental shelf, preferring instead to leave such limitations to what a state 'might reasonably define, according to its geographical conditions' and to consultations among states.151

In a declaration to the Vietnamese during negotiations in 1979, the head of the Chinese delegation, Vice-Foreign Minister Han Nian-long, proposed, as the fourth point of an eight-point proposal:

[E]ach side shall respect the other side's sovereignty over its twelve-nautical-mile territorial sea, and the two sides shall demarcate their respective economic zones and continental shelves in the Beibu Gulf [Gulf of Tonkin] and other sea areas in a fair and reasonable way in accordance with the relevant principles of present-day international law of the sea.152

This declaration constitutes a formal statement by the Chinese government, reported by the official Chinese press, that China was prepared to accept the principles of the internationally recognized law of the sea as a basis for its negotiations with Vietnam on the continental shelf in the south China Sea. Although this fourth point does not purport to extend Chinese recognition of the law of the sea beyond the immediate context of "handling the relations between China and Vietnam", it nevertheless is inconsistent with a claim to extended "historic waters" in the South China Sea.153

During the following year, when China engaged in a verbal battle with Vietnam over their relative rights to the Spratlys and Paracels, China did not purport to base its claim on possession of "historic waters". 154

Further undercutting any "historic waters" claim is China's 1992 Law on the Territorial Sea and the Contiguous Zone. 155 Like the 1958 Declaration, the 1992 Law lays claim only to a 12-mile territorial sea surrounding the lands over which it claims sovereignty, plus an additional 12-mile contiguous zone for customs and similar purposes. The Law does not identify a "historic sea" or any basis for maritime jurisdiction other than the maritime belts that normally appertain to land areas. 156 China's claim to historic waters is undercut not only by its failure to assert it but by the applicable rules of international law. D.P. O'Connell argues that the concept of "historic title" is fundamentally inconsistent with the modern development of that law.

In theory the fact that a State has long enjoyed exclusive or particular benefits in an area could be a means of entitlement to the area in derogation of the standard rules, and hence a "special circumstance". The difficulty about this is that the continental shelf doctrine of "inherency" is deliberately aimed against the operation of the ordinary rule relating to historic rights, so that what is excluded as a matter of doctrine cannot be allowed to re-enter as a matter of exception.157

There have been exceptional situations, long predating the evolution of the continental-shelf doctrine, in which exclusive historic rights to particular seabed resources -sedentary fisheries or mineral deposits - were recognized in well-defined, limited areas beyond the old three-mile limit of territorial waters. 158 There are several classic examples, such the pearl fisheries off the coast of Ceylon and Bahrain, and the coal deposits off the coast of England that were mined from shafts beginning on land and extending underground for more than three miles out to sea.159 These exceptional situations have all involved three essential characteristics: (1) the existence of a known seabed resource capable of practical exploitation and confined to a limited area adjacent to the coast; (2) continuous and exclusive occupation and exercise of dominion over the resource and its limited seabed area by the government of the adjacent coastal state over a long period of time; and (3) acquiescence of the international community in the claimed exclusive right. 160 No instance exists in modern international law in which a state has made a claim - much less in which a state has had such a claim allowed or recognized by other states or by the international community - to broad expanses of maritime space (and/or its seabed) on the basis of an alleged "historic" title. Even if China could show that from time immemorial its citizens exclusively had navigated and fished in the entire South China Sea, 161 such a showing would not even begin to establish a "historic" title to the sea and/or seabed.

Any claim by China to "historic" title to the South China Sea would in fact be an historical anachronism: a throwback to long-past centuries in which certain powerful maritime states, and England in particular, claimed sovereignty over entire seas. 162 Even in those times, such claims were always forcefully opposed by other states and could not be said at any time to have been recognized by international law. Possibly the closest analogy to China's claim to the South China Sea is the claim made by England, intermittently over the 14th to the 17th century, to sovereignty over the entire 'English' Channel and North Sea up to the low-water mark on the opposite shores of France and other continental European territories. 163 Such claims were abandoned centuries ago; indeed, the modern international law of the sea, with its emphasis on freedom of navigation and its strict limits on offshore claims to sovereignty, developed largely in reaction against such claims. 164 China's claim to "historic" sovereignty and title to virtually the entire South China Sea and/or its seabed and subsoil is contrary to the entire development of the modern international law of the sea, and cannot be taken seriously as a matter of law.

