THE PARACEL ISLANDS AND U.S. INTERESTS

AND APPROACHES IN THE SOUTH CHINA SEA

Clarence J. Bouchat

U.S. ARMY WAR COLLEGE

Carlisle Barracks, PA and

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iii

Strategic Studies Institute

and

U.S. Army War College Press

THE PARACEL ISLANDS AND 

U.S. INTERESTS AND APPROACHES

IN THE SOUTH CHINA SEA

Clarence J. Bouchat

June 2014

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ISBN 1-58487-623-9
v

FOREWORD

The national strategy of the United States has reemphasized the Asia-Pacific region, but subsequent 

actions in that direction seem to be preempted by 

more immediate crises elsewhere in the world and by 

internal political disputes. Nonetheless, events in the 

region continue to evolve and the United States must 

stay actively engaged or lose its long-standing influence. With the status of China rising and other regional states weighing their options between Chinese and 

American power, a better understanding by American 

policymakers of the region’s disputes is necessary to 

maintain American diplomatic, economic, and security 

influence under more austere conditions. Of the issues 

daunting Southeast Asia, few are as poorly understood 

by U.S. policymakers as the dispute between Vietnam 

and China over the Paracel Islands.

For this reason, the Strategic Studies Institute (SSI) 

is pleased to publish its second analysis covering one 

of the South China Sea disputes. This monograph examines the economic and security importance of the 

region to the claiming states and the violent acts and 

potential for instability in the region that have resulted. To better understand the positions of the parties 

involved, this monograph delves into the customary 

international law claims for sovereignty through historic and occupation doctrines, and the subsequent 

maritime jurisdiction claims made through the United 

Nations Convention on the Law of the Sea. U.S. interests 

and resulting involvement are also explained to assist 

in understanding these positions better and to inform 

U.S. policymakers of actions the United States may 

take to promote peace and economic development in 

an important region. This analysis purposefully paral-
vi

lels an earlier SSI work by the author on the Spratly 

Islands which shows the similarities, differences, 

and complementary actions involving the two South 

China Sea disputes.

Taken in tandem, these Paracel and Spratly Islands’ 

monographs offer a synergistic analysis of the challenges faced by the states rimming the South China 

Sea, as they strive to deal with peace and prosperity 

derived from this rich, shared maritime region, and 

how the United States may constructively engage there 

to support its own interests and those of its partners. 

Ultimately, the United States cannot solve the conflict 

in the South China Sea alone, but it can contribute to, 

facilitate, balance, and support international efforts 

to craft a solution from which all may benefit in the 

long term.

 

 DOUGLAS C. LOVELACE, JR.

 Director

 Strategic Studies Institute and

 U.S. Army War College Press
vii

ABOUT THE AUTHOR

CLARENCE J. BOUCHAT is a retired U.S. Air Force 

officer, and currently a senior researcher with the Strategic Studies Institute and adjunct faculty member at 

the U.S. Army War College (USAWC) Department of 

Distance Education. He served in several tours in East 

Asia and has published articles about the region. He 

is a graduate of the U.S. Air Force Academy and the 

University of Southern California.

SUMMARY

The region around the Paracel Islands and the 

South China Sea is important to the economies of the 

surrounding states in terms of the fish resources and 

potential for energy reserves, which result in diplomatic and physical clashes. The large flow of maritime 

commerce around the Paracel Islands is also crucial 

to the economic well-being of the region and the 

world, and occupation of the islands dictates control 

of the surrounding sea’s maritime traffic, security, 

and economic exploitation. Although China currently 

occupies all of the Paracels, they are also vigorously 

claimed by Vietnam.

The use of customary law and the United Nations 

Convention on the Law of the Sea (UNCLOS) in establishing claims to the Paracels and surrounding waters 

helps explain the perspectives of the disputants. Their 

legal positions are especially important for American policymakers as they inform possible solutions 

and suggest how to contribute to peace and prosperity in the region. Three key legal questions must be 

answered to help sort the disputes: sovereignty over 

the islets, the nature of a claimed land feature, and the 

delimitation of maritime jurisdiction. Sovereignty is 

claimed through customary law, with China and Vietnam using historic doctrine to claim the entire South 

China Sea, while both have also used the doctrine 

of occupation, which now works to the advantage 

of China.

Once sovereignty and feature type are determined, zones of authority may be established by the 

occupying state depending on the distance from its 

established shore baseline. Internal, archipelagic, 

and historic waters are maritime variations of nearix
x

full sovereign control, which could be disruptive to 

economic and navigation activities if awarded to Vietnam or China, who make such claims. Islands above 

the high tide mark establish territorial waters and a 

contiguous zone, which would carve out 24 nautical 

mile (nm) zones around the Paracels but should allow 

innocent passage. The length of the 200-nm exclusive 

economic zones (EEZ) allows much potential overlap 

among land masses and islands in the semi-enclosed 

South China Sea. Like territorial waters, Vietnam 

and China restrict military activities within the EEZ. 

Although such arguments by claimants for more restrictions in these zones are tenuous, they could be 

useful justification to cover military actions by states 

like China, which is the most active in enforcing a 

restrictive EEZ.

Freedom of navigation in the South China Sea is 

the most immediate U.S. concern to ensure naval vessels retain all rights of access. Current policy by China 

and Vietnam restricts foreign naval activities in their 

zones beyond that normally attributed to UNCLOS. 

Concluding an Incidents at Sea Agreement with China 

would clarify the rights and responsibilities between 

the two. Other forms of government-to-government 

interaction could build confidence in present and future agreements, and leverage common interests. U.S. 

ratification of UNCLOS is another important step to influence the evolution of future interpretations of freedom of navigation toward more open use. Although 

a more difficult proposition, the United States should 

demand the clarification of the historic claims made in 

the South China Sea in order to facilitate negotiating a 

settlement and accelerate economic development.

Open economic access to the South China Sea maritime commons is a second U.S. interest, but one which 
may diverge from freedom of navigation. Access to 

the resources of the high seas is an important enough 

U.S. interest to stall the ratification of UNCLOS for 

nearly 20 years. The United States remains outside the 

treaty, however, and holds less influence over how 

maritime law is interpreted and evolves, and thus is at 

a disadvantage to shape events like whether the South 

China Sea becomes a wholly divided and claimed sea. 

Such arrangements as a Joint Development Zone or a 

Joint Management Zone could stabilize the area and 

provide stability and economic development for its 

participants. To support any of the joint development 

solutions, the United States would have to place its 

security interests over potential economic ones. 

To contribute to overall stability and prosperity in 

the region, the United States must delicately play the 

roles of conciliator and balancer as circumstances require. The United States is an honest broker because 

it shares goals in common with the disputants. Although the United States may not be truly neutral, it 

has less direct demands in the disputes, garners more 

trust than most other states, and possesses resources 

to bear on these problems, making it a useful interlocutor in resolving problems. In other circumstances, 

the United States has intervened in problems around 

the Paracel Islands in more parochial ways to balance 

the diplomatic field in aid of Vietnam or other partners, and to directly protect its freedom of navigation 

interests. This balancer role should deter aggression.

The United States has again made the Asia-Pacific region a major focus of its stated global interests, 

and converging national interests between the United 

States and China may indicate that some progress on 

the issues outlined here are possible. The importance 

of the Paracel Islands region to world trade, energy, 

xi
xii

security, and its own interests require careful American involvement. Policymakers must understand the 

underlying territorial and maritime claims of China 

and Vietnam in order to help manage these issues 

peacefully and equitably for the regional states and to 

meet U.S. interests. In the end, the conflict in the Paracel Islands is not one for the United States to solve, 

but its ability to contribute, facilitate, balance, or support is necessary toward a solution from which all 

may benefit.
1

THE PARACEL ISLANDS AND 

U.S. INTERESTS AND APPROACHES

IN THE SOUTH CHINA SEA

INTRODUCTION

As the People’s Republic of China (PRC) rises in 

diplomatic, economic, and military stature in global 

politics, it is inexorably challenging the preeminent 

position that the United States of America has assumed 

since the demise of the Soviet Union. During this unprecedented rise, the relations between China and the 

United States may be conducted along a continuum of 

cooperation, competition, and conflict, making their 

many overlapping global interests complex, contested, and of crucial importance to the rest of the world. 

In one small area, however, their interactions are relatively simple and direct while remaining momentous 

and consequential, and thus their relations represent 

an interesting vantage point from which to analyze 

the actions between these two powers. Although the 

dispute over the Paracel Islands region in the South 

China Sea is between China and Vietnam, the United 

States has major interests there, and the dispute represents several global trends and problems affecting 

other states.

The Paracel Islands regional dispute is based on 

vital issues of territorial sovereignty, economic development, military security, and political legitimacy for 

Vietnam and China. For maritime and trading powers like India, Australia, the Republic of Korea (South 

Korea), Japan, and the United States, this local dispute 

holds significant worldwide consequences for use of 

the nautical domain concerning freedom of navigation and exploitation of the sea under maritime law, 

and for stability and prosperity along the world’s 
2

busiest shipping lanes and one of its most rapidly 

expanding economic regions. The United States, as 

the de facto—if intermittent—guaranteer of stability 

and order in the world, has additional interests in 

maintaining an atmosphere in the Paracels in which 

diplomacy and the rule of international law address 

the dispute peacefully. In this way the Paracels are 

an illuminating study for larger problems like the 

nearby and more complicated dispute over the Spratly Islands. In comparison, the fewer participants and 

smaller area involved in the Paracels make this contest 

easier to study while still addressing issues of global 

importance and allowing discussions of potential 

parallel solutions on a smaller scale.

As a microcosm of the South China Sea disputes, 

this monograph delves into why the Paracel archipelago warrants examination by U.S. policymakers 

in order to discuss nuanced responses to the region’s 

challenges. To attain that needed understanding, applicable legal aspects of customary and modern international laws are explored to analyze the competing 

maritime and territorial claims, and why and how 

Vietnam and China stake rival claims and opposing 

maritime legal rights. Throughout, the policies of the 

United States are examined through its conflicting interests in the region. Recommendations for how the 

United States should engage these issues, a more appropriate task than trying to solve the disputes outright, are then offered.

THE PARACEL ISLANDS REGION1

AND WHY IT IS IMPORTANT

The South China Sea is a body of water in Southeast Asia partially enclosed by the continental coasts of 

Vietnam and China, and portions of the shores of Tai-
3

wan, the Philippines, Malaysia, Brunei, and Indonesia. 

Hundreds of tiny geologic features dot the 122,648,000 

square nautical miles (nm, or 1.5 times the size of the 

Mediterranean Sea) of the South China Sea. Its second 

largest natural grouping, the approximately 1302

 features of the Paracel Islands archipelago, covers about 

2 square-nm of land above sea level spread across an 

area of about 13,000 square-nm of sea.3 The Paracel 

Islands are located in the northwestern quarter of the 

South China Sea, centered approximately 185-nm east 

of the coast of Vietnam and 165-nm southeast of the 

Chinese island of Hainan Dao (see Map 1). These low 

coral islands consist of two main sub-chains: the Crescent Group to the west and the Amphitrite Group to 

the north, with additional isolated islands, reefs, and 

banks scattered further to sea (see Map 2). The Paracel 

Islands stretch 105-nm from northeastern Tree Island 

to southwestern Triton Island and 100-nm from northwestern North Reef to southeastern Herald Bank.4

Around the Paracels, the ocean depth ranges from 

1,000 to 2,000 meters (m), classifying it as part of the 

continental shelf of the Asian landmass and relatively 

shallow compared to the 3,000-m and deeper waters to 

the east and south. A finger of this deep water divides 

the Paracels in the north from mainland China and the 

eastern half of Hainan Dao.5

 Although unremarkable 

in its composition, the physical proximity and characteristics of these features, surrounding waters, and 

ocean floor play a very important role in the dispute 

over the Paracel Islands region and the potential ways 

to address this dispute.
4

Source: David Lai, The United States and China in Power Transition, Carlisle, PA: Strategic Studies Institute, 

U.S. Army War College, December 2011.

Map 1. South China Sea.
5

Source: Spratly Islands and Paracel Islands, Map 801947, Washington DC: CIA, April 1992.

Map 2. Paracel Islands.
6

Local Economic Importance of the Paracel Region.

Joining the Pacific and Indian Oceans, the warm 

South China Sea is among the most biologically diverse areas in the world, rich in both endangered species and commercial fish like tuna, mackerel, scads, 

and coral reef fish.6

 The South China Sea is one of the 

earth’s top four productive fishing zones in terms of its 

annual maritime catch, representing about 10 percent 

of the world’s total take.7

 This sea is a major source of 

fish eaten in Vietnam and China, contributing to China being the world’s largest consumer and exporter of 

fish. It was Vietnam’s second largest foreign exchange 

earner in 2010, accounting for 7 percent of all exports, 

and provides Vietnam “close to half of the total protein intake of a significant portion of the population.”8

The Paracels’ rich waters contribute to this abundance 

as the closest fishing grounds in the South China Sea 

to the fleets in Hainan Dao and central Vietnam.9

The characteristics of the partially enclosed South 

China Sea and migratory nature of these fish stocks 

mean this important source of food and trade is a 

shared resource among the bordering states posing a 

“tragedy of the commons” dilemma in managing its 

stocks and genetic sustainability.10 Since the late-1990s 

overfishing, coral reef damage, and coastal and shipping pollution have threatened the sustainability of 

fishing in the South China Sea with no substantial international coordination yet in place to halt continuing 

dwindling fishing stocks.11 Declining stocks in home 

waters—China, for instance, has nearly exhausted its 

coastal waters of fish—have forced fisherman into waters also claimed by other states, precipitating adverse 

reactions by maritime law enforcement officials in 

order to protect the commercial interests within their 

claimed areas. Fishing-related incidents thus are com-
7

mon in the South China Sea and sometimes lead to 

diplomatic or armed clashes.12

The claiming of hydrocarbon energy resources in 

the South China Sea is another part of this maritime 

commons dispute. The South China Sea has been 

called a “second Persian Gulf” or “hydrocarbons Eldorado” for its rich potential,13 leading some sources, 

like the Central Intelligence Agency’s (CIA) World 

Factbook, to extrapolate the possibility for oil or natural gas strikes around the Paracel Islands.14 However, 

the U.S. Energy Information Administration (USEIA) 

in 2013 gave virtually no proven or probable reserves 

for oil and less than .1 trillion cubic feet (tcf) for natural gas in the Paracel region. The USEIA’s analysis of 

the underlying geology shows that most conventional 

hydrocarbon potential is located in the shallow coastal 

areas around the South China Sea and not in deeper 

waters like those surrounding the Paracel Islands, 

leaving in doubt the possibility for any economically 

recoverable conventional hydrocarbon finds there.15

Although the Paracel region seems to lack other 

forms of hydrocarbon, initial tests promise significant 

amounts of methane hydrates,16 a form of carbon energy considered more potent than coal, oil, and other 

types of natural gas. Due to technological limitations 

and the uncompetitive cost of extraction compared to 

conventional natural gas, methane hydrates are not recoverable economically at present, but represent “one 

of the world’s largest reservoirs of carbon-based fuel” 

in the coming decades.17 For both Vietnam and China, 

energy-starved but growing economies in societies 

imbued with long histories and cultures of patience, 

methane hydrates may be a future treasure trove if 

the oil and gas deposits found elsewhere in the South 

China Sea are not realized around the Paracel Islands.
8

Further afield in the South China Sea beyond the 

Paracel Islands, both Vietnam and China have exploited conventional oil and natural gas finds in their 

coastal areas—sometimes in direct contention with 

each other—by establishing capability for offshore 

drilling through international partners. Since the 

1990s, Vietnam’s national oil company, PetroVietnam, 

has expanded offshore oil and natural gas production 

through a variety of international companies including Chevron, British Petroleum (BP), ConocoPhillips, 

India’s ONGC Videsh, Russia’s Gazprom, ExxonMobil, and its current largest investor, the French independent Parenco.18 Chevron is a partner in the Cuu 

Long and Phu Khanh Basins just offshore of southern 

Vietnam, exploiting fields estimated at 5-tcf in proven 

and probable reserves of natural gas, and BP helps develop the larger Nam Con Son centered 250-nm southeast of Ho Chi Minh City.19

China is the world’s second largest consumer of 

energy, and its demand will double in the next 25 

years, with more than half of that imported.20 Since 

the early-1980s, China’s largest national oil company, 

China National Offshore Oil Corporation (CNOOC), 

has been its main energy developer and principle 

partner with international companies like BP, Brazil’s 

Petrobras, Petro-Canada, Australian BHP Billiton, and 

Hong Kong-owned and Canada-based Husky Energy. 

Initial Chinese offshore exploitation occurred in the 

nearby Pearl River Mouth Basin and the Qiongdongnan Basin (between Hainan Dao and the Paracels), but 

CNOOC has ventured into deeper water spurred by 

dwindling production. They discovered with Husky 

the Liwan 3-1 gas field about 200-nm southeast of 

Hong Kong, containing an estimated 4- to 6-tcf of 

proven or probable reserves of natural gas. CNOOC 
9

expects to produce .1-tcf annually from Liwan in 2014. 

They averaged 70 million barrels (bbl) of oil in 2011 

from its other South China Sea operations. To expand 

its capability further, CNOOC launched its most advanced deep water drilling platform in 2011, costing 

$925 million, which first deployed in May 2014 as the 

Haiyang Shiyou 981 rig, 17 nm southwest of the Paracel’s Triton Island, to explore in waters 120 nm from 

the Vietnamese coast on Vietnam’s continental shelf.21

As the technical limits of drilling push further, 

the extensive overlapping claims by Vietnam and 

China in the South China Sea portend much competition and conflict between the two. For instance, in 

June 2012, rival territorial claims like the ones over the 

Jiangan and Wan’an Basins resulted in China unsuccessfully inviting foreign companies to explore nine 

drilling blocks approximately 60-nm east of Vietnam, 

drawing protests from Vietnam since PetroVietnam 

had already awarded these areas on its continental 

shelf to ExxonMobil and Gazprom for exploration. 

In 2012, Vietnam also protested China offering part 

of its Block 65, very close to the disputed Paracels, 

for development after unsuccessfully searching for a 

foreign company to engage in a nearby area in 2011.22

About 200-nm southeast of Ho Chi Minh City, Vietnam drills energy from its Blue Dragon field “less than 

eight kilometers west of the [Chinese] Benton Block, 

and within or astride China’s claim line,” also exacerbating tensions between the two sides.23 As of May 

2014, tensions exploded when the Haiyang Shiyou 

981 rig started exploring in waters 120 nm from the 

Vietnamese coast on Vietnam’s continental shelf with 

an intense standoff between Vietnamese and Chinese 

maritime forces. Violence ensued with multiple at-sea 

collisions, the sinking of a Vietnamese fishing vessel, 
10

and anti-Chinese riots in Vietnam’s cities that killed at 

least 4 people and were the worst in decades.24 

Such conflicting operations also make doing other 

business in the region costly and risky, as demonstrated by Beijing’s threats to foreign companies in 

China if they help develop the stakes of other claimants.25 China also dominates the economy of Vietnam, 

which is vulnerable to Chinese pressure.26 China 

disapproves of the more than 200 international companies contracted for oil and natural gas services by 

the coastal states in the greater South China Sea region because it internationalizes and complicates the 

dispute. In a demarche to Vietnam, China implied that 

only the companies of “claimant countries could be 

involved in such development activities,” and made 

18 such diplomatic protests between 2006 and 2007.27

International energy companies have the expertise required to develop these waters but remain reluctant 

to do so without long-term stability in the region.28

As one foreign energy analyst in Vietnam observed, 

“When push comes to shove, none of the foreign oil 

and gas companies are going to risk their business 

in China for something small in Vietnam.”29 The potential for major energy finds in the South China Sea 

has driven the surrounding states to press aggressive 

claims for this disputed commons, which in turn hobbles their efforts by making exploration and exploitation economically riskier, politically contentious, and 

militarily dangerous.

Unfortunately, the feuding South China Sea states 

“view the competition for access to and ownership 

of the resources as a zero-sum game.”30 For instance, 

after the 2008 dissolution of the disappointing Joint 

Maritime Seismic Undertaking (JMSU), the first and 

only multilateral cooperative arrangement among the 
11

South China Sea states, its former members Vietnam, 

the Philippines, and the People’s Republic of China 

(PRC) continued to explore unilaterally in their overlapping claimed areas, and China increased the number of its enforcement vessels in the region.31 However, 

joint development in a contested area is not only possible, but can be mutually beneficial as demonstrated 

by Vietnam and Malaysia in a joint development area 

equidistant between their mainland coasts.32 China 

has asserted it welcomes joint development activities 

in the South China Sea under the precondition that 

“sovereignty belongs to China,” according to President Xi Jinping, echoing a policy strictly held since the 

1980s.33 China and Vietnam have subsequently agreed 

to a less involved joint exploratory agreement in the 

Gulf of Tonkin to which they expanded the region of 

interest to 2,500 square miles in 2013 and extended its 

duration to 2016.34 Nonetheless, enforcement of territorial claims has intensified as new technology has 

made previously inaccessible offshore oil and gas 

more available, while high energy prices make their 

potential more lucrative.35 Thus, political and armed 

clashes may occur in order to develop this energy 

potential before others exploit it first.

If the waters around the Paracels historically have 

been rich fishing grounds and today portend hydrocarbon wealth, the land features themselves have offered much less in economic activities and had not 

been permanently inhabited until the establishment 

of recent military garrisons.36 The first visitors to the 

Paracels may have been Chinese traders collecting 

feathers and tortoise shells, but most of the early Chinese references to the South China Sea features mainly 

warned of the danger from the reefs, and the geologic 

features served mostly as landmarks to navigators 
12

and occasional shelter to fisherman.37 During the 

1920s, the Japanese trading company Mitsui Bussan 

Kaisha mined phosphates in the form of guano from 

Woody and Robert Islands, the Chinese government 

approved mining permits to its citizens into the 1940s, 

and the Republic of Vietnam (RVN or South Vietnam) 

awarded guano mining contracts in the Crescents in 

the 1950s and 1960s, but the latter were not economically viable.38 The climate and tiny land area available in the Paracels offers little agricultural promise 

despite the rich guano deposits left by millennia of migratory ocean birds (there is no native terrestrial fauna 

except tortoises).39 Some experts see the possibility for 

marine-based tourism in the region, and in April 2013, 

China authorized tourists to visit the Paracels.40

China, which currently controls the entire Paracel 

archipelago, is expanding tourism, fishing, and the 

military garrison on Woody Island, the archipelago’s 

largest feature, as the foundations for a Paracels economy. To support its plans for ecotourism and other 

goals, the government plans to spend 10 billion yuan 

(U.S.$1.6 billion) on infrastructure improvements.41 

In addition to cruise boats and diving, the Chinese 

have organized other tourist and sporting activities 

such as a 2012 sailboat race to the disputed islands, 

despite objections from the Vietnamese government 

that such activities violate previous Chinese commitments not to “further complicate” the dispute over 

these territories.42 However, all of this collecting, mining, and tourism potential of the islets financially pale 

in comparison to the surrounding waters’ fishing and 

drilling activities. The islets have yet to produce any 

sustained economic yield, or as University of Helsinki 

Professor Timo Kivimaki concludes in his anthology 

on the South China Sea, “These areas have only been 
13

economically meaningful when the small reefs and islands have disrupted sea lines of communication.”43

Regional Security Importance of the Paracels.

Although not economically consequential, the land 

features of the Paracels hold military importance for 

the states claiming them. The historically high amount 

of shipping that transits the South China Sea, the natural resource potential, and their strategic position from 

the coasts of southern China and central Vietnam give 

economic and security significance to the Paracel Islands.44 China’s primary defense interest in the South 

China Sea is to control its maritime “back door,” as one 

Chinese scholar counted 479 attacks launched against 

China from the sea between 1840 and 1949, with 84 of 

those being major.45 The Paracels have been a strategic position since the end of the Sino-French war in 

1885 when France made Annam (central Vietnam) a 

protectorate, built a light house on the Paracel Islands, 

and began to press its claim for the islands.46 As the 

Middle Kingdom, China had assumed its suzerainty 

over the South China Sea islands so that in 1876 China’s ambassador to the United Kingdom (UK) specifically claimed the Paracels as Chinese territory, and in 

1883 China terminated unauthorized German survey 

activities in the Paracels and Spratlys.47 To reinforce its 

claims to the Paracels, imperial China landed a military survey team in 1907, annexed the islands in 1910, 

and tried to establish a presence in the area through 

military and scientific expeditions, but internal strife 

interfered with China establishing effective control.48

During the prelude to World War II, France formally claimed the Paracels in 1933 to counter the 

growing threat of imperial Japan to its Indochinese 
14

colonies, and set up a military weather station. By 

1937, a French military report called a possible Japanese military presence in the Paracels intolerable for 

Indochina, with Britain urging the French to garrison 

the islands and build an airfield for their (and also 

British Malaya’s) defense.49 In 1938, French Vietnamese forces occupied the Paracels. Japan invaded the 

Paracels in turn in 1939, and annexed the islands by 

claiming to occupy the territory of China, with whom 

Japan was already at war.50 Following World War II, 

Japanese forces withdrew from the Paracels in August 

1945, and Republic of China (ROC or Taiwan after 

1949) forces took control of the northern Amphitrite 

Group of the Paracels in October 1945 and occupied 

Woody Island in 1946. Meanwhile, the French made 

an unsuccessful attempt to force the ROC soldiers 

from the Paracels and settled for a foothold in the 

western Crescent Group by occupying Pattle Island 

with a platoon of Legionnaires.51

In 1950, the French government transferred responsibility for the defense of the Paracels to the Vietnamese.52 Japan formally relinquished its claims to 

all of the South China Sea islands at the 1951 peace 

conference in San Francisco, but the conference members did not recognize China or Vietnam’s claims 

to the islands.53 The ROC forces withdrew from the 

Paracels during the Chinese Civil War, to be replaced 

by People’s Liberation Army (PLA) troops in the mid1950s, but during the gap between Chinese occupations, neither France nor Vietnam made an attempt to 

retake the vacated Amphitrite Group, opting instead 

to maintain good relations with China. The newly independent RVN took physical control of Pattle Island 

in 1954.54 In February and March 1959, RVN forces 

challenged a slow infiltration of Chinese fisherman 

into the Crescent Group and subsequently occupied 
15

Duncan, Drummond, and Palm Islands.55 As each side 

became more focused on the Second Indochina War, 

the RVN withdrew from most of the Crescent Group 

in 1966, leaving only a civilian weather observation 

post on Pattle Island.56

After the 1973 Paris Peace Accords, American 

withdrawal from the region following its war in Vietnam, and discovery of oil deposits in the South China 

Sea, South Vietnam tried to reassert its position. China 

likely intended to slowly pressure the South Vietnamese from the Paracels, expecting the RVN government 

to crumble, and to take the islands from them and 

minimize potential objections from fellow communist 

rivals, the Soviet Union and Socialist Republic of Vietnam (SRV or North Vietnam), whose claim to them 

was conflicted.57 In July and September 1973 the RVN 

announced contracts for exploring oil offshore, and redeclared its administration over the South China Sea 

islands.58 In reply, on January 11, 1974, the PRC diplomatically challenged Vietnam’s claims and for the first 

time linked its competing island claims with maritime 

rights.59 In turn the RVN sent commandos, two cutters, 

one destroyer escort, and a mine sweeper to the Crescent Group, and on January 17, removed from Robert 

and Money Islands irregular forces deployed there by 

armed Chinese fishing vessels.60 On January 19, RVN 

forces attempted to also take Duncan Island but were 

engaged by two PLA Navy (PLAN) sub-chasers and 

four mine sweepers that had rushed to the fighting 

and subsequently drove off the RVN forces. From that 

decisive 40-minute battle, probably one ship from each 

side was sunk, six ships severely damaged, 18 Chinese 

and 53 Vietnamese sailors killed, and 48 Vietnamese 

taken prisoner (including one American advisor). Although these results were incompletely reported and 
16

are questioned, the PRC indisputably controlled all of 

the Paracel Islands after the battle and remains its sole 

occupier.61 For a century, the Paracels have been the 

prize for military forces controlling this strategic position in the South China Sea, and it remains militarily 

important today to its claimants.

After the Second Indochina War and reunification 

of Vietnam in 1975, hostility over territorial disputes 

continued between the two erstwhile communist allies, the PRC and the SRV. Minor military skirmishes 

continued around the Paracels into the 1990s, such as 

one in April 1979 in which China captured 24 Vietnamese troops, or March 1982, when Chinese forces 

held a Vietnamese reconnaissance boat and its crew of 

10.62 Another deadly naval clash occurred as China belatedly seized land features in the disputed Spratly Islands, also in the South China Sea. On March 14, 1988, 

warships from the PLAN and the Vietnam People’s 

Navy (VPN) exchanged fire off Johnson Reef South, 

with the outgunned VPN losing around 70 sailors 

and up to three vessels, and the PLAN possibly losing one warship.63 On March 19, 1992, the PLA landed 

on Da Ba Dau Reef, also in the Spratly Islands, resulting in a smaller skirmish with Vietnamese forces who 

already occupied nearby Sin Cowe East Island.64 The 

most deadly example of the animosity between the 

SRV and the PRC, however, was a brief but ferocious 

land border war in 1979 in which Vietnam suffered 

between 35,000 and 62,000 casualties, and China suffered 20,000 to 63,500 casualties.65 Although military 

forces between Vietnam and China have not clashed 

since the early-1990s this recent bloody history and 

other confrontations described further in this text 

make the situation dangerous for both these countries 

and for outside parties like the United States, who 

have interests in the region.66
17

With a history of foreign depredations—including 

the U.S. involvement in the Second Indochina War 

violating claimed Chinese and North Vietnamese sovereignty over the South China Sea—neither China nor 

Vietnam will tolerate foreigners taking advantage of 

their territory again.67 This military legacy particularly 

menaces modern China’s prosperity since 90 percent 

of its foreign trade was shipped, and 57 percent of petroleum and 27 percent of natural gas was imported 

from overseas in 2012, half of this energy imported 

through the South China Sea, destined for five of the 

world’s top 10 busiest ports, which are Chinese.68 To 

defend their national interests, Chinese military leaders consider the South China Sea important to the 

PRC’s security. After examining China’s many border disputes, Dr. M. Taylor Fravel, Chinese scholar at 

the Massachusetts Institute of Technology, concluded 

that “China has fought to protect its core interests including . . . the establishment of a maritime frontier.”69

Their maritime “near sea strategy” is to neutralize any 

threat within the “first island chain,” defined as a line 

connecting Borneo, the Philippine, Taiwan, Ryukyu, 

Japanese, and Kurile Islands, to ensure access to the 

Pacific Ocean and prevent a “Great Wall in reverse.”70

Vietnamese Prime Minister Nguyen Tan Dung was 

also concerned about territorial disputes along key 

shipping lanes when he stated in 2013: 

A single irresponsible action or instigation of conflict could well lead to the interruption of such huge 

trade flow, thus causing unforeseeable consequences 

not only to regional economies, but also to the entire 

world.71

Such sentiment explains, in part, the regional contention for otherwise uninhabited and unproductive 
18

land features. Territorial disputes are the most common cause of fighting between states,72 which is why 

one analyst dubbed the South China Sea islands “the 

least unlikely trigger” to start a conflict in the South 

China Sea.73

After gaining a foothold and then the entirety of 

the Paracel Islands, the PRC has administratively and 

militarily built them into its forward outpost in the 

South China Sea. The PLA began fortifying Woody Island in 1959, and since 1971 has steadily upgraded its 

facilities in the Paracels, including a military airfield 

begun in 1993 which is now a length of over 2,500-m.74

This Woody Island facility allows operations of eight 

or more fourth generation Chinese fighter aircraft like 

the Su-30MKK or Su-27SK and the JH-7 bomber with 

combat ranges that could strike targets around the 

South China Sea, including Manila, the Philippines, 

and Ho Chi Minh City, Vietnam.75 China also maintains two port faculties in the Paracels on Woody and 

Duncan Islands. The naval base on Woody Island is 

an artificial harbor with a concrete dock 500-m long 

and capable of accommodating destroyer and frigate 

class vessels.76 The PLA also upgraded its South China Sea Sansha garrison to a division-level headquarters on Woody Island in 2012. Its responsibilities are 

“defense mobilization, . . . city [meaning municipal] 

guard, support for the city’s disaster rescue and relief 

work, and [direction of] militia and reserve troops.”77

Actual defense of the Paracels, however, is given to 

the PLAN under the South Sea Fleet.78 Some analysts 

see the increased military capabilities in the Paracels 

as an expansive move by the PRC in hard power, allowing it more influence in Southeast Asia and better 

control over its sovereign claims to the South China 

Sea, as well as acting as a potential platform to chal-
19

lenge U.S. power in the region.79 In addition to the air 

and naval power projection capabilities the Paracels 

offer, the PRC has also turned them into a sophisticated signal and intelligence monitoring station that 

blankets some of the smaller satellite islands and is 

capable of monitoring nearly all of the South China 

Sea, including Vietnam, the Philippines, and high frequency signals from Malaysia.80

From its Paracel position, the PRC can control the 

busy South China Sea sea lanes and airspace militarily, and it may be the first strategic waypoint “pearl” 

in a power projection “necklace” that protects Chinese 

maritime interests and exerts influence from the South 

China Sea to the Persian Gulf.81 From this perspective, 

Woody Island is “an unsinkable aircraft carrier” able 

to monitor and counter U.S. power in the region and 

deter its support to Taiwan or other nearby partners.82

However, this view may alarmingly overstate the incremental military buildup that may be based simply 

on increased Chinese economic capacity and political 

interests. The establishment of a division-level headquarters, for instance, brings with it no additional 

troops and only reflects the Sansha municipality’s 

administrative upgrade to “city” status.83 Some commentators point out that military capabilities, like 

anti-ship missiles or strike aircraft, in the Paracels at 

best duplicate those already on Hainan Dao and thus 

add little new capability,84 although basing on the 

Paracels does extend a weapon system’s range by 175-

nm into the South China Sea. The tiny Paracel Islands, 

however, do not allow basing of much significant 

military capability, and their forward position makes 

them vulnerable. As U.S. Rear Admiral (Retired) Mike 

McDevitt explained, “Putting garrisons on Woody 

Island or elsewhere in the Paracels would effectively 
20

maroon these guys, so the only advantage would be 

just showing the flag—to say, ‘We are serious’.”85 Although militarily capable, the Paracels garrison may 

be as much a political declaration to better enforce 

sovereign and economic claims to the South China Sea 

as a military outpost.

