Territorial issues in the East and South China Seas:
A Comparative Assessment
Nguyen Thi Lan Anh1

Introduction
The East China Sea and South China Sea capture much international
attention recently due to the competing territorial claims and the high potentialof conflict between claimant states. Despite geographical difference, one
dispute on the East and the other on the South of China, but the disputes inboth seas share some common features. Both have China as a key claimant,
have some similarity in the historical background as well as on the current
development. Using a comparative approach, this paper attempts to draw
some common characteristics of the territorial issues in the two oceans andfrom that proposes some suggestions for enhancing cooperation amongclaimant states for the sake of peace and stability in East Asia.
1. Background of the issues
First of all, the territorial issues in the East and South China Sea wereboth attached to the long and upheaval history of the region. The two sharesimilar history and face some critical moments related to the validity of the useof force and the interpretation of the San Francisco treaties.
a. The initiation of the issues
In East Asia, it is no doubt that China is a big country with rich culture
and history. In both issues in the East and South China Seas, the long historyof China has been used to claim the sovereignty over the Senkaku/Diaoyu,
Paracles and Spralys. In the East China Sea, the Senkaku/Diaoyu wasclaimed to be discovered by China and became part of Taiwan. In the South
China Sea, the Paracels and Spratlys were also considered to be discoveredby Chinese and later attached to Taiwan by territorial acquisition activities ofJapan. Unfortunately, due to the remote and separate location of these1

PhD, Center for Legal Studies, Institute for East Sea (South China Sea) Studies, Diplomatic
Academy of Vietnam. The opinions expressed in this paper are those of the author and do notnecessarily represent any official position or policy of the Diplomatic Academy of Vietnam.

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islands from the vast territory of the mainland China and the Haijin (Chinese:
海 禁 ), or “Sea Ban” policy of several past Chinese government, 2 thesovereignty evidences of China were scattered and lack of authenticity andaccuracy. The historical documents of China only named the Senkaku/Diaoyu
on provincial record of Fujian without specifying sovereignty activities ofChina. 3 There were only the observance of Zheng He’ in the seven sea
journeys (1405-1433) under Ming Dynasty or the patrol of Vice-Admiral Wu
Sheng (1710) during the Qing dynasty4 to illustrate the sovereignty over the
Paracels and the Spratlys. In the context of the lack of effective activities ofChina, the Senkaku/Diaoyu was annexed in 1895, before the conclusion of
the Shimonoseki Treaty by Japan 5 and the Paracels and Spratlys were
declared as belonging to the sovereignty of Vietnam by the Vietnamese King’s
official visit to and the hoisting of the Vietnamese flag on the Paracels during
the reign of the Nguyen Dynasty from the 17th to 18th centuries. 6 Thissituation was the root of disputes lasting to date in the East and South China
Seas.
b. Argument based on the Use of force
Not only related to the complexity of the upheaval history of the region,
but the legitimacy of the claims also related to the application of the principleof the use of force. In the East China Sea, China believed that the Senkaku/
Diaoyu was a part of Taiwan which was forcibly ceded to Japan at the end of
the China-Japan war in 1895 with the conclusion of the Shimonoseki Treaty.
In other words, Japan illegally gained the sovereignty over the Senkaku/
Diaoyu by the use of force in the war and the Shimonoseki Treaty was
concluded by coercing China, thus was null and void. 7 However, it is note

2 Von Glahn, Richard. [1996] (1996). Fountain of Fortune: money and monetary policy inChina, 1000–1700. University of California Press. ISBN 0-520-20408-5
Han-yi Shaw, “The inconvenient truth behind Diaoyu/Senkaku islands”, 2012 fromhttp://kristof.blogs.nytimes.com/2012/09/19/the-inconvenient truthbehind-the-diaoyusenkakuislands/
4
Ministry of Foreign Affairs of the People’s Republic of China, China’s Indisputable
Sovereignty over Xisha and Nansha Island, (Beijing: Foreign Languages Press, 1980)
5
Fact sheet on Senkaku, Ministry of Foreign Affairs of Japan.
6Jean-Louis, “Notes on the Geography of Cochinchina” (1837) VI (Part II) Journal of the
Asiatic Society of Bengal, 737-745.
7This principle was later codified in Article 52 of the 1969 Vienna Convention on the Law ofTreaties.
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worthy to recall that the conquest was one of the legal modes of territorialacquisition until 1945 when the United Nations Charter entered into force.
Even if the sovereignty of Japan over the Senkaku/Diaoyu was gained by theuse of force of Japan in the China-Japan war was in the 1890s, it wasrecognized as a legal mode of territorial acquisition at that time and thus
created the valid title for Japan. Moreover, the annexation of the
Senkaku/Diaoyu took place before the conclusion of the Shimonoseki Treaty
and the content of the Shimonoseki Treaty did not mention the fate of the
Senkaku/Diaoyu.8
Despite that China based on the principle of the use of force toinvalidate the possession of Japan over the Senkaku/Diaoyu, China itself had
used force to occupy the Paracels and several Spratlys features in 1974 and1988 respectively. In the years of 1974 and 1988, the United Nations Charterhad entered into force and the use of force by China, a UN member, clearly
violated its treaty obligation and basic principles of international law.
This indicated that the principle of use of force was used in a “double
standards” manner in order to maximize the interest of China in the East andSouth China Sea disputes.
c. Legal effect of San Francisco treaties
Another turning point in the history of the East and South China Seas
disputes was the interpretation of the San Francisco treaties.
After the end of the Second World War, Article 2 of the 1951 San
Francisco Treaty stipulated that Japan renounced all right, title and claim to
Formosa, the Pescadores, the Spratlys and Paracels. The Cairo Declarationof 27th November 1943 issued earlier by the UK, USA and Chiang Kai-Shek’s
Nationalist China provided that “all the islands in the Pacific which Japan
seized or occupied since the beginning of the First World War in 1914, andthat all the territories that Japan had stolen from the Chinese, such as
Manchuria, Formosa and the Pescadores, shall be restored to the Republic ofChina.” This provision was further clarified by Paragraph 8 of the Potsdam
8