At a conference in Washington, DC in September 1994, Pan Shiying, a Chinese scholar, presented an assertion of China's 'historic waters' claim. 165 Mr. Pan's argument, in essence, is quite simple: China has published official maps showing the nine broken lines since 1947;166 these maps amounted to a formal and adequate assertion of China's claims that virtually the entire South China Sea 'belongs' to China, in some undefined sense, as 'historic waters'; no other states protested this claim until '7 or 8 years after the passage of the 4 UN Conventions on the Law of the Sea' (that is, the Conventions of 1958), and the legal result of these facts is that all other states have acquiesced in China's claim and are today precluded by the principle of estoppel from contesting it.167

It may be the case that to this day no state has formally protested China's "historic waters" claim as such, though it is an undoubted fact that few if any other states in the world would accept such a claim. But if other states have not protested, that fact cannot possibly be viewed as establishing acquiescence in China's claim, because China has never asserted such a claim. The publication of the nine broken lines on maps, without any articulation of what they were intended to mean (and even without precise co-ordinates), falls far short of the sort of unambiguous assertion of a claimed right that would require other states to protest in order to avoid acquiescing in it.

As Mr. Pan concedes, the Chinese government "did not specify at the time of the publication of the official maps" "the legal nature of the 9 interrupted lines".168 Such lines, without any explanation, are subject to a variety of interpretations. Perhaps the most natural inference is that China was claiming all the islands within the broken lines.169 That inference would be consistent with the Chinese texts of 1958170 and 1992.171 But, especially in view of China's express recognition in its 1958 Declaration that the Chinese mainland and the Spratlys were separated by "high seas", no state could reasonably be deemed to have been given notice, by the mere publication of maps showing the lines, that China was making any sort of claim to the waters lying within those lines - let alone notice of either the basis for such a claim or the nature of the rights being claimed.172 Indeed, it is only very recently that any one, at least outside China, has had any substantial basis for concluding that China may believe that it has some sort of "historic" claim to these waters. As noted above, China conspicuously failed to make any such claim in its 1958 Declaration or for decades thereafter. Two major and exhaustive works published in 1974 and 1992 respectively, which unquestionably would have noted and commented on a Chinese "historic waters" claim if one had existed, disclose a complete lack of awareness that such a claim had ever been advanced.173

The U.S. Department of State, commenting on China's 1958 Declaration 14 years later, was wholly unaware of any such claim. The State Department noted that China claimed the Spratlys and commented that those islets, "because of their small size and wide dispersion, defy any logical system of straight baselines ... A straight baseline system [in the Spratly area] has no basis in fact".174 The State Department (and foreign ministries of other states) had no occasion to criticize or protest a "historic waters" claim because China had made none. (Ten years after the State Department's comments, the LOS Convention confirmed that "archipelagic" baselines in the Spratlys would be impermissible; see Note 124 above).

In these circumstances, it can be concluded that the argument that Vietnam or any other state is "estopped" to challenge China's "historic waters" claim is without merit and would be rejected by any court. The principle of waiver, estoppel or acquiescence can be successfully invoked only when a claim has been clearly, unambiguously and formally stated and maintained over a long period of time, so as to place an obligation on a disagreeing state to register its protest. 175 China did not state in 1947 or thereafter, and to this day has not stated, such a claim to 'historic waters' defined by the nine broken lines. Moreover, with respect to Vietnam, China has been fully aware since at least 1970-71176 of Vietnam's claim to the Vanguard Bank area, which of course is inconsistent with any Vietnamese acquiescence in China's claim to "historic waters" bounded by the nine broken lines on Chinese maps, and would constitute a sufficient protest to the Chinese claim, if any were needed to prevent estoppel.

Finally, any successful claim to 'historic waters" - even assuming that such a claim could be made at all to huge areas of open sea - would require not only a clear and unambiguous claim and the acquiescence of the other affected states, but also a demonstration that the claimant state has 'clearly, effectively, continuously, and over a substantial period of time, exercise[d] sovereign rights over the area claimed."177 The author has been unable to find a particle of evidence that China has ever exercised any "sovereign rights" over any, let alone all of the waters within the nine-broken-lines "boundary". This is yet a further reason why its "historic waters" claim would be considered devoid of merit.