The PRC, with its extensive claims and capable 

naval and maritime civilian forces, has been the most 

assertive in enforcing its claims in the South China 

Sea; however, Vietnam and other bordering states 

have also emphasized their claimed rights in the 

region, using naval forces against other states’ perceived encroaching commercial activities. For example, from February and March 1959, South Vietnam 

used its naval advantage to evict Chinese fisherman 

from Duncan Island and finally gained firm control 

of the Crescent Group.86 In return, China began naval patrols around the Paracels in 1960 and extended 

them throughout most of the South China Sea by 1987, 

boldly protecting an area that it considers its “inherent 

territories.”87 The Chinese believe they are defending 

their waters against “increasing encroachment on the 

part of Vietnam, and the Philippines in particular, and 

what they [the Chinese] saw as self-serving meddling 

by the U.S.”88 Patrolling by both Vietnam and China 

has resulted in cycles of aggression by naval ships 

against foreign civil vessels, leading to numerous illegal actions cited against the other side’s navy.89 Such 

incidents peaked in number and intensity of violence 

between 1987 and 1995. Although less frequent now, 

a recent example occurred in May 2011 when PLAN 

vessels used weapons to threaten Vietnamese fisherman in disputed South China Sea waters, and in June 

when the VPN carried out live fire exercises as part 

of a larger protest against Chinese actions.90 Naval 
21

ships from all of the states have, nonetheless, played 

a more subdued role in these waters, despite the occasional threat or use of armed naval vessels to counter 

foreign violations.91

Instead of its navy, China now prefers to use its 

maritime law enforcement ships to protect its claims, 

although backed by the PLAN which often shadows 

just over the horizon.92 Five disparate PRC maritime 

enforcement agencies have aggressively policed China’s interests and kept tensions high throughout the 

South China Sea.93 In 2013, the Chinese government 

consolidated four of these agencies into a single paramilitary coast guard called China Marine Surveillance 

under a new National Oceanic Administration, creating an “‘iron fist’ that would replace ineffective operations scattered among a number of agencies.”94 This 

streamlining may only partially rein in the aggressive 

nature of Chinese patrolling, since other ministries 

within China have conflicting views on the South China Sea disputes with the “policy of reactive assertiveness, characterised by strong reactions to provocations 

by other parties” still practiced after the reorganization.95 Whereas before the consolidation only one of 

these agencies was armed, under the new coast guard, 

all of the vessels will be armed, and the number of 

sailors and vessels will increase significantly.96

This buildup is meant to counter foreign violations 

into China’s claimed waters. China reported 1,303 foreign ships and 214 foreign aircraft “intrusions” into its 

claimed space in 2010, an increase from a total of 110 

intrusions in 2007.97 In 2009, the PRC’s South Sea Region Fisheries Administration Bureau (SSRFAB) detained 33 Vietnamese ships and seven more in 2010.98

In May 2011, the Vietnamese claim that a Chinese 

enforcement ship cut the cables of a PetroVietnam oil 
22

and gas survey ship in disputed waters near Vietnam, 

and in June, a Chinese fishing vessel intentionally 

rammed the exploration cables of another Vietnamese 

survey ship. 99 Well-reported incidents in 2013 include 

a Vietnamese trawler damaged by flares fired from 

a Chinese vessel near the Paracel Islands in March, 

the ramming and damaging of a Vietnamese fishing 

boat off the coast of Vietnam in June, and the beating 

of fisherman and eviction of two Vietnamese fishing 

boats by the Chinese in Paracels waters in July.100

Some of these incidents have been attributed to 

Chinese fishing vessels acting as an auxiliary to enforcement agencies as demonstrated in the 2012 Scarborough Shoal standoff between vessels from China 

and the Philippines in the South China Sea.101 Although 

events involving naval vessels have subsided, the 

level of police and commercial vessel incidents has increased as a result of China’s tripling its patrols at sea 

since 2008. These pose different but serious problems 

because civilian vessels have been “easier to deploy, 

operate under looser chains of command, and engage 

more readily in skirmishes.”102 The U.S. Pacific Fleet 

Deputy Chief of Staff for Intelligence and Information, 

speaking at a conference in a personal capacity recently, warned that the PLAN is using its civilian proxies 

for “maritime confrontations [that] haven’t been happening close to the Chinese mainland. Rather, China 

is negotiating for control of other nations’ resources 

off their coasts.”103 Stephanie Kleine-Ahlbrandt, head 

of the Beijing office of the International Crisis Group, 

called it “a brilliant strategy by China to establish their 

control over an area without firing a single shot.”104

PRC vessels have been active in enforcing China’s 

maritime claims in the South China Sea, exacerbating the tensions among the states involved, as dem-
23

onstrated by the Haiyang Shiyou 981 clashes near 

Triton Island. 

All of the claimants in the Spratly and Paracel Islands disputes have also reacted with force against 

Chinese commercial vessels.105 Since 1989, more than 

300 incidents against Chinese trawlers have been reported including being fired upon, seized, or expelled, 

with three fishermen wounded and 10 ships detained 

by the Vietnamese in 2010 alone.106 Throughout the 

South China Sea, China’s data shows 750 of its fishing vessels were robbed, seized, or attacked between 

1989 and 2010, with 25 fishermen killed or missing, 24 

injured, and 800 arrested from waters China claims as 

its own. Despite the lucrative return from fishing in 

the Paracels region, Chinese fishermen are reluctant to 

fish these waters for fear of being attacked or arrested 

by Vietnamese marine authorities.107 As the relative 

lull in naval and police actions in the South China Sea 

during the 2000s seems to be ending, some analysts 

fear that a major discovery of energy resources could 

fan the flames of more serious clashes in a region lacking the mechanisms for conflict management.108 The 

International Crisis Group observes, “While the likelihood of major conflict remains low, all of the trends 

are in the wrong direction, and prospects of resolution 

are diminishing.”109 Those assessments bode poorly 

for the region’s states and for the United States, which 

also has significant interests there. 

Importance of the Paracels Region to the 

United States.

In addition to the South China Sea region holding 

huge potential for producing oil and natural gas, it is 

also one of the world’s great thoroughfares of energy 
24

and trade, adding to its strategic significance to the 

United States and the international community.110 The 

United Nations (UN) Conference on Trade and Development estimated that 8.4 million tons of maritime 

trade—more than half of the world’s annual total—

passed into the South China Sea in 2010. The USEIA 

estimates that around 6-tcf of natural gas—over half of 

the world’s maritime gas movement—was part of that 

trade, as was approximately 14 trillion barrels of oil, 

or a third of the world’s volume. These massive movements link energy-rich southwest Asia and northern 

Africa to economically vibrant northeast Asia.111 An 

estimated 80 percent of Taiwanese, 66 percent of 

South Korean, and 60 percent of Japanese energy supplies are imported via the South China Sea, which also 

accounts for 40 percent of Japan’s total exports and 

imports.112 These busiest shipping lanes in the world 

pass by the strategically placed Paracel Islands, 113 and 

the sea lanes’ security is crucial to nearby states with 

which the United States has a range of formal defense 

arrangements, including Taiwan, South Korea, Japan, 

Australia, the Philippines, Thailand, and Singapore.114

Economic development in East Asia and the world 

would be seriously set back should maritime trade in 

the South China Sea be disrupted.115 The PRC, ROC, 

and Vietnam each claim all of the Paracel Islands and 

most of the South China Sea, and these conflicting and 

extensive maritime claims also challenge U.S. economic interests to exploit water column and seabed 

resources on what many parties consider high seas or 

international waters.116 U.S. economic interests are directly and indirectly entwined in the competition over 

the distant Paracel Islands.

As this monograph has shown, this region is not 

just another global hot spot, but one with important 
25

long-term economic, territorial, and security contentions. It is not only one of the world’s most disputed 

ocean areas, but also one of the few where violent incidents routinely occur at sea.117 For diplomatic, historic, and military capacity reasons, other states in and 

around the region rely on the United States to ensure 

stability in the South China Sea.118 This dependence 

could make the South China Sea a convenient arena for 

a rising China to test U.S. political will and dominance 

through increasingly assertive incidents to which the 

United States must respond to protect partner and 

American security and economic interests.119 A senior 

fellow at the Atlantic Council observed that “some in 

China may have believed that the global financial crisis that started in late-2007 signaled a U.S. decline of 

the U.S. and that the time was ripe to become more 

assertive.”120 Thus, the United States may face the difficult dilemma of balancing its interests in support of 

allies and partners with protecting its political and 

economic relations with the PRC.121 For these reasons, 

the American journalist and Stratfor analysis Robert 

Kaplan dubbed the South China Sea the world’s “new 

central theater of conflict” and “the heart of political 

geography in coming decades.”122

Yet mutual economic and political interdependence among these states—and the United States—argues against major conflict or even a Cold War style 

rivalry.123 Each state with interests in the South China 

Sea also understands the cooperative need for stability, sustainable management of resources, freedom 

of navigation, crime prevention, and a host of other 

common interests in the region which cannot be attained alone or by force.124 Indeed, in 1998, the United 

States and PRC signed the “Establishing a Consultation Mechanism to Strengthen Military Maritime Safe-
26

ty (or the Military Maritime Consultative Agreement 

[MMCA]),” designed to prevent incidents between 

them.125 Nonetheless, concerns remain that strong motivations, existing tensions, and entrenched positions 

need only an accident or miscommunication to create 

an incident or open conflict that subjugates all of these 

interests.126 Another reason why the South China Sea 

is important to the United States is that such incidents 

already occur.

Although ostensibly neutral and not a part of any 

of the land or maritime claims in the South China Sea, 

the United States and other seafaring states do have 

international rights in the area which have been challenged in contentious ways—the basis for which are 

explained in the next section.127 The comprehensive 

claims by the PRC to all of the waters of the South 

China Sea, and its government’s interpretation of 

international law, encourage the Chinese to bar any 

activity by foreign military vessels and aircraft from 

what most other states determine to be high seas 

and “transitable” Chinese maritime jurisdictions.128

Some analysts believe that U.S. surveillance actions 

in the northern South China Sea, which China contends trespasses on its jurisdiction, risk drawing the 

United States into a conflict in the region.129 Although 

this concern is now based on events in proximity of 

Chinese mainland waters, China has protested U.S. 

patrols around the Paracel archipelago since the 

1960s.130 Should the PRC prevail in its claims to land 

features and waters around the Spratly and Paracel 

Islands, the entire South China Sea could become a 

Chinese lake off-limits to foreign government vessels 

without permission. 

Despite the deconfliction efforts of the 1998 

MMCA, aggressive incidents have occurred between 
27

Chinese vessels and U.S. craft exercising freedom of 

navigation rights. Some of these may have been deliberate clashes by Chinese commercial vessels to create 

an incident and show the damaging effects of military 

activities in exclusive economic zones (EEZs).131 The 

most serious military-to-military incident was the 

2001 collision of a Chinese fighter jet with a U.S. Navy 

EP-3 65 miles southeast of Hainan Dao, which killed 

the Chinese pilot and forced the American crew to 

an emergency landing at the Chinese base on Hainan 

Dao.132 On the surface, Chinese vessels have harassed 

the U.S. ocean surveillance fleet ships, including 

the USNS Bowditch (2001 and 2002), Bruce C. Heezen

(2003), Victorious (2003 and 2004), Effective (2004), 

John McDonnell (2005), Mary Sears (2005), Loyal (2005), 

and Impeccable (2009).133 During this last incident, five 

Chinese vessels surrounded the hydrographic survey 

ship roughly 75 miles southeast of Hainan Dao (half 

way to the Paracels) and attempted to snag its towing 

cable, to which the U.S. Navy responded by dispatching warships to escort subsequent unarmed survey 

and ocean surveillance vessels.134 However, in December 2013 a renewed round of tensions started with the 

PRC establishing an air defense identification zone 

(ADIZ) over disputed islands in the East China Sea 

with the establishment of a similar ADIZ possible in 

the South China Sea, and a near-collision incident between the USS Cowpens and escort vessels of the PRC’s 

Liaoning carrier battle group in disputed international 

waters of the South China Sea.135 Even if the United 

States held absolute neutrality among the disputants, 

it might still be drawn into the South China Sea fracas to reinforce its maritime rights guaranteed under 

international law.
28

LEGAL BASIS AND CLAIMS IN THE PARACEL 

ISLANDS DISPUTE

What is the cause of this melee over land sovereignty, maritime jurisdiction, assertion of international rights, and police and military incidents around the 

South China Sea? To best understand the issues and 

in order to better contribute to their solution, this section analyzes the customary (or traditional) law which 

governs disputes over sovereignty of land and some 

forms of maritime jurisdiction and rights, and the 1982 

United Nations Convention on the Law of the Sea (UNCLOS, or Law of the Sea Treaty) which only addresses 

maritime issues, but in a more comprehensive and coherent manner.136 This section also examines how each 

of the involved parties applies these concepts to support these contentious claims. In this section, disputes 

over land sovereignty generally are treated distinctly 

from maritime jurisdiction disputes, although either 

claim may depend upon the legal standing of the other and may blur together in the case of historic rights 

claims, as will be shown.137 Sovereignty determination over geologic features, boundary delimitation of 

maritime borders, and the nature of those features as 

productive islands or uninhabitable rocks are three 

crucial decisions for which the claimants contest.138

Concepts here are covered to the depth needed to apply to the South China Sea and are not meant to be 

comprehensive. Complicating such an examination 

are the facts that international law is neither complete 

nor rigorous enough to be “a constitution” to consider 

the full merit of competing claims,139 and some modern 

legal regimes may conflict with customary precepts.140

Thus, legal applications may not be the ultimate arbiter to resolve the many differences, but knowing the 
29

basis of these legal claims may better guide potential 

ways to manage disputes.141 In large part, these legal 

disputes are how the contenders present their claims, 

so examining them this way is useful to illustrate the 

issues involved.

Customary International Laws and Claims.

Although by themselves the land features of the 

Paracel Islands have sustained no human population 

and produced little economically, they are points of 

contention because an island may garner legal jurisdiction and control over adjoining waters and resources.142 To establish these benefits, a state uses customary, or traditional, international law to stake its 

claim through long association in a historic claim or 

discovery and occupation of a feature—each is a separate mechanism to establish sovereignty, but some 

states employ them together like overlapping insurance policies. Once sovereignty is determined, the 

type of feature owned dictates the forms of maritime 

jurisdictions that then extend from it.143

Like common law, customary law has evolved 

over the centuries mainly from European traditions 

based on generally accepted notions, or past precedence through agreements, arbitration, or rulings 

by international courts. Concepts in customary law 

evolve as state practices change, and tend to address 

only specific issues presented within certain contexts. 

Among Asian societies, Western customary legal concepts like sovereignty, the high seas, or coastal jurisdiction have no traditional equivalent which makes 

adjudicating ancient claims incongruent with modern 

procedures.144 The SRV and PRC, as socialist governments, also assert that “bourgeois international law 
30

serves the interests of the bourgeoisie only,” although 

each employs these methods to advance their interests 

even as they seek to change them.145 Customary law 

is also not codified and agreed upon in as rigorous a 

manner as UNCLOS. All of this makes traditional law 

exceedingly complex and open to many interpretations and differences in its application.146

UNCLOS purposefully does not address sovereignty over land and “is premised on the assumption 

that a particular state has undisputed title over territory from which the maritime zone is claimed.”147 Thus 

customary law is the usual means to settle sovereignty disputes over territory through international law 

(though other means exist like conquest or purchase), 

and its maritime customs are still sometimes invoked 

today. UNCLOS indirectly has spurred island claims 

since its negotiations began in the 1970s by assigning 

oceanic jurisdiction to nearly any land feature, thereby converting previously avoided desolate rocky obstacles into the focal points of potential oceanic riches 

and igniting a form of gold rush over the South China 

Sea islets. Along with new technologies and rapidly 

expanding populations and economic needs, the new 

Law of the Sea Treaty explains why island disputes 

have turned more serious and violent in the South 

China Sea since the 1970s, and why we study old legal 

principles to understand a 21st century problem.148

Historic Vietnamese and Chinese Claims under 

Customary Law.

The oldest method of establishing jurisdiction over 

the features and waters of the South China Sea is to 

claim “historic rights,” “historic waters,” or “historic 

title” to them. In essence, this concept states that an 
31

area has been part of a state, through long continuous 

administrative control, economic use, or social links, 

should give the claimant special consideration. Such 

consideration could include inherent usage rights in 

the area, or control over it as internal waters or sovereign territory when the claim is generally recognized 

by other states.149 The appeal of maintaining a doctrine 

of historic claims comes from the legal principle of stare 

decisis (“maintain what has been decided,” or settled 

law) offering the advantage of stability and continuity 

in law and governance, which is why it was accepted 

as a precept by the International Court of Justice (ICJ) 

in 1951.150 In contrast, in traditional East Asian politics 

before Western legal concepts were practiced, the historic association of a region to a people or state would 

not need a formal legal claim to perennially oversee or 

control it.151

Although a practical customary precept, historic 

claims are broad and not well defined traditionally or 

in the Law of the Sea Treaty, even in Western international law.

152 Generally, historic rights recognize that 

traditional activities may continue in a designated 

area, and, if specifically stated, may include a claim to 

a land area or maritime jurisdiction.153 The concept of 

historic claims, “over which a nation exercises sovereign authority,” has been occasionally noted “under 

international law in limited situations,” but the ambiguity of these concepts’ wide-ranging and sometimes 

conflicting interpretations means they may not be useful mechanisms for establishing control.154 Nonetheless, when such claims are made, they are accompanied by detailed historic documentation to build a case 

in favor of the claimant, which would then need to be 

verified and weighed against other conflicting claims. 

Such procedures favor cultures with long traditions 
32

in writing and recordkeeping. Using this mechanism 

to establish sovereignty or jurisdiction under modern 

practices requires that claims be backed by effective, 

continuous, and unchallenged occupation or administration in order to be valid.155 These latter criteria 

are usually hard to establish, and thus may account 

in part for the past and present practice of challenging 

or ejecting noncitizens from disputed areas in order to 

demonstrate some control over the claims,156 resulting 

in some of the violent incidents this monograph has 

documented.

The South China Sea region has conflicting historic claims made by China and Vietnam.157 Vietnam 

presents a classic historic case for all of the Spratly 

and Paracel Islands and an undelimitated amount of 

much of the South China Sea based on four historical 

arguments presented in three White Papers in 1979, 

1982, and 1988.158 As evidence, Vietnam presents historic records and maps, physical geographic data, 

and references to stele inscribed in Vietnamese showing it controlled and exploited the Paracels by citing 

court documents from as early as the reign of King 

Le Tanh Tong (1460-97).159 They also cite corroborating European missionaries, navigators, and geographers of that time, and references in the Dutch Journal 

of Batavia from the 1630s supporting their claims to 

the Paracels.160 Stronger proof from royal court sources are dated from 1802 when the Nguyen Dynasty 

(1802-1945) pursued a more active maritime policy 

through “systematic measures taken in the fields of 

administration, defense, transport, and economic exploitation.”161 Such evidence bolsters the Vietnamese 

claim “that the ‘Feudal Vietnamese State’ effectively 

controlled the two archipelagoes since the 17th century according to international law.”162 Vietnam also 
33

invokes the 1884 French claim and administration 

over the Paracels while the Vietnamese states were 

a French protectorate and ultimate successor to their 

Western legal-style claim.163 From such proof, a modern Vietnamese scholar could assert that “a long time 

ago, regional countries pursued their normal activities in the East Sea without encountering any Chinese 

impediment and they have never recognized China’s 

historic rights in the South China Sea. . . .”164 More 

archival records are being translated into English to 

bolster Vietnam’s historic claim to the entire region.165

The Vietnamese historic claim to the Paracel Islands tends to be inconclusive, however. Many nonVietnamese scholars have found that basic Vietnamese knowledge about the South China Sea region in its 

historic documents was weak and depended heavily 

on misperceptions of the region conveyed by Europeans. As more accurate information about the Paracels 

was attained by Vietnamese authorities during the 

19th century, “there is little evidence that the Nguyen 

dynasty upheld its claim through declarations, effective occupation, or utilization.”166 The Vietnamese 

claim has not been generally recognized, having been 

ignored in the 1951 peace conference in San Francisco, 

CA, in which Japan relinquished control of the islands 

after World War II. Additionally, Vietnam’s claim has 

been consistently protested and interfered with by 

China since the 1900s.167 Other telling blows were official statements by the Democratic Republic of Vietnam’s (North Vietnam)168 Second Foreign Minister in 

1956 and Prime Minister in 1958 that recognized the 

PRC’s stated territorial claims, which included both 

the Paracel and Spratly Islands, even while acknowledging disagreements over their land border.169 In 

1958, the transfer from China to North Vietnam of the 

disputed White Dragon Tail Island, a speck in the Gulf 
34

of Tonkin, was possibly a quid pro quo for recognition 

of China’s control over the South China Sea islands.170

Not surprisingly, the Hanoi government offered no 

protest when the PLAN defeated the RVN Navy in 

1974, and the PRC occupied the entire Paracels group. 

That same government today renounces its earlier 

support to PRC territorial claims as a necessity during 

its wars against foreigners,171 but such recent recantations only underscore a weak historic claim as difficult 

to support.

The Chinese historic claim to the South China Sea 

and its geologic features is even more extensive than 

the Vietnamese stake,172 but just as ill-defined. Whether 

China claims all of the sea and resources of the region 

(as indicated in terms officially used like “territorial 

waters”), just the land features within the South China 

Sea (as may be intended with assertions to a “historic 

title”), unspecified traditional rights in the region, like 

fishing, or some combination of these, they are voraciously defended as “historically belonging to China” 

and “China’s intrinsic and inseparable territories” 

under the historic claim doctrine.173 Such ambiguity 

has been consistent and probably purposeful by both 

Chinese governments, since it allows flexibility on the 

Chinese side to argue conflicting points in its various 

maritime disputes and has made negotiations for the 

other claimants more difficult.174 Further complicating 

matters is that both the PRC and ROC assert identical 

historic and other claims to the South China Sea based 

on the same evidence. This mutual position could be 

termed “China’s” or the “Chinese” claim, terms which 

this analysis employs as pertaining to both or to any 

pre-1949 Chinese government.175 Since both sides 

recognize only one China, to support a lesser claim 

than the one already made could weaken that gov-
35

ernment’s appearance of legitimacy—a phenomenon 

making settling of disputes in the South China Sea 

more difficult.176 Although the claims are the same for 

both, the Taiwanese government has rarely asserted 

them as boldly or physically as has the PRC.177 Since, 

unlike the PRC and Vietnam, the ROC has no foothold 

or proximity to the Paracel Islands, its coverage in this 

monograph generally refers to its actions before 1949, 

and is otherwise assumed to support the PRC’s position in the South China Sea disputes.

The Chinese assert their ancient use of the sea 

through archeological evidence of fishing and trading 

activities, naval expeditions during the Han (206 BC220 AD) and Ming (1368-1644) Dynasties, and development of a “Marine Silk Route” to Arabia and Africa 

during the Tang (618-907) and Song (960-1279) Dynasties.178 The first written records cited to support a historic claim include an indirect reference to the islands 

in 1178, and the Chu Fan Chi (A Description of Barbarous 

People) written between 1225 and 1242 by an imperial foreign trade inspector, Chau Ju-kau, in which he 

refers to “long sand banks in the islands” thought to 

mean the Paracels, and recorded the Paracels within 

the border of China in 1279.179 Chinese association with 

the Paracels is better documented from the late-1800s 

through diplomatic interactions with European powers when, for instance, in 1876, China’s ambassador to 

Great Britain declared the Paracel Islands Chinese territory; in 1877, when China and France completed an 

ill-defined maritime boundary agreement in the Gulf 

of Tonkin; and in 1883, when the Chinese expelled a 

German survey team from the Paracel Islands.180 A 

Chinese survey in 1928 delimited the Paracel Islands 

as China’s southern border, but did not include the 

more southerly Spratly Islands.181 To clarify its here-
36

tofore inconsistent claims against other powers in the 

South China Sea, in 1935, a Chinese committee on land 

and water boundaries published a list specifying 28 

Paracel and 96 Spratly land features above low tide 

level as Chinese territory.182 Over the past 2,000 years, 

the Chinese avow to be the first to discover, name, and 

administer the South China Sea islands.183

In 1947, the ROC consolidated the Chinese historic claim by publishing a map with its “traditional 

maritime boundary line” (more often referred to as 

the “9-dashed line,” “U-shaped line,” or the “cow’s 

tongue” [see Map 1]) enclosing most of the South 

China Sea waters and associated land features as its 

“indisputable sovereignty.”184 The Chinese claim their 

historic links to the Paracels were well recognized 

until the 1930s when the French made claim to them 

through their then colonial possession of Vietnam, 

and the Japanese annexed the Paracels during World 

War II. In their support, the Chinese cite an 1887 SinoFrench treaty in which all islands east of a delimitation 

line belonged to China. Both the Spratly and Paracel 

Islands lie east of this line, although neither was specifically named, and the French would later contest 

that the treaty was a local agreement and not one of 

such wide scope.185 Nonetheless, during the prelude 

to World War II, the Chinese claim that the French 

assured them that its “garrison in the Paracels had a 

defensive purpose and would not prejudice the legal 

resolution of the dispute.”186 The ROC’s 1947 claims 

were echoed by the PRC when it claimed sovereignty 

over the Paracel and Spratly Islands in 1951 and over 

maritime rights from these features in 1958. These 

claims were formally reiterated in PRC law in 1992 and 

1998, and diplomatically in 2009 when China submitted its 9-line claim to UNCLOS.187 Taiwan codified its 
37

historic waters claim to the region within its U-shaped 

line in 1993 in its South China Sea Policy Guidelines, and 

reemphasized its broad claim as recently as 2011.188

Thus the Chinese historic claim to the region has been 

reinforced in domestic law and recent proclamation 

by both the PRC and ROC.

Despite this historic documentation claiming the 

Paracels and the South China Sea, there are problems with Chinese arguments because its association 

has often lacked the clear consistent claims or effective administration required by modern international 

judgments.189 Although it suffers from the same flaws, 

Vietnam’s historic claim contests China’s assertions 

to acquiescence by other states and that it has been a 

victim of European imperial aggression. Vietnam, for 

instance, refuses to stamp new PRC passports bearing 

a map showing the South China Sea as part of China, 

and has opposed an annual May-to-August fishing ban 

in the South China Sea imposed by China.190 Non-Chinese scholars also note that competing claims for some 

or all of the Paracel Islands have been made since the 

1800s by France and Japan, pushing China into asserting formal Western legal style sovereignty claims.191

China’s counterarguments that its sovereignty over 

the Paracels was strong until French incursions in the 

1930s are viewed dimly in light of inconsistent claims 

and the weak exercise of authority up to the end of 

World War II.192 During the 1943 Cairo Conference 

among the belligerents fighting Japan, attending ROC 

President Chiang Kai-shek made no claims for any 

Japanese occupied territory in the Paracels or Spratlys, 

despite the fact that decisions about occupied lands 

was a main topic of the conference. Also, during the 

1951 negotiations over the peace treaty with Japan, 47 

of 50 participating countries rejected a Soviet call to 
38

assign the Japanese-conquered areas, including the 

Spratlys and Paracels, to the PRC.193 A senior intelligence officer at the U.S. Pacific Fleet in a personal capacity at the U.S. Naval Institute challenged Chinese 

historic claims further when he declared in 2013 that: 

the rubric of a maritime history that is not only contested in the international community but has largely 

been fabricated by Chinese government propaganda 

bureaus in order to . . . ‘educate’ the populace about 

China’s rich maritime history.194

Chinese and Vietnamese officials have shown historic use of the South China Sea and its features but 

not to the level needed to establish effective and continuous control and sovereignty, since other states 

were also using and claiming parts of this area during 

these periods.195 Some commentators believe China 

and Vietnam might have more success by converting their historic sovereignty claims to one of historic 

rights to things like fishing, a better documented historic activity by both in the region.196 In short, the Chinese and Vietnamese historic claims for control over 

the Paracel Islands and their surrounding waters “can 

generally be summarized as incomplete, intermittent, 

and unconvincing.”197 Widely accepted international 

precedents, like the Island of Palmas Case ruled by the 

Permanent Court of Arbitration in 1925 and in subsequent cases,198 find effective administration and occupation of land take precedence over first discovery, 

historic claims, or close proximity.199 The Vietnamese 

and Chinese historic claims to the Paracel Islands lack 

a sufficient weight of evidence to establish the requirements of a sustainable population, persistent effective 

control by the respective governments, or of enduring 

economic activity to establish clear sovereignty.200
39

Sovereign Claims under the Customary Law 

of Discovery and Occupation. 

