Rocking the Boat: The Paracels, the Spratlys, and the South China Sea Arbitration

Abstract

On July 12, 2016, an Arbitral Tribunal constituted under Annex VII to the 1982 UN Convention on the Law of the Sea found overwhelmingly in favor of the Philippines in its dispute with the People’s Republic of China over maritime zones and other issues in the South China Sea. This piece appraises the decision in light of the events leading up to the current controversy. To investigate the source of the conflict, one does not have to go back very far. In January 1974, during the final stages of the Vietnam War, China ejected South Vietnam from the Paracel Islands—a group of tiny maritime features in the South China Sea claimed by both nations. After a classic “weekend war,” China tried to dampen down the affair by swiftly releasing the prisoners and refusing to be drawn into an international debate. Within days, though, there was more activity, when South Vietnam dispatched forces to occupy five features in the Spratly Islands, a larger group further to the south of the South China Sea. During this period, South Vietnam, the Philippines, and Taiwan engaged in the fortification of their respective features—bolstering garrisons, installing military hardware, building runways, and shooting at interlopers. The militarization of the Spratlys had begun; and well before China, the focus of the current arbitration, established a physical presence on the reefs in the vicinity. This piece examines the unfolding of the Paracels and Spratlys disputes through the lens of the United States’ diplomatic correspondence between the State Department and its missions in Asia.When the controversy ignited in 1974, the U.S. was still trying to disentangle itself from Vietnam, and had no intention of being inveigled by its Asian allies into commitments in the South China Sea. Consequently, it struck a determinedly neutral stance, stating that it took no position; a stance to which it formally adhered until 2016. But declared disinterest did not mean lack of interest, and behind the scenes, Washington played an active though little known role in trying to contain the conflict, by discouraging Saigon from pressing its Paracels claims in the Security Council, and trying to deter American oil companies from exploring Reed Bank. This diplomatic correspondence, which the Arbitral Tribunal does not appear to have examined, casts a strong light on the interests and legal positions of the players in the South China Sea—interests which continue to govern the actions of China, the Philippines, Taiwan and Vietnam today. When chronicling the initial phases of the current disputes, American officials not only set out the parties’ legal justifications for their actions, but also provided assessments of the merits of some of these positions. In the process, they also offered early insights into a central jurisdictional question addressed by the Tribunal: whether the Spratlys features should be defined as “islands” or “rocks” under Article 121 of the U.N. Convention on the Law of the Sea—the matter on which we shall conclude.