Article II of the Shimonoseki Treaty only provided that Formosa and Pescadores were ceded
to Japan without mentioning Senkaku/Diaoyu.

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Declaration in 1945 that “the terms of the Cairo Declaration shall be carriedout and Japanese sovereignty shall be limited to the islands of Honshu,
Hokkaido, Kyushsu, Shikoku and such minor islands as we determine.” Laterin 1972, at Point 3 of the Joint Communiqué between China and Japan, thetwo countries endorsed that “the Government of the People's Republic ofChina reiterates that Taiwan is an inalienable part of the territory of thePeople's Republic of China. The Government of Japan fully understands andrespects this stand of the Government of the People's Republic of China, andit firmly maintains its stand under Article 8 of the Postsdam Proclamation.”
China argued that these provisions should be interpreted to mean thatJapan were obliged to return the Senkaku/Diaoyu to China as the
Senkaku/Diaoyu was a part of Formosa (Taiwan).
However, Article 3 of the 1951 San Francisco Treaty also provided that“the US will have the right to exercise all and any powers of administration,
legislation and jurisdiction over the territory and inhabitants over the Nansei
Shoto south of twenty-nine degrees north latitude, which included the Ryukyu
and Daito Islands.” Accordingly, the Senkaku/Diaoyu was administrated by
the US as part of the Okinawa Prefecture since 1945. In 1965, in a State
Department memorandum on the Ryukyu, the United States declared that “werecognize that Japan maintains residual sovereignty over the [Ryukyu] islands,
and have agreed to return them to full Japanese control as soon as Free
World security interests permit.” As a result, the Senkaku/Diaoyu wasreturned to Japan in 1971. From 1895 to 1970, China expressed no
opposition to the occupation of Japan and the administration of the UnitedStates, even though Taiwan, without Senkaku/Diaoyu, was returned to China
since 1945.
In the South China Sea, China also argued that the San Francisco
treaties could be interpreted to include the Paracels and Spratlys in the
territories given to China under the Cairo Declaration. However, with 46 voteagainst among 52 participants, the San Francisco Conference had made aclear opposition to the suggestion of the formal USSR to give the Spratlys andParacels to China.

4Sharing the similar context after the end of the Second World War, theSenkaku/Diaoyu, Paracels and Spratlys were not part of the territories that
had been returned to China. Therefore, it is submitted that their status must
be restored as to the one before the Second World War. Cooperation inproperly interpreting the San Francisco treaties will help to weight the legal
effect of the sovereignty claims of the parties to the East and South China
Seas disputes.
2. Current developments
The current developments of the disputes in the East and South China
Seas could have been generated from two big waves of tensions. The first
was from the 1970s to 2000s and the second was from the 2010s to date.
a. From the 1970s to 2000s
Disputes from the 1970s to 2000s were motivated mostly by economic
interests. In the East China Sea, energy survey conducted by the Committee
for the Coordination of Joint Prospecting for Mineral Resources in AsianOffshore Areas, under the authority of the United Nations Economic
Commission for Asia and the Far East, revealed substantial energy deposits
for the water near the Senkaku/Diaoyu. In addition, the adjustment in theregime of islands in the 1982 Convention on the law of the sea opened for agreater role of islands in generating maritime zones. 9 These events added
another layer of maritime disputes to the territorial dispute over the
Senkaku/Diaoyu, Paracels and Spratlys. China made its sovereignty claim
over the Senkaku/Diaoyu in 1970 and threatened to use of force against
hydrocarbon exploitation in the Vanguard Bank of Vietnam in 1992. China
also fortified their presence in the Paracels and Spratlys by the use of force in
1974, 1988 and 1995.
b. From the 2010s to date9

Article 10 of the 1958 Convention on Territorial Sea only provided for a definition of anisland and the possibility to generate territorial sea for islands. With the amendment in the1982 Convention on the Law of the sea, the legal regime of islands is provided for under
Article 121 with the possibility of generating full maritime zones of islands as to the mainland.