More in accord with modern customary legal precepts—because it is centered on effective control—is 

the customary legal principle of discovery and occupation. China and Vietnam each staked out some of 

the Paracel Islands using this method, but since the 

1974 Battle of the Paracels, only China physically occupies the archipelago. Like historic claims, which are 

increasingly being held to the same modern standard 

of effective administration, land stakes made through 

discovery and occupation require that a claim first be 

made for a land feature and then consistently and effectively controlled to remain valid.201 This land must 

previously be res nullis (“nobody’s property”),202 and 

thus “discovered,” and open for occupation and exploitation. More important is the “subsequent continuous and effective acts of occupation, generally construed to mean permanent settlement,” although for 

uninhabitable islands that standard may be less strict 

but then garners fewer jurisdictional rights, as will be 

covered in the next section.203 Using the indeterminate 

nature of historic claim law, one could argue that historic claims fall under the doctrine of discovery and 

occupation through long-term association, although 

the difference in evidence presented, time frames, and 

inclusion of historic waters or rights may make them 

separate types of claims, which are often how the parties to the disputes present them. 

In the South China Sea, formal discovery and occupation claims started in the 1800s. However, the 

Philippines government, for one, insists that, when 

defeated Japan renounced its World War II annexations, it left a void in ownership, arguably resetting 
40

all the geologic features in the South China Sea to res 

nullis.

204 Vietnam’s history occupying the Paracels was 

presented earlier in this monograph. Since Vietnam 

currently has no physical control of this island group, 

its occupation claims are anemic, although the government still acts in ways consistent with administering 

the Paracels. The Chinese discovery and occupation 

claim is examined in this section in terms of the evolving requirements for effective control and habitation, 

which account for the recent interest over the past 50 

years in occupying the land features of the Paracel 

and Spratly Islands (mainly through military garrisons so far) from which they would then seek to establish improved sovereignty over the islets and their 

surrounding seas.205

In addition to—and supporting—its historic 

claim, China also asserts that “Beijing has indisputable sovereignty over the islands based on discovery 

and prior occupation” as PRC President Yan Shang 

Kun declared in 1991.206 Under its modern application, discovery and occupation of the Paracel Islands 

began in 1946 after ROC President Chiang Kai-shek 

ordered the occupation of the Amphitrite Group and 

followed this with the publication of the infamous Ushaped line claim to the South China Sea.207 Despite 

the fact that Nationalist China withdrew its forces in 

May 1950 after its defeat in the Chinese Civil War, 

the ROC continued to assert its claim over the archipelago based on the 1952 Sino-Japanese Treaty which 

recognized Chinese sovereignty over the Paracels. 

However, Japan had previously renounced all claims 

to the South China Sea islands with no successor assigned, and the 1951 San Francisco Treaty refused to 

recognize any Paracels claims. Undeterred, the ROC 

government retorted that such actions could not nul-
41

lify Chinese sovereignty grounded on earlier historic 

claims and occupation.208

Bracketing the ROC’s initial occupation was the 

PRC’s subsequent occupation of the Amphitrites in 

1956 when it established a physical PLA presence 

in the archipelago, allowing the PRC to control it all 

since 1974. This Chinese claim received an unintended 

boost in 1939 when imperial Japan dismissed French 

protests of its invasion of the Paracels, countering that 

they were Chinese and not French possessions.209 The 

Chinese occupation also was complemented by an 

earlier legal claim to all of the Paracels by the PRC 

in 1951, and to maritime rights from these features 

in 1958.210 As noted earlier, PRC occupation claims 

were strengthened by proclamations in 1956 and 1958 

by DRV officials acknowledging the PRC claims to 

the South China Sea islands, and with Vietnam possibly acquiring White Dragon Tail Island in return.211

After oil was discovered in the South China Sea, the 

PRC strengthened its only foothold in the region, the 

Amphitrites, by improving infrastructure there, and 

in January 1974 sought to extend its physical control 

over all of the Paracels when it sent armed citizens 

to vacant RVN-claimed Robert, Money, Duncan, and 

Drummond Islands to build shelters and show the 

Chinese flag. This precipitated the Battle of the Paracels and full PRC control of the archipelago.212 Administrative control was consolidated under PRC laws 

passed in 1992 and 1998, specifying Chinese maritime 

jurisdiction and rights.213 China has since improved 

infrastructure and living conditions on Woody Island 

and adjoining Rocky Island, including roads and a 

causeway, government and military buildings, a hospital, a hostel, a post office, and commercial shops.214

China furthered its administrative control in July 2012 
42

with the promotion of Sansha City, headquartered on 

Woody Island, as the administrative prefecture-level 

city for all of its South China Sea claims including the 

Paracel and Spratly Islands.215 These actions by China 

are meant to show “effective occupation” of the Paracel Islands, and may with time “ripen into a legitimate 

assertion of sovereignty.” In this way, China is adhering to modern international legal practices.216

Just as the Chinese historic claim has been contested, so, too, has its discovery and occupation claims, 

though with much less effect since 1974. After World 

War II, France sent an expedition to the Spratlys to 

dislodge the Chinese occupation and reestablish its 

claims by leaving a physical presence in the Crescents.217 While still occupied by both South Vietnam 

and the PRC in 1973, the Saigon government actively 

explored for oil around the Paracels and Spratlys with 

Western oil companies and incorporated the islands 

into Vietnamese provinces, directly challenging Chinese claims and setting the stage for the naval battle in 

the following year.218 Despite losing physical control 

of the Paracels, the SRV has continued actions to administer it by incorporating it as an island district in 

the Da Nang independent municipality and subjecting 

it to Vietnamese laws.219 As recently as June 2012, Vietnam passed a maritime law reasserting its sovereignty 

over the Paracel and Spratly Islands and delimiting 

its maritime claims for both.220 On the same day, in 

response to this challenge to its claimed sovereignty, 

China upgraded the status of Sansha City. Vietnam 

and the Philippines expectedly protested but, unusually, so did the United States.221 China’s claims to the 

Paracels have been contested by other states, although 

its current extended occupation is harder to counter.
43

With Vietnam’s historic South China Sea claims 

no stronger than China’s, it has relied on physical occupation of some of the islets in the Spratly Islands 

to reinforce its claims. However, this practice severely 

undercuts Vietnam’s own discovery and occupation 

claim in the China-dominated Paracel Islands.222 Vietnam has documented its occupation of the Paracels 

back to 1816, with the Jialong Dynasty emperor ordering construction of temples and monuments on the islands in 1835.223 Vietnam could also use an argument 

claiming that at least some of the southern Paracel features, like Triton Island and Herald Bank, are in closer 

proximity by using a line drawn equidistant between 

Vietnam and China, a doctrine the Philippines has 

used in its claim for most of the Spratly Islands.224 Universal application of this doctrine would, however, 

greatly reduce Vietnam’s claims in the Spratly Islands 

to just a few of the westerly most islands without gaining much in the Paracels. Legally, proximity and territorial contiguity arguments are given little weight in 

international arbitration, a precedent begun in 1925 in 

the Island of Palmas case.225 Despite its historic documentation and assertions of discovery, proximity, and 

assumption of French claims, Vietnam’s lack of physical possession of any features undermines an effective challenge to China’s claim derived from physical 

occupation of the Paracels.

China’s firm control over the Paracels may be a solution—although a military imposed one—to possession and exploitation of the Paracel Islands by adapting another Roman-based international customary 

law, uti possidetis (“as you possess, thus may you possess”). This principle allows a party to maintain as its 

property its current possession until its rightful owner 

is ascertained. In international law, this is interpreted 
44

to mean land gained (often in war) remains with the 

occupier unless otherwise disposed through a treaty. 

This principle was upheld by the ICJ in 1986 when it 

ruled to maintain the colonial borders inherited by independent states in the Burkina Faso vs. Mali Case.226

This law could apply to the Paracel Islands if China 

keeps its present possessions, even though they were 

gained through conflict, unless a subsequent formal 

settlement is negotiated. Thus for China, not engaging 

with other states on this issue simply maintains the 

status quo for its benefit, unless enticed by other gains 

to reconsider its position. 

United Nations Convention on the Law of the Sea and 

Paracels Claims.

If sovereignty over the Paracel Islands is settled 

through customary law, the issue of the maritime jurisdiction around them is the provision of UNCLOS. 

The U.S. position on this issue was revealed in 2010 

by then Secretary of State Hillary Clinton at the Association of Southeast Asian Nations (ASEAN) Regional 

Forum (ARF): 

We believe claimants should pursue their territorial 

claims and accompanying rights to maritime space in 

accordance with the UN Convention on the Law of the 

Sea. Consistent with customary international law, legitimate claims to maritime space in the South China 

Sea should be derived solely from legitimate claims to 

land features.227

Unlike land claims, “sovereignty to resources in 

and under the sea is acquired simply by virtue of distance from coasts. This is important because it affects 

the role of territory as a conflict driver,” as already 
45

demonstrated in this monograph.228 Because of the 

importance of UNCLOS, this section discusses the key 

points that affect the South China Sea region, including how maritime jurisdiction is determined when 

originating from a land feature, the different maritime 

zones and their rights, and the sea and land claims that 

China and Vietnam have lodged using these rules.

Well-defined maritime boundaries and agreed 

upon rights within them are necessary to peace and 

stability on the ocean commons.229 Customary maritime law, through most of history, governed space 

and actions on the seas by allocating three-mile-wide 

territorial waters from a coast, with general agreement on rights for navigation and taking of resources. 

Since the 1950s, however, management of the sea has 

become much more regulated and comprehensive 

through a series of international treaties culminating in UNCLOS, which was negotiated from 1973 to 

1982 and took effect in 1994. This treaty gives coastal 

states a 12-nm territorial sea and an EEZ of limited 

economic control to 200-nm from the coast, and possibly a continental shelf extension to the natural limit 

of its seabed shelf (to a maximum of 350-nm). It also 

has provisions for archipelagic states to enclose the 

waters around and between their islands as internal 

waters, giving more economic and security control 

within their physically fragmented countries.230 These 

maritime boundaries of state control are premised on 

the type of land feature—inhabitable land or unproductive rock—each emanates from so that issues of 

sovereignty, topography, and classification of a land 

feature determine maritime boundaries.231

Both Vietnam and the PRC have ratified this convention, but with reservations. Taiwan is not an eligible member, although it generally follows its rules, and 
46

the United States has signed but not ratified the treaty.232 Technically UNCLOS does not apply to disputes 

started before it came into effect, including the Paracels claims, but an expectation exists for signatories 

to abide by its provisions nonetheless.233 Four forms 

of settlements are offered by UNCLOS for dispute 

resolution, with arbitration the assumed form since 

none of the states involved have yet chosen a method. 

States are able to opt out of some of the Law of the 

Sea Treaty’s requirements. The PRC, for instance, does 

not accept compulsory procedures to settle disputes 

over maritime boundaries, military or legal activities 

in a zone, or actions of the Security Council, because 

those provisions might interfere with the discretionary sovereign powers of the state.234 Thus, UNCLOS is 

a well-respected treaty that offers guidance to resolve 

disputes like those found in the South China Sea, but 

rarely does so through strict enforcement.235

Determination of a Habitable Island from a Rock.

After designating sovereignty over a land feature—which is normally deemed beyond the pale 

of UNCLOS—determining the type of feature from 

which a maritime zone is claimed is the next step and 

one of the functions of the law of the sea. Inhabitable 

lands receive all UNCLOS maritime zones and rights, 

although these can be constrained by surrounding 

zones. Continental states receive full consideration 

for territorial waters and adjacent EEZ or continental shelf, while islands may be assigned part or all of 

those areas.236 However, what constitutes an inhabitable island is a major concern since a qualified speck 

of land could accrue control over 125,000 square-nm 
47

of water column and seabed through the UNCLOS 

regime. Under Article 121: 

an island is a naturally formed area of land, surrounded by water, which is above water at high tide [, but] 

. . . Rocks which cannot sustain human habitation or 

economic life of their own shall have no exclusive economic zone or continental shelf.237

The human considerations in the island definition 

establishes a sub-class of islands known as “rocks” 

which are “barren and uninhabitable insular formations, such as cays and atolls” and receive only territorial waters and a contiguous zone around it regardless 

of the size of the rock.238

The U.S. Government compiled Gazetteer of the 

Paracel Islands and Spratly Islands has listed 18 features 

in the Paracels region as islands or rocks which appear 

to be eligible for territorial seas.239 The respected South 

China Sea experts Mark Valencia, Jon Van Dyke, and 

Noel Ludwig note, per UNCLOS Article 121, that reefs 

and other features submerged at high tide garner no 

maritime zones “even if artificial structures are based 

on them,” except for a 500 meter safety zone given 

to any artificial or temporary feature at sea.240 Under 

these terms, many of the Paracel geologic features garner no maritime zones.241 In 1975, the ICJ advised that 

the standard for formal displays of sovereignty, like 

markers and policing, is lower for uninhabited areas, 

which would also pertain to islands designated as 

rocks.242 This monograph has deliberately not used the 

word “island” indiscriminately to distinguish features 

accurately, as used by this definition.

Because the stakes are high for how a maritime 

land feature is designated and the definitions used in 

UNCLOS are not precise, leeway is often employed 
48

to interpret this clause. Whereas physical geography 

may distinguish between an island and a nonisland 

geologic feature, human needs distinguish between 

a habitable island and a rock. The key question then 

is, “What does it take to sustain human habitation or 

have economic life of its own?”243 A source of indigenous potable water might be one criterion, but would 

that prevent a solar powered desalinization plant from 

also fulfilling the requirement for human habitation? 

Must the island itself sustain its population with the 

necessities of life to be habitable, or may it be supplied 

from outside? Are lighthouses or navigation markers 

sufficient evidence of “economic life of their own”?244

Van Dyke has argued cogently that a habitable island 

requires a permanent sustainable population “who 

are on the land area for reasons other than just to secure a claim of a distant population for the adjacent 

ocean resources.” He explicitly discounts occupation 

forces and lighthouse keepers from this group.245 He 

further believes, with other experts, that a population 

of at least 50 people could constitute a sufficiently 

stable community to satisfy the habitation requirement, although he has conceded that “the criterion 

may not inevitably require that the insular feature itself be permanently inhabited, but it would require, 

at a minimum, that it provide support for a regular 

basis by fisheries from neighboring islands. . . .”246 The 

indeterminate nature of the habitable criterion leaves 

much room for the claimants and experts to disagree.

Under some circumstances, rocks and inhabited 

islands may not receive full maritime zones.247 Rocks 

receive little consideration under international law 

to prevent them from both impinging on the similar 

rights of nearby islands or continents that are populous and economically active and from interfering 
49

with opportunities that should be open to all seafaring 

nations when located on the high seas. Additionally, 

this helps to reduce the incentive to “reverse engineer” 

a barren feature with a settlement that could claim a 

maritime zone that would make the feature economically viable when it was not originally.248 Even habitable islands hold lesser status under UNCLOS when 

compared against the claims of a continental coast. In 

the 1984 ICJ case between Libya and Malta, the latter 

was given: 

a diminished capacity to generate maritime zones in 

comparison to the broad coastline of Libya . . . Thus 

even substantial and heavily populated islands are not 

the equivalent of continental landmasses in their ability to support claims over adjacent ocean space.249

Another point pertinent to the Paracel Islands is 

uninhabitable islands generate territorial waters, but 

do not impede the rest of the rights attributed to a larger maritime zone, like an EEZ, that may encompass 

it.250 This could apply, for instance, to Triton Island, 

which, if it were found to at least meet the status of a 

rock, would generate territorial waters for the PRC, 

its current controller, that impinge upon Vietnam’s 

coastal EEZ. The vague considerations that are taken 

into account in determining maritime boundaries and 

the other shortcomings of UNCLOS mean that most 

dispute settlements tend to be difficult, and usually 

considered on a case-by-case basis using precedent as 

a guide if submitted for review.251

Regarding their habitability, the Paracel Islands’ 

conditions have proven harsh for sustaining life. In 

their natural state, they are tiny, low, barren islets with 

Rocky Island the highest in elevation at 15-m and the 

rest not more than 10-m, making them vulnerable to 

typhoons and storm surge. The islands lack fresh water 
50

beyond insufficient seasonal rainfall, and the soil consists primarily of coral, shells, and bird guano in the 

form of brown powder or white nodules, at one time 

averaging a quarter of a meter deep—little surprise, 

then, that the Paracels historically have sustained no 

indigenous human population.252 The resulting cost of 

the financial and physical commitment by each of the 

past occupying states has been high, which explains in 

part why the French, Vietnamese, Japanese, and Chinese historically have been parsimonious in stationing 

troops in the Paracels. 

The nearest case of a disputed South China Sea 

feature meeting the requirements for a habitable island may be Woody Island. Less than a square mile in 

size, it has a reputed decades-old population of about 

1,000 people, consisting of military personnel, civil 

servants, and fishermen, most of who have temporary 

terms of residency.253 To demonstrate its control over 

and habitability of Woody Island, the PRC has made 

it an administrative capital, expanded the existing 

runway for overseas tourists and surveillance aircraft, 

established a new deep water port to handle cruise 

liners and maritime enforcement vessels, and built 

a desalinization plant, 500-kilowatt solar power station, and environmentally friendly rubbish and waste 

water treatment facility for visitors and the increased 

garrison. Other improvements reported are a small 

700-square-meter vegetable patch and a small coconut 

grove.254

How much Woody Island adheres to Van Dyke’s 

concept of an island made habitable only through “reverse engineering,” or his proposed criteria of an inhabitable island with a permanent population which, 

at a minimum, “provide support for a regular basis 

by fisheries from neighboring islands,” is a gray area 

that remains one of the main points of disagreement 
51

in the region.255 The new principles and definitions 

in the 1982 UNCLOS law have stirred problems of 

land claims to gain maritime jurisdiction in the South 

China Sea, which some commentators believe could 

best be managed by declaring the features “legally 

uninhabitable”256 or pooling the maritime zones each 

might generate to be “shared regionally and managed 

by a joint development resource agency.”257 Within 

these bookends of open ocean and collective sovereign waters lies a continuum of maritime control by 

the coastal states. 

Maritime Jurisdictions.

After sovereignty over a geologic feature and its 

type are determined, then its maritime jurisdictions 

are established through UNCLOS. The Law of the 

Sea Treaty determines how much authority a state asserts over neighboring seas as weighted by the type of 

land feature it is based upon and its distance from the 

coastline. The types of waters that may be assigned 

are sovereign internal waters (including closely related archipelagic and historic waters), territorial waters, 

contiguous zones, EEZs, sometimes a continental shelf 

extension, and the high seas. The high seas are the res 

communis, open for use by all states, though regulated 

somewhat by both customary law and UNCLOS as to 

how activities may be conducted. Examples of regulating the high seas include customary laws against 

piracy or slavery, and UNCLOS Part XI rules on the 

gathering of nonliving and sedentary resources from 

the ocean floor258—objections to the latter has kept 

the United States from ratifying the Law of the Sea 

Treaty. The boundaries and rights of the littoral zones 

are explained in this section in order to better present 
52

the potential maritime jurisdictions that are claimed in 

the Paracel Islands region, and their implications for 

U.S. interests.

Internal, Archipelagic, and Historic Sovereign Waters.

The most restrictive maritime zones are internal 

waters in which the state has complete sovereignty, 

as over its own internal lakes and land. Internal waters are adjacent national waters with access to the sea, 

but are inside a series of straight baselines that may 

connect barrier islands or cross the mouth of a narrow bay, and thus are treated as under the full sovereignty of the state.259 Smooth coastline states might 

rate no internal waters, whereas countries with chains 

of nearby fringe islands, like the U.S. eastern seaboard or deeply indented coastline like that found in 

Alaska, would have internal waters from the shore to 

the straight baseline that connect the outermost part 

of these features, as stipulated in Article 7 and subsequent guidance in UNCLOS.260 Applying this law, the 

United States has sovereign control over its Intracoastal Waterway on the landward side of the east coast 

barrier islands, but has only territorial waters control 

on the seaward side of those islands. Establishing a 

straight baseline simplifies rugged sea borders and is 

advantageous since it not only gains sovereign control over adjacent waters, but also, as its name implies, 

moves the line from which other maritime zones are 

measured from the shore (or normal baseline) to the 

straight baseline, and makes all waters landward from 

the straight baseline sovereign internal waters. For 

this reason, straight baselines often are drawn liberally, as has been done by the PRC and Vietnam, which 

routinely has been physically and diplomatically challenged by the United States as exceeding their right-
53

ful allowances to attain large swaths of internal water 

and extend their maritime zones further to sea.261 The 

only exception in UNCLOS to complete sovereignty 

over internal waters is to allow innocent passage 

across recently drawn straight baselines “which had 

not previously been considered as such,” mostly affecting states through whose waters traditional international shipping routes pass.262 While straight 

baselines are applied liberally along neighboring continental shores to improve the maritime jurisdiction 

that may be claimed from national boundaries, their 

use around the Paracel Islands is also “problematic,” 

according to Hasjim Djalal, an Indonesian diplomat 

who was President of the UNCLOS Assembly of the 

International Seabed Authority and coordinator of 

the informal “Track II” workshops among the South 

China Sea disputants.263

A new construct for internal waters found in UNCLOS Part IV is that of archipelagic waters, codified 

in part to supersede the thorny concept of historic waters.264 Archipelagic waters specifically were intended 

to give fragmented island states, like Indonesia and 

the Philippines, authority over the waters within the 

confines of their archipelago as defined by its baselines.265 Here, however, the enclosing lines are called 

straight archipelagic baselines, and are drawn further 

afield than the tips of adjacent craggy peninsulas and 

fringe islands. Archipelagic baselines may connect the 

outermost features of an archipelago with lines up to 

100-nm long to enclose an area of no more than 1 to 

9 land-to-water ratio.266 Although the Paracel Islands 

themselves are a geographic archipelago, they would 

not fall under this legal regime because they are not 

a sovereign state, nor may the PRC use archipelagic 

rules with the Paracels since the mainland is not a part 
54

of the archipelago.267 Since archipelagic rules do not 

apply in the Paracels, China’s current declaration of 

its straight baselines around the Paracels may violate 

UNCLOS intent with 5 of 28 lines drawn longer than 

24-nm in length.268

Historic claims, beyond those now covered under 

archipelagic baseline rules, are also considered internal waters under customary law. Although historic 

waters are not officially defined, they are occasionally 

referenced in UNCLOS, such as Article 10’s “historic 

bays” or Article 15’s reference to “historic title.”269 According to maritime law author L. J. Bouchez, historic 

waters are: 

waters over which the coastal State, contrary to the 

generally applicable rules of international law, clearly, 

effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States.270

Its appeal to states is that historic waters hold the 

sovereignty of internal waters, but do not include 

the innocent-transit-across-baselines caveat found in 

UNCLOS archipelagic waters regime. Thus, attaining 

historic waters status restricts freedom of navigation 

and curtails the exploitation of oceanic resources by 

the international community.271 As preceding law, historic waters may also override UNCLOS statutes by 

allowing historic bays wider than 24-nm at the mouth, 

for instance, or giving precedence to historic waters 

contrary to overlapping territorial water claims which 

would otherwise be settled with a median line between them.272 The motivation for a state to claim such 

waters is obvious, and both Vietnam and China make 

sweeping historic claims to large parts of the South 

China Sea, as previously presented. 
55

Although some commentators assert that historic 

claim doctrine is obsolete or at least transitional, these 

claims remain very active in practice through the legal 

principle of stare decisis.

273 Nonetheless, UNCLOS was 

written to minimize the use of historic claims, and they 

are generally recognized by the international community only in exceptional circumstances.274 As already 

demonstrated in the South China Sea, the Vietnamese and Chinese historic claims are not convincingly 

documented, lacking the continuity and long-term 

exercise of rights recognized by other states as defined by Bouchez. For example, it would be difficult 

for a state to claim historic waters where foreign ships 

transit on a regular basis as has routinely occurred 

around the Paracel Islands in the South China Sea.275

Some officials in Beijing are reported to recognize that 

their sweeping claim for South China Sea historic waters conflicts with UNCLOS, and that they believe a 

more appropriate claim is for just the islets within its 

U-shaped line with their adjacent waters.276 At least 

one commentator believes that Vietnamese officials 

are also relenting on claiming historic waters to argue 

its claims in terms of UNCLOS EEZ and continental 

shelf articles.277 Although not taken seriously by the 

international community, historic waters could be a 

powerful and excluding disruptor if awarded to any 

claimant in the South China Sea.

Territorial Seas and Contiguous Zones.

Close to internal waters in concept and proximity 

are the maritime zones of territorial seas and contiguous waters. Territorial seas codify the customary legal 

practice of state control over waters within 3-nm of 

its shores, but UNCLOS expands this zone to up to 
56

12-nm from the baseline. Articles 33 and 121 allow every natural feature above the high water mark to have 

territorial waters and up to an additional 12-nm for 

a contiguous zone, and China and Vietnam have established each of the UNCLOS allowed zones.278 Territorial seas are treated as the coastal state’s sovereign 

territory, with exclusive rights to living and nonliving 

resources down to and including the seabed, and enforcement of applicable national laws, but they must 

still allow innocent passage to transiting foreign vessels.279 The right of innocent passage through territorial waters requires that “the peace, good order, or 

security of the coastal State” not be disturbed through 

activities like fishing, polluting, information collecting, firing weapons, or launching aircraft or boats in 

accordance with Article 19.280 Coastal states may, of 

course, prevent noninnocent passage through its territorial waters, and may also temporarily suspend innocent passage by all foreign vessels in specific areas 

designated as temporary security zones in its territorial 

sea per Article 25.281 The contiguous zone is a nonsovereign transitional area that allows protections for the 

coastal state to enforce national laws concerning customs, finance, immigration, and sanitation, but is otherwise governed as part of the less restrictive EEZ.282

Innocent passage is not needed to transit a contiguous 

zone. Both zones were established to allow freedom of 

navigation to all vessels from any state, and to ensure 

good order and control over adjacent waters for the 

coastal state.

There are disagreements, however, over whether 

innocent passage applies to all vessels or excludes 

warships of another state, a U.S. major concern which 

relies on innocent passage for power projection. The 

1958 convention that preceded UNCLOS clearly al-
57

lowed warships innocent passage through territorial 

waters, and the drafting history of UNCLOS indicates 

the same rights.283 UNCLOS rules for innocent passage 

fall under Section 3, Subsection A entitled “Rules Applicable to All Ships,” which states “ships of all States, 

whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.”284 Despite 

this rule, China and Vietnam have interpreted innocent passage to exclude warships or their activities, 

and protest such transit vigorously.285 Vietnam’s 1980 

Enactment No. 30-CP prohibits military ships from 

both its territorial sea and contiguous zone without 

30 days advanced permission, although its 2012 Law 

of the Sea has relaxed the requirement to prior notification.286 Further to sea are the PRC’s permanent restricted maritime military zones, created in the 1960s, 

within and outside territorial waters in the Bo Hai 

and Yellow Sea.287 Although these zones are north of 

the South China Sea, they demonstrate long-standing 

Chinese actions that ignore Article 25, and could also 

be applied around the Paracel Islands as permanent 

political obstructions to any foreign vessel’s passage 

in the region.

Chinese policy since the early days of the Republic 

in the 1920s, after its harsh history with maritime insecurity, also bars warships’ passage through its territorial seas and contiguous zones without prior consent “to safeguard its national security.”288 This was 

first codified in the Declaration of the Government of the 

PRC on the Territorial Sea in 1958, and reiterated in the 

1992 Law on Territorial Waters and their Contiguous Areas, both of which explicitly included the Paracel and 

Spratly Islands.289 The significance of maritime control 

and innocent passage for the PRC explains in part 

why China took more than 13 years to ratify UNCLOS 
58

and the reason for its accompanying reservations.290

The issues of sovereignty and independence are the 

PRC’s highest priority in its policy of Five Principles of 

Peaceful Coexistence.

291 The 1992 territorial waters law 

implied, and further actions have shown, that the PRC 

will enforce its sovereignty for its claimed Paracel and 

Spratly Islands.292 Such sovereign zones, if fully enforced, would mean most or all of the sea out of limits 

should China or Vietnam enforce historic rights to the 

South China Sea islets or to historic waters. 

Exclusive Economic Zones.

An innovation of modern maritime statutory law is 

the EEZ, by which states possessing habitable islands 

and continental shores economically control up to 

200-nm of ocean and seabed from their baseline under 

Part V of UNCLOS.293 Unlike territorial seas, however, 

there is no state sovereignty over this zone, just the 

authority to regulate the environment and natural resources, establish installations, and conduct “marine 

scientific research.”294 By controlling such activities, 

EEZs are distinguished from the less-restrictive high 

seas. Unlike territorial seas, navigation and over-flight 

of an EEZ is not subject to the coastal state’s control 

except to enforce the authorities allowed by UNCLOS, 

such as resource management and pollution control.295

Based on these provisions to manage the EEZ, the 

South China Sea states often challenge each other’s 

activities in their ambiguous and overlapping claimed 

zones, and use their interpretations to restrict operations of foreign military craft (as already presented in 

this monograph).

Under customary law, the distances over which 

states controlled adjacent waters were short, and the 
59

amount of overlapping jurisdictions small. When UNCLOS extended the maritime jurisdictions and created 

the EEZ, with states 400-nm apart becoming maritime 

neighbors, the problem of unilateral and overlapping 

EEZ claims in the Paracels resulted.296 In such cases, 

delimitation establishes maritime jurisdiction boundaries between states’ valid claims for territorial seas, 

contiguous zones, EEZs, and continental shelf.297 To remove contention from such decisions, the earlier 1958 

Geneva Conventions on the Law of the Sea proposed a 

line halfway between the coastlines of overlapping jurisdictions, using the equidistance principle to delimit 

disputed areas that could not otherwise be settled.298

However, in the 1970s, this straightforward method 

was modified in international court judgments that 

found even habitable lands may each carry different 

weight in the generation of maritime zones based on 

the length of their coastlines.299 Of course, where no 

overlap occurs all habitable islands receive full maritime zones, but when small islands’ jurisdictions abut 

larger islands, or larger islands’ zones overlap continental landmasses, the smaller feature will receive 

less than full effect depending on each circumstance.300

Weighing the amount of jurisdiction awarded in disputes to the more significant land formation is the essence of the current equitable principle, which ensures 

the amount of area awarded in an EEZ is proportional 

to the length of the coastlines involved, and not usually influenced by economic, ecological, or other 

characteristics.301

The awarding of an EEZ using these rules is important in the Paracel Islands because of the consequences 

for regional economic development and international 

navigation. Unlike territorial seas and contiguous 

zones, economically unviable rocks do not generate 
60

an EEZ or a continental shelf claim.302 Under these 

conditions, an exposed rock would become an enclave 

of territorial waters for one state surrounded by the 

high seas or the EEZ of another state’s nearby eligible 

landmass.303 Since Vietnam and China claim 200-nm 

EEZs from their baselines, their EEZ claims conflict 

over controlling the region’s maritime resources outside of the territorial waters given to eligible geologic 

features. Thus, Vietnam’s EEZ would regulate the 

seas south of the Paracel Islands, and China’s would 

regulate the seas around the northern features.304 Since 

Vietnam included no EEZ from its claimed Paracel 

and Spratly Islands in its 2009 EEZ and continental 

shelf submissions to the UN Commission on the Limits of the Continental Shelf, its government may have 

determined that these land features are uninhabitable under the legal definition and merit only territorial seas.305 This interpretation leaves an approximate 

700-nm long band of high seas in the South China Sea 

stretching from 150-nm northwest of Woody Island to 

parts of Rifleman Bank in the southwestern Spratlys, 

which would be governed only by UNCLOS Article 

87, the Freedom of the High Seas section, and the International Seabed Authority for sea floor resources.306

China’s efforts on Woody Island, however, are meant 

to prove that it is habitable, which, if true, would 

garner China more water column and seabed in the 

South China Sea through its Paracel occupation. Perhaps to maintain its options concerning the islands’ 

habitability, Vietnam only made a partial submission of its UNCLOS EEZ and continental shelf claims, 

and may yet make further claims from its islands.307

When interpreted under the intent of UNCLOS, establishment of EEZs is relatively straightforward in the 

Paracels’ region.
61

Should PRC-occupied Woody Island be determined a habitable island, an EEZ complication arises. 

