Who owns the world’s most hotly contested islands?
For most of history, the shallow rocks and reefs dotting the South China Sea were something to be avoided rather than owned.
The eastern Spratly Islands are still known on some maps as “Dangerous Ground” — some are submerged or nearly so at high tide, making them capable of ripping open an unwary vessel. Most of the other Spratly reefs dotting the sea’s wide expanse can’t naturally sustain human life.
The Paracel Islands have a little more land, but the fishermen and traders who used them from antiquity through the late 19th century didn’t find them worth fighting over.
Flash forward to 2015, and ownership of these reefs — now on the doorstep of trillions of dollars in annual global trade and home to rich fishing grounds — is at the center of a multinational conflict.
Chinese coast guard vessels tussle with Vietnamese and Philippine fishing boats. U.S. destroyers sail by artificial islands that China has built up — adding airstrips and fortifications — to make the point that they can do so legally. Chinese fighters fly by the islands to make the counterpoint that this is their territory.
The world’s concern is that eventually, someone will get mad enough, or just make a mistake, and start shooting, drawing China and U.S. allies into a battle — or even into a full-scale conflict that could spread.
China — the key player — could resolve the ownership conflict if it wanted to through legal means. So could Vietnam, Malaysia, the Philippines, Brunei, Indonesia and to a lesser extent, Taiwan.
“There are mechanisms when parties decide they want to settle, whether it’s by themselves, through a third party or through international court,” said Carlyle Thayer, a security consultant and emeritus professor at the University of New South Wales in Australia.
The U.S. would eagerly support such an attempt. Its main concern amid the conflict is the ability to sail its Navy and fly its aircraft throughout the South China Sea, where it can maintain watch and safeguard the $1.2 trillion in annual trade that transits the sea en route to and from the U.S. mainland.
The U.N. Convention on the Law of the Sea has ambiguities in some places, but it is also an extensive enough tool to help arbitrate each nation’s claims.
It draws distinctions between rocks, reefs, islands, low-tide elevations and artificial islands, all of which confer different rights for the territory and the surrounding waters.
When evaluating ownership, a tribunal would first need to decide “the ‘critical date’ — the moment at which the crucial events have all taken place and the dispute has ‘crystallized,’ ” Bill Hayton wrote in his 2014 book “The South China Sea: The struggle for power in Asia.”
Anything happening on a given island after that critical date, such as airstrip construction and landfilling, would become legally meaningless.
For example, if a court ruled a critical date as 1887 for a claim on Itu Aba, the largest natural island in the Spratlys, it would likely decide that it belonged to French Indochina, which is now Vietnam. A later ruling would likely award it to Taiwan, also known as the Republic of China, which has occupied the island for the past 60 years, Hayton said.
“The People’s Republic of China (Beijing) would then need to argue that it has the legitimate right to success to the Republic of China’s claim — opening a fresh can of worms,” Hayton wrote.
A tribunal would have another big decision: whether the islands form a single unit, able to be awarded to one country, or whether they are separately claimable.
Geographical arguments, such as the extension of underwater continental shelf from a nation’s shoreline, could come into play. So could arguments as simple as this: the rocks occupied by one country are hundreds of miles away from some of the others.
All of this assumes the dispute would be determined under the particulars of international law. But one claimant in particular is making another argument.
For China, island ownership is a matter of patriotism and the recovery of lost pride, analysts say. It claims international law “with Chinese characteristics,” when it wants, Thayer said.
Beijing’s most-used claim to “indisputable sovereignty” over the South China Sea comes from what it deems as historical right.
It cites a nearly 2,000-year-old text that mentions land and rocks in the sea as a claim, as well as a survey from an astronomer in 1279 that most Western — and some Chinese scholars — doubt actually included the islands.
“The idea that these islands have always been Chinese since ancient times was a product of national imagining in the 1930s,” Hayton said in a phone interview with Stars and Stripes.
China was then at the tail end of a period known by Chinese as The Century of National Humiliation, when bullying foreign powers dictated terms and took Hong Kong, Taiwan and other territory.
To promote patriotism, China then drew maps including lost territory from antiquity. Maps began including the Paracels and much of the South China Sea, which wasn’t done on multiple official maps in the 18th and 19th centuries.
There were multiple translation errors. As Chinese cartographers translated British maps, they recorded James Shoal as China’s southernmost boundary.
Even though James Shoal is 72 feet underwater — and clearly not claimable as land — Chinese ships still visit the area, where they drop concrete territorial markers on the sea bottom.
The map drawn in 1948 by nationalist China, with a U-shaped line denoting an ambiguous ownership, is still used by communist China today.
It is taught to Chinese schoolchildren, who learn that China’s island claims are part of the nation regaining its rightful status.
In the West, officials and academics talk about China’s “rise” from a developing nation to a world power. In China, they use the term rejuvenation, said Zheng Wang, director for Peace and Conflict Studies at Seton Hall University, in an interview with Voice of America in 2014.
“They are emphasizing [that] China is not rising up from nothing, China is returning to its old glory, it has returned to its central position in the world,” Zheng said.