Analysis of Vietnam's Potential Claims

On 12 May 1977, Vietnam announced its adoption of the natural-prolongation principle by adopting the (then draft, now final) LOS Convention provision on the continental shelf (Article 76(1)).178 Vietnam substituted 'Socialist Republic of Vietnam' for 'coastal state' in Article 76(1) and amended the remaining language mutatis mutandis:

The Continental shelf of the Socialist Republic of Vietnam comprises the seabed and subsoil of the submarine areas that extend beyond the Vietnamese territorial sea throughout the natural prolongation of the Vietnamese land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline used to measure the breadth of the Vietnamese territorial sea where the outer edge of the continental margin does not extend up to that distance.179

Thus Vietnam has announced its willingness to accept maritime-boundary delimitations based on international law with respect to the continental shelf. Vietnam's ratification of the LOS Convention180constitutes a further formal and explicit manifestation of its acceptance of the international law of the sea.

Three bases exist in international law under which Vietnam can claim exclusive rights to maritime areas in the South China Sea, including the Vanguard Bank and Blue Dragon areas. These will be dealt with in the following text.

200-Mile Minimum

At a minimum, Vietnam is entitled to the maritime area within 200 miles of its territory. The great majority, although not all, of the Vanguard Bank area is within the 200-mile line. 181 All of the Blue Dragon block falls unequivocally within the line.

The 200-mile line, while ignoring small, uninhabited islets such as Vietnam's Catwick Islands and the Spratlys, properly uses Vietnam's Phu Quy Island as a basepoint for purposes of determining the 200-mile-minimum line. 182In contrasts to tiny islets or rocks such as the Catwicks and Spratlys, Phu Quy has an area of 32 square kilometers (more than six time the aggregate size of all the Spratlys together), and a permanent, historic civilian population of approximately 12,000. Phu Quy supports an active and stable economy, including animal stock numbering 3,500, and produced 1,630 tons of rice in 1991. The fishing fleet based on Phu Quy comprises 359 fishing vessels, which in 1991 harvested 3,749 tons of fish, 12 tons of sharkfin, and 2,378 tons of squid. The Phu Quy community includes schools (with about 3,600 students), hospitals and other facilities.

Furthermore, Phu Quy is closely connected geomorphologically to the mainland; it rests on the 100-meter isobath in the very shallow waters off the coast of Vietnam. The general principle for such islands is that "[i]f the island appears as an integral part of the general coastal configuration, it is treated for the purposes of delimitation on the same footing as the mainland and given full effect'.183

Under Articles 76(1) and 121(2) of the LOS Convention, and under customary international law, Vietnam is entitled to use Phu Quy - which is obviously not an Article 121(3) "rock" - as a basepoint in measuring its maritime zones, including the 200-mile minimum continental shelf.

There is no warrant in this theory, nor in State practice, for discounting altogether the presence of islands in negotiations to delimit the continental shelf. There is no instance of islands (other than islets) being altogether ignored. In most cases they have been given their full effect. For example, the boundary drawn between the parties to the North Sea Continental Shelf Case, initially an equidistance line, then a negotiated line, is measured from Dutch and German offshore islands. The Australian-Indonesian Agreements give full effect to the Aru Islands, the Ashmore and Cartier Islands, and both the Norwegian Islands and the Orkney and Shetland Islands have been given full effect in the United Kingdom-Norway Agreement. 184

The minimum Vietnamese entitlement, as represented by the 200-mile line, does not conflict with any claim by Indonesia or Malaysia in the Blue Dragon or Vanguard Bank areas. 185 Thus, unless China can make a valid claim to any portion of this area that would require a delimitation between the two claims, the 200-mile line may be regarded as defining Vietnam's minimum continental-shelf entitlement in those areas.