Woody Island’s position on the edges of the Vietnamese and Chinese EEZs mean it would probably 

generate little EEZ to its north and southwest against 

continental EEZs, although that would be determined 

by treaty, arbitration, or international court decision. 

However, to the east, Woody Island could generate 

an EEZ in the waters of the erstwhile high seas of 

the northern South China Sea.308 This additional EEZ 

would transfer about 40,000 square-nm from existing 

high seas to China’s jurisdiction, including all of the 

shallow Macclesfield Bank from which it could derive 

the increased fishing and drilling potential associated 

with one of the world’s largest sunken atolls.309 In 

line with Chinese law, this enlarged EEZ would also 

increase China’s naval buffer zone, since it prohibits 

foreign government vessels’ transit rights in its EEZ 

without prior permission. In 2000, China and Vietnam 

negotiated a delimitation agreement, settling over a 

century of disputes in the Gulf of Tonkin, along with a 

fishing protocol, which both took effect in 2004.310 This 

negotiation is a promising sign toward the resolution 

of overlapping claims.

If Vietnamese or Chinese historic claims are validated as internal waters, EEZs would be of diminished consequence since these sovereign seas would 

impinge upon the lesser authorities of an EEZ. Two 

vexing examples of such overlap come from China’s 

exploration and drilling activities within Vietnam’s 

EEZ in the southern South China Sea, starting in 1992 

with the Crestone Block and continuing as recently 

as June 2012 with CNOOC calling for bids on blocks 

within 37-nm of Vietnam. China substantiates these 

activities through its historic claim, and they are the 
62

cause of many of the clashes between China and Vietnam.311 China disregards Vietnamese maritime claims 

that conflicts with its own, exploiting resources within 

Vietnam’s claimed EEZ while it protests when other 

states transit China’s own EEZ claims.312 In China’s 

view, “a claim derived from historic rights may seem 

more forceful and valid in law than claims simply 

based upon the EEZ concept,” and even if jurisdiction 

based on historical claims is rejected, they still offer 

the potential for other historic rights—like access to 

traditional fishing areas—that cannot be otherwise 

attained through UNCLOS methods.313 The combinations of customary and statutory maritime laws with 

different national interpretations lead to a wide variance in the amount of control that may result, but 

gaining possession of the Paracels or some historical 

claim may garner considerable jurisdiction in the surrounding waters.

In addition to the delimitation of the EEZ, how it is 

enforced is also very important to the United States. In 

their implementing domestic laws, both the PRC and 

ROC claim a 200-nm EEZ and accompanying rights 

to regulate it under UNCLOS.314 Should China start 

enforcing an EEZ around Woody Island or other occupied features in the Paracels, it would challenge foreign military vessels and aircraft to seek permission to 

operate within this expanded EEZ as it now does in its 

mainland EEZ.315 China is essentially applying rights 

that apply in territorial seas to its EEZ. Through its 

claimed historic rights of special security interests and 

application of UNCLOS, the PRC requires that activities should “refrain from any threat or use of force” in 

the EEZ (the intent of UNCLOS definition on transit 

passage under Part III on straits navigation).316 China 

treats its EEZ as a military buffer zone, contending 

that U.S. military surveillance ships and reconnais-
63

sance flights violate the spirit of UNCLOS and China’s 

historic rights in the South China Sea and seek to restrict such activities.317 Thus PRC laws maintain peace 

in its EEZ by barring foreign military vessels, citing 

UNCLOS Article 58 which directs that states “should 

comply with the laws and regulations adopted by the 

coastal State in accordance with the provision of this 

Convention.”318 If the coastal state’s laws are disputed, 

Chinese scholars declare that deference be given to the 

PRC per Article 59, “taking into account the respective 

importance of the interests involved to the parties as 

well as to the international community as a whole.”319

The United States rejects this interpretation, resulting in the PRC’s restriction of the freedom of navigation through an EEZ, contending it is a minority 

view held by only 27 of the 161 ratifying states (significantly, Vietnam is also one of the states enforcing 

a restrictive EEZ).320 Focusing on one particularly irksome activity, Chinese officials place “military survey 

and military information gathering . . . into the category of ocean scientific research which requires prior 

permission from the coastal states,” thereby supplementing its objections based on regulating peace and 

security in adjacent waters.321 By applying maritime 

law in this way, the PRC uses “international law as an 

adjunct to their military forces to achieve anti-access 

maritime objectives.”322 The triple problem of whether 

its occupied Paracel Islands can generate an EEZ, the 

amount of EEZ such features would gain against the 

neighboring larger landmasses, and whether foreign 

military vessels or certain activities are barred from 

an EEZ, make this a very tenuous legal argument for 

China.323 However, it could be useful justification for 

keeping U.S. vessels out of the South China Sea from 

a security stand point, which China could then better 
64

defend militarily than legally. Both China and Vietnam’s contentions that bar military vessels put them 

in a minority position within the international community, unless ever-evolving international sentiment 

calls again for a change to the Law of the Sea Treaty. 

Continental Shelf Claims.

Although not a jurisdiction that includes a water 

column like the spaces discussed previously, the UNCLOS continental shelf zone is important to adjacent 

states for the management of nonliving resources and 

sedentary species on and under the seabed. Extended 

claims for adjacent ocean floor began with the United 

States in 1945, and the concept was subsequently incorporated in Article I of the 1958 Convention on the 

Continental Shelf with a limit of 200-m isobaths or 

the depth of exploitability.324 By 1969, the ICJ instituted the “natural prolongation principle,” which acknowledged that states had jurisdiction over a much 

extended continental shelf, although not necessarily 

from islets or minor coastal features.325 The resulting 

UNCLOS articles updating this extended authority 

were a compromise that allowed coastal states to control the surrounding seabed to the natural length of 

its continental shelf or to a maximum of 350-nm from 

the baseline, and also gave geographically challenged 

states with little adjacent continental shelf at least a 

200-nm EEZ that also controlled the seabed below it.326

Under UNCLOS, states do not need to exploit or occupy the continental shelf to retain exclusive economic 

rights to its seabed, which includes protrusions from 

the seabed floor that remain submerged.327 In Articles 

78 and 79, however, it is clear that rights to the continental shelf do not affect the superjacent waters or 
65

airspace above it in order to allow navigation and the 

unfettered laying of submarine cables and pipelines.328

The states around the South China Sea supported this 

greater control over their continental shelf that UNCLOS gave them, and have used it to their economic 

and political advantage.329

These rights over the more distant areas from the 

claimants’ shores come with more obligations than 

other UNCLOS zones in how they are delimited. Here, 

the claiming state must first scientifically stake the extent of its continental shelf beyond 200-nm with the 

UN Commission on the Limits of the Continental Shelf, 

which then must qualify it for technical compliance.330

This is an exacting process that must be completed 

within 10 years of ratification of UNCLOS. The Commission cannot qualify an extended continental shelf 

claim, however, if it is part of a territorial or maritime 

disagreement with another state.331 Consent from the 

other involved states can be difficult to obtain in the 

contentious South China Sea environment, as seen in 

the 2009 joint Vietnamese-Malaysian continental shelf 

submission to which the PRC and the Philippines objected.332 Further complicating delimitation of a continental shelf is the potential divergence of an EEZ 

water column from the continental shelf below it with 

each assigned to a different jurisdiction.333 This may 

occur when the EEZs of a continental state and small 

island do not overlap, but the natural continental shelf 

extends out to undercut the island’s EEZ, or when so 

negotiated. Split continental shelf and superjacent 

EEZ ownership are uncommon, and no resolution in 

the South China Sea has resorted to this yet; however, 

it is a possibility in the corner of Asia in which the Paracels are located.334 These continental shelf rules make 

already intricate circumstances around the Paracel Islands that much more difficult to resolve.
66

Based on the UNCLOS definition of the extent of 

the continental shelf, the Paracels are located on a 

shelf at the 2,500-m depth level that deepens just to 

the northeast and southeast of the islands.335 Using the 

complicated mechanism found in UNCLOS Article 76, 

Vietnam’s declared continental shelf begins about 50-

nm southeast of the center of Macclesfield Bank (but 

does not include the bank) and runs southwest until it 

joins Vietnam’s claimed EEZ line approximately 250-

nm due east of Phan Thiet, which approximates the 

equidistant line between Vietnam and the Philippines. 

A dotted line labeled as equidistant line on the SRV’s 

submitted delimitation map connects its continental 

shelf line starting point to the southeast corner of the 

Paracels where it joins the intersection of the Chinese 

EEZ from Hainan Dao and the Vietnamese EEZ from 

near Quang Ngai around Bombay Reef.336 This line 

does not recognize Chinese sovereignty or, at least, 

the habitability of the Paracels, which would mandate 

the use of a different line.

The PRC has made no similar declaration of its 

continental shelf in the South China Sea. However, 

such a claim might be hypothesized for China based 

upon its 2012 declaration in the East China Sea along 

the Okinawa Trough, which, when compared against 

a CIA map’s presumed continental shelf limit and applied from Hainan Dao in the Paracels region, would 

indicate that the natural Chinese continental shelf 

does not extend as far as the Paracels themselves.337

If the Chinese continental shelf physically falls short 

of the Paracels, its EEZ nonetheless has legal jurisdiction out to 200-nm from Hainan Dao, which describes 

an arc ending east of the Paracels. This means all of 

the islets are encompassed by a Chinese or Vietnamese EEZ.338 Extending the aforementioned equidistant 
67

line from Vietnam’s northernmost claimed continental shelf point to the intersection of their EEZs around 

Bombay Shoal to the southernmost point of their Gulf 

of Tonkin maritime boundary line—as agreed to by 

treaty in 2000—fairly splits this marine domain between China and Vietnam by using the equidistance 

principle.339 This equitable division, however, puts 

the southern Crescent Islands in Vietnam’s EEZ, thus 

opening the possibility that Chinese controlled islets 

rating 12-nm territorial seas, such as Triton or Money 

Islands, would carve holes into Vietnam’s EEZ. Put 

another way, Vietnam’s EEZ would intrude between 

China’s Paracel Islands if the claimed straight archipelagic baselines encompassing them are deemed invalid.340 Fortunately, between the deal for White Dragon 

Tail Island in 1957 and the delimitation of their shared 

Gulf of Tonkin border in 2000, communist Vietnam is 

the only state to have negotiated successfully maritime 

territory or boundary disputes with the PRC, offering 

the potential to do so again through an equitable division of their EEZ around the Paracels.341

This maritime jurisdiction overlap would be further complicated if Woody Island is found to be habitable. A legally habitable Woody Island would exert 

little change on the Vietnamese and Chinese equitable 

EEZ and continental shelf already described, based on 

the precedent of the Libya vs. Malta Case by the ICJ in 

1985.342 As previously explained, however, a habitable 

Woody Island could claim EEZ jurisdiction in the high 

seas of the northern South China Sea, significantly 

extending the reach of its occupying state to include 

Macclesfield Bank about 150-nm to the southeast. 

Since China and some of the Southeast Asian states—

though not Vietnam—make territorial claims to submerged features in the South China Sea, rather than 
68

exerting maritime jurisdictional control over them as 

stipulated in UNCLOS, controlling a habitable Woody 

Island would also lay territorial claim to Macclesfield 

Bank under application of the Chinese interpretation 

of UNCLOS.343 Although hypothetical, should China 

win recognition of its possession of the Paracels, receive a habitability determination for Woody Island, 

and continue its doctrine of claiming underwater features, China’s claimed EEZ would extend across half 

of the South China Sea, by which it could restrict passage of foreign naval vessels into a bottleneck through 

its interpretation of restrictions in its EEZ.

However, as with the other forms of claims, these 

Chinese maritime claims have serious weaknesses. 

The first weakness is legal since, despite these Chinese 

interpretations, much of the international community 

does not recognize sovereignty claims to territory 

made through UNCLOS, a purpose for which it was 

not intended.344 A more vexing problem is the ill-defined Chinese historic claim which could trump other 

customary and UNCLOS claims in the region. China’s 

historic claim within its South China Sea U-shaped line 

includes all surface and sub-surface features.345 This 

encompassing claim squarely conflicts with EEZ and 

continental shelf claims made by each of the ASEAN 

South China Sea rim states.346 For instance, as early 

as 1992, the PRC created the Crestone oil exploration 

block around Vanguard and Prince of Wales Banks (in 

the southwestern South China Sea within 200-nm of 

the Vietnamese baseline) in order to drill within what 

is otherwise Vietnamese jurisdiction.347 Such liberties 

persisted into 2012 when CNOOC offered nine blocks 

for oil and gas exploration within 37-nm of Vietnam 

(though it did not receive many international bids).348

Elsewhere in the South China Sea, China’s historic 
69

claim extends as far south as within 100-nm of Malaysia to include North and South Luconia Shoals, 

Friendship Shoals, and James Shoals; Scarborough 

Shoal in the Philippine EEZ, 130-nm from Subic Bay; 

and the entire Spratly Islands Group, which China 

disputes with Vietnam, Malaysia, Brunei, and the 

Philippines.349 To defend its broad claims, China has 

disputed each continental shelf submission made to 

the UNCLOS Commission concerning the South China Sea,350 and as one Chinese scholar reminds other 

powers: “[They] should understand that the Convention [UNCLOS] is just one of the international 

laws of the sea, not the only one, and thus should 

stop questioning the legitimacy of China’s 9-dashed 

[U-shaped] line.”351

If negotiated in good faith, the maritime jurisdictions of the EEZ and continental shelf around the Paracel Islands could be resolved based on coastal baseline 

claims, even if sovereignty over the islands themselves 

remains a more difficult issue. The impingement of 

historical claims against UNCLOS-derived claims 

magnifies this problem from around the Paracels to 

throughout the South China Sea. The amount of high 

seas seabed available in the South China Sea is of interest to the United States since these areas are exploitable 

for their resource wealth by any state, and maximizing the availability of deep sea regions and economic 

return from them is one of the major factors hindering 

the United States from ratifying UNCLOS. Should the 

overlapping EEZ and continental shelf claims become 

national jurisdictions, they would remove all the high 

seas in the South China Sea.352 Thus the extended continental shelf disputes and their resolution will remain 

a point for the United States to monitor and influence 

to maintain its own interests and set precedents to 

its liking.
70

Territorial and Jurisdiction Claim Summary. 

As a “semi-enclosed sea” dominated by overlapping maritime claims, the South China Sea bordering 

countries are enjoined by UNCLOS Article 123 to “cooperate with each other in the exercise of their rights 

and performance of their duties” beyond that normally expected of other maritime states.353 The shared nature of migratory fish resources, indistinct location of 

energy sites and advent of lateral drilling, cumulative 

effect of environmental damage, competing territorial 

claims and rights, and tight confines that result in confused and conflicting maritime jurisdictions, demonstrate why cooperation is an ideal, if unrealized, goal 

in the South China Sea.354 Although a few diplomatic 

advances to address these myriad regional concerns 

have been made along the sea’s periphery, the states 

have more often adhered to customary and statuary 

legal principles that best favor their respective geopolitical positions.355 Under this system, the coveted 

maritime zones of territorial seas, contiguous zones, 

EEZs, and extended continental shelves depend upon 

the determination of sovereignty over, and classification of, claimed land features, which is the core of the 

South China Sea islands disputes.356 The by-product of 

demonstrating effective sovereign control and administration over these claims, unfortunately, has sometimes resulted in aggressive and violent enforcement 

of national laws and perceived international rights, 

which makes this an important issue to address in order to prevent miscommunication, accident, or impatience to justify the use of force to settle the disputes.

Until now, however, the disputants have mainly 

resorted to making outsized claims to maximize any 
71

future negotiated outcome, or strengthen their cases 

before going to arbitration or a tribunal.357 China and 

Vietnam have asserted sovereignty through discovery 

and occupation, the most internationally accepted legal method,358 and in this the PRC reigns as the current 

sole occupier of the Paracel archipelago. Vietnam and 

China also make ill-defined historic claims as another 

approach to territory, waters, or rights; this method 

is not well regarded by the international community 

and, in its collective judgment, lacks sufficient documentation in its application.359 Under UNCLOS principles, the straight baselines declared by both countries 

along their mainland coasts probably exceed their 

authority, and the resulting excessive internal waters 

and maritime zones are protested by the United States 

and other countries. China’s attempt at using archipelagic rules to establish a baseline around the Paracels also exceeds the intent of UNCLOS. None of the 

economically unproductive Paracels may themselves 

generate extended maritime zones; if some could, 

they probably would be given diminished domain 

against larger land masses under the equitable principle, thereby greatly reducing their significance and 

the importance of sovereignty over them.360 Although 

China and Vietnam have ratified UNCLOS, each also 

takes exception to its settlement mechanisms and 

other select provisions that reduce the overall effectiveness of the treaty to reconcile maritime disputes.361

Thus, although they often frame their claims and defense of those claims in terms of legal principles, neither China nor Vietnam has been willing to adjudicate 

their differences through existing arbitration or court 

structures, instead they are looking for a negotiated or 

political solution over which they have more control 

in determining results.362
72

U.S. INTERESTS AND RESPONSES TO THE 

ISSUES AROUND THE SOUTH CHINA SEA 

REGION

With this background established, it is clear that 

events in the South China Sea affect important U.S. 

interests. The information given thus far was presented to better inform policymakers about the involved 

states’ diplomatic, military, police, and legal issues 

and actions. The issues are complex and contradictory, meaning any U.S. involvement needs to be wellinformed and nuanced. This section reviews the most 

relevant U.S. interests in the South China Sea region 

in terms of freedom of navigation, economic activities, and the competing U.S. roles of honest brokering for peace and stability among the disputants and 

regional balancing of power for its security partners. 

Without maritime jurisdiction or territorial claims of 

its own in the South China Sea—but strong interests in 

how these issues are resolved—U.S. involvement by 

necessity is mostly indirect support and grounded in 

international law, but it is also motivated by a political 

component. Based on these interests, this monograph 

makes a few recommendations on how the United 

States may positively influence the situation in the 

South China Sea to enhance its interests and those of 

the disputants. Due to the underlying nature of this 

situation, these recommendations emphasize the diplomatic, informational, and economic elements of U.S. 

power over military ones.

Although President Barack Obama’s administration again made the Asia-Pacific region a top U.S. 

priority in 2012, this region has been a major U.S. economic and security focus since Commodore Matthew 
73

Perry opened Japan in 1854.363 In particular, five important U.S. global interests are represented there today: protecting free and unimpeded commerce in the 

global commons, securing peace and stability among 

the states, supporting diplomacy and rules-based conduct, ensuring the U.S. military’s freedom to operate 

in compliance with international law, and supporting 

U.S. allies and defense partners.364 Then Secretary of 

State Hillary Clinton reiterated these interests specifically for the South China Sea region at the ARF in July 

2010, emphasizing that:

The United States, like every nation, has a national interest in freedom of navigation, open access to Asia’s 

maritime commons, and respect for international law 

in the South China Sea. . . . The United States supports 

a collaborative diplomatic process by all claimants for 

resolving the various territorial disputes without coercion. We oppose the use or threat of force by any claimant. While the United States does not take sides on the 

competing territorial disputes over land features in 

the South China Sea, we believe claimants should pursue their territorial claims and accompanying rights to 

maritime space in accordance with the UN Convention on the Law of the Sea. Consistent with customary 

international law, legitimate claims to maritime space 

in the South China Sea should be derived solely from 

legitimate claims to land features.365

To achieve these goals, Secretary Clinton emphasized the need to cooperate in areas of common interest 

in trade, peace, security, and transnational problems 

like climate change and nuclear proliferation, especially with China.366 However as an interested party, 

the United States is also maintaining a relatively balanced playing field because recent clashes in the South 

China Sea jeopardize “vital national interests of the 
74

United States,” as Senator John McCain and then Senator John Kerry observed to Dai Bingguo, China’s Vice 

Minister of Foreign Affairs,367 and U.S. involvement 

might make it a “little bit easier for the governments 

in the region to acquire the necessary political will” to 

resolve their disputes.368 Increased U.S. involvement 

may have spurred negotiations in July 2011 when the 

PRC agreed with Vietnam to implement long-delayed 

guidelines to govern their disagreements, if for no 

other reason than to limit U.S. involvement.369 In short, 

the United States seeks to ensure the legal rights that it 

and the international community should enjoy in the 

region, support the legitimate interests of its regional 

partners, and act upon common ground with China 

and other involved states to their mutual benefit to 

improve stability and prosperity in the region.370

U.S. Freedom of Navigation Interests.

The issue of immediate concern for the United 

States, because it may be the most volatile and the first 

national interest listed by Secretary Clinton, is freedom of navigation.371 Since UNCLOS was under negotiation in 1979, the U.S. global Freedom of Navigation 

Program seeks to dispute excessive sea and airspace 

claims perceived to violate international law by challenging them diplomatically and physically.372 China 

and Vietnam hold restrictive passage views concerning their coastal home waters—potentially China will 

also hold these views in its claimed territorial waters, 

contiguous zones, and EEZs around the Paracel Islands. These positions place it at odds with most other 

states’ open-use positions, and, as a precedent threatens, EEZ navigation rights around the world.373 On 

the other hand, China sees this as an excuse for the 
75

United States to intervene in South China Sea issues, 

and protests, for instance, U.S. exercises with Vietnam 

and other powers in the South China Sea.374 The PRC 

has more aggressively and consistently enforced EEZ 

restrictions than any other state, threatening freedom 

of navigation for all maritime states and risking armed 

clashes and instability, especially when backed by its 

advanced anti-access and area-denial capabilities.375

After the 1995 PRC occupation of Mischief Reef in the 

midst of the Philippine EEZ, the United States made 

clear its stance for freedom of navigation throughout 

the South China Sea, and in 1998 specifically sent a 

carrier battle group near the Spratly Islands to assert 

American prerogatives.376 As recently as 2012, after 

the Scarborough Shoal stand-off, Philippine Foreign 

Secretary Albert del Rosario wondered about China’s 

aggressive stance and the future of “freedom of navigation and unimpeded commerce in the [South China 

Sea].”377 Thus the United States considers these rights 

important for itself and for other interested parties378

Despite these chronic tensions, with the growth 

of prosperity in the region, the need for stability and 

security, and the pursuit of other common interests, 

the perspective of each party may start to converge in 

settling their differences. The United States has made 

progress toward this with Vietnam through a code 

of conduct concerning activities on the South China 

Sea, negotiations on navigation, and improved military ties.379 This better understanding may have contributed to Vietnam relaxing its coastal EEZ transit 

requirements in 2012 to be more in accordance with 

UNCLOS standards.380 Like Vietnam, as the PRC’s 

economy grows and its international commitments 

expand, China’s interests may converge with the U.S. 

global views in balancing broad international mari-
76

time rights with the coastal state rights that China 

now favors.381 The PRC is the world’s largest exporter 

and second largest importer of goods, and thus highly 

depends on the maritime commons to keep its economy growing, and it has prospered from the open shipping order assured by U.S. naval power. However, as 

China’s dependence on seaborne trade continues, it 

may want to protect its own shipping and sea lines 

of communication rather than rely on its partner and 

competitor, the United States, to do so.382 With among 

the largest merchant marine fleets and navies in the 

world, China’s perspective should transition to accept 

the majority interpretation of UNCLOS—this means 

more open use of sea jurisdictions and a conventional 

interpretation of coastal states’ rights in its EEZ and 

territorial sea. In 2012, PLAN vessels conducted surveillance in the U.S. EEZs around Guam and Hawaii, 

the latter during a naval exercise, thus experimenting 

with a more open interpretation of conducting military activities in a foreign EEZ.383 Indeed U.S. interests 

also seem to be evolving toward embracing stronger 

coastal states’ rights in its own EEZ for economic and 

environmental protection, thus converging interests 

may make resolving this issue easier over time and 

helping to enable some of the suggestions below.384

To spur this convergence of interests, specific steps 

should be taken by the United States to defuse the 

freedom of navigation issue, especially when the most 

active differences lie with China. The United States 

could back away from its insistence on exercising its 

rights to navigate in the South China Sea and its coastal waters in order to ease chronic tensions on this issue. This action was recently recommended by former 

U.S. National Security Advisor Zbigniew Brzezinski 

and debated among scholars, but doing this for long 
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could needlessly weaken the U.S. and other states’ 

worldwide commitment to UNCLOS open-sea provisions.385 Instead, as the PRC takes a more involved role 

in ensuring stability and security in the international 

commons, the United States should work with China 

to establish a common understanding on maritime 

rights in coastal waters and abroad since that is ultimately in both of their interests. The United States 

and China already have the 1998 Military Maritime 

Consultative Agreement to prevent incidents between 

them, and—though quite imperfectly applied—it is a 

useful confidence-building measure.386 In April 2014, 

the United States, the PRC, and 19 other Western Pacific naval powers approved a new code of conduct 

for naval encounters in disputed areas, the Code for 

Unplanned Encounters at Sea (CUES). However, the 

code is not legally binding and PLAN officials themselves question whether China will fully observe it.387

To better tie the PRC to safe conduct protocols, then, 

the next step should follow the lead of the 1972 U.S.-

Soviet Union Incidents at Sea Agreement (INCSEA).388

This is a successful tool that avoided negative encounters between the two powers, yet complied with international law covering activities like innocent passage 

through coastal jurisdictions. Through uniform procedures both sides may follow and observe the other’s 

ships, but could not interfere with their lawful passage, regardless of prior notification, cargo, arms, or 

type of propulsion.389 An INCSEA agreement would 

overlap similar multilateral agreements, but those 

do not address the specific differences in interpretation between the two countries, nor contain all of the 

tools available in INCSEA. The mere act of negotiating such a confidence building-measure (and recognizing China as a rising power in the process) could 
78

also help soothe this sometimes difficult relationship 

and emphasize that such issues are not unique to the 

United States and China.390 INCSEA is a practical, 

tested method which could be tailored to reduce tensions, support both sides’ long-term interests, and accelerate a process of confidence-building between the 

two within the contentious South China Sea without 

foregoing the precepts of UNCLOS.391

Other forms of cooperation, both military and civilian, could also help build better understanding and 

trust and work toward common interests like stability, counter crime, and freedom of navigation in the 

region as envisioned by Secretary Clinton.392 A telling 

example follows the major 2009 incident involving the 

USS Impeccable, after which such incidents decreased 

in part because both sides realized that cooperation on 

issues like North Korea and the global economic recession were more important interests they shared.393

While many disputes over issues like Taiwan and 

military surveillance in the EEZ persist, both sides can 

build much needed trust and cooperation through existing military and civilian programs like the MMCA, 

and broaden to new ones to work through their differences. Existing programs to build upon include the 

Sino-U.S. Maritime Security Consultation mechanism, 

the Annual Defense Affairs Consultation mechanism, 

and the Container Security Initiative signed in 2003 to 

combat terrorism.394 Recent combined sea exercises 

held an anti-piracy drill off the coast of Somalia in 

2012 and a search and rescue exercise around Hawaii 

in 2013, each meant to “build trust, encourage cooperation, enhance transparency, and avoid miscalculation.”395 Because of their nature, some new initiatives 

would be easier to implement, such as information 

exchanges on piracy and terrorism, and maritime di-
79

saster mitigation plans. With increased understanding 

and trust, combined personnel training for humanitarian missions or counterterrorism could follow, with 

standardized procedures for data and awareness-sharing developed between them.396 These could directly 

improve relations and indirectly support freedom of 

navigation and are actions that the U.S. administration and Congress could support with both China and 

the Southeast Asian states.397

The most promising military cooperation with 

China has been through the U.S. Coast Guard (USCG), 

which may be a more politically acceptable partner for 

other governments when emphasizing its enforcement 

and rescue over its military roles.398 The various Chinese maritime enforcement agencies and the USCG 

have already enjoyed cooperative success through the 

multilateral North Pacific Coast Guard Forum; student 

training exchanges; detailing Chinese officers aboard 

USCG cutters in the North Pacific for enforcement actions against Chinese fishermen; and combined bilateral and multilateral exercises in port security, search 

and rescue, and law enforcement. In 2006, the USCG 

established permanent liaisons with maritime agencies in four Chinese ministries, solidifying a good 

working relationship with each.399 Continuing this relationship, in 2013, a group of retired American admirals and maritime experts met with Chinese officials 

during the formative stage of the Chinese Maritime 

Surveillance Force to discuss its operations as a professional coast guard.400 The U.S. Coast Guard offers 

other venues of cooperation and confidence-building, 

such as sharing its global expertise in protecting port 

and energy loading operations with Chinese authorities, whose country relies heavily on the safe and secure conduct of maritime energy shipments.401 Coast 
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Guard cooperation with China is a model to expand 

to increase understanding and reduce tensions about 

issues both sides deem imperative.

The Department of Defense (DoD) should also play 

a role in establishing trust and cooperation between the 

United States, China, and Vietnam. A DoD-wide program to encourage military-to-military engagement 

through regionally aligned forces under U.S. Pacific 

Command (PACOM) integration would implement 

security assistance to enhance the military capabilities of the region’s states. This should allow Vietnam 

and the other ASEAN countries in the South China 

Sea disputes to negotiate in a more level environment, 

build regional understanding with guidance from the 

Department of State, and strengthen bilateral relations for the United States to act as an honest broker. 

Regionally aligned forces entail specific units receiving training about a particular area before deploying 

there, and they may be assigned in military-to-military partnerships resulting in a better understanding 

by U.S. forces of local cultures, languages, geography, 

forces, and challenges.402 U.S. units and individuals 

gain insight and establish enduring personal relations 

through training-focused visits in platoon to brigade 

size units.403 This approach in Southeast Asia makes 

sense, especially since China is the most likely U.S. 

peer rival so that repeated engagement with the PRC 

and its neighbors should build trust, reduce tensions, 

address differences in fields like maritime access, and 

establish the United States as a regional conciliator.