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The second wave of tensions from the 2010s to date is characterized
by the comprehensive assertive activities of China in a broad geographicalscope and in various fields.
China’s point of view is that other parties to the disputes in the Eastand South China Seas took the first steps to escalate their claims that forced
China to react. In the East China Sea, Japan ignited the tension by changing
the status quo through its nationalization the Senkaku/Diaoyu. In the South
China Sea, the other parties have exploited the natural resources of China.
One, however, may argue that the issue of sovereignty overSenkaku/Diaoyu has been in exist since 1970 without any nationalization
move by Japan. The exploitation of natural resources was conducted within
the exclusive economic zones and continental shelves that the littoral states
are legally entitled under the 1982 Convention on the law of the sea.
Therefore, these events only served as pretexts and excuses for China topursue other strategies and ambition, for example of becoming a maritime
power after the successful rise of China as an economic power. In this regard,
the Senkaku/Diaoyu, Paracels and Spratlys which have long been consideredas parts of the first island chain have been chosen to be the first targets tosecure China exits to the Pacific, a prerequisite to expand China’s maritime
spaces and influence.
Accordingly, China has implemented comprehensive measures in both
East and South China Seas to archive these new ambitions.
In the legal field, a series of new regulations and declarations havebeen enacted, starting with the declaration on note verbal attaching the ninedash line map in 2009, then the submission of baseline of the territorial sea of
Senkaku/Diaoyu and its affiliated islands in 2012, the Hainan search andboard regulation in 2012, the establishment of Sansha city in 2012, the ADIZ
and the new fisheries regulation in 2013.
In international relations, on the one hand China re-iterated her goodneighbourliness policy to maintain good relationships with Southeast Asian
countries. On the other hand, China used its economic leverage to charm its
neighbour while still implement a policy of “divide and conquer” by exploiting

6and deepening differences between ASEAN member states on the South
China Sea issues and between Japan and Korea on the establishment of
ADIZ. The failure of ASEAN to issue a joint statement for the first time after 45
year since its foundation at the ASEAN Ministerial Meeting in Cambodia wasa consequence from such “divide and conquer” policy.
In economics, the territorial issues have caused negative impacts onbilateral economic cooperation. The cases of rare earth related to Japan andbanana export related to the Philippines are only two among other examplesof the disruption in economic cooperation due to territorial matters.
In “public relations”, territorial issues were well caught on the attentionof pubic opinions. To some extents, such high public attention may help theleaders of one country to distract from some domestic issues, for example,
the economic crisis, corruption or environmental problems. However, playing
with nationality is like playing with a double edged sword that may prevent any
compromised solution for dispute settlement in the future. This is particularly
endangered when nationalism was pushed up to the highest levels by allmeans, from the use of social networks like facebook, twitters, or covering thewhole page in the New York Times, or even advertising in commercial
products.
In addition, to transfer all these measures to the field, law enforcement
forces have been strengthened to fortify territorial and maritime claims. The
intrusion into maritime zones, scramble on the airspace, arrest of fishingvessels, harassment of hydro carbon exploration and exploitation activities
and so on are among the popular activities occurring in both the East andSouth China Seas. In some cases, these activities escalated to the “redline”.
The “salami slicing” and “cabbage” strategies to gain new control andoccupation, the radar lock on navy vessel and helicopter or the near collision
between navy ships may lead to real conflicts at any time. In fact, arms
conflict had been occurred in a similar context in the South China Sea in 1974,
1988 and 1995.
It can be said that sharing similar strategic location and being undersimilar influence sphere, the East and South China Seas are interconnected7and “mirror” each other. Development in one sea may serve as a test andpredictions for developments in the other and vice versa. This is further
illustrated by the following table which summaries the measures being
implemented in both locations in the two waves of tension.
Types of activities

East China Sea

South China Sea

Legal measuresxx

International relationsxx

Economicsx

x“Public Relations”xx

Law enforcementxx

Militaryx

3. Prospects
Rooted in similar history, sharing similar development, the territorial
issues in the East and South China Seas are likely to have common
prospects.
At first, one may easily peak up the common and frequently used term“indisputable” in describing a party’s stance to both disputes. In the East
China Sea, Japan holds the position that there exists no issue of territorial
sovereignty to be resolved concerning the Senkaku/Diaoyu. In the South
China Sea, China also views that China has indisputable sovereignty over theSouth China Sea’s islands. The “indisputable” concept in both Japan and
China’s views is the refusal of the existence of dispute. However, in Japan’s
point of view, despite the non-existence of the dispute, the door is always
open for dialogue with China. 10 Meanwhile, from China’s perspective,“indisputable” means all doors for negotiation with Vietnam are closed for the10