Natural Prolongation Beyond 200 Miles

A glance at any bathymetric chart is sufficient to demonstrate that, in the area south and southeast of Vietnam, the natural prolongation of the Vietnamese mainland extends considerably farther seaward than 200 miles. Vietnam, therefore, may claim considerable additional seabed and subsoil beyond the 200-mile line. 186 Under Article 76 of the LOS Convention, Vietnam may claim up to 60 miles beyond the foot of the continental slope as defined in Article 76(4)(b), to a maximum of 350 miles or 100 miles beyond the 2,500-meter isobath. 187

Determination of the exact location of the foot of the continental slope in the bathymetrically and geomorphologically complex conditions of portions of the South China Sea may be a difficult and somewhat subjective undertaking. The Vanguard Bank area, however, is considerably simpler, because of the conspicuous promontory of relatively shallow water (less than 1,000 meters deep) which comprises most of that area. 188 There can be no doubt that the foot of the continental slope in the Vanguard Bank area is so situated that a line drawn 60 miles beyond it would place the entire area (and, of course, Blue Dragon) within Vietnam's continental-shelf entitlement under Article 76 of the Convention.

This is confirmed by a report by Scott B. Edmonds, President of Maryland CartoGraphics, Inc., 189 and by a Maryland CartoGraphics Map, a simplification of which appears as Figure 2. As explained by Mr. Edmonds, the most conservative possible view would locate the foot of the continental slope in the area of the 1,000 to 1,500 meter isobaths and would place most of the Vanguard Bank area within the continental shelf (in the narrow sense) and slope of Vietnam. Mr. Edmonds suggests that an alternative methodology could place the foot of the slope much farther offshore, in the neighborhood of the 2,000 to 3,000 meter isobaths190 - or still farther to the east of the Philippines - but could not place it closer to shore than as shown on Figure 2.

As shown on that map, a line drawn 60 miles beyond the line representing the most conservative version of the foot of the continental slope places the entire Vanguard Bank area (and Blue Dragon) well within Vietnam's legal shelf entitlement.191

Equidistance Between Opposite Coasts

There is substantial support for the proposition that the seabed and subsoil of the entire South China Sea192 should be regarded as included within the continental margin of the surrounding states, and that the true foot of the continental slope occurs outside the Sea altogether, in the very deep waters to the east of the Philippines. 193 If this view were accepted, since the South China Sea is at no point as wide as 700 miles, all parts of it would be within the 350-mile continental shelf entitlement of one of the surrounding states, and the entire seabed would be divided among them by an equidistance delimitation.

Figure 3 roughly shows the results of such a delimitation, which has not been confined to the Blue Dragon and Vanguard Bank areas, but has been extended to the entire South China Sea, in order to permit a proportionality study to test the equity of its results -just as the Chinese claims were tested above. Construction of Figure 3 has been based on the following principles and methods:

The tentative boundaries are, except as specified below, equidistance lines. These lines have been constructed by using as basepoints all points on the mainlands of the respective states. All straight baselines proclaimed by any of the states have been ignored. Small islands (islets or rocks) located within their owner's share but so situated that they might if given credit as basepoints have a disproportionate effect (for example, Vietnam's Catwick Islands) have been ignored. Islands of substantial size, population and economic importance - that is, Vietnam's Phu Quy and Con Dao Islands194 and Indonesia's islands northwest of Borneo - have been given half-effect in accordance with the precedents in the decided cases.195 Islands immediately off the coast of China, regardless of their size, have been given full effect.

The boundary established by treaty between Malaysia and Indonesia196 has been respected, since it is a fundamental rule of international law that states may by bilateral agreement delimit any maritime boundary between them that they wish, so long as the rights of third states are not prejudiced.

In certain areas where Malaysia's claim stops short of the equidistance line, Malaysia has been limited to its claim, on the ground that it has waived any entitlement to more.197

Sovereignty over the Spratlys and Paracels is of course, disputed. China (including Taiwan) and Vietnam each claims all of them; the Philippines and Malaysia each claims some of them. As was discussed in more detail above, the Spratlys and Paracels have the classic characteristics of small, insignificant islets or rocks which a court, whether applying the LOS Convention or customary international law, would hold to be precluded by principles of equity and proportionality from having any effect on entitlement to broad maritime areas or continental shelf.198

There seems no doubt that a court, applying existing principles and precedents, would limit the entitlement of each Spratly and Paracel high-tide elevation to, at most, a 12-mile belt of territorial sea. Therefore 12-mile circles have been drawn around each of what appear to be the high-tide elevations in the Spratlys and Paracels.199 If, when sovereignty over these islets is ultimately resolved, any of them is found to be surrounded by maritime space allotted on other grounds to the state which owns the islet, then the circle surrounding that islet would disappear. If any Spratly or Paracel high-tide elevation is ultimately found to be entirely or partially surrounded by maritime space allotted on other grounds to a different state, then the circle would remain (in whole or in part) as a maritime boundary.200

A court with jurisdiction to delimit continental-shelf boundaries throughout the South China Sea would probably draw lines identical or very similar to those shown on Figure 3 and would regard those lines as tentative boundaries, subject to a determination that they result in an acceptable degree of proportionality and therefore achieve 'an equitable solution'. 201 As will readily be seen, the tentative boundaries leave the entire Blue Dragon and Vanguard Bank areas within Vietnam's continental shelf.