An emphasis on using land forces for such engagement is needed because the new Air-Sea Battle 

doctrine concept parcels high-end missions like countering anti-access/area denial to the Air Force and 

Navy in the U.S. role of balancing China’s power by 
81

supporting and protecting the interests of allies and 

partners in the region. Expanding theater engagement 

using regionally aligned forces also makes sense since 

armies tend to dominate the region’s defense forces in 

terms of budgets, leadership, and influence. It is left to 

the land forces and coast guard, playing a smaller part 

in the defense of the South China Sea region, to support the conciliator role by building trust, capability, 

and relationships through the Army, Marine Corps, 

and special operations forces as proposed by former 

Under Secretary of Defense for Policy Michele Flournoy.404 Land forces up to brigade size can be tailored to 

support ASEAN states through security cooperation 

activities without threatening China directly because 

of the fragmented physical geography and the defensive nature of U.S. land forces in the region.405

A more robust regime of exercising, education 

exchanges, and contingency planning for events of 

importance to both the United States and the PRC 

could slowly influence the PLA to better understand 

American positions and influence the United States to 

better understand Chinese positions, thus overcoming 

historic and geopolitical distrust. As one of the major 

arbiters over the freedom of navigation dispute within the Chinese system, better relations with the PLA 

would be helpful in resolving this and other issues 

both sides face. For U.S. Army forces, upon which 

the brunt of regional specialization would fall, this 

alignment concept follows the vision imperative in 

the Army Chief of Staff’s 2012 Army Strategic Planning 

Guidance: “Provide modernized and ready, tailored 

land force capabilities to meet Combatant Commanders’ requirements across the range of military operations.”406 To improve engagement with the PLA and 

the other armies of the region, PACOM was raised to a 
82

four star component command in 2013.407 The benefits 

of regionally aligned forces include more effective 

interactions and support, improved U.S. understanding and interoperability during multinational actions, 

and better understanding by both sides to allow the 

United States more access and influence with partners 

and competitors alike.408

Elements of this regionally aligned force proposal 

exist in the U.S. Army with Special Operations and 

National Guard units already aligned to the Pacific 

region, and with the Army soon adding active duty 

conventional forces as well. Special Forces units have 

long specialized to build their competence in the 

world’s regions as advisors and operators to improve 

partner states’ capabilities and build interoperability and trusted relationships. The 1st Special Forces 

(SF) Group at Fort Bragg, North Carolina, currently 

operates under Special Operations Command Pacific, 

covering Southeast Asia, China, and the rest of the Pacific region along with the U.S. Army National Guard 

19th SF Group headquartered in Draper, Utah.409 U.S. 

Army civil affairs (CA) units also specialize to provide 

civil-military expertise to conventional forces during 

theater engagement and full spectrum military operations. The active duty 84th CA Battalion (CAB) at 

Joint Base Lewis-McCord (JBLM), Washington State, 

and 97th CAB at Fort Bragg also align with PACOM, 

as does the Army Reserve 364th CA Brigade in Portland, Oregon.410 In 2014, as part of its greater regional 

alignment initiative, the U.S. Army plans to assign a 

soon-to-be designated conventional unit from I Corps, 

headquartered at JBLM, to support PACOM security 

cooperation and partnership building activities.411

Reserve component forces, when regionally specialized, offer advantages to include greater personnel 
83

stability, unique civilian expertise, and some military 

skills not residing in the active forces, and have thus 

been particularly effective at achieving high levels of 

trust, understanding, and cooperation with partners.412

In PACOM, there are three long-term State Partnership 

Programs with Southeast Asian states, including the 

Hawaii and Guam Army National Guard partnered 

with the Armed Forces of the Philippines since 2000; 

the Hawaii National Guard also partnered with the 

Indonesian National Armed Forces in 2006;413 and the 

Vietnamese military (Vietnam People’s Army or PAV) 

and Oregon National Guard partnered in 2012.414 The 

nature of the new PAV and Oregon National Guard 

partnership is manifest in the composition of the first 

Vietnamese planning delegation to Oregon in April 

2013, led by an army lieutenant general and included 

experts in law, marine shipping, economics, medicine, port and maritime security, search and rescue, 

and humanitarian aid.415 These partnerships facilitate 

stability and national interests by building partner 

capacity through exchanging military skills and experience, professional development, exercising, and 

interagency cooperation.416

This partnership is the latest step in a slowly evolving relationship between Vietnam and the United 

States. Following the Indochina Wars, U.S.-SRV diplomatic recognition began in 1995 with a decade of tepid 

and technical military interaction. However, as understanding between the two former enemies overcame 

their suspicions, their interactions grew. The first U.S. 

Navy port call visit to Vietnam occurred in 2003, followed in 2005 with increased training through the International Military Education and Training program 

and sharing of intelligence on terrorism and transnational crime.417 These military capacity-building ac-
84

tivities contributed to Vietnam seeking closer defense 

ties with the United States to hedge China’s growing 

power, as demonstrated with the deployment of a U.S. 

aircraft carrier to Vietnam for combined naval exercises in 2011.418 Both sides also agreed to cooperate 

through periodic high-level meetings, maritime security, search and rescue, discussion about peacekeeping, and humanitarian assistance and disaster relief, 

which the establishment of the State Partnership Program should advance.419

As U.S. global strategy emphasizes the Asia-Pacific 

region, more closely aligning land forces supporting 

PACOM’s security and engagement plans is a needed 

initiative for peacetime-shaping operations in order 

to resort less to direct intervention.420 However, in an 

era of fiscal austerity, these needed efforts must be 

adequately sustained and kept efficient to make them 

viable, be allowed time to take root and grow, and be 

protected against short-term budget cuts and competing strategic options.421 One easy-to-correct flaw in 

the active duty conventional unit regional alignment 

scheme is that units are assigned to support a region 

for 1 year, unlike the longer-term assignments of SF, 

CA, and National Guard units.422 Such an arrangement 

will not build adequate regional expertise, personal 

relations, or continuity in training and operations to 

achieve combatant command requirements. Even 

though active duty unit personnel change more often 

than reserve component personnel, the institutional 

links nonetheless remain important, and active duty 

units should be assigned long-term regional commitments at the brigade or battalion levels. Another 

consideration for the Army is that, as deployments 

to Central Command decrease, more units should be 

regionally aligned to PACOM to allow them to focus 
85

on a sub-region like the states bordering the South 

China Sea.423 The current scheme has SF, CA, and conventional forces supporting PACOM from Mongolia 

to New Zealand, which dilutes the merits of regional 

specialization. Units assigned to smaller regions or 

even to critical countries like Vietnam, as done in the 

State Partnership Program, allow deeper understanding of the region, richer and more frequent contacts 

with a targeted group of key people, and improved 

continuity in programs. These alignment efforts would 

improve U.S. contributions to stability and security in 

the South China Sea region.

Other U.S. military services also engage in military-to-military activities in the region, although not 

regionally aligning units as well as some parts of the 

Army. The U.S. Navy held its fourth annual Naval 

Engagement Activity with Vietnam in April 2013 as 

part of a destroyer and rescue and salvage ship port 

call to Da Nang, which focused on noncombat events 

like search and rescue, medicine, diving and salvage 

operations, and seamanship skills.424 The Marine 

Corps Security Training Group (MCSCG) builds partner-nation military capacity by advising U.S. units 

and participating countries on security training and 

organization, especially with units sharing a similar 

maritime or expeditionary mission.425 Although MCSCG-trained units have completed some training in 

PACOM, more emphasis on key states like Vietnam—

similar to that given in Africa and Latin America—is 

needed through regionally aligned forces that would 

better support both sides in their mutual training and 

engagement goals.426 Theater engagement activities 

are an important part of PACOM’s theater security 

cooperation plan using all of the military services in 

pursuit of U.S. national interests.
86

Regional alignment and specialization of units to 

engaging and shaping tasks does come with problems 

and challenges. First is to get the affected countries to 

accept more U.S. involvement, and hence influence, of 

this type. Although its past ties and an insurgent threat 

made the Philippines an early and enthusiastic supporter of recent U.S. engagement activities, Vietnam 

has been a late and careful participant because of its 

need to balance U.S. overtures with its complicated relationship with China and its adversarial history with 

the United States. For these reasons, U.S.-Vietnamese 

military cooperation should continue incrementally 

along established plans and channels that build upon 

past activities. Expanding search-and-rescue exercises and allowing more than one annual U.S. Navy 

ship visit are examples of building upon existing success.427 The recent establishment of a partnership with 

the Oregon National Guard shows that Vietnam will 

expand into new activities if treated as an equal partner. One scholar recommends that new ideas with the 

Vietnamese are best broached through an exchange 

of information and ideas leading to mutually desired 

activities in areas such as humanitarian assistance, 

peacekeeping operations, and disaster relief—and expanding to involve more active duty U.S. Army and 

Marine forces.428 Experts from the Center for Strategic 

and International Studies received reports from Vietnamese counterparts that Vietnam may also be interested in quietly training with U.S. Special Forces and 

hosting a U.S. Navy research facility.429

Regional specialization of U.S. units and personnel is costly and comes at the expense of some combat 

readiness, since engagement and combat training have 

limited overlap. The investment in trained personnel 

and established relationships would also have to be 
87

protected, requiring changes in the Army personnel 

system to retain experienced military members and 

minimize out-of-unit assignments—in essence creating a regimental system in the regionally aligned active forces.430 Task, equipment, and personnel specialization come with a price to large unit combat skills, 

flexibility, and traditional force structure.431 In a major 

operation elsewhere that requires the use of PACOMaligned units, all of this specialization may be for 

naught, making necessary maneuver, fire, and effects 

skills not as strong as their more often used engagement skills.432 In austere fiscal times, however, some 

risk must be assumed in strategy and force structure 

decisions, and U.S. Army Chief of Staff General Raymond Odierno has made it clear: “We always have to 

be prepared to fight our nation’s wars if necessary, but 

in my mind, it’s becoming more and more important 

that we utilize the Army to be effective in Phase 0, 1 

and 2. . . .”433 To mitigate these risks, the DoD planning 

considerations of flexibility and reversibility must be 

inherent qualities in the formation of any regionally 

aligned specialized units.434 Some military service control over its units might also be surrendered to allow 

DoD to assign roles and regions to better coordinate 

coverage and activities among all of the branches to 

be more efficient and effective in their engagement.435

In these times, one potential advantage to regionally 

aligned forces rotating into a region is that less infrastructure and cost is required in comparison to as 

many units permanently stationed overseas.436 Ironic 

and indirect as it seems, military-to-military engagement, especially using regionally aligned land forces, 

may build the trust and influence necessary to ensure 

that UNCLOS-compliant freedom of navigation is allowed by the coastal states of the South China Sea.
88

Another very important step for the U.S. Government, to better ensure the freedom of navigation rights 

it now exercises, is to formally ratify the UNCLOS 

treaty. This step is not just to return to equal footing 

with other members on moral, diplomatic, and legal 

grounds in order to better support the rules-basedorder that the United States government espouses, 

but also to be able to directly guide and protect U.S. 

interests in international fora and on the seas.437 The 

United States signed UNCLOS in 1994 after successfully negotiating an amendment to the document to 

correct earlier concerns by the industrialized states, 

but has not formally ratified it through the Senate. 

The most important UNCLOS provisions, like maritime jurisdictions and right-of-passage, are in accord 

with U.S. policy so that U.S. domestic law generally 

adheres to UNCLOS statutes, as it also does with customary international law.438 The Department of State 

and DoD both support ratification to give the United 

States “greater credibility in invoking the convention’s rules and a greater ability to enforce them.”439

This treaty has come before the Senate several times, 

as recently as 2012, only to be tabled despite bipartisan 

support, mainly due to economic concerns with Part 

XI stipulations that cover the deep seabed.440 A direct 

American voice in the Law of the Sea Treaty debates 

could advocate for freedom of navigation and other 

U.S. interests as international law inevitably evolves, 

in order to counter the historic trend to circumscribe 

rights on the high seas by reducing its openness and 

limiting areas of operations. Foreign military navigation rights through an EEZ are a prime example of 

such restrictions with 26 countries supporting China’s 

and Vietnam’s restrictive positions, including major 

maritime states like India and Brazil.441 The Senate 
89

needs to ratify this treaty to allow the United States 

to defend actively its existing maritime legal interests 

and rights.

Another way to support freedom of navigation 

rights in the South China Sea is to have China and Vietnam clarify their historic claims. In the modern era of 

statutory maritime law, sweeping historic claims seem 

archaic, too incongruous to effectively adjudicate an 

area as openly used as the South China Sea, and the 

ensuing disputes unnecessarily hobble economic development and peace.442 The International Court of 

Justice has conceded that customary law does not provide for a clear method of adjudicating historic claims, 

so each case is settled differently based on its specific 

merits.443 This gives both Vietnam and China some basis for their historic claims even while the 1951 International Law Commission criteria make these claims 

appear weak.444 Nonetheless, their restrictive interpretations of transit rules in conjunction with expansive 

Chinese and Vietnamese claims to historic waters, if 

enforced, could selectively close the very busy South 

China Sea to military and commercial traffic, which 

is why the United States and other maritime powers 

have worked to diminish the doctrine of historic waters and curtail its widespread application.445 This is in 

part what Secretary Clinton meant in her earlier quote 

that “legitimate claims to maritime space in the South 

China Sea should be derived solely from legitimate 

claims to land features.”446

To defuse this problem, China and Vietnam should 

declare what their historic rights entail—for example: 

waters, islands, rights to activities, or some combination—and where they are claimed, since neither 

country has been explicit in what it wants.447 So far, 

it has cost the historic claimants little to hold these 
90

bargaining positions with such sweeping ambiguous 

claims, and it has become a convenient distraction and 

delaying tactic to a solution. The United States, along 

with the ASEAN parties and other maritime states, 

should press China and Vietnam “to particularize or 

justify its claim” to set the stage for serious negotiations and eventual compromise on specific historic issues.448 Dropping notorious historic rights claims altogether, in favor of current maritime statutory law, 

would simplify the dispute to just occupation doctrine 

and UNCLOS provisions, although this is an unlikely 

course given the current situation in the South China 

Sea. Either method could successfully remove the 

dead weight of historic claims to allow much needed 

economic development around the South China Sea, 

while also reducing the specter of security threats that 

could derail other initiatives and engulf the region 

in violence.

Vietnam will find it difficult to best China’s historic case in a legal dispute, and it cannot militarily 

match China’s ability to back its claim with might (as 

proven by the physical loss of the Paracels to Chinese 

occupation).449 Under the principle of uti possidettis, 

China’s current occupation gives it control over the 

islands unless it chooses to give some up to Vietnam. 

On the other hand, Vietnam has a much stronger occupation presence in the disputed Spratly Islands, 

which China also claims in their entirety, and the Philippines, Malaysia, and Brunei claim in part. Vietnam 

might be convinced to transform its undefined historic claims for the steadier position under occupation 

and UNCLOS laws in the Spratlys, especially if given 

strong international support for current Vietnamese 

island sovereignty and coastal EEZ and continental 

shelf claims that comply with UNCLOS. In return, 
91

Vietnam would concede that its historic sovereignty 

in the Paracels is no better than the Chinese, its ability 

to reverse China’s occupation of the Paracels is slight 

(barring some unlikely catastrophic event in China), 

and it would gain little in maritime jurisdiction even 

if it did gain control over the Paracels. 

Such a policy recognizing the actual situation in 

the South China Sea and legitimizing those positions 

should garner consistent U.S. support in accordance 

with Secretary Clinton’s call for settling legitimate 

territorial and maritime claims using UNCLOS and 

accepted international customary law. Indeed, UNCLOS provisions for the EEZ and continental shelf 

were meant in part to replace historic claims, and 

Vietnam might be a good candidate to do this.450 To 

improve the deal, the international community should 

also support specific historic economic rights for 

Vietnam for well-documented activities like fishing, 

which would include assured access to the area but 

not jurisdiction over it.451 In return for internationally 

recognized claims and rights, Vietnam would agree 

to fully abide by majority interpretations of UNCLOS 

to include freedom of navigation in its EEZ, innocent 

passage in its territorial seas, and to drop its claim 

to historic waters or title in the South China Sea. Indeed, Vietnam’s “internationalizing” strategy in these 

disputes, assembling support under recognized law 

in favor of its positions at regional fora such as the 

2010 ARF, is meant to counter Chinese claims with the 

weight of international consensus.452 Although a practical, logical compromise to a complicated situation, 

the emotional nationalist and economic aspects of this 

problem will make replacing historic claims difficult 

under any combination of incentives that try to make 

more legally accepted procedures work.453
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Unfortunately, there may be less incentive for China to clarify any of its claims in the South China Sea. 

There are legal and political advantages for China to 

obscure its historic, other customary, and UNCLOSbased claims together by “rigidly refus[ing] to clarify 

the basis for its claims,”454 which are challenged in the 

international community.455 Its occupation claims in 

the Spratlys are on literally and figuratively shifting 

ground, and its occupation of the Paracels was finalized by military conquest. Therefore, an ambiguous 

historic stance in the region allows China to shift its 

claim-support as circumstances dictate and not be held 

accountable in the context of modern international 

law, “even as the growth of its military and maritime 

assets gain physical leverage over its weaker neighbors.”456 China may use ambiguity as a way to deflect 

U.S. and other outside maritime states’ involvement 

by obscuring topics to negotiate, and thereby keeping 

what it considers regional bilateral issues from being 

internationalized.457 The lack of specificity may also 

result from political divides on these issues within the 

government of the PRC, which may make any change 

in policy arduous.458 China may be playing a weak 

historic-claims-hand by keeping it close to its chest.

However, there may be influential elements in the 

Chinese government that see its international role 

growing and that its current restrictive navigation 

policy not only sets the PRC at odds with most other 

states, but also with its own future needs as an emerging world power requiring access to littoral regions 

around the world. Among its divergent agencies, the 

argument might prevail that the PRC should rely on 

its growing navy for defense of its home waters rather 

than weaker legalistic methods which may later be 

used against them, especially if mutually acceptable 
93

methods to open EEZs to navigation are made in arrangements similar to INCSEA. At least one commentator has noted that the PRC’s recent legislation and 

policy statements seem to be part of a trend of historic 

waters being “gradually turned into the EEZ and continental shelf of the Paracel and Spratly archipelagos” 

without actually foregoing its assertions for historic 

rights.459 Most parties would not want the United 

States to be directly involved in negotiating any such 

schemes, but it could, nonetheless, support such solutions indirectly through its good offices, expertise, 

and material support.

U.S. Economic Interests.

Open economic access to the South China Sea maritime commons is the second U.S. interest listed for 

the region by Secretary Clinton.460 PACOM’s regional 

strategy acknowledges the importance of open access to the shared commons in the Asia-Pacific region 

adding “that continued economic prosperity is tied to 

the peaceful rise of China as an economic and military power,”461 making this economic issue one also 

linked to security. Within the bounds of UNCLOS, 

economic access includes the universal rights for commercial shipping and to exploit the natural resources 

of the high seas.462 Short of open conflict or blockade, 

however, the only threat to commercial passage in the 

South China Sea is its designation as historic waters, 

which would subject passage to restrictions similar 

to transiting internal waters, worse than what foreign military craft have faced in PRC and Vietnamese EEZs. To date this remains just a possibility since 

neither China nor Vietnam try to regulate commercial 

traffic through their claimed historic waters or mari-
94

time jurisdictions.463 The issue of commercial passage 

through the South China Sea is directly linked to the 

determination of historic waters in the region, meaning the discussion previously presented to reduce the 

effects of historic rights will apply, supporting U.S. 

economic interests as well.

If commercial navigation is not currently a problem, commercial exploitation of South China Sea resources may be. According to the UNCLOS preamble, 

the high seas are interpreted as: 

the area of the seabed and ocean floor and the subsoil 

thereof, beyond the limits of national jurisdiction, as 

well as its resources, [and] are the common heritage 

of mankind, the exploration and exploitation of which 

shall be carried out for the benefit of mankind.464

Although UNCLOS does regulate fishing and mineral 

extraction (the most common forms of economic use 

in these deep sea areas),465 developed countries with 

high-end technology, expertise, and capital have an 

advantage in exploiting “the common heritage of mankind.” For this reason, UNCLOS includes a regime 

through the International Seabed Authority (ISA) to 

regulate the remote gathering of strategic metals from 

the seabed floor, considered potentially the most lucrative activity of the high seas, and distribute part of the 

gained profits to all nations.466 As a semi-enclosed sea, 

however, Article 123 also gives the bordering states 

rights and duties to manage, conserve, and exploit the 

living resources of the sea and protect the marine environment,467 which raises questions about who will 

manage which parts of these high seas. None of the 

South China Sea parties, especially China, are likely 

to accept opening their sea’s bounty to shared profits 

under ISA rules.468 Each of the South China Sea states 
95

has demonstrated its desire to improve its claims and 

maximize natural resource gains from the sea, which 

this monograph has shown is a major factor in the 

disputes and violence among them.469 U.S. interests in 

the economic uses of the high seas would be governed 

by UNCLOS if the United States joins, but potentially 

also by the South China Sea neighbors based on their 

maritime claims or cooperative administration as a 

semi-enclosed sea.470

Disregarding the historic waters issue—which 

would make exploitation of this sea by other states 

moot—the tangled claims in the South China Sea 

leave in doubt how much may be high sea and how 

much are within national jurisdictions. If measured as 

just EEZs from coastal baselines without any islands 

generating more than territorial waters—which is the 

position taken by Vietnam, Malaysia, and the Philippines—then high seas would be the elongated center 

of the South China Sea from north of Macclesfield 

Bank, down to and including the western Spratly Islands to southwest of Rifleman Bank.471 Should China 

succeed in its claim for the Paracel Islands and prove 

they are habitable, the islands’ position within continental EEZs mean they may generate a relatively modest zone consisting of a sector around Macclesfield 

Bank, which would become Chinese EEZ and reduce 

the size of the northern high seas area.472 Commercial 

rights to sea life, mineral, and energy resources on the 

high seas depend in part on how territorial claims and 

maritime jurisdictions are delimited based on island 

sovereignty, because the remainder becomes high seas 

for any state’s access. Thus the principle of maintaining openness is important as a precedent to ensure access to the high seas here and elsewhere in the world, 

and to maintain the peace. 
96

U.S. economic interests face two problems then in 

the South China Sea: the UNCLOS rules concerning 

exploitation of the high seas, and how much of the 

high seas are available in the area. The United States 

has not formally ratified UNCLOS for several reasons, 

but objections to Part XI covering exploitation of the 

deep seabed is a main one because its provisions are 

considered statist and not free-market oriented, and 

the ISA is expensive and inefficient.473 Opponents also 

see little gain in the South China Sea for U.S. ratification since the overlapping disputes would not only 

remain but have no compulsory settlement agreement, and maritime jurisdiction issues like freedom 

of navigation are exempt from mandatory arbitration 

mechanisms. Thus these political issues do not change 

whether the United States is a member or not.474 The 

irony of opposing U.S. entry to UNCLOS is that in 

the nearly 30 years since it was written, no country 

or corporation, including the United States, has been 

successful in commercially mining for high seas mineral resources, but the United States, which has the 

world’s largest aggregate EEZ, benefits from the economic and environmental protection of its littoral that 

UNCLOS provides.475 By its present stance, the United 

States gains freedom from the ISA to potentially mine 

seabed resources some day since it does not need to be 

a member of UNCLOS to exploit international waters 

under customary law, but it loses the advantages of 

being inside the Law of the Sea Treaty system to guide 

it and employ its provisions for future U.S. benefit. 

Of greater importance for U.S. interests than the 

laws covering the economic exploitation of the high 

seas are the regimes that may govern these waters. In 

addition to the different possibilities for maritime jurisdictions based on awarded sovereignty presented in 
97

this monograph, a governing regime relying on joint 

development of the sovereign and/or international 

zones of the South China Sea is possible. Although 

the waters around the Paracel Islands will be divided 

in one fashion or another between Vietnamese and 

Chinese EEZs, the EEZ that a habitable Woody Island might generate to just beyond Macclesfield Bank 

could be managed as a Joint Development Zone (JDZ) 

to share resources, or a less robust Joint Management Zone (JMZ) to facilitate research and measures 

to protect the environment and fishing stocks.476 In 

these arrangements, jurisdiction claims are retained 

by states in disputed areas, but each state has a part in 

the exploration, development, or protection based on 

a sharing agreement in ways that could also become 

confidence-building measures.477 On a small scale, a 

successful joint development area already operates 

between Vietnam and Malaysia and could serve as a 

model for Vietnam and China.478 This solution fulfills 

Secretary Clinton’s goal of land and maritime claims 

based on recognized international law in a collaborative diplomatic process.479 By sharing resources and 

finally generating some of its economic potential, joint 

management is a promising solution to develop the 

region for both sides’ benefit. 

The economic concern for the United States in these 

schemes is whether such development in the high seas 

is a venture under UNCLOS or customary law provisions that recognize all states’ rights, or whether the 

high seas are to be controlled and administered by a 

regional entity. If a jointly shared regional commons is 

formed around the Paracels through combining coastal EEZs with the convenient interpretation that maritime jurisdictions are generated from the islands, the 

resulting commons then pools the region’s resources 
98

for mutual benefit of the claimants. This type of approach is not explicitly sanctioned in UNCLOS, but has 

international legal precedent in which Honduras, Nicaragua, and El Salvador were given “condominium” 

ownership in the Gulf of Fonseca Case. A similar combination of national maritime jurisdictions and shared 

claims through a condominium would eliminate the 

international waters southeast of the Paracels, and a 

much larger area if applied to the Spratly Islands.480

China has discussed such maritime joint use options 

with Vietnam, but will not negotiate over the sovereignty of the Paracels.481 Although still hypothetical, 

such a joint solution that liberally interprets international law to benefit regional states economically and 

foster peace and security in the region at the expense 

of the economic interests of outside parties poses a dilemma for the United States. A condominium solution 

may impede the potential to exploit the high seas in 

the region, or may introduce undetermined restrictions to navigation, both contrary to U.S. interests. On 

the other hand, such a solution could promote peace 

and stability among the states through diplomatic 

processes and support economic development and expand energy availability in a region where it is sorely 

needed. Although joint development may be China’s 

best economic option in the South China Sea, its political and economic culture has made an equitable joint 

management scheme difficult to implement.482

A joint development or management solution 

would follow PRC communist party leader Deng 

Xiaoping’s proclamation in the early-1990s that in the 

South China Sea “sovereignty is ours, set aside disputes, pursue joint development,” a policy which subsequent Chinese leaders have embraced (during the 

Indonesian Track II talks, for example), but of which 
99

other leaders are wary.483 Any joint development or 

governing deal in the South China Sea is burdened by 

the paucity of compromise and trust among the rim 

states as discussed in this monograph.484 An analysis 

of the South China Sea situation by the respected International Crisis Group warns that:

Joint development, while an opportunity for claimants 

to cooperate and thereby reduce tensions, has stalled 

as claimants resist China’s demands that they first accept its sovereignty over disputed areas. The failure 

to reduce the risks of conflict, combined with the internal economic and political factors that are pushing claimants toward more assertive behavior, shows 

that trends in the South China Sea are moving in the 

wrong direction. . . . Claimants would benefit from 

taking concrete steps toward the joint management of 

hydrocarbon and fishing resources, as well as toward 

reaching a common ground on the development of a 

mechanism to mitigate or de-escalate incidents, even 

if they cannot agree on an overall approach to dispute 

resolution.485

As the sole occupier of the Paracels, China holds 

a strong position and is likely to expect attractive advantages in a joint scheme, and would only join a joint 

organization that is looser than the condominium solution described previously.486 Vietnamese diplomats 

have had more success than others in negotiating 

with China on joint issues like the maritime delimitation and fishing agreements in the Gulf of Tonkin, 

which entered into force in 2004.487 The two states subsequently agreed in 2006 to explore bilaterally for oil 

in the Gulf of Tonkin, and in 2013 expanded the exploration area and length of the agreement to 2016.488

Since 2005, their navies have conducted a dozen joint 

enforcement patrols in the Gulf of Tonkin;489 and since 

2010, they have held periodic defense-security strate-
100

gic dialogues to ensure peace and stability between 

them.490 Timo Kivimaki suggests a transnational SinoVietnamese tourism project as a starting point,491 perhaps most equitably done on the Crescent Group using 

Prattle, Money, or the Triton Islands, which are held 

by China but in or near the Vietnamese EEZ. Hasjim 

Djalal has observed that in the South China Sea, bilateral development agreements such as these are easier 

to reach than multilateral agreements.492 These are 

significant efforts at joint cooperation and development in the shared Gulf of Tonkin upon which similar 

efforts around the Paracels, 300-nm to the southeast, 

could be modeled.

Although such actions benefit both countries 

through joint cooperation, as championed by Chairman Deng, relations between them remain complicated and difficult. Friction over development continues 

as already shown in the failure of the JMSU among 

China, Vietnam, and the Philippines, which expired in 

2008 because the smaller states believed the PRC only 

wished to explore in disputed areas near their shores, 

but not in contested areas which China was unilaterally exploiting.493 In 2013, Vietnam rejected a Chinese 

maritime claim south of the Gulf of Tonkin and west of 

the Paracels as the basis for joint energy development 

because it was considered solely Vietnamese. Violent 

incidents also routinely continue at sea between their 

vessels.494 Some analysts believe that more certain and 

rapid financial returns will motivate companies like 

CNOOC to support joint development, yet its deployment of China’s first deep-water drilling rig to the 

Paracels in 2012 and clashes near Triton Island over 

Haiyang Shiyou 981 in 2014 show that CNOOC, too, 

is willing to operate inside the dispute to support its 

interests.495 Experts argue that joint partnerships lack-
101

ing strong political will may be difficult while rivalry 

persists; as Djalal instructed, “Development efforts 

needed peace, stability and cooperation.”496 Because 

of problems so far, South China Sea scholar Stein Tonnesson recommends postponing development until 

after jurisdictions are delimited and shelving sovereignty issues altogether.497 U.S. policy, however, still 

supports joint development, even in disputed areas, 

by supporting diplomatic efforts such as the start of 

drafting a code of conduct to the Declaration of the Conduct of Parties in the South China Sea (DOC) in 2011 in 

order to continue a diplomatic process.498

United States: Honest Broker or Balancer?

Based on U.S. interests and policy presented so 

far, how should the United States engage in the South 

China Sea disputes? It can play one of two roles, and 

over time will probably engage in both as it pursues 

its interests in regional stability and prosperity, navigation, and economic development, and as changing 

circumstances dictate.499 The first role is that of honest 

broker among the disputants helping, along with other 

states, to resolve these thorny issues through “respect 

for international law . . . collaborative diplomatic process . . . without coercion . . . [and] not take sides . 

. .” as proposed by Secretary Clinton.500 Secretary of 

Defense, Chuck Hagel, has also stressed addressing 

threats through such engagement.501 The other role is 

that of balancer recognizing that the sovereign states 

in the region do not meet on a level playing field, and 

that U.S. commitments and national interests obligate 

the United States to take some parochial positions for 

its own benefit or to support an enduring overall solution on behalf of a regional partner.502 These U.S. ap-
102

proaches compensate for the PRC strategy in which 

claims for land sovereignty and maritime delimitation are conducted bilaterally to gain advantage over 

weaker claimants, while lesser and more encompassing issues like safety, anti-crime, and environmental protection may follow a multilateral approach.503

Brzezinski recently summed up this dual U.S. role as 

the “balancer and conciliator between the major powers in the East.”504 One analyst calls this balance “defensive realist logic—increasing the security of allies 

without threatening China directly,” or “containmentlite,” which supports and restrains a partner like Vietnam while also constructively engaging or deterring 

a sometime competitor and collaborator like China.505

For these reasons, harmonizing these two roles is 

crucial to American, Vietnamese (and other ASEAN 

states), and Chinese long-term interests in regional 

peace, cooperation, and prosperity.

