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Monique Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands
On April 1st this year, a US spy plane and a Chinese fighter aircraft collided about sixty-five miles southeast of Hainan Island. The consequences were the death of the Chinese pilot who was rapidly promoted to the rank of national hero, and the arrest of the eighty American crew members who were taken hostage and then released. Another result was a whole range of political-cum-strategic analyses, which stressed Peking's intermittent expansionism into the South China Sea, and which relied with varying degrees of persuasiveness on legal argumentation to show the rightness of one side or the other in the light of the gaps in contemporary international law.
The same way of posing the problem of China's relationship with the rule of law, and more specifically with the International Law of the Sea, runs through Monique Chemillier-Gendreau's book, Sovereignty over the Paracel and Spratly Islands. This sets out to tackle the legal questions underlying the conflicting claims of sovereignty in the South China Sea. The author adopts an approach that is certainly original in the sense that it is largely based on an analysis of French archives. This plunge into three centuries of diplomatic history is intended to assess the validity of the territorial claims of each of the parties, and their right to occupy the disputed archipelagos, in order to offer a legal clarification of the issues of sovereignty. This could then serve as the basis for a mutual settlement that would necessarily involve drawing up maritime frontiers.
The South China Sea is a strategic sea lane, and an abundant source of fisheries, and potentially of oil. It is also probably the most disputed area on the planet. No less than six coastal states (China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei) have lodged rival claims to the Spratly Islands, whereas the Paracels are mainly contested by China and Vietnam. But the People's Republic of China is certainly at the heart of the whole conflict, since Peking claims sovereignty over absolutely all islands, islets, rocks, sand banks, and even some underwater shoals, within the perimeter drawn on the map in the famous capital U shape, which seems intended to define ipso facto and ab initio the natural extension of the territory of China.
After giving an overall picture of the geographical, legal and historical aspects of this conflict over sovereignty, the author devotes two chapters to the examination of the respective entitlements. Here she follows a chronological approach, and concludes with a final chapter, amounting to just a few pages, which formulates guidelines for a legal settlement. As she explains in the second part of her first chapter on the legal nature of the problem, her analysis as a whole is based on arguments derived from what she calls intertemporal law. She defines this approach as a comparison of the particulars of the legal system at the different periods of its development with the specific facts of the situation which constitute the basis of the dispute. History, then, allows the law to be envisaged according to the principle of ubi societas, ibi jus. This postulate leads to an examination of the question of sovereignty within three separate temporal perspectives: the first, prior to the second half of the nineteenth century, that is to say, the time of terra nullius; the second, prior to the eighteenth century, which was the time of the discovery or at least the identification of the archipelagos; and finally, the eighteenth and nineteenth centuries, when numerous documents were produced to affirm the sovereignty of either Vietnam or China. There are noticeably few cases of claims from third states which, so we are told, simply did not exist. Her study of the question leads to the conclusion that Vietnam was the only holder of a legally founded title, justifying its claim to sovereignty over the Paracels. The question of what happened to this entitlement during and after the colonial period is sort of put on hold while the third chapter looks at the appearance of a succession of new claims. A sketchy answer to the question is given in the final chapter where the author draws some conclusions. It would seem that Monique Chemillier-Gendreau considers that Vietnam has the strongest claim in the case of the Paracels, as she refers to ancient and well-founded rights, and to the impossibility of transforming the fact of Chinese occupation into a legal right on account of the condemnation of China's use of force by international law and Hanoi's protestations against that occupation. However, the Spratly Islands situation seems more complicated, and here, the author dismisses the Chinese case: It is easy to see that the Chinese claims to the Spratlys has no legal basis and is just one aspect of a maritime expansion policy (p. 139). She invokes the possibility of a legal settlement if the various diplomatic negotiations should fail. But the workings of international law (the principle of voluntary legal recourse and of compromise settlements through the International Court of Justice (ICJ) in the Hague), combined with the reluctance of states to resort to such settlements, do not allow such a proposed solution to be seriously considered. It is difficult to imagine Peking turning to the International Tribunal for the Law of the Sea (ITLOS), or even the ICJ, in a case concerning the settlement of maritime frontiers, when it has never shown any particular interest in such legal bodies, even though the ICJ membership includes a Chinese judge (1).