The court might well conclude, on the basis of a visual inspection of the tentative boundaries on Figure 3, that no numerical proportionality study is necessary. The boundaries 'look' equitable; they appear on sight to accomplish an equitable division of the relevant maritime area. This is exactly what one would expect, because the lines are for the most part equidistance lines; and equidistance lines are prima facie equitable in maritime-boundary delimitation between opposite states.202 If sovereignty over the Spratlys and Paracels were still in dispute at the time of the continental-shelf delimitation, and if the court making that delimitation had no jurisdiction to decide the sovereignty issue, the uncertainty as to ownership of the circles surrounding the Spratlys and Paracels on Figure 3 could be an additional factor in leading the court to refrain from making a numerical proportionality study.203

However, in order to determine whether China has any possibly valid claim to the Blue Dragon and Vanguard Bank areas, it is logical to assume, for purposes of this proportionality study, that China is the sovereign of all the Spratlys and Paracels, which is the most favourable assumption that could be made for China. If, even when one makes that assumption, China can be shown to have no possible valid claim to the Vanguard Bank or Blue Dragon areas, then Vietnam's entitlement to the entirety of those areas is clear if the entire South China Sea is held to be a 'continental shelf' and thus subject to delimitation.

With cartographic assistance, the author has therefore made a proportionality study of the tentative boundaries roughly shown on Figure 3, using the same definition of the relevant area and measurement of the relevant coastlines as were used for the proportionality study of the Figure 1 boundaries.204

The results of the study are shown in Table 2.

Table 2: Proportionality Study Results Based on Figure 3.

These results fall, at least insofar as China, the Philippines and Vietnam are concerned, well within the degree of Proportionality that international law requires.206 The only significant discrepancies are with respect to Malaysia and Indonesia: Malaysia receives only about two-thirds as much seabed as precise proportionality would give it, and Indonesia receives almost three time as much seabed as precise proportionality would give it. These results, however, are in part the result of the agreed bilateral-treaty boundary delimitation between Indonesia and Malaysia,207 and in remaining part the result of Malaysia's decision to limit its claim by the line reflected on Figure 3.208 The court would, therefore, not consider it either necessary or possible to make any adjustment to the tentative boundaries on account of these limited departures from proportionality.

It is possible to conclude, therefore, that a court with jurisdiction to delimit continental-shelf boundaries throughout the South China Sea would adopt the boundaries shown on Figure 3 or boundaries very similar to them.

There are thus three different bases, each independent of the others, on which Vietnam can validly claim a considerable expanse of continental shelf, including the Vanguard Bank area - either most of that area (basis 1, '200-mile minimum', above) or all of it (bases 2 and 3, 'Natural prolongation beyond 200 miles' and 'Equidistance between opposite coasts', above). The strength of Vietnam's claim, compared to that of China, is clear. With respect to Blue Dragon, China has no rational basis whatever for a claim to that area, and Vietnam's claim is very solidly based; it would be upheld by any court.

Prospects for Resolution of the Dispute

There have been numerous calls for diplomatic negotiations to resolve the disputes in the South China Sea.209 For example, the government of South Vietnam, in referring explicitly to the Spratly and Paracel disputes, announced at the UNCLOS III Plenary Meeting in Caracas in 1974 that it wished for a peaceful resolution of the conflict. 210 In the Sino-Vietnamese negations of 1979, China called for a peaceful resolution of the dispute.211 As noted previously, on 23 July 1992, at an ASEAN annual meeting in Manila, the foreign ministers issued a Declaration on the South China Sea calling for a peaceful resolution.212