When it serves to advance solutions in the South 

China Sea, the United States should play the role of 

honest broker because it shares common goals and 

interests for peace and stability with China and the 

ASEAN states.506 Since its recent rise to regional power, China and the United States keep returning to a 

“constructive strategic partnership,” despite intermittent intervening crises, because their long-term interests ultimately overlap, and the need to manage them 

together continues.507 When China joined the Treaty 

of Amity and Cooperation in Southeast Asia in 2003, 

it signaled its intent toward equality and cooperation 

with the members of ASEAN as part of China’s coexistence approach, which has had some success in 

resolving land disputes elsewhere on its borders.508

Despite its past conflicts and current disputes with 

China, Vietnam also relies on diplomatic negotiations, 
103

its hedging strategy of cultivating military ties with 

China, and its other interactions to defuse tensions 

with China.509 Even with these ties, however, China 

has refused discussions specifically about the Paracels, 

although China will discuss the status of the Spratly 

Islands with Vietnam.510

The U.S. role of honest broker in the South China 

Sea will encourage this engagement as equals while 

offering the additional benefits of allowing the United 

States to represent general international interests in 

the region and provide sought-after defense cooperation to the ASEAN states to bolster their capabilities.511

As an honest broker, U.S. policy in National Security 

Presidential Directive (NSPD) 41 seeks to “enhanc[e] 

international relationships and promot[e] the integration of U.S. allies and international and private sector 

partners into an improved global maritime security 

framework to advance common security interests in 

the Maritime Domain.”512 Following this line, PACOM’s 2013 strategy supports multilateral approaches with regional groups like ASEAN to develop relationships that build trust and reinforce international 

norms, and it also engages with China to achieve a 

variety of common bilateral and multilateral goals.513

Secretary Clinton especially singled out the longawaited full code of conduct negotiations that will 

supplement the 2002 DOC, in which the United States 

as a conciliator is “prepared to facilitate initiatives and 

confidence building measures” among the parties.514

Such measures build the necessary trust in the United 

States to help respond to crises or when support is 

needed, and is simply good diplomatic practice in a 

tense region with important U.S. interests.515

U.S. and regional state interests are best served with 

an involved United States that can play the concilia-
104

tor role when needed. This monograph has outlined 

why U.S. interests are served this way, but so too are 

the interests of the regional states. Without American 

involvement, stronger states may assert themselves in 

the disputes more, while, through miscalculation or 

domestic pressure, weaker states may start incidents 

they may not be able to contain.516 Among the regional 

powers, neither China nor ASEAN, with substantial 

direct interests in the dispute, nor Japan, with indirect 

interests similar to the United States but with a negative legacy that makes it distrusted in the region, can 

substitute in this role.517 Indonesia, through the Track 

II talks it has hosted since 1990, has ably played the 

role of diplomatic conciliator in the South China Sea 

disputes, but Indonesia, too, may have maritime conflicts with China’s historic claims and lacks the substantial resources that the United States can bring to 

influencing solutions.518 The United States may be a 

good mediator because it has enough interests in the 

disputes to remain engaged, diplomatic power to help 

maintain the rule of law, important overlapping interests with each party (especially China) to be cautious 

and balanced, sufficient distance from the region to 

have no sovereignty claims and prefer local initiatives 

and solutions, and is willing to include all affected 

states in the process through programs like its Global 

Maritime Partnership.519

This U.S. stance has been called “active neutrality,” 

although, when necessary, that includes direct actions 

like confronting the PRC when U.S. navigation interests are threatened, while also restraining a partner 

perhaps when domestic nationalist sentiment spurs a 

government to be too aggressive, as almost happened 

in 2011 and 2014 when huge demonstrations in Vietnam and prominent citizens chastised their govern-
105

ment for being “too timid” in its responses to incidents 

with China.520 The United States is thus an important 

factor in promoting the peaceful and prosperous environment to which China and the other Asian states 

have contributed and mutually benefited from, but 

the United States has done so by allowing the states 

involved to take the initiative for mediation.521

As shown, however, the U.S. position has not been 

strictly neutral, and the United States has become involved in the dispute when deemed necessary. Until 

the 1995 Mischief Reef incident in the Spratly Islands, 

the United States did not intervene in the South China 

Sea because the disputes did not affect global stability 

or major U.S. interests. Since the end of the Cold War, 

as the United States has perceived increasing threats 

to the sea lanes and potential for military conflict in 

the South China Sea, Chinese observers believe that 

U.S. policy has evolved from active neutrality to “active concern,” and as a result the United States has 

become more willing to intervene.522 PRC officials see 

a less impartial United States siding with the Southeast Asian states at its expense, at least indirectly if 

not in public, and that the United States may be slowly 

abandoning neutrality.523 The strategic shift of focus 

to the Pacific Rim and East Asia is a major example 

of a more active and potentially parochial role for the 

United States. 

Some ASEAN states are anxious about the uncertainty around China’s growing power and possible 

dominance of the region.524 Others, like Vietnam, have 

already found China’s claims and behavior in the region to be overbearing and threatening, and quietly 

welcome the U.S. commitment to deter potential aggression from the PRC to ensure security and allow 

negotiations toward a settlement.525 In support, South 
106

China Sea powers have offered the United States access or basing rights, including Vietnam, allowing 

use of the old U.S. naval base at Cam Ranh Bay for 

noncombat naval ship maintenance and visits of combat ships at other ports, while regional allies have 

welcomed the U.S. renewed emphasis on the AsiaPacific region.526 Their fear is that when vital Chinese 

interests have been threatened, the PRC has resorted 

to conflict to protect them,527 and there is a possibility that the South China Sea may prove to be one of 

those core Chinese interests.528 Through its military, 

economic, and political power; cultivated ties with the 

disputants; and its own national interests, the United 

States alone may be the “external balancer providing 

security guarantees to whatever state may be attacked 

by another, and thereby making regional balances-ofpower much less significant.”529 However, the United 

States must remain committed to involvement in the 

region and can ill afford to be inconsistent by cancelling important engagement opportunities, like three 

planned presidential visits since 2010 that were abandoned due to domestic U.S. incidents, which undercut the regional states’ perception of the United States 

as a steadfast partner,530 or President Obama’s 2014 

guarded foreign policy speech at West Point that left 

South China Sea states questioning a strong American 

commitment to their region. 

Partiality in the disputes is due in part because 

the Southeast Asian states seek a counterbalance to 

nearby China, and the United States best serves in 

that role today. For example, after its reunification 

in 1975, Vietnam relied on the Soviet Union (until its 

dissolution in 1991) as an ally to counter China.531 By 

1992, ASEAN supported a U.S. military presence in 

the region to balance Chinese growth, and Vietnam 
107

and the other states have since improved military cooperation with the United States to reinforce that commitment.532 To preserve its own interests and maintain 

the balance of power in the Asia-Pacific region, the 

United States needs to remain involved to protect the 

maritime commons of East Asia and its partners from 

intimidation.533 Doing so has its challenges, however, 

since countering small incremental actions like an unauthorized Chinese oil rig in the Vietnamese EEZ or 

a bout of Chinese ‘reactive assertiveness’ patrolling 

more aggressively for fishing violations in its own 

claimed areas may not be a causus belli for the United 

States, but such actions accumulate to change the status quo in the South China Sea in China’s favor.534 The 

Obama administration has worked to promote more 

unity within ASEAN, which has no real defense arrangement, to better withstand Chinese pressure.535 To 

this end, PACOM’s strategy seeks to strengthen relationships with ASEAN and its states, and specifically 

“enhance our partnerships with Indonesia, Malaysia, 

Singapore, Vietnam, and others to advance common 

interests and address shared threats,”536 while Vietnam and the Philippines have both sought stronger 

backing from the United States and ASEAN in their island disputes with China.537 Brzezinski concludes that 

in Asia the United States should play the dual role of 

conciliator and regional balancer, as the United Kingdom did in nineteenth century European politics, by 

“mediating conflicts and offsetting power imbalances 

among potential rivals.”538

American balancing actions have weighed against 

China when needed but usually in a way to not endanger its role as conciliator, since doing both are not 

mutually exclusive activities and are part of a normal process of great power cooperation and compe-
108

tition.539 In 2010, the United States maneuvered the 

ARF agenda to make the South China Sea disputes a 

primary topic for multilateral, not bilateral, discussions; and at the subsequent ARF meeting in Hanoi, 

Secretary Clinton denounced unilateral actions in 

the South China Sea and supported the need for all 

parties to negotiate a code of conduct. This indirectly 

condemned China for both its aggressive actions and 

its recalcitrance to an already agreed-upon procedure, 

while offering the branch of conciliation at the same 

time to rectify the situation.540 Balancing also means 

strengthening ASEAN military capabilities through 

establishing or strengthening military cooperation 

agreements, and forward deploying U.S. forces into 

East Asia with Vietnamese engagement—perhaps the 

fastest developing relationship in the region.541

The United States should continue its strategy of 

robust deployments of naval, air, and ground forces, and alliances and cooperation with like-minded 

states.542 These moves support U.S. interests in the 

South China Sea as declared by Secretary Clinton, 

thereby “internationalizing” the disputes to the consternation of the PRC, which loses diplomatic and 

military advantage.543 U.S. intervention has been overt 

as well, for instance, by loudly condemning Chinese 

actions to establish the Sansha municipality over the 

South China Sea islands, while not criticizing similar 

earlier actions by Vietnam and the Philippines.544 In 

addition, the U.S. Senate in 2011 unanimously approved a nonbinding resolution voicing “grave concern” over aggressive Chinese actions.545 U.S. officials 

have also described Chinese jurisdiction claims within 

the U-shaped line as excessive, and thereby some analysts believe “the United States is now a disputant in 

the South China Sea disputes.”546 However, for the 
109

United States, such measures provide the region the 

military security needed for diplomacy to operate on a 

relatively level field, or as a past Vietnamese ambassador bluntly stated, “If the United States does not show 

some signs of support for the smaller countries on this 

issue, Vietnam will have no choice but to accommodate China. . . .”547

The United States must manage adroitly its dual 

roles. Because of its own interests and obligations, the 

United States should continue to play the balancer 

role, but needs to account for the significant benefits 

and risks to the region in terms of peace and stability.548

U.S. involvement acts to deter the use of force, balancing weaker regional states’ power with that of the PRC, 

and thereby constraining the parties to work within a 

diplomatic and legal framework (while also drawing 

the smaller states closer to the United States).549 For instance, after Secretary Clinton’s greater interest in the 

South China Sea at the 2010 ARF, a Vietnamese diplomat exclaimed that China did not take Vietnam seriously before, but “they talk to us now.”550 The United 

States must be alert, however, to not let such support 

embolden some states and increase regional instability.551 U.S. support to a common ASEAN position in 

the South China Sea, a position pushed by Vietnam 

to link its Paracel Islands with the broader Spratly 

Islands dispute that also involves the Philippines, 

Malaysia, and Brunei, could be seen as hostile by the 

Chinese and make the region more violent.552 U.S. 

support to the members of ASEAN balances China’s 

power and allows ASEAN to rise as a regional power 

on its own.553 Chinese observers believe that its bilateral engagements with the other states were beneficial 

to the region until U.S. provocations internationalized 

the disputes through “gunboat” policy.554 Too much 
110

or misapplied U.S. support in the region will not only 

alienate China, but could also sow discord among the 

ASEAN states, which runs counter to American intentions for ASEAN unity to balance Chinese power.555

Because of many mutual interests and a strong 

economic embrace, the United States must remain 

delicate and agile in its involvement in the region, but 

it must also remain involved because there is no viable 

alternative state for the roles it plays. As an honest 

broker to the region, it offers resources and a proclivity for mediation that, in the long run, will result in solutions yielding a more stable, prosperous, and peaceful region based on the disputants’ participation. As a 

balancer, the United States sets the conditions needed 

for Vietnam to engage as a bilateral equal in the spirit 

of international law. Because the United States does 

this to further its own interests in conjunction with 

those of China and the ASEAN states, its commitment 

to these goals should be significant and enduring 

through building trust and reinforcing international 

norms. The United States alone can deter aggression 

by any state.556 China and the ASEAN states should 

accept the United States as an honest broker to keep 

America’s role relatively neutral, and also allow it to 

balance to ensure better solutions are determined in 

equal negotiations or under international law. At the 

same time, the United States should recognize that 

the ASEAN states, including Vietnam, are also hedging their bets with military ties to the PRC.557 Should 

the United States play its dual roles correctly, it can 

be called upon to be both mediator and deterrent.558

Should the United States overemphasize either role, it 

could embolden aggression by appearing too weak to 

enforce stability, or too partisan to contribute to peace. 

The United States and China must find a way to balance their respective “integration” and “coexistance” 
111

approaches to international affairs to maintain the 

peace in Asia.559 Thus Brzezinski concludes, “If the 

United States and China can accommodate each other 

on a broad range of issues, the prospects for stability 

in Asia will be greatly increased.”560

CONCLUSION

The region around the Paracel Islands and the 

South China Sea is fraught with physical, economic, 

political, and military hazards. This region is important to the economies of the surrounding states in 

terms of the fish they eat and sell and the potential 

for energy resources needed to fuel their growing 

economies. This bonanza of riches spurs much of the 

outsized claims in the region that result in diplomatic 

and physical clashes. This is unfortunate because the 

conditions these confrontations create reduce outside 

investment in the region, squander resources through 

their unregulated use, and hinder the states from cooperating for their mutual economic benefit. The high 

flow of maritime commerce through the South China 

Sea is also crucial to the economic well-being of this 

region and the world. Although the waters around 

the Paracel Islands are economically important, the 

islands themselves are less so. China’s firm—if contested—occupation of the Paracels, however, gives it a 

distinct advantage in the region for security purposes, 

and because possession of the islands may allow control over more of the surrounding waters. 

Although direct military confrontations have diminished since the 1990s, civilian enforcement agencies have been active in protecting claimed spaces, 

sometimes employing violence resulting in deaths. 

Because partner countries rely on the United States to 

ensure stability in the South China Sea, and to address 
112

its own interests in maintaining freedom of navigation 

rights and economic development of the international seabed, the United States should remain engaged 

with the South China Sea states on issues of mutual 

concern. The United States has also been embroiled in 

the circumstances in support of partners like Vietnam 

through confrontation with the PRC over rights of 

navigation through claimed waters. The United States 

must be wary of both overplaying its position or having a partner do so and alienating the PRC, or allowing the PRC to use the South China Sea as a crucible in 

which to test American resolve or bait a trap as part of 

a confrontational military rise. To better address these 

concerns, policymakers need to understand the underlying problems and conflicting claims that threaten 

security and prosperity in this region. 

The use of customary and UNCLOS law in establishing claims to the Paracels and surrounding waters 

helps explain both the perspectives of the disputants 

and how they have, in part, interacted with each other and the United States on the issues of rights and 

claims. Their legal positions are especially important 

for American policymakers as they inform possible 

solutions and suggest how to contribute to peace and 

prosperity in the region. Three key legal questions 

must be answered to help sort the disputes: sovereignty over the islets, the nature of a claimed land 

feature, and the delimitation of maritime jurisdiction. 

Sovereignty is claimed through customary law, with 

China and Vietnam both using historic doctrine to 

claim the entire South China Sea, while both have also 

used the doctrine of occupation to claim the Paracels. 

Both states support their claims with efforts at effective administration through establishing laws governing their possessions under municipal governments, 
113

economic activities, or, in the case of China, inhabiting 

them. The establishment of UNCLOS precepts made 

otherwise unproductive land features valuable. Establishing control over them using customary law has 

sometimes spurred clashes. 

Developed to reflect modern interpretations of international law, UNCLOS offers guidance to maritime 

disputes in the South China Sea but is not a comprehensive solution. Once sovereignty of a land feature is 

determined, UNCLOS stipulates its jurisdiction over 

surrounding waters based on its human characteristics. This process is meant to maintain tranquility 

in the ocean commons through establishing various 

maritime zones with graduated degrees of sovereign 

rights for the state. Islands designated as inhabitable 

or economically viable accrue more consideration 

than uninhabitable rocks and other features making 

habitability of the larger Paracel Islands an important 

question to be resolved, whether or not the claiming 

states cooperate to establish a joint maritime zone. 

Once sovereignty and feature type are determined, zones of authority may be established by the 

occupying state depending on the distance from its 

established shore baseline. Internal, archipelagic, and 

historic waters are maritime variations of near-full 

sovereign control, which could be disruptive to economic and navigation activities. Vietnam or China, for 

instance, could control most of the South China Sea if 

either historic claim was affirmed. Islands above the 

high tide mark establish territorial waters and a contiguous zone, which would carve 24-nm zones around 

the Paracels, but should allow innocent passage even 

if restricting most other maritime activities. However, 

Vietnam and China do not recognize innocent passage 

for naval ships, which makes such zones a major concern for the United States government. 
114

Since the length of the 200-nm EEZ allows much 

potential overlap among land masses and islands in 

the semi-enclosed South China Sea, their delimitation through equidistant or equitable principles affects jurisdiction, and, like territorial waters, Vietnam 

and China restrict military activities within the EEZ 

beyond the economic regulation normally allowed. 

Habitability of an island is a significant issue for EEZ 

delimitation since only populated or economically viable islands may claim an EEZ. The awarding of an 

EEZ affects freedom of navigation and the potential 

for U.S. economic development in otherwise international waters. Although such arguments by claimants 

for more restrictions in these zones are tenuous, they 

could be useful justification to cover military actions 

by states such as China, which is the most active internationally in enforcing a restrictive EEZ. 

Freedom of navigation in the South China Sea is 

the most immediate concern for the United States 

in order to ensure naval vessels retain all the rights 

of access allowed in the region under international 

maritime law. Current policy in China and Vietnam 

restricts foreign naval activities in their zones beyond 

that normally attributed to UNCLOS. This is a bad 

precedent for U.S. maritime access around the world, 

but the United States has options to improve the 

situation in the South China Sea. First, it has already 

signed the MMCA with the PRC and the CUES with 

19 additional states to reduce the number of maritime 

incidents between the two countries. Concluding an 

INCSEA with the PRC would clarify further the rights 

and responsibilities between the two, especially when 

operating within each other’s maritime jurisdictions, 

while also remaining fully compliant with international law and significantly reducing the potential for 
115

future clashes. Other forms of government-to-government interaction would build confidence in present 

and future agreements, leverage common interests—

as the USCG has done so well with its PRC counterparts—and would also reduce tensions in the region 

to enhance freedom of navigation. Through engagement activities of regionally aligned forces, the U.S. 

Army could become a significant influence in making 

the United States both a conciliator and balancer in the 

region.

U.S. ratification of UNCLOS is another important 

step to influence the evolution of future interpretations 

of freedom of navigation toward more open stipulations than some of the states around the South China 

Sea now espouse. Although a more difficult proposition, the United States should demand the clarification 

of the historic claims made in the South China Sea, in 

order to facilitate negotiating a settlement, accelerate 

economic development, and remove the potential of 

shutting down all foreign navigation through the region. Support to Vietnam’s current islet occupations in 

the Spratlys, its claims to coastal EEZ and continental 

shelf areas in compliance with UNCLOS, and specific 

historic economic rights could wean Vietnam from its 

otherwise weak historic claims, and start sincere bargaining by linking the Paracel and Spratly disputes 

in a comprehensive agreement. The United States 

has less influence to change China’s position on historic rights because the ambiguity of its positions has 

served China well. Here, appealing to China’s future 

role in world politics may help to change its parochial 

freedom of navigation perspective into a more global 

one like the United States holds. 
Open economic access to the South China Sea 

maritime commons is a second U.S. interest, but one 

for which the solution may diverge from freedom of 

navigation considerations. Access to the resources of 

the high seas is an important enough U.S. interest to 

stall the ratification of UNCLOS for nearly 20 years 

in order to avoid the restrictions imposed on seabed 

mining, although this activity has yet to become commercially viable. While the United States remains outside the treaty, however, it holds less influence over 

how maritime law is interpreted and evolves, and 

thus is at a disadvantage to shape events like whether 

the South China Sea becomes a wholly divided and 

claimed sea. Such arrangements as a joint development zone or a joint management zone could stabilize 

the area to provide peace and the dividends of economic development for its participants. This could 

detract from potential U.S. economic development 

activities, depending on the arrangements, but supports U.S. security and economic prosperity goals for 

the region as well as attains a diplomatic settlement 

through recognized international law. 

To contribute to overall stability and prosperity in 

the region—and its own freedom of navigation and 

economic interests—the United States must delicately 

play the roles of conciliator and balancer as circumstances require. The United States is an honest broker 

through “active neutrality” because it shares goals 

in common with the states around the South China 

Sea, in accord with existing U.S. policy. Although 

the United States may not be truly neutral, it has less 

direct demands in the disputes, garnered more trust 

than most other states, and possesses resources to bear 

on these problems making it a useful interlocutor in 

resolving problems. 

116
117

In other circumstances, the United States has intervened in problems in the South China Sea in more 

parochial ways to balance the diplomatic field in aid 

of allies and defense partners, and to directly protect 

its freedom of navigation interests in a policy some 

have dubbed “active concern.” Just as the U.S. honest broker role limited the demands that its partners 

might make in the disputes, the balancer role should 

deter aggressive stances by any party lest the United 

States throw its weight to the other side. The balancer 

role is also dictated because ASEAN lacks a defense 

arrangement by which to counter the influence of a 

much stronger PRC. As a balancer, the United States 

has improved its military relationship with Vietnam 

in a remarkably short time, and challenged Chinese 

actions which Chinese officials have complained “internationalizes” the issues. The balancing role should 

be minimal so as to not overshadow the conciliator 

role, since both are necessary roles that only the United States can play well in order to achieve the peaceful 

settlements toward security and economic interests 

that all the states ultimately want. In short, all parties 

should welcome a nuanced U.S. role as both conciliator—to keep the United States relatively neutral in the 

disputes—and balancer—to deter aggressive actions 

and thus support diplomatic solutions.

This monograph presented the most important 

economic, security, and diplomatic interests that 

the United States has in the region. Its involvement 

as described must be nuanced to balance conflicting requirements to ensure its freedom of navigation 

through these waters, which also reinforces similar 

rights around the world, and economic development 

interests. The balancer role ensures that the disputants 

may represent themselves as full sovereign states in 
118

negotiations with each other, while the United States 

simultaneously maintains good economic and diplomatic relations with each of the claimant states as a 

conciliator. For these reasons, the United States has 

again made the Asia-Pacific region a major focus of its 

stated global interests, and converging national interests between the United States and China may indicate that some progress on the issues outlined here are 

possible. In the end, the conflicts in the Paracel Islands 

and South China Sea are not for the United States to 

solve, but its ability to contribute, facilitate, balance, 

or support is necessary toward a solution from which 

all may benefit.
119

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ENDNOTES

1.The Paracel Islands are known as Quân Ðâo Hoàng Sa in 

Vietnamese (Hoang Sa Islands) and Xisha Qundao (西沙群島) 

in Chinese (Xisha Islands). Each of the islands referenced herein also have Vietnamese and Chinese equivalents, but the standard names from the U.S. Board of Geographic Names are used 

throughout. U.S. Defense Mapping Agency (USDMA), Gazetteer 

of the Paracel Islands and Spratly Islands: Names Approved by the 

United States Board on Geographic Names, Washington, DC: Defense 

Mapping Agency, 1987.

2. The number of features counted in the South China Sea varies widely. In this monograph, the term “features” casts a wide 

net over any piece of land close to or above the water surface that 

affects navigation. Terms like islands, islets, shoals, reefs, banks, 

cays, sands, and rocks are more technical geographic terms which 

are defined when needed in this analysis. The approximate number of 130 features given for the Paracels is based on the number 

listed for the Paracel Islands in the CIA World Factbook. The U.S. 

Board on Geographic Names lists 28 named features, while Nong 

Hong references 15 significant Paracel islets, reefs, and shoals. 

Vietnam claims more than 3,000 land features in the South China 

Sea. USDMA; Nong Hong, UNCLOS and Ocean Dispute Settlement: 

Law and Politics in the South China Sea, New York: Routledge, 2011, 

p. 55; Ben Dolven, Shirley A. Kan, and Mark E. Manyin, Maritime 

Territorial Disputes in East Asia: Issues for Congress, Washington 

DC: Congressional Research Service, January 30, 2013, available 

from www.hsdl.org/?view&did=730456; The 2012 World Factbook,

Washington DC: Central Intelligence Agency (CIA), 2012, “Paracel Islands,” available from www.cia.gov/library/publications/theworld-factbook/geos/pf.html; “Spratly Islands and Paracel Islands” 

Map 801947, Washington DC: CIA, April 1992; and Socialist Republic of Vietnam (SRV), “Executive Summary,” Submission to the 

Commission on the Limits of the Continental Shelf Pursuant to Article 

76, Paragraph 8 of the United Nations Convention on the Law of the 

Sea, Hanoi, Vietnam: Ministry of Foreign Affairs, April 2009, p. 

1, available from www.un.org/depts/los/clcs_new/submissions_files/

vnm37_09/vnm2009n_executivesummary.pdf.

3. “Spratly Islands and Paracel Islands” Map; and CIA, World 

Factbook, “Paracel Islands.” Woody Island is the largest in the 
143

group and covers about .43 square-nm (about 1.6 square kilometers or 400 acres), with Duncan Island .12, Pattle Island .08, and 

Palm and Rocky Islands each .02 square-nm of area, for example. 

Tingoo Chu, “The Guano Deposit of the Western Islands (Hsisatao) or Paracel Reefs,” Bulletin of the Geological Society of China, 

Vol. 8, No. 2, June 1929, pp. 91-92; and “Straight Baselines Claim: 

China,” Limits in the Seas, No. 117, Washington DC: U.S. Department of State (USDOS), Bureau of Oceans and International Environmental and Scientific Affairs, July 9, 1996, available from www.

state.gov/documents/organization/57692.pdf. 

4. Jeanette Greenfield, “China and the Law of the Sea,” J. Crawford and D. R. Rothwell, eds., The Law of the Sea in the Asia Pacific 

Region, Boston, MA: Martinus Nijhoff Publishers, 1995, pp. 26-27; 

Chu, p. 92; and CIA, “Spratly Islands and Paracel Islands” Map.

5. Greenfield, pp. 34-35; and “Maritime Claims of Northeast 

Asia” Map 772221AI, Washington DC: CIA, July 2006.

6. Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, 

Sharing the Resources of the South China Sea, The Hague, The Netherlands: Martinus Nijhoff Publishers, 1997, p. 187.

7. Tom Ness, “Dangers to the Environment,” Timo Kivimaki, 

ed., War or Peace in the South China Sea? Copenhagen, Denmark: 

Nordic Institute of Asian Studies Press, 2002, p. 44.

8. Not all of the seafood reported here originated in the South 

China Sea, but this sea is a major source. The South China Sea (II): 

Regional Responses Asia Report 229, Beijing, China/Jakarta, Indonesia/Brussels, Belgium: International Crisis Group (ICG), July 

24, 2012, p. 16, available from www.crisisgroup.org/en/regions/asia/

north-east-asia/china/229-stirring-up-the-south-china-sea-ii-regionalresponses.aspx; and Dolven, Kan, and Manyin, p. 20.

9. CIA, World Factbook, “Paracel Islands”; Greenfield, p. 26; 

and D. Collins, “Fish Wars 2: The Empire is About to Strike Back,” 

The China Money Report, April 18, 2013, available from www.

thechinamoneyreport.com/2013/04/18/fish-wars-2-the-empire-is-aboutto-strike-back/.

10. Hong, p. 220; and Valencia, Van Dyke, and Ludwig, 

p. 188.
144

11. Valencia, Van Dyke, and Ludwig, p. 188; The South China 

Sea (II), ICG, p. ii; and John C. Baker and David G. Wiencek, “Introduction,” John C. Baker and David G. Wiencek, eds., Cooperative Monitoring in the South China Sea: Satellite Imagery, ConfidenceBuilding Measures, and the Spratly Islands Disputes, Westport, CT: 

Praeger Publishers, 2002.

12. M. Taylor Fravel, “Chapter II: Maritime Security in the 

South China Sea and the Competition over Maritime Rights,” Patrick M. Cronin, ed., Cooperation from Strength: The United States, 

China and the South China Sea, Washington, DC: Center for a New 

American Security, January 2012, p. 37, available from www.cnas.

org/files/documents/publications/CNAS_CooperationFromStrength_

Cronin_1.pdf; D. Collins, “Fish Wars 2”; South China Sea (II), ICG, 

p. 13; and James R. Clapper, “Statement for the Record, Worldwide Threat Assessment of the U.S. Intelligence Community,” 

Washington DC: Senate Select Committee on Intelligence, March 

12, 2013, p. 10.

13. Robert D. Kaplan, “The Geography of Chinese Power—

How Far Can Beijing Reach on Land and at Sea?” Foreign Affairs, 

Vol. 89, No. 3, May/June 2010, pp. 37-38; Hong, p. 5; and Chengxin Pan, “Is the South China Sea a New ‘Dangerous Ground’ for 

US-China Rivalry?” EastAsiaForum, May 24, 2011, available from 

www.eastasiaforum.org/2011/05/24/is-the-south-china-sea-a-newdangerous-ground-for-us-china-rivalry/.

14. CIA, World Factbook, “Paracel Islands”; “Paracel Islands,” 

Nota Bene, Youth Research Group, undated, available from nbenegroup.com/territory/sisha_en.html; Baizhen Chua, “China Offers 

Oil-Exploration Blocks Near Disputed Waters,” Bloomberg News, 

August 28, 2012, available from www.bloomberg.com/news/2012-

08-28/china-offers-oil-exploration-blocks-near-disputed-waters-1-.html; 

Klaus Dodds, “Paracel Islands,” Geographical Magazine, Vol. 82, 

No. 6, June 2010, p. 14; and Ramses Amer, “Ongoing Efforts in 

Conflict Management,” Timo Kivimaki, ed., War or Peace in the 

South China Sea? Copenhagen, Denmark: Nordic Institute of 

Asian Studies Press, 2002, p. 120.

15. “South China Sea,” Washington, DC: U.S. Energy Information Administration (USEIA), February 7, 2013, available from 

www.eia.gov/countries/regions-topics.cfm?fips=SCS; and Oil and Gas 
145

Journal Editors, “South China Sea Contested Areas Poorly Endowed, EIA says,” Oil and Gas Journal, April 3, 2013, available 

from www.ogj.com/articles/2013/04/south-china-sea-contested-areaspoorly-endowed--eia-says.html.

16. Methane hydrates are also known as natural gas hydrates 

or flammable ice. Hong, p. 75.

17. “Contested Areas of South China Sea Likely Have Few 

Conventional Oil and Gas Resources,” Washington, DC: USEIA, 

April 3, 2013, available from www.eia.gov/todayinenergy/detail.

cfm?id=10651; and “Potential of Gas Hydrates is Great, But Practical Development is Far Off,” Washington, DC: USEIA, November 7, 2012, available from www.eia.gov/todayinenergy/detail.

cfm?id=8690.

18. “South China Sea,” USEIA.

19. Ibid.; and Dolven, Kan, and Manyin, p. 22.

20. Andrew Higgins, “In South China Sea, a Dispute over 

Energy,” The Washington Post, September 7, 2011, available from 

www.washingtonpost.com/world/asia-pacific/in-south-china-sea-a-dispute-over-energy/2011/09/07/gIQA0PrQaK_story.html.