Sovereignty over the Paracel and Spratly Islands is the translation into English of a work first published in French by Harmattan in 1996, but it has not been updated, except for a few bibliographical references. This, at the very least, detracts from its capacity to throw light on the current state of play. For example, the introduction states that China signed the United Nations Convention on the Law of the Sea (UNCLOS) adopted at Montego Bay on December 10th 1982, after nine years of negotiations, although it has not yet ratified it. However Peking did in fact ratify it, in 1996, two years after UNCLOS came into effect. Moreover, China's declaration at the time of this ratification is of considerable relevance, because it runs: The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in Article 2 of the Law of The People's Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992 (2). This simple declaration tells us all we need to know about the impossibility of Peking abandoning its claims, in the light of its own conception of international law and the relationship between that law and the national law of the People's Republic. Peking's absolutist and intransigent view of state sovereignty gives rise to a general conception of rights that are beneficial to China in the name of international law. The latter concept is accepted, but only to be reinterpreted in China's favour. In such cases as the Paracels and the Spratly Islands, the principle dealing with waters surrounding archipelagos is applied to justify the extension of areas defined as territorial waters exclusive economic zones.
Her chronology of the disturbances in this part of the world ends at February 9th 1995. But this means passing over the many incidents confronting the states in the region in 1999 and 2000: viz. the killing of a Filipino fisherman in January 1999 by Vietnamese troops occupying the Spratly Islands, the death of a Chinese fisherman a few months later in a confrontation between China and the Philippines, the heightened tensions among ASEAN members themselves, the extension of the Chinese presence towards the Scarborough Shoal, the death of another Chinese fisherman after shots were fired by the Philippine marine police in May 2000, and above all the publication in November 1999 of a code of conduct on the initiative of the Philippines and Vietnam, which was rejected by China on the grounds of a desire to resolve issues bilaterally. Finally, a few words should be said about the author's heavy use of annexes, amounting to 110 pages against 143 pages of text. Although her collation of some of the older documents is pertinent, given that her approach is based on a study of French archives, was it really necessary to include a number of illegible maps, the source of which is not even given, or a handwritten nine-page letter dated August 28th 1788 by Count Kergariou Locmaria, captain of the frigate Le Calypso?
But it is the author's general approach that is really what is open to question here. Instead of Sovereignty over the Paracel and Spratly Islands, the title of the book should have been A History of Sovereignty over the Paracel and Spratly Islands. A historical account of this conflict over sovereignty, however, does not provide an overall solution to the problems. It is admittedly useful to put the events back into their historical context, and to do justice to the arguments of Vietnam as the successor to France after decolonisation, but one cannot stop there, now that the dispute involves six different South-East Asian states. To invoke the grand principles of the right of peoples to self-determination and freedom from colonialism is no longer self-evidently sufficient. Since these islands and outcrops are largely uninhabited, which peoples are being referred to here? Should China be considered the colonial power (3)? Certain passages of this book seem to echo her well-known pronouncements in support of southern hemisphere countries, and her interpretations of international law that aim at demystifying it, showing its limitations or even its perverse nature as an instrument of Western power (4). Her quest for truly international principles of law is praiseworthy, but surely it is not necessary to completely ignore modern geostrategic realities and the power relations conditioning current national objectives? Nonetheless, one can only share the author's opinion when she concludes by calling for negotiations in good faith, leading to the settlement of a question that is still unresolved, and that contains worrying implications for peace and security in Asia.
Translated from the French original by Jonathan Hall
1. Shi Juyong has been a judge since February 6th 1994, and vice-president of the ICJ since February 7th 2000. He has also been President of the International Law Commission of the United Nations (1990).
2. Peking's declaration was as follows: 1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People's Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf. 2. The People's Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability. 3. The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in Article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992. 4. The People's Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.
3. It is interesting in this regard to turn to paragraph 3 of Article 121 of the United Nations Convention on the Law of the Sea, which deals with the governance of islands: Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
4. Monique Chemillier-Gendreau, Humanité et Souveraineté, essai sur la fonction du droit international, Paris, La Découverte, 1995, 382 pp