Although there have been ongoing bilateral and multilateral negotiations between and among the states of the region -- including a meeting of the new ASEAN Regional Forum (of which Vietnam and China are members) in Bangkok in July 1994,213 a Fifth South China Sea Conference in October 1994 in Indonesia,214 and a flurry of ASEAN activity following the Mischief Reef incidents in early 1995215 -- there is nothing in the way of publicly available information suggesting that any peaceful resolution is imminent.216 In mid-1994, the world press was suggesting that the conflict was heating up and that it would be more likely to result in military action than in the peaceful resolution that the interested states profess to prefer.217 The Mischief Reef incidents between China and the Philippines in the spring of 1995 appeared to confirm this concern and led to a new spate of alarmist publicity.218

Any of the disputes, including those between Vietnam and China, could, of course, be submitted to the International Court of Justice or to an ad hoc arbitral tribunal for binding resolution. There is no present indication, however, that China would be prepared to submit to such a jurisdiction. China has consistently and emphatically declared that its policy is to resolve conflicts with other states by bilateral negotiations rather than by submission to third-party settlement procedures.219 Moreover, China presumably appreciates the extreme weakness of the legal basis for its South China Sea claims and the unlikeliness that those claims would be sustained if the dispute were resolved on the basis of respect for and application of international law.

There exists, of course, a variety of methods in which states call on third parties to assist them in resolving disputes but which stop short of binding third-party resolution. Such measures include conciliation, mediation and the use of 'good offices' or some person or institution in which both parties have confidence.220 None of these, however, seems likely to be accepted by China in its present frame of mind.

The LOS Convention contains an elaborate set of provisions for dispute settlement, including the establishment of a new International Tribunal for the Law of the Sea (Articles 279 to 299). The Convention imposes an obligation on parties to settle disputes by peaceful means (Article 279), and requires parties to resort to at least the non-binding third-party-assisted methods of resolution if bilateral negotiations fail (Articles 281, 298(1)(a)).221 Except to the extent that these provisions can be regarded as emanations of the UN Charter, it is doubtful that they should be regarded as yet incorporated into customary international law. Vietnam, by its ratification of the Convention, has indicated its willingness to be subject to these provisions vis-a'-vis other state parties (which, as noted above, include Indonesia and the Philippines).222 China, however, is not a party to the 1982 Convention.

The Security Council of the United Nations might attempt to exercise some authority over this matter, particularly if hostilities threaten. However, China sits on the Security Council and would not hesitate to exercise its veto.

Because the issues is so volatile, and because so many countries have a deep interest in the issue, the possibility that the international community, and particularly the United States, will attempt to exercise influence cannot be ruled out, especially if there were any threatened disruption of the vital navigation lanes in the South China Sea. To the extent that the United States is perceived as an intermediary in the region, backed by the largest navy in the world, it might be in a position, if it chose, to provide support to states whose interests lie in applying international law to the regional disputes.223 If China were to flout a regional consensus backed by the United States, it would risk the possibility of ostracism, conflict and economic burdens that are not in its interest.

In 1992, the United States declared that it takes no position on the validity of the various claims, that it supports peaceful settlement (mentioning specifically the ASEAN Declaration of 1992, see above) and opposes the use of force, that it is 'willing to help in the peaceful resolution of the issue', and that it hopes 'that Vietnam will treat this as a legal matter with regard to Crestone'.224

In May 1995, the United States issued a further statement that indicated a heightened concern that 'a pattern of unilateral actions and reactions in the South China Sea has increased tensions in that region'. The United States stressed its 'abiding interest in the maintenance of peace and stability in the South China Sea', called 'upon claimants to intensify diplomatic efforts which address issues related to competing claims', again offered 'to assist in any way that claimants deem helpful', and highlighted the maintenance of freedom of navigation as 'a fundamental interest of the United States'. Most significantly, while again declaring that it takes no position 'on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls and cays in the South China Sea', the United States declared that it would 'view with serious concern any maritime claim, or restriction on maritime activity, in the South China Sea that was not consistent with international law, including the 1982 United Nations Convention on the Law of the Sea'.225

It is inconceivable that the other states in the region will ever accept China's claims or anything approaching them. Even if China should exercise force and temporarily establish control over the entire maritime area that it claims, the legal entitlements of the other states would nonetheless remain intact. It is unlikely that the international community would permanently tolerate a situation in which China was occupying maritime areas that international law so clearly awards to other states.