21. “South China Sea,” USEIA; and Edward Wong, “Q & A: 

M. Taylor Fravel on China’s Dispute with Vietnam,” Sinosphere 

Blog, The New York Times, May 8, 2014, available from sinosphere.

blogs.nytimes.com/2014/05/08/q-and-a-m-taylor-fravel-on-chinasdispute-with-vietnam/?_php=true&_type=blogs&_r=0.

22. The Jiangnan Basin is found in the western part of the Gulf 

of Tonkin, and Wan’an is off the coast of central Vietnam. Both 

are located on the continental shelf of Vietnam, and both areas are 

claimed by Vietnam and China. Quintella Koh, “China-Vietnam 

Row Heats Up over Competing Claims,” Rigzone, July 2, 2012, 

available from www.rigzone.com/news/oil_gas/a/119013/ChinaVietnam_Row_Heats_Up_Over_Competing_Offshore_Claims; Chua; and 

“South China Sea,” USEIA.

23. The Benton Block was originally developed by the U.S. 

Creston Company in 1992 and is still sometimes referred to as 
146

the Crestone Block. “South China Sea,” USEIA; Michael Studeman, “Calculating China’s Advances in the South China Sea: 

Identifying the Triggers of Expansion,” Naval War College Review, 

Vol. 51, No. 2, Spring 1998, available from www.globalsecurity.org/

military/library/report/1998/art5-sp8.htm; and Stein Tonnesson, 

“The Economic Dimension: Natural Resources and Sea Lanes,” 

Timo Kivimaki, ed., War or Peace in the South China Sea? Copenhagen, Denmark: Nordic Institute of Asian Studies Press, 2002, p. 56.

24. Wong; and Jane Perlez, “China and Vietnam Point Fingers after Clash in South China Sea,” The New York Times, May 

27, 2014, available from www.nytimes.com/2014/05/28/world/asia/

vietnam.html?partner=rss&emc=rss&_r=0.

25. South China Sea (II), ICG, pp. 3, 33; Seth Robson, “China’s 

Tactics Turning Off Asian Neighbors,” Stars and Stripes, June 

25, 2013, available from www.military.com/daily-news/2013/06/25/

chinas-tactics-turning-off-asian-neighbors.html?ESRC=airforce-a.

nl; and Ronald O. O’Rourke, Maritime Territorial and Exclusive 

Economic Zone (EEZ) Disputes Involving China: Issues for Congress,

Washington, DC: Congressional Research Service, August 9, 2013, 

p. 25, available from www.fas.org/sgp/crs/row/R42784.pdf.

26. Irene Chan and Li Mingjiang, “Political Will and Joint Development in the South China Sea” draft document, Recent Development of the South China Sea Dispute Conference, Haikou, China, 

December 2012, p. 9, available from www.nanhai.org.cn/include_lc/

upload/UploadFiles/20131291011846088.pdf.

27. Fravel, “Maritime Security in the South China Sea,” p. 36. 

In part, this is because the “involvement of non-claimants in joint 

exploration in the South China Sea also feeds Beijing’s fears of 

containment,” like the pact signed in April 2012 between Russia’s 

Gazprom and PetroVietnam to explore two blocks on the Vietnamese continental shelf, or joint exploration with India’s Oil and 

Natural Gas Company Videsh that may counter China’s strong 

support for Pakistan. South China Sea (II), ICG, pp. 28-29, 33.

28. Hong, p. 186; and Dolven, Kan, and Manyin, p. 21.

29. Douglas H. Paal, “Territorial Disputes in Asian Waters,” 

Washington, DC: Carnegie Endowment for International Peace, 
147

October 16, 2012, available from carnegieendowment.org/2012/10/16/

territorial-disputes-in-asian-waters/e1ez; and South China Sea (II), 

ICG, p. 33.

30. South China Sea (II), ICG, p. 14.

31. Ibid., p. 7.

32. Ibid., p. 38; “South China Sea” Map 737328, Washington 

DC: CIA, December 1995. 

33. Henry Sanderson, “Xi Calls for Boosting China’s Navy 

as Army Marks Anniversary,” Bloomberg News, August 1, 2013, 

available from www.bloomberg.com/news/2013-08-01/xi-calls-forboosting-china-s-navy-as-military-marks-anniversary.html.

34. John Boudreau, “China-Vietnam Expand Joint Exploration Deal Amid Tension at Sea,” Bloomberg News, June 20, 2013, 

available from www.bloomberg.com/news/2013-06-20/china-vietnamexpand-joint-exploration-deal-amid-tension-at-sea.html.

35. Dolven, Kan, and Manyin, p. 20.

36. Hong, p. 57; and World Factbook, CIA, “Paracel Islands.”

37. Stein Tonnesson, “The History of the Dispute,” Timo Kivimaki, ed., War or Peace in the South China Sea? Copenhagen, Denmark: Nordic Institute of Asian Studies Press, 2002, p. 7; Pan; and 

Jon M. Van Dyke and Dale L. Bennett, “Islands and the Delimitation of Ocean Space in the South China Seas,” Elisabeth Mann 

Borgese, Norton Ginsburg, and Joseph R. Morgan, eds., Ocean 

Yearbook 10, Chicago, IL: University of Chicago Press, 1993, p. 65. 

Even today, the PLAN continues to build fishermen shelters as it 

has on Money Island and others in the Paracels. Wikipedia, “Money Island,” Wikipedia.org, undated, available from en.m.wikipedia.

org/wiki/Money_Island,_Paracel_Islands; and Greenfield, pp. 29-30.

38. Bob Hackett, Sander Kingsepp, and Anthony Tully, 

“Japanese Occupation South China Sea Islands,” Rising Storm—

The Imperial Japanese Navy and China, 2012, available from 

www.combinedfleet.com/SouthChinaSea_t.htm; Van Dyke and Bennett, pp. 69, 72; Jianming Shen, “Territorial Aspects of the South 
148

China Sea Islands Disputes,” Myron H. Nordquist and John Norton Moore, eds., Security Flashpoints: Oil, Islands, Sea Access and 

Military Confrontation, The Hague, The Netherlands: Martinus Nijhoff Publishers, 1998, pp. 173-174, 184; and Mrs. Marie Chung, 

interview conducted with author in Rockville, MD, August 

12, 2013.

39. Guano is an important part of traditionally made fertilizer because it is high in plant-essential nitrogen, phosphate, and 

potassium content. “Paracel Islands,” The Columbia Electronic Encyclopedia, 2012, and List of Countries of the World, “Paracel Islands.” List of Countries of the World, undated, available from 

www.listofcountriesoftheworld.com/pf.html. A Chinese geologic survey in 1929 reported that Woody Island was particularly rich with 

guano deposits up to a quarter of a meter deep and estimated at 

175,000 tons. The survey observed approximately 48,500 tons of 

guano had already been removed, presumably by Mitsui Bussan 

Kaisha or some other company. Chu, pp. 93-94.

40. Ness, p. 43; and Daniel Ten Kate and David Lerman, “Hagel Set for Vietnam Embrace as Wary Asia Eyes Rising China,” 

Bloomberg News, May 31, 2013, available from www.bloomberg.com/

news/2013-05-30/hagel-set-for-vietnam-embrace-as-asian-leaders-eyerising-china.html.

41. Minnie Chan, “Major Development Plan for Woody Island 

Unveiled,” South China Morning Post, November 4, 2012, available 

from www.scmp.com/news/china/article/1074996/major-developmentplan-woody-island-unveiled. Wikipedia reports that Woody Island 

boasts the Xisha Maritime Museum, a Naval Museum, towers 

erected by the Imperial Japanese Army, a monument erected by 

ROC forces in 1946, and a PRC monument erected in 1974 as its 

tourist attractions. Tourists to the Paracels require a special permit to visit. “Woody Island,” Wikipedia.org, undated, en.wikipedia.

org/wiki/Woody_Island_(South_China_Sea).

42. K. Oanh Ha, “Vietnam Protests China’s Planned Paracel 

Islands Sailboat Race,” Bloomberg News, March 30, 2012, available 

from www.bloomberg.com/news/2012-03-31/vietnam-protests-china-splanned-paracel-islands-sailboat-race.html.

43. Kivimaki, “Conclusion,” p. 165.
149

44. Dodds, p. 14; and Hasjim Djalal, “South China Sea Island 

Disputes,” Myron H. Nordquist and John Norton Moore, eds., Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation, 

The Hague, The Netherlands: Martinus Nijhoff Publishers, 1998, 

p. 110. Some commentators have speculated that one of China’s 

motivations in seizing the Paracels in 1974 was to forestall such 

a move by its rival, the Soviet Union, who could turn the islands 

into a forward operating base against China. No evidence has 

been found to show that was indeed part of the Chinese decisionmaking. M. Taylor Fravel, Strong Borders, Secure Nation: Cooperation and Conflict in China’s Territorial Dispute, Princeton, NJ: Princeton University Press, 2008, pp. 267, 287.

45. The Chinese source does not define what constitutes a 

“major” attack in his accounting. Thomas G. Mahnken, Asia in 

the Balance: Transforming US Military Strategy in Asia, Washington DC: American Enterprise Institute, May 2012, p. 12, available 

from www.aei.org/files/2012/05/31/-asia-in-the-balance-transformingus-military-strategy-in-asia_134736206767.pdf; Andrew S. Erikson 

and Lyle J. Goldstein, “Introduction: In the Same Boat Together,” 

Andrew S. Erickson, Lyle J. Goldstein, and Nan Li, eds., China, 

the United States, and 21st Century Sea Power, Newport, RI: Naval 

Institute Press, 2010, p. xxi; and David Lai, The United States and 

China in Power Transition, Carlisle, PA: Strategic Studies Institute, 

U.S. Army War College, December 2011, p. 213.

46. Hackett, Kingsepp, and Tully; and Hong, p. 17, 

47. Colin Dueck, “The Return of Geopolitics,” Washington, DC: Foreign Policy Research Institute, July 27, 2013, from 

www.realclearworld.com/articles/2013/07/27/the_return_of_geo

politics_105345.html; Valencia, Van Dyke, and Ludwig, p. 21; 

Hong, p. 16; and Shen, p. 173.

48. Hackett, Kingsepp, and Tully; Hong, p. 7; Tonnesson, 

“History of the Dispute,” p. 9; Nota Bene; and Shen, p. 177.

49. Hong, p. 10; Tonnesson, “History of the Dispute,” p. 10; 

Hackett, Kingsepp, and Tully; and World Factbook, CIA, “Paracel 

Islands.”
150

50. Van Dyke and Bennett, p. 67; Nota Bene; and Hackett, 

Kingsepp, and Tully. Chinese sources cite a March 30, 1939, Japanese proclamation reporting, “The statements of Great Britain 

and France made respectively in 1900 and 1921 already declared 

that the Xisha [Paracel] Islands were a part of the Administrative 

Prefecture of Hainan Island.” Shen, p. 181.

51. Van Ngac Ha, “The January 19, 1974, Naval Battle for the 

Paracels against the People’s Republic of China Navy in the East 

Sea,” Ha Manh Chi, trans., January 2013, available from vnnavydallas.com/tailieu/hoang_sa_01_19_1974.pdf; Shen, p. 182; Hong, p. 

10; Tonnesson, “The History of the Dispute,” p. 11; and Van Dyke 

and Bennett, p. 72.

52. Van Dyke and Bennett, p. 7.

53. Hong, p. 12; Nota Bene; and South China Sea (II), ICG, p. 37.

54. Fravel, Strong Borders, Secure Nation, pp. 273-274; Tonnesson, “History of the Dispute,” p. 11; Nota Bene; and Hong, p. 10.

55. Nota Bene; Fravel, Strong Borders, Secure Nation, p. 274.

56. Fravel, Strong Borders, Secure Nation, p. 276; and Encyclopedia Britannica, undated, “Paracel Islands,” available from www.

britannica.com/EBchecked/topic/442423/Paracel-Islands.

57. Fravel, Strong Borders, Secure Nation, pp. 281, 285-286; and 

Nota Bene.

58. Encyclopedia Britannica, “Paracel Islands,” and Van Ngac Ha.

59. Fravel, Strong Borders, Secure Nation, p. 280.

60. Ibid., pp. 280-282; and South China Sea (II), ICG, pp. 2-3.

61. South China Sea (II), ICG, pp. 2-3; and Fravel, Strong 

Borders, Secure Nation, pp. 280-283.

62. Van Dyke and Bennett, p. 57.
151

63. For Vietnam, the number killed in this action varies up 

to 120, and losses are reported between one and three vessels. 

No reliable numbers of Chinese deaths are confirmed, or if any 

of its vessels were lost or damaged. Christopher C. Joyner, “The 

Spratly Islands Dispute: Legal Issues and Prospects for Diplomatic Accommodation,” John C. Baker and David G. Wiencek, 

eds., Cooperative Monitoring in the South China Sea: Satellite Imagery, Confidence-Building Measures, and the Spratly Islands Disputes, 

Westport, CT: Praeger Publishers, 2002; Van Dyke and Bennett, 

p. 59; Fravel, “Maritime Security in the South China Sea,” pp. 35-

36; South China Sea (II), ICG, pp. 2-3; Fravel, Strong Borders, Secure 

Nation, pp. 278-279, 290, 295; and Djalal, “South China Seas Island 

Disputes,” p. 117.

64. Casualties and damage from this skirmish are unknown, 

but both sides retained their islet positions. Studeman.

65. South China Sea (II), ICG, pp. 2-3.

66. David G. Wiencek and John C. Baker, “Security Risks of a 

South China Sea Conflict,” John C. Baker and David G. Wiencek, 

eds., Cooperative Monitoring in the South China Sea: Satellite Imagery, Confidence-Building Measures, and the Spratly Islands Disputes, 

Westport, CT: Praeger Publishers, 2002.

67. Lai, The United States and China in Power Transition, p. 136; 

and Robert D. Kaplan, “The South China Sea is the Future of Conflict,” Foreign Policy, Vol. 188, 2011, p. 80. On December 25, 1971, 

the PRC issued its 497th and final protest over U.S. violations of 

airspace over the Paracel Islands. Fravel, Strong Borders, Secure 

Nation, p. 279.

68. Rongsheng Ma, “Geostrategic Thinking on Land-and-Sea 

Integration,” China Military Science Journal, Vol. 1, No. 1, 2012, 

p. 58; “China,” Washington, DC: U.S. Energy Information Administration (USEIA), September 4, 2012, available from www.

eia.gov/countries/country-data.cfm?fips=CH; World Factbook, CIA, 

“China”; and Jane Perlez, “Chinese, with Revamped Force, Make 

Presence Known in East China Sea,” The New York Times, July 28, 

2013, p. A9.

69. Fravel, Strong Borders, Secure Nation, p. 300.
152

70. Gabriel B. Collins, “China’s Dependence on the Global 

Maritime Commons,” Andrew S. Erickson, Lyle J. Goldstein, 

and Nan Li, eds., China, the United States, and 21st Century Sea 

Power, Newport, RI: Naval Institute Press, 2010, p. 21; Peter A. 

Dutton, “Charting the Course: Sino-American Naval Cooperation to Enhance Governance and Security,” Andrew S. Erickson, 

Lyle J. Goldstein, and Nan Li, eds., China, the United States, and 

21st Century Sea Power, Newport, RI: Naval Institute Press, 2010, 

p. 214; Michael D. Swaine and M. Taylor Fravel, “China’s Assertive Behavior—Part One: On ‘Core Interests’,” China Leadership 

Monitor, Vol. 34, Winter 2011, pp. 7-9, available from www.carnegie

endowment.org/files/CLM34MS_FINAL.pdf; and Kaplan, “The Geography of Chinese Power.”

71. John Boudreau, “Vietnam Leader in China Seeks Export 

Gains Amid Sea Tension,” Bloomberg News, June 19, 2013, available from www.bloomberg.com/news/2013-06-19/vietnam-leadervisiting-china-seeks-export-gain-amid-sea-tension.html; and Kate 

and Lerman. 

72. Fravel, Strong Borders, Secure Nation, p. 3.

73. Timo Kivimaki, “Introduction,” Timo Kivimaki, ed., War 

or Peace in the South China Sea? Copenhagen, Denmark: Nordic 

Institute of Asian Studies Press, 2002, p. 1.

74. In comparison, the NATO standard runway length for 

fighter operations is 2,450-m. Dennis J. Blasko and M. Taylor 

Fravel, “Much Ado about the Sansha Garrison,” The Diplomat, 

August 23, 2012, thediplomat.com/2012/08/23/much-ado-about-thesansha-garrison/?all=true; World Factbook, CIA, “Paracel Islands”; 

and Greenfield, p. 27.

75. D. Collins, “China Counters U.S. Asia-Pivot Strategy. Fortifies Island Military Base,” China Money Report, August 13, 2012, 

available from www.thechinamoneyreport.com/2012/08/13/chinacounters-u-s-asia-pivot-strategy-fortifies-island-military-base/; and 

Andrei Chang, “Analysis: China’s Air-Sea Buildup,” Space War, 

September 26, 2008, available from www.spacewar.com/reports/

Analysis_Chinas_air-sea_buildup_999.html.
153

76. World Factbook, CIA, “Paracel Islands”; Chang; and D. 

Collins, “China Counters U.S. Asia-Pivot Strategy.”

77. Chan; and Blasko and Fravel. 

78. Blasko and Fravel. Vietnam refers to the South China Sea 

as the “East Sea,” and the Chinese use the name “South Sea.” In 

2011, the Philippines began referring to it as the “West Philippine 

Sea” to reinforce its own claims in the Spratly Islands and undercut that of the Chinese. Dona Pazzibugan and Norman Bordadora, 

“‘It’s West Philippine Sea’: Gov’t, AFP Use It Now to Refer to Disputed Spratly Area,” Philippine Daily Inquirer, June 11, 2011, available from newsinfo.inquirer.net/13833/%e2%80%98it%e2%80%99swest-philippine-sea%e2%80%99.

79. D. Collins, “China Counters U.S. Asia-Pivot Strategy”; 

and Blasko and Fravel.

80. Chang.

81. David G. Wiencek and John C. Baker, “Security Risks of a 

South China Sea Conflict,” John C. Baker and David G. Wiencek, 

eds., Cooperative Monitoring in the South China Sea: Satellite Imagery, Confidence-Building Measures, and the Spratly Islands Disputes, 

Westport, CT: Praeger Publishers, 2002.

82. Chang; Ryan Clarke, Chinese Energy Security: The Myth 

of the PLAN’s Frontline Status, Carlisle, PA: Strategic Studies Institute, U.S. Army War College, August 2010, p. vii, available 

from www.strategicstudiesinstitute.army.mil/pdffiles/pub1012.pdf; Elbridge Colby, “Don’t Sweat AirSea Battle,” The National Interest, 

July 31, 2013, available from nationalinterest.org/commentary/dontsweat-airsea-battle-8804; and Dueck. 

83. Blasko and Fravel.

84. Kirk Spitzer, “New Garrison, Old Troubles in the South 

China Sea,” Time Magazine, July 26, 2013, available from nation.time.com/2012/07/26/new-garrison-old-troubles-in-the-southchina-seas/.

85. Blasko and Fravel; and Spitzer.
154

86. Fravel, Strong Borders, Secure Nation, p. 274.

87. Blasko and Fravel; Fravel, Strong Borders, Secure Nation, 

p. 275; Greenfield, p. 30; and Wanli Yu, “The American Factor 

in China’s Maritime Strategy,” Andrew S. Erickson, Lyle J. Goldstein, and Nan Li, eds., China, the United States, and 21st Century 

Sea Power, Newport, RI: Naval Institute Press, 2010, p. 474. Fravel 

reports that the PLAN completed 76 long-range patrols to both 

the Amphitrite and Crescent Groups between 1960 and 1973.

88. Robert Sutter and Chin Hao Huang, “China-Southeast 

Asia Relations: Managing Rising Tension in the South China Sea,” 

Comparative Connections, Vol. 13, No. 2, September 2011, p. 67. 

89. Studeman; Wiencek and Baker; Van Dyke and Bennett, p. 

57; and Hong, p. 74.

90. Fravel, “Maritime Security in the South China Sea,” p. 36; 

and Sutter and Huang, p. 68.

91. “Roiling the Waters: Tensions Rise between China and 

Vietnam in the South China Sea,” The Economist, July 7, 2012, 

available from www.economist.com/node/21558262; and Koh.

92. O’Rourke, Maritime Territorial and EEZ Disputes, pp. 20-23; 

and Chan and Li, p. 7.

93. These were sometimes referred to as five “dragons stirring up the sea.” The five maritime agencies included: Maritime 

Police of the Border Control Department (BCD), the largest and 

only armed agency; Maritime Safety Administration, second 

largest, under the Ministry of Transportation; Fisheries Law Enforcement Command (FLEC) under the Ministry of Agriculture; 

General Administration Customs; and the Marine Surveillance 

Force (MSF) overseeing pollution and science through the State 

Oceanic Administration. Of these, the FLEC was noted as particularly aggressive. Lyle J. Goldstein, “Improving Chinese Maritime 

Enforcement Capabilities,” Andrew S. Erickson, Lyle J. Goldstein, 

and Nan Li, eds., China, the United States, and 21st Century Sea Power, Newport, RI: Naval Institute Press, 2010, p. 127; Dolven, Kan, 

and Manyin, pp. 23-24; and Perlez, “Chinese, with Revamped 

Force,” p. A9.
155

94. This new organization appears to be modeled on the U.S. 

Coast Guard. Perlez, “Chinese, with Revamped Force,” p. A9.

95. Hong, p. 229; Spitzer; South China Sea (II), ICG, p. 28; 

O’Rourke, Maritime Territorial and EEZ Disputes, p. 22; and Chan 

and Li, pp. 6-7.

96. O’Rourke, Maritime Territorial and EEZ Disputes, pp. 20-21; 

and Sutter and Huang, p. 70.

97. Sutter and Huang, p. 71.

98. In 2011, no Vietnamese fishing ships were detained, although catches and equipment continued to be confiscated, showing how improvement in relations with Vietnam was reflected at 

sea after the SSRFAB was made to adhere to Foreign Ministry 

policy. Fravel, “Maritime Security in the South China Sea,” p. 45. 

99. South China Sea (II), ICG, pp. 4-7; Fravel, “Maritime Security in the South China Sea,” p. 38; Hong, p. 31; and Sutter and 

Huang, p. 67.

100. David Barboza, “China: Vietnam Alleges Attack,” New 

York Times, March 27, 2013, p. A6; Boudreau, “China Vietnam Expand Joint Exploration Deal”; John Boudreau, “Vietnam Lodges 

China Protest over Claims of Attack on Fisherman,” Bloomberg 

News, July 18, 2013, available from www.bloomberg.com/news/2013-

07-18/vietnam-lodges-china-protest-over-claims-of-attack-onfishermen.html; Associated Press (AP), “Rare Protest in Vietnam 

Raises a Call to Curb China,” New York Times, June 3, 2013, p. A7; 

and Sanderson.

101. O’Rourke, Maritime Territorial and EEZ Disputes, p. 27.

102. Ibid., pp. 23-24; and South China Sea (II), ICG, p. ii.

103. Robson.

104. O’Rourke, Maritime Territorial and EEZ Disputes, p. 23.

105. Hong, p. 74.
156

106. Fravel, “Maritime Security in the South China Sea,” p. 38.

107. D. Collins, “Fish Wars 2.” 

108. Hong, p. 21; Studeman; and Bjorn Moller, “The Military 

Aspects of the Disputes,” Timo Kivimaki, ed., War or Peace in 

the South China Sea? Copenhagen, Denmark: Nordic Institute of 

Asian Studies Press, 2002, p. 77.

109. Dolven, Kan, and Manyin, p. i; South China Sea (II), 

ICG, p. iii.

110. Djalal, “South China Seas Island Disputes,” pp. 111

-112, 116-117.

111. “South China Sea,” USEIA. In 2004, 74 percent of Chinese 

oil imports originated from the Middle East or Africa, and most of 

that transited the South China Sea enroute to Chinese ports. This 

number has since grown as the Chinese economy grows with its 

domestic production levels. Over half of China’s oil and over a 

quarter of its natural gas was imported in 2011. World Factbook, 

CIA, “China”; Daojiong Zha, “China’s Energy Security and Its International Relations,” The China and Eurasia Forum Quarterly, Vol. 

3, No. 3, November 2005, p. 49; and Ingolf Kiesow, China’s Quest 

for Energy: Impact upon Foreign and Security Policy, Stockholm, 

Sweden: Swedish Defence Research Agency, November 2004, 

pp. 12-15.

112. Wiencek and Baker; Pan; Kaplan, “The South China Sea 

is the Future of Conflict,” p. 79; Djalal, “South China Seas Island 

Disputes,” p. 112; and Hong, p. 5. As the world’s largest consumer of energy and second largest consumer of oil, China imports 57 

percent of its oil and 29 percent of its natural gas, over half of both 

forms of energy transit the South China Sea. “China,” USEIA; and 

World Factbook, CIA, “China.”

113. Fravel, “Maritime Security in the South China Sea,” p. 35; 

Greenfield, p. 26; and “South China Sea,” Map, CIA.

114. USPACOM Strategy, Camp Smith, HI: U.S. Pacific Command, January 22, 2013, p. 2.
157

115. Baker and Wiencek.

116. Fravel, “Maritime Security in the South China Sea,” 

pp. 33-34; and Kate and Lerman.

117. Van Dyke and Bennett, p. 88; and Shicun Wu, “Opportunities and Challenges for China-US Cooperation in the South 

China Sea,” Andrew S. Erickson, Lyle J. Goldstein, and Nan Li, 

eds., China, the United States, and 21st Century Sea Power, Newport, 

RI: Naval Institute Press, 2010, p. 368.

118. Robson. Japan, for instance, is militarily able to project 

naval power into the South China Sea, but is too politically hobbled by its constitution and historical enmity after World War II 

to play a direct role in the region. See Wiencek and Baker. South 

Korea’s naval force projection is limited and needed closer to 

home to protect against an erratic North Korea. Taiwan’s navy is 

capable and in close proximity, but in times of increased friction 

in the region would be needed to defend the homeland, and Taiwan is not diplomatically recognized by any of the other claimant 

states. The Philippines are militarily weak, and rely heavily on its 

defense alliance with the United States to maintain its security. 

Other states, including Vietnam, see the U.S. presence as a counterbalance to a militarily strong and actively involved PRC.

119. Fravel, “Maritime Security in the South China Sea,” p. 

42; Kaplan, “The South China Sea is the Future of Conflict,” pp. 

82-83; and Timo Kivimaki, Liselotte Odgaard, and Stein Tonnesson, “What Could be Done?” Timo Kivimaki, ed., War or Peace in 

the South China Sea? Copenhagen, Denmark: Nordic Institute of 

Asian Studies Press, 2002, p. 141.

120. Robson.

121. Baker and Wiencek; and Roger Baker, “China Tests Japanese and US Patience,” Stratfor, February 26, 2013, available from 

www.stratfor.com/weekly/china-tests-japanese-and-us-patience?0=ip_

login_no_cache%3D0db3ba6f158f595665f79187a45574ed.

122. Kaplan, “South China Sea is the Future of Conflict”; and 

Kaplan “The Geography of Chinese Power.”
158

123. Pan; Erikson and Goldstein, p. xiii; and Ronald O. 

O’Rourke, China Naval Modernization: Implications for U.S. Navy 

Capabilities—Background and Issues for Congress, Washington, DC: 

Congressional Research Service, December 10, 2012, p. i, available 

from www.fas.org/sgp/crs/row/RL33153.pdf.

124. Valencia, Van Dyke, and Ludwig, p. 2; and Kivimaki, 

“Introduction,” p. 1.

125. David N. Griffiths, “Challenges in the Development of 

Military-to-Military Relationships,” Andrew S. Erickson, Lyle J. 

Goldstein, and Nan Li, eds., China, the United States, and 21st Century Sea Power, Newport, RI: Naval Institute Press, 2010, pp. 38-39.

126. Nerys Avery, “China Streamlines Maritime Law Enforcement Amid Island Disputes,” Bloomberg News, March 10, 2013.

available from www.bloomberg.com/news/2013-03-10/china-bolstersmaritime-law-enforcement-amid-island-disputes.html; Spitzer; and 

Valencia, Van Dyke, and Ludwig, p. 131.

127. Spitzer.

128. O’Rourke, China Naval Modernization, p. 8. The ROC and 

Vietnam also make similarly wide claims to all of the South China 

Sea, but have not enforced them to the extent that the PRC has.

129. Dolven, Kan, and Manyin, p. 5.

130. Fravel, Strong Borders, Secure Nation, p. 275.

131. Peter J. Brown, “US and China Can’t Calm South China 

Sea,” Asia Times, June 4, 2010. available from www.atimes.com/

atimes/China/LF04Ad01.html.

132. O’Rourke, China Naval Modernization, p. 8; South China 

Sea (II), ICG, p. 18; and O’Rourke, Maritime Territorial and EEZ 

Disputes, p. 4.

133. Lai, The United States and China in Power Transition, p. 120; 

Hong, p. 32; and O’Rourke, China Naval Modernization, p. 8.
159

134. South China Sea, ICG, p. 18; Fravel, “Maritime Security in 

the South China Sea,” p. 35; and Hong, pp. 30-31. 

135. Matthew Lee, “US Takes Aim at China, Ups Naval Aid 

to SE Asia,” Associated Press, December 16, 2013, available from 

news.yahoo.com/us-takes-aim-china-ups-naval-aid-se-105727402--

politics.html.

136. Hong, pp. 93-94.

137. Fravel, “Maritime Security in the South China Sea,” 

p. 34; and Ivan Shearer, “Navigation Issues in the Asian Pacific 

Region,” James Crawford and D. R. Rothwell, The Law of the Sea in 

the Asian Pacific Region, Boston, MA: Martinus Nijhoff Publishers, 

1995, p. 219.

138. Valencia, Van Dyke, and Ludwig, p. 17; and Hong, p. 58.

139. Hong, p. 222.

140. Ibid., p. 93.

141. Ibid., p. 223; and Van Dyke and Bennett, p. 89.

142. Joyner.

143. Hong, pp. 42, 54-55.

144. Or more like adding apples and oranges. Since the imposition of the Treaty Port System in 1842, however, Asian societies have had to assimilate European-imposed international 

customary law in order to compete successfully to retain or 

gain land. Van Dyke and Bennett, pp. 62-63; and Kivimaki, 

“Conclusion,” p. 126.

145. Hong, pp. 109-110.

146. South China Sea (II), ICG, p. 29.

147. Hong, p. 54; and Shicun Wu, p. 365.

148. Kivimaki, Odgaard, and Tonnesson, p. 154.
160

149. In 1962, the International Law Commission outlined the 

criteria for exercising authority over an historic area as the continuous exercise of that authority and repeated use of the area, 

and acceptance of these by other states in Juridical Regime of Historic Waters, Including Historic Bays. Valencia, Van Dyke, and Ludwig, p. 26; Van Dyke and Bennett, p. 80; and Shearer, p. 208. Part 

of the confusion with use of these terms by the Chinese is that 

its media and education system imprecisely use them as broadsweeping terms that builds the public’s nationalist expectations 

and muddies any reasoned debate over these issues. Chan and 

Li, p. 8.

150. Hong, p. 66, and Valencia, Van Dyke, and Ludwig, p. 26.

151. Hong, p. 16; and Lai, The United States and China in Power 

Transition, pp. 127-128.