Statement of Prime Minister Abe at a press conference in New York after attending the U.N.
General Assembly, 20138

dispute over the Paracels. 11 In fact, a dispute is defined as a specificdisagreement concerning a matter of fact, law or policy in which a claim or
assertion of one party is met with refusal, counter-claim or denial byanother. 12 The existence of a dispute, accordingly, will not depend on theadmission of one party concerned.
In the situation of the East and South China Seas, accepting theexistence of the dispute may bring greater benefit to the ‘”refusal” countries.
Holding a stronger legal basis on the Senkaku/Diaoyu, Japan may admit theexistence of the dispute and challenge the claim of China by unilaterally
submitting the case to the International Court of Justice. If China accepts thejurisdiction of the Court, the Court may have jurisdiction on the doctrine offorum prorogatum13 and Japan will have a good chance to settle the casepermanently by a court decision. If China will not respond, similar to the casewith the Philippines, China may argue that “a state may choose not to appear
before an arbitral tribunal in order to avoid anything that might upgrade or give
credibility to a claim which it considers clearly inadmissible or manifestly
unfounded, or where it considers the tribunal seized to be evidently without
jurisdiction.” 14 If no response sends the signal that the claim of Japan isclearly inadmissible or manifestly unfounded, due to the lack of a counterclaim, this means that no dispute exists. If no response sends the signal that
the Court has no jurisdiction due to the lack of consent of China, this alsomeans that China dares not to present their legal arguments before the Court
due to their weaknesses. As all other states know that Japan has faithfully
invited China to settle the dispute by a peaceful and judicial means, but
received no response from China, this also means victory for Japan and thus
in diplomatic aspect, no dispute exists. Similar approach may apply to China if
11

In the official visit of Le Duan, the communist party leader of Vietnam paid a visit to China
and had the meeting with his counterpart, Deng Xiaoping in 1975, the two talked about thesovereignty over the Paracels and Spralys and Deng Xiaoping admitted the dispute between
China and Vietnam over the two groups of islands and agreed to bilateral talk. This position
was later unfortunately turned down by China to the current position of indisputable and no
dialogue.
12
Mavrommatis Palestine Concessions (Jurisdiction), PCIJ, Series A, No.2, 1924, p.11
13
The jurisdiction of the Court over a case can be inferred by the consent of the responding
State, expressed in an informal and implied manner, and after the case has been brought
before it.
14
Stefan Talmon and Bing bing Jia (ed.), South China Sea Arbitration: A Chinese Perspective(Oxfort and Portland, Oregon: Hart Publishing, 2014), p.16

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the country believes that they really have strong legal arguments on thesovereignty over the Paracels.
Pending for the change in Japan and China’s views on disputesettlement, the current developments raise an imperative need for dispute
management and conflict prevention. The East and South China Seas carry
important sea lane of communications (SLOC) that China, Japan and manyother countries share common interests. By emphasising on this common,
there are many aspects well fit for cooperation between states along the
SLOC, for example, on enhancing safety of navigation, environmental
protection and search and rescue. Some of these areas have proved theirsuccess in bilateral cooperation and should be expanded at the mini-lateral or
multilateral cooperation to attract better participation of China.
Given the fact that various law enforcement forces concurrently
operate in the contested water, cooperation in building the rules ofengagement and joint exercises for these forces are also other areas that areworth to explore. Having a capable and experienced coastguard, Japan may
take the lead in proposing rules of engagement to prevent incidences at sea
and create some cooperative forum for these forces of the littoral states in the
East and South China Seas to engage in dialogue, build confidence and findpossible areas of cooperation. Fishing arrangement like the one between
Japan and Taiwan also stand as lesson for others in building up management
mechanisms for fisheries.
Conclusion
China is not only the common, but also the indispensable party in both
East and South China Seas’ territorial issues. The similarities in the history
and current developments of the issues in both seas indicate that there areopportunities for claimant states to cooperate with each other in the properuse of historical evidences and interpretation of international law in order toarrive at valid and legal basis for sovereignty claims. Thanks to its strong legal
argument, it is advisable that Japan may take the lead to have theSenkaku/Diaoyu settled at the world court for the sake of reaching apermanent, objective and fair solution. Pending for a novel approach on

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dispute settlement from the parties concerned, cooperation between claimant
states and others along the SLOC in the rule based approach at mini-lateralor multilateral levels will help to manage the dispute and prevent the current
situation from escalating into conflict or even hot war.

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