There seems little doubt that, at some future time or times -- perhaps gradually and incrementally -- a regime for the South China Sea will be established that will contain at least some elements of equity, proportionality and compromise. Unless China fundamentally changes its attitude towards third-party (or third-party assisted) dispute resolution, that regime is likely to be shaped essentially through bilateral and perhaps multilateral negotiations. The regime may well include elements of joint development in some portions of the area. However, Vietnam and other states can hardly be expected to agree to any proposal which requires them to acknowledge the validity of China's claims, or which gives China a share in control over and revenues from areas to which China has no serious claim (such as Vanguard Bank and Blue Dragon) unless they reciprocally receive shares in areas where China's claims may have more legal substance.

It is impossible to predict the timetable on which such a regime is likely to develop. Every state in the region, however, has an interest in making progress towards that development as soon as possible, because continuation of the disputes is bound to have a delaying effect on the discovery and exploration of seabed resources in an area that may prove rich in such resources.

Reprinted with permission from Oil & Gas Law and Taxation Review (November 1995) (Sweet & Maxwell)
(http://www.smlawpub.co.uk).

121 As was described in Part I: see [1995] 10 OGLTR at 375 to 388.

122 "Spratly Oil Contract Irks China", Financial Times, 13 May 1994; Michael Richardson, "Oil Rush is Fueling Fears on Spratlys", Int'l Herald Tribune, 6 June 1994. See also South China Morning Post, 13 May 1994, at 6 (available on NEXIS).

123 See, for example, Barry Wain, "Lawyers Say Vietnam Has a Strong Case", Asian Wall St. J., 20 July 1994. Daniel Dzurek, in an opinion written for Crestone in support of the Chinese claim to the Vanguard Bank area, makes essentially three arguments: first, China's claim "rests on its claim to the Spratly Archipelago", and the Bank "fall[s] within the legal continental shelf of Spratly Island"; second, the Vanguard Bank area is a distinct geologic province" that originally "developed as part of the Chinese landmass, then shifted south through tectonic movement"; and third, the "[m]inimum water depth between Vanguard Bank and Vietnam's continental shelf is more than 1,000 feet". Daniel J. Dzurek, "Report to Crestone Energy Corporation on Conflicting Claims to Wan'An Bei, WAB-21" (rev.ed. 10 March 1993), at 9, 11, 14.

Of these three arguments, the only one that deserves detailed attention is the first. As to the second, no international-law principle permits a state to claim possession of a territory because the geological plates of the state and the territory were linked to each other millions of years earlier and before plate tectonic movement separated them. Even if Dzuek's geological argument is correct (and he offers no evidence), China should nevertheless not be able to prevail on such a theory, any more than should Brazil if it were to make a claim to West Africa. The ICJ rejected an argument similar to Dzurek's in Tunisia/Libya: 'It is the [geographic] outcome, not the evolution in the long-distant past, which is of importance'. 1982 ICJ at 54.

Dzurek's third point is simply irrelevant; a depth of 1,000 feet has no significance in international law.

124 China may claim that it is entitled not only to use each Spratly and Paracel as a basepoint but also to connect them by "archipelagic" straight baselines. See, for example, Samuels, Note 6 in Part I, at 126. Such a claim would be without merit under the LOS Convention, for each of two independent reasons: (1) under Article 46(a) of the Convention, only a state composed entirely of islands may draw archipelagic baselines; and (2) even if the Spratlys and Paracels were independent states and thus could qualify under Article 46(a), no such baselines could be drawn that would meet the first and principal requirement of Article 47, for such baselines: that the area enclosed by such baselines be 'an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1'. LOS Convention, Article 47(1). See also Prescott, Note 24 in Part I, at 38.

125 See Van Dyke and Bennett, Note 7 in Part I, at 61 to 75 (leans toward Vietnam); Greenfield Note 34, at 150 to 167 (leans toward China); Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South-East Asia, 1987, at 142 to 144; Choon-ho Park, 'The South China Sea Disputes: Who Owns the Islands and the Natural Resources?', 5 Ocean Development & Int'l L. 27, at 34 (1978). For the positions and arguments of China and Vietnam respectively, see Ministry of Foreign Affairs of China, "China's Indisputable Sovereignty over the Xisha [Paracel] and Nansha [Spratly] Islands', Beijing Review No. 7, at 15 (1980); Ministry of Foreign Affairs of Vietnam, The Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes and International Law, 1988; Vietnam Courier (pub.), The Hoang Sa and Truong Sa Archipelagoes (Paracels and Spratlys) II (1985); Ministry of Foreign Affairs of Vietnam, Vietnam's Sovereignty over the Hoang Sa and Truong Sa Archipelagoes, 1979; Ministry of Foreign Affairs, Republic of Vietnam (Saigon), White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands, 1975.

126 China occupied none of the Spratlys in 1985 (although Taiwan occupied Itu Aba). Prescott, Note 41 in Part I, at 218 to 222. Vietnam now occupies at least nine high-tide elevations (Spratly Island, West London Reef, Amboyna Cay, Pearson Reef, Sin Cowe Island, Namyit Island, Sand Cay, Barque Canada Reef and Southwest Cay). CIA map, Note 45 in Part I. Of the six Spratly locations that China occupies (Fiery Cross Reef, Quarteron (Cuarteron) Reef, Chigua Reef, Johnson Reef South, Gaven Reef and Subi Reef) none is clearly a high-tide elevation. For Fiery Cross Reef, see Note 43 in Part I. For Gaven Reef, see the very detailed (scale 1:117,840) DMA Map 93061 (Tizard Bank and Reefs). While an old DMA Map 93030 (dated 1970; scale 1:071,000), shows Quarteron Reef as containing two rocks above water at high tide, two more recent DMA maps (no. 71027, dated 1989, scale 1:1,091,700, and the much more detailed no. 93047, dated 1974, scale 1:250,000) disagree. The map discussed at Note 12 in Part I designates alleged high-tide elevations in Fiery Cross Reef, Quarteron Reef, Johnson Reef South and Gaven Reef.

In view of the physical alterations that the Chinese have made since occupying these features, it may be difficult if not impossible today to determine their status before the occupation. In such a situation, it seems appropriate to place a heavy burden of proof on the party that has altered the natural landscape (or seascape). At bottom, however, uncertainty about which of the Spratlys are high-tide elevations has very little to do with maritime-boundary delimitation, and nothing at all to do with delimitation in the Vanguard Bank and Blue Dragon areas.

127 LOS Convention, Article 60(8); for mid-sea low-tide elevations, see ibid., Article 13(2).

128 See Note 90 in Part I.

129 For example, Cordner, Note 20 in Part I, at 69; R.R. Churchill and A.V. Lowe, The Law of the Sea, 1988, at 41 to 42.

130 In Part I, under the heading 'The Problem of Small Islands (islets or rocks)'.

131 North Sea Continental Shelf Cases, 1969 [ICJ] at 36.

132 See, for example, Greenfield, Note 34 in Part I, at 165; Ely and Marcoux, Note 5, at 141 to 143; Van Dyke and Bennett, Note 7, at 75, 89; Valencia and Van Dyke, Note 58, at 224 to 227; Chiu, Note 105, at 205.

133 Certain commentators have simply assumed, without analysis, that sovereignty over the Spratlys will or may determine entitlement to broad areas of seabed in the seas around them. For example, Beller, Note 19 in Part I, at 296; Bennett, Note 13, at 432. Commentators making this assumption simply ignore the massive body of international law which requires the opposite result. Commentators in this category tend to be specialists in issues of sovereignty over land areas and not experts in the law of the sea; they plainly lack the knowledge of that law that would enable them to perceive the unsoundness of their assumptions.

134 Figures 1 and 3 are, of course, rough and imprecise; they represent drastic reductions of much larger and detailed maps on which the boundaries were drawn and on the basis of which the proportionality calculations were made.

The Spratly features whose status as high-tide elevations are in doubt (see Note 12 in Part I) are geographically interspersed among the undoubted high-tide elevations in such a way that, even if the doubtful ones were proved, the Figure 1 boundaries would change very little if at all.

135 China and Taiwan have been regarded as one state for this purpose, as indeed they regard themselves. Malaysia and Brunei have also been treated as though they were one state; see Note 24 in Part I.

136 See in Part I under the heading `Equidistance and proportionality'.

137 This involves making another assumption favourable to China: that the entire circumference of each Spratly and Paracel should be included as relevant coastline. Arguably portions of those coastlines sho