152. Valencia, Van Dyke, and Ludwig, p. 66; and Hong, 

pp. 66, 70-71.

153. Sutter and Huang, p. 71; and Hong, pp. 63, 130.

154. Valencia, Van Dyke, and Ludwig, p. 25; and Hong, 

pp. 64-65.

155. South China Sea (II), ICG, p. 29.

156. Wiencek and Baker.

157. Despite their many other disagreements, the PRC and 

ROC both assert identical historic and other claims to the South 

China Sea based on the same historic evidence, as fully described 

later in this section.

158. “South China Sea,” USEIA; Hong, p. 17; South China Sea 

(II), ICG, p. 37; Shen, p. 141.

159. Valencia, Van Dyke, and Ludwig, p. 30; and Van 

Ngac Ha.
161

160. Van Dyke and Bennett, p. 68; and Valencia, Van Dyke, 

and Ludwig, p. 30.

161. Greenfield, pp. 26-27; Van Dyke and Bennett, p. 69; and 

Hong, pp. 6-7.

162. Shicun Wu, p. 366.

163. South China Sea (II), ICG, p. 37; Hong, p. 17; Tonnesson, 

“History of the Dispute,” p. 12; Van Dyke and Bennett, p. 72; and 

Shicun Wu, p. 365.

164. Hong, p. 69.

165. Dr. David Lai, interview on February 21, 2013 at Carlisle 

Barracks, PA.

166. Hong pp. 6-7; Shen, pp. 143-144; and Tonnenson, “The 

History of the Dispute,” p. 8.

167. Hong, p. 12; and Valencia, Van Dyke, and Ludwig, p. 21. 

168. North Vietnam was known as the Democratic Republic 

of Vietnam (DRV) until 1976, and after reunification the communist government renamed itself the Socialist Republic of 

Vietnam (SRV).

169. Tonnenson, “The History of the Dispute,” p. 16; and 

Fravel, Strong Borders, Secure Nation, p. 286; Hong, p. 17; and Shen, 

pp. 142-143.

170. Fravel, Strong Borders, Secure Nation, p. 269.

171. Nota Bene. The transfer of White Dragon Tail Island (Dao 

Bach Long Vi) is the only maritime transfer of sovereignty ever 

made by the PRC. That is why some analysts suspect a deal was 

made for tacit recognition of Chinese sovereignty in the Paracels 

and Spratlys, but it may have also been meant to support fellowcommunist North Vietnam in its conflict with South Vietnam and 

external powers. Fravel, Strong Borders, Secure Nation, pp. 268-269. 

On the other hand, the PRC has compromised dozens of times 

in finalizing land border deals with neighbors. For an excellent 
162

analysis of the PRC’s land border settlement treaties, see M. Taylor Fravel’s Strong Borders, Secure Nation: Cooperation and Conflict 

in China’s Territorial Disputes.

172. Although Vietnam, the PRC, and the ROC all claim the 

Paracel and Spratly Islands in their entirety (along with Malaysia, the Philippines, and Brunei, which claim parts or all of the 

Spratleys), Vietnam does not claim Macclesfield Bank or Scarborough Shoal, which lie further to the east or north of those island 

groups. The Philippines, however, does dispute both of these geologic features with China. Lai, The United States and China in Power 

Transition, p. 131.

173. Valencia, Van Dyke, and Ludwig, p. 25; Sutter and 

Huang, p. 71; USEIA, “South China Sea”; Lai, The United States 

and China in Power Transition, p. 222; Djalal, “South China Seas 

Island Disputes,” p. 113; Shen, p. 140; and Dolven, Kan, and 

Manyin, pp. 6, 8. 

174. The Chinese claim was originally drawn with 11-dashed 

lines, but revised to 9-dashed lines in 1953 when two were removed in the Gulf of Tonkin without explanation. Some observers feel that the use of a dashed line rather than a solid one also 

indicates the claim is subject to change, and China and Vietnam 

have bilaterally negotiated a partial maritime border in the Gulf 

of Tonkin in 2000. Brown; South China Sea (II), ICG, p. 36; Fravel, 

“Maritime Security in the South China Sea,” pp. 41-42; “Maritime Claims of Northeast Asia” Map, CIA; and Dolven, Kan, and 

Manyin, p. 8. In 2012, a PRC foreign ministry spokesperson may 

have indicated some clarification in stating, “No country including China has claimed sovereignty over the entire South China 

Sea,” and that China’s claims in the 9-dashed line were for land 

features and not to the entire water area. South China Sea (II), ICG, 

p. 4. Promising though such a statement seems for transparency, 

internal rifts within the government may “clarify” the position 

differently later continuing the ambiguity to its claim. Although 

diplomatically useful, in negotiations a vague claim may weaken 

its legal status, since historic claims should be well known and 

understood by other countries in order for them to be recognized 

as Chinese. Valencia, Van Dyke, and Ludwig, p. 27.
163

175. Joyner; Shen, p. 139; and Ramses Amer, “Claims and 

Conflict Situations,” Timo Kivimaki, ed., War or Peace in the South 

China Sea? Copenhagen, Denmark: Nordic Institute of Asian 

Studies Press, 2002, p. 34.

176. Joyner; and Fravel, Strong Borders, Secure Nation, p. 268.

177. South China Sea (II), ICG, p. 1; Sutter and Huang, p. 70; 

and Dolven, Kan, and Manyin, p. 10.

178. “South China Sea,” USEIA; Greenfield, pp. 21-22; Sutter 

and Huang, p. 71; Shen, p. 149; and Hong, p. 16. 

179. Greenfield, p. 31; Van Dyke and Bennett, pp. 62-63; and 

Shen, p. 165. For a more detailed listing of Chinese historic references, see Shicun Wu, pp. 22-34, and Jianming Shen, pp. 139-218.

180. Valencia, Van Dyke, and Ludwig, p. 21; Hong, p. 16; and 

Shen, p. 173.

181. Chu, p. 91; Valencia, Van Dyke, and Ludwig, pp. 22-24.

182. Hong, p. 101. It is worth noting that the present Law of the 

Sea Treaty categorizes islands as above the water at high tide, not 

the low water tide method cited here by the Chinese. Hong, p. 50.

183. Sutter and Huang, p. 71; and Greenfield, p. 32.

184. Hong, p. 68; South China Sea (II), ICG, p. 36; and Kaplan, 

“The South China Sea is the Future of Conflict,” pp. 79-80. 

185. Greenfield, p. 32; Van Dyke and Bennett, pp. 63-64; 

“South China Sea,” USEIA; and Hong, p. 16.

186. Hong, p. 10.

187. Fravel, “Maritime Security in the South China Sea,” p. 41.

188. Hong, p. 68; “South China Sea,” USEIA; and South China 

Sea (II), ICG, p. 36. This area of common interest has offered interesting opportunities for both sides to work together, including 

joint oceanographic expeditions, economic development schemes, 
164

and the only representation by both parties in multilateral negotiations, the Indonesian sponsored Track II talks which include 

each of the South China Sea claimants. Taiwanese participation in 

international fora is otherwise proscribed under the PRC’s “one 

China policy.” Sutter and Huang, p. 70; Hong, p. 211; Tonnesson, 

“The History of the Dispute,” p. 19; Valencia, Van Dyke, and Ludwig, p. 96; and South China Sea (II), ICG, p. 12. 

189. Greenfield, pp. 29-30; and Tonnesson, “The History of 

the Dispute,” p. 7.

190. “Vietnam Refuses to Stamp New Chinese Passport,” AFP, 

November 27, 2012, available from www.thenewage.co.za/71785-

1020-53-Vietnam_refuses_to_stamp_new_Chinese_passport; and Sutter and Huang, p. 68.

191. Van Dyke and Bennett, pp. 62-63.

192. Valencia, Van Dyke, and Ludwig, pp. 22-24; and Hong, 

pp. 16, 64.

193. Lai, The United States and China in Power Transition,

pp. 129, 221.

194. Robson.

195. Valencia, Van Dyke, and Ludwig, pp. 26-27; Hong, p. 70; 

and Lai, The United States and China in Power Transition, p. 140.

196. Hong, pp. 68-69, 116.

197. Valencia, Van Dyke, and Ludwig, p. 39.

198. The Netherlands, on behalf of its colony the Dutch East 

Indies (today Indonesia), and the United States for its possession of the Philippines, disputed the status of this Philippine Sea 

island just southeast of Mindanao. The United States based its 

claimed sovereignty in terms of discovery (inchoate title), while 

the Netherlands argued and won based on occupation and effective administration (prescriptive occupation). This case established a long-standing principle that occupation takes precedence 

over discovery and historic claims. Later rulings by the Interna-
165

tional Court of Justice in 1953 in the Minquiers and Echreos Case 

between Great Britain and France over two groups of islets by 

Jersey, and the Gulf of Fonseca Case by the same court in 1992 

that awarded El Tigre Island to Honduras, are based on the same 

principle. Valencia, Van Dyke, and Ludwig, p. 17.

199. Lai, The United States and China in Power Transition, p. 221.

200. Valencia, Van Dyke, and Ludwig, pp. 28, 39; and South 

China Sea (II), ICG, p. 30.

201. Valencia, Van Dyke, and Ludwig, p. 37; and Hong, p. 16.

202. “Res Nullius Law & Legal Definition,” USLegal, undated,

available from definitions.uslegal.com/r/res-nullius/. Res nullis may 

be equated to property without an owner because it is abandoned, 

which is slightly different from another Latin term also derived 

from Roman law, terra nullis (“land belonging to no one”). Terra 

nullis is land without an owner because it is newly discovered, 

“has never been subject to the sovereignty of any state, or over 

which any prior sovereign has expressly or implicitly relinquished sovereignty.” “Terra Nullius Law & Legal Definition,” 

USLegal, undated, definitions.uslegal.com/t/terra-nullius/. Through 

res nullis, property that is previously known, and perhaps once 

claimed or occupied but subsequently not in use or abandoned, 

can be claimed and occupied to establish sovereignty over that 

land. This monograph uses the term res nullis for the status of the 

Paracel Islands when that claim is made by one of the powers 

involved. In terms of establishing sovereignty, there is little difference between a feature being occupied using one form or the 

other, as long as the occupation is effective.

203. Joyner; and Valencia, Van Dyke, and Ludwig, pp. 19-20.

204. They interpret all earlier historic and occupation claims 

to the South China Sea islands as void because, based on the 1951 

San Francisco Treaty, the island group was “de facto under the 

trusteeship of the Allied Powers” and thus “as ‘trusts’ nullified 

any previous ownership of them. . . .” South China Sea (II), ICG, p. 

37; Hong, p. 18; and Valencia, Van Dyke, and Ludwig, p. 33, 35.

205. Lai, The United States and China in Power Transition, 

pp. 130-131; and Dolven, Kan, and Manyin, p. 7.
166

206. Greenfield, pp. 29-30.

207. Hong, p. 10; Tonnesson, “History of the Dispute,” p. 11; 

and Van Dyke and Bennett, pp. 64-65.

208. Van Dyke and Bennett, p. 64; and Hong, p. 10.

209. Nota Bene; and Hackett, Kingsepp, and Tully.

210. Hong, p. 10; Nota Bene; Amer, “Claims and Conflict Situations,” pp. 27-28; and Fravel, “Maritime Security in the South 

China Sea,” p. 41.

211. Fravel, Strong Borders, Secure Nation, p. 269.

212. Ibid., pp. 277-278; Nota Bene.

213. Fravel, “Maritime Security in the South China Sea,” p. 41.

214. Wikipedia, “Woody Island.”

215. “Q&A: South China Sea Dispute,” BBC News Asia,

January 22, 2013, available from www.bbc.co.uk/news/world-asiapacific-13748349; Dolven, Kan, and Manyin, p. 33; and Blasko and 

Fravel.

216. Wiencek and Baker; Valencia, Van Dyke, and Ludwig, 

p. 41; Amer, “Claims and Conflict Situations,” p. 28; and Djalal, 

“South China Seas Island Disputes,” p. 131.

217. Hong, p. 10; and Van Dyke and Bennett, p. 72.

218. Fravel, Strong Borders, Secure Nation, p. 277; and Greenfield, pp. 32-33.

219. “Da Nang,” Wikipedia.org, undated, available from 

en.wikipedia.org/wiki/Da_Nang.

220. “Roiling the Waters,” p. 39; and Dolven, Kan, and 

Manyin, p. 11.
167

221. “Roiling the Waters,” p. 39; Spitzer; South China Sea (II),

ICG, p. 5; Douglas H Paal, “Dangerous Shoals: US Policy in the 

South China Sea,” Washington, DC: Carnegie Endowment for 

International Peace, August 11, 2012, available from carnegieendowment.org/2012/08/11/dangerous-shoals-u.s.-policy-in-south-chinasea/dc0c; and “Q&A: South China Sea Dispute.” China complains 

that this step of creating an administrative district over its South 

China Sea claims only follows those of Vietnam and the Philippines, and is unfairly being condemned for its actions. Paal, 

“Dangerous Shoals.”

222. Hong, p. 17; Valencia, Van Dyke, and Ludwig, p. 33; and 

Greenfield, p. 40.

223. Shen, pp. 177-179.

224. Greenfield, p. 33; and Djalal, “South China Seas Island 

Disputes,” pp. 114-115.

225. Valencia, Van Dyke, and Ludwig, p. 17; and Lai, The 

United States and China in Power Transition, p. 221. 

226. “Uti Possidetis Law & Legal Definition,” USLegal, undated, available from definitions.uslegal.com/u/uti-possidetis/; and “Uti 

Possidetis,” Wikipedia.org, undated, available from en.wikipedia.org/

wiki/Uti_possidetis.

227. Lai, The United States and China in Power Transition, p. 140.

228. Stein Tonnesson, “Geopolitics and Maritime Territorial 

Disputes in East Asia, Contemporary Southeast Asia, Vol. 32, No. 1, 

April 2010, p. 111.

229. Sam Bateman, “Good Order at Sea in the South China 

Sea,” Shicun Wu and Keyuan Zou, eds., Maritime Security in the 

South China Sea: Regional Implication and International Cooperation, 

Surrey, UK: Ashgate Publishing Limited, 2009, p. 29.

230. Anthony Bergin, “The High Seas Regime—Pacific Trends 

and Developments,” J. Crawford and D. R. Rothwell, eds., The 

Law of the Sea in the Asia Pacific Region, Boston, MA: Martinus Nijhoff Publishers, 1995, pp. 183-185.
168

231. Bateman, “Good Order at Sea in the South China 

Sea,” p. 29.

232. Hong, pp. 46, 95; and Dolven, Kan, and Manyin, p. 31.

233. Christine Chinkin, “Dispute Resolution and the Law of 

the Sea: Regional Problems and Prospects,” J. Crawford and D. R. 

Rothwell, eds., The Law of the Sea in the Asia Pacific Region, Boston, 

MA: Martinus Nijhoff Publishers, 1995, p. 248; and Shearer, p. 200.

234. Hong, pp. 43-46, 72; and UNCLOS Declarations and Statements, New York: UN Division for Ocean Affairs and the Law of 

the Sea, April 10, 2013, “China,” available from www.un.org/depts/

los/convention_agreements/convention_declarations.htm.

235. South China Sea (II), ICG, p. 29.

236. Bergin, p. 195.

237. United Nations Convention on the Law of the Sea, New York: 

UN Division for Ocean Affairs and the Law of the Sea, December 

10, 1982, p. 63.

238. Hong, p. 51.

239. This number discounts the features in the Macclesfield 

Bank, about 125-nm further to the southeast, which the Gazetteer

classifies as part of the Paracel Islands but has been treated by the 

South China Sea disputants as a separate grouping. Of these 18 

features listed in the Gazetteer, three (Pyramid Rock, Passau Keah, 

and Tung Tao) are not assigned territorial water jurisdictions on 

the CIA’s “South China Sea” map, and more data is needed to 

verify their actual classification. USDMA, Gazetteer of the Paracel 

Islands; and “South China Sea,” CIA, Map.

240. Valencia, Van Dyke, and Ludwig, p. 40; and Bergin, 

p. 196.

241. There are 10 of these geologic features named in the 

Gazetteer as part of the Paracels that would probably not meet 

territorial waters criteria because they are reefs, banks, atolls, or 
169

other protrusions from the seabed, and many more unnamed features that do not merit such consideration. Gazetteer of the Paracel 

Islands.

242. From Advisory Opinion on Western Sahara, 1975. Valencia, 

Van Dyke, and Ludwig, p. 61.

243. Hong, p. 52; and Van Dyke and Bennett, p. 78.

244. Bergin, p. 196.

245. Valencia, Van Dyke, and Ludwig, pp. 41-42; and Van 

Dyke and Bennett, p. 89.

246. Valencia, Van Dyke, and Ludwig, p. 43; and Van Dyke 

and Bennett, pp. 78-79.

247. Van Dyke and Bennett, p. 75. 

248. Hong, pp. 51-52; Greenfield, p. 38; and Van Dyke and 

Bennett, p. 79.

249. Van Dyke and Bennett, pp. 81, 84-85. In 1978, for instance, 

the International Court of Justice awarded the Isles of Scilly, consisting of six small inhabited British islands in a group of 48 off 

the coast of Cornwall, only half of their jurisdiction against the 

maritime zones of France’s Brittany Peninsula—deemed the “half 

effect.” This concept was derived from an earlier negotiated settlement between Italy and Yugoslavia. Van Dyke and Bennett, p. 82.

250. These decisions were formed through the International 

Court of Justice rulings in Tunisia-Libya Continental Shelf Case in 

1982. The islands were given circular enclaves of 12-nm territorial 

water, and the rest of the surrounding maritime zone went to the 

continental state. Van Dyke and Bennett, pp. 83-86. 

251. Ibid., pp. 77, 86; and Hong, p 243.

252. Chu, pp. 92-93; and “Paracel Islands,” Encyclopedia Britannica, undated, available from www.britannica.com/EBchecked/

topic/442423/Paracel-Islands. 
170

253. Van Dyke and Bennett, p. 89; Chan; and Spitzer.

254. Dolven, Kan, and Manyin, p. 33; and Chan.

255. Van Dyke and Bennett, pp. 78-79. 

256. Hong, p. 59; and Greenfield, p. 38.

257. Valencia, Van Dyke, and Ludwig, p. 56; and Djalal, 

“South China Seas Island Disputes,” p. 125.

258. Dutton, p. 204; and UNCLOS, UN, p. 70.

259. The bay can be no wider than 24-nm between its entrance points. The line connecting the two entrance points becomes the territorial straight baseline. UNCLOS, UN, p. 28; and 

Shearer, p. 208.

260. UNCLOS, UN, p. 28.

261. At their widest distance from their mainland shores, 

Vietnam claims 75-nm for its straight baseline point at Isles Catwick (point 6, Hon Hai Islet) and 70-nm southeast of Zhangjiang 

for China (between declared straight baseline point 31, Dafanshi, and point 32, Qizhouliedao). “Maritime Claims of Northeast 

Asia,” Map, CIA; “South China Sea” Map, CIA; Jin-Hyun Paik, 

“East Asia and the Law of the Sea,” James Crawford and D. R. 

Rothwell, eds., The Law of the Sea in the Asian Pacific Region, Boston, MA: Martinus Nijhoff Publishers, 1995, p. 8; Tonnesson, 

“History of the Dispute,” p. 15; Hong, pp. 13, 51, 127, 130-131; 

and DoD 2005.1-M, Maritime Claims Reference Manual, Washington DC: Under Secretary of Defense for Policy, DoD, June 

23, 2005, pp. 126, 131, 689-691, available from www.jag.navy.mil/

organization/documents/mcrm/vietnam.pdf. See an entire analysis of 

China’s baselines in the USDOS “Straight Baselines Claim: China,” and for Vietnam: USDOS, “Straight Baselines Claim: Vietnam,” Limits in the Seas No. 99, Washington DC: Bureau of Oceans 

and International Environmental and Scientific Affairs, Department of State, December 12, 1983, available from www.state.gov/

documents/organization/58573.pdf.

262. UNCLOS, UN, p. 28.
171

263. Djalal, “South China Sea Island Disputes.”

264. Valencia, Van Dyke, and Ludwig, p. 26.

265. UNCLOS, UN, pp. 40-43; and Joyner.

266. UNCLOS, UN, p. 40; and Shearer, p. 204.

267. Vietnam would also not be eligible to draw archipelagic baselines around the Paracels if it were given sovereignty. 

UNCLOS, UN, p. 40; and “Straight Baselines Claim: China,” 

Department of State, p. 8.

268. There is no specific maximum length for a straight baseline in UNCLOS, but several analysts place it between 24-nm (the 

stated limit allowed across the mouth of a bay) to 48-nm (twice 

that amount). The U.S. Government position is that the maximum 

baseline length is 24-nm. In its 1996 declaration of its baselines 

when ratifying UNCLOS, China seems to have misapplied Article 

47 rules to the Paracels since the longest baselines measure 79, 

76, 41, 36, and 28-nm. While these would be inside the archipelagic baseline rules, the land to water ratio requirement between 

1 to 1 and 1 to 9 within those lines are not met. “Straight Baselines Claim China,” Department of State, pp. 4-5, 16; “Maritime 

Claims of Northeast Asia” Map, CIA; Hong Thao Nguyen, “Sovereignty over Paracel and Spratly Archipelagoes,” Thanh Nien 

Daily, April 14, 2013, available from southeastasiansea.wordpress.

com/2013/04/13/international-law-and-sovereignty-over-the-paraceland-spratly-archipelagoes-part-16/; People’s Republic of China, 

“Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic 

of China,” Beijing, China: Foreign Ministry, May 15, 1996, available from www.un.org/depts/los/LEGISLATIONANDTREATIES/

PDFFILES/DEPOSIT/chn_mzn7_1996.pdf; Greenfield, pp. 37-38; 

and UNCLOS, UN, pp. 40-41.

269. UNCLOS, UN, pp. 29-30.

270. Hong, p. 62.
172

271. Shearer, p. 208; and Valencia, Van Dyke, and Ludwig, 

p. 28.

272. Shearer, p. 208; and Hong, pp. 64-65.

273. Hong, pp. 60, 64, 67; and South China Sea (II), ICG, 

pp. 29-30.

274. Hong, p. 71. 

275. Valencia, Van Dyke, and Ludwig, p. 28.

276. South China Sea (II), ICG, p. 36. The Chair of the Research, 

Development and Evaluation Commission of Taiwan’s executive 

branch (Yuan) had a different view in 1997 when he observed 

that the maritime area within the U-line “is the ROC’s historical 

waters, which, although it does not have the status of internal 

waters, is analogous to archipelagic waters under the 1982 UNCLOS.” Valencia, Van Dyke, and Ludwig, p. 66.

277. Amer, “Claims and Conflict Situations,” pp. 30-31.

278. UNCLOS, UN, pp. 35, 66; Valencia, Van Dyke, and Ludwig, p. 47; and DoD Manual 2005.1, pp. 126-127, 698.

279. Joyner; Dutton, pp. 202-203; and Shicun Wu and Keyuan Zou, “Maritime Security in the South China Sea: Cooperation 

and Implications,” Shicun Wu and Keyuan Zou, eds., Maritime 

Security in the South China Sea: Regional Implication and International 

Cooperation, Surrey, UK: Ashgate Publishing Limited, 2009, p. 5.

280. UNCLOS, UN, p. 31; and Hong, p. 72.

281. UNCLOS, UN, p. 33; and Shearer, p. 211.

282. UNCLOS, UN, p. 35; Dutton, p. 203; and Wu and Zou, 

pp. 4-5.

283. Paik, p. 12; and Shearer, p. 206.

284. UNCLOS, UN, p. 30.
173

285. Dutton, pp. 210-211; “South China Seas,” USEIA; and 

Shearer, p. 211. 

286. Hong, p. 132; and Dolven, Kan, and Manyin, p. 32.

287. Paik, p. 10; and Hong, p. 128.

288. Erikson and Goldstein, p xvii; Guifang Xue, “China and 

the Law of the Sea: A Sino-US Maritime Cooperation Perspective,” Andrew S. Erickson, Lyle J. Goldstein, and Nan Li, eds., China, the 

United States, and 21st Century Sea Power, Newport, RI: Naval Institute Press, 2010, p. 176; and Dutton, p. 211.

289. Paik, p. 11; Greenfield, p. 30; Xue, p. 177; and Wiencek 

and Baker.

290. Hong, p. 114; Xue, p. 176; and UNCLOS Declarations and 

Statements, UN, China Article 4.

291. Hong, p. 110. Coexistence is the Chinese method to order 

international affairs that requires “extensive policy coordination 

for conflict management and promotes a system of co-management of global security issues between great powers that subscribe to different programs of international order.” Coexistence 

advocates principles like absolute sovereignty and nonintervention in other states, while the U.S. vision of closer international 

integration champions principles like economic globalization and 

recognition of basic human rights. Liselotte Odgaard, “Between 

Integration and Coexistence US-Chinese Strategies of International Order,” Strategic Studies Quarterly, Vol. 17, No. 1, Spring 2013, 

pp. 18-19.

292. Wiencek and Baker; Studeman; and Swaine and Fravel, 

“China’s Assertive Behavior—Part One: On ‘Core Interests’,” p. 7.

293. UNCLOS, UN, pp. 43-44.

294. Dutton, p. 203; UNCLOS, UN, pp. 43-44; and Wu and 

Zou, p. 5.

295. Shearer, p. 221; and UNCLOS, UN, pp. 44-49.
174

296. Shicun Wu, p. 366; and Bateman, “Good Order at Sea in 

the South China Sea,” p. 29.

297. Davor Vidas, “The UN Convention on the Law of the Sea, 

the European Union, and the Rule of Law,” Sanford Silverburg, 

ed., International Law, Boulder, CO: Westview Press, 2011, p. 340.

298. 1958 Geneva Conventions on the Law of the Sea, Geneva, 

Switzerland: U.N. International Law Commission, April 29, 1958, 

p. 316, available from untreaty.un.org/cod/avl/ha/gclos/gclos.html; 

and Valencia, Van Dyke, and Ludwig, pp. 49-50.

299. Valencia, Van Dyke, and Ludwig, p. 135.

300. Hong, p. 60. The decision by the International Court of 

Justice awarding Britain’s Channel Islands only territorial waters 

against the consideration of an entire EEZ to nearby continental 

France, and the St Pierre et Miquelon case awarding the EEZ to 

Canada and not the tiny French possessions off its coast. Hong,

p. 60; and Van Dyke and Bennett, p. 82.

301. Valencia, Van Dyke, and Ludwig, pp. 50-51, 134.

302. Greenfield, p. 36; Valencia, Van Dyke, and Ludwig, 

pp. 38; and Hong, p. 20.

303. Valencia, Van Dyke, and Ludwig, p. 48.

304. Valencia, Van Dyke, and Ludwig, p. 31; Greenfield, p. 32; 

2012 World Factbook, CIA, “China,” “Vietnam”; and “South China 

Sea” Map, CIA. Although the Chinese claim is from an island, 

some scholars have asserted that the Hainan Dao coast would 

have near equal weighting with Vietnam’s continental coastline 

when overlap is delimited using the equitable principle based on 

the ICJ’s 1969 North Sea Continental Shelf cases. Greenfield, p. 34.

305. Valencia, Van Dyke, and Ludwig, p. 31; SRV, “Executive 

Summary,” p. 5; and South China Sea (II), ICG, p. 29.

306. Valencia, Van Dyke, and Ludwig, pp. 55, 146, 257; UNCLOS, UN, p. 57; Hong, p. 59; and “South China Sea” Map, CIA.
175

307. SRV, “Executive Summary,” cover page.

308. “South China Sea” Map, CIA; Hong, p. 60; and Valencia, 

Van Dyke, and Ludwig, p. 53. Woody Island is hemmed in by the 

influence of the EEZs from surrounding Hainan Dao to the northwest, Pratas Island to the northeast, and the Vietnamese coast to 

the south and southwest. Valencia, Van Dyke, and Ludwig, p. 50.

309. The Macclesfield Bank region lies within a 200-m isobath depth. Valencia, Van Dyke, and Ludwig, p. 268. The 40,000 

square-nm area was calculated from a sector of a circle centered 

on Woody Island radiating toward the edge of the high seas to its 

northeast, as marked 200-nm from ROC-occupied Paratas Island, 

along an arc nearly due south to the edge of the high seas with 

Vietnam’s coastal EEZ east of Qui Nohn. The smaller sector of 

China’s EEZ generated from Hainan Dao within this wedge was 

removed, as was a corner of the sector that fell within the Pratas 

Island-generated EEZ. “South China Sea” Map, CIA. For a map 

showing the possible South China Sea maritime jurisdiction with 

a Paracel Islands EEZ, see Plate 12 in Valencia, Van Dyke, and 

Ludwig, p. 265.

310. Hong, pp. 73, 137.

311. The Crestone Block is now known as the Benton Block. 

The block straddles Vietnam’s EEZ if it is measured from the normal baseline along the coast, but is entirely within Vietnam’s delimited EEZ when measured from its disputed straight baseline, 

which is about 70-nm from the shoreline in this vicinity. This is 

an example of the advantage gained, and problems raised, with 

liberal use of straight baselines. “South China Sea” Map, CIA; Valencia, Van Dyke, and Ludwig, p. 27; Studeman; Tonnesson, “The 

Economic Dimension,” p. 56; and “Roiling the Waters,” p. 39. 

312. Chan and Li, p. 10.

313. Hong, pp. 65, 70; and SRV, “Executive Summary,” p. 5. 

314. People’s Republic of China, Exclusive Economic Zone and 

Continental Shelf Act, Beijing, China: Standing Committee of the 

Ninth National People’s Congress, June 26, 1998, Article 12, available from www.un.org/Depts/los/LEGISLATIONANDTREATIES/
176

PDFFILES/chn_1998_eez_act.pdf; Republic of China, Law on the 

Exclusive Economic Zone and the Continental Shelf of the Republic of 

China, Taipei, Republic of China: Government of the Republic of 

China, January 21, 1998, Article 4, available from en.wikisource.

org/wiki/Law_on_the_Exclusive_Economic_Zone_and_the_Continental_Shelf_of_the_Republic_of_China; and Hong, p. 88.

315. Dolven, Kan, and Manyin, p. 32; Fravel, “Maritime Security in the South China Sea,” p. 35; Dutton, p. 210; Xue, p. 193; 

O’Rourke, China Naval Modernization, pp. i, 8; and O’Rourke, Maritime Territorial and EEZ Disputes, “Executive Summary.”

316. This clause covers the special case of passage through 

straits, but is also found in Article 19 on innocent passage through 

territorial waters, and Article 301 on peaceful uses of the seas. 

UN, UNCLOS, pp. 31, 37, 138; and Dutton, p. 211.

317. Lai, The United States and China in Power Transition, p. 121; 

O’Rourke, China Naval Modernization, p. 5; and Xue, p. 181.

318. UNCLOS, UN, p. 44; Dutton, p. 212; and Yongming Jin, 

“How to Resolve the South China Sea Issue,” China Daily, July 

7, 2011, available from www.chinadaily.com.cn/cndy/2011-07/07/

content_12850748.htm.

319. UNCLOS, UN, p. 44; and Dutton, p. 212.

320. There were 27 countries reported by the Congressional 

Research Service. Lai states 14 countries ban foreign militaries 

from their EEZs, O’Rourke cites a study of 18, and Dolven, Kan, 

and Manyin cite 26 countries but state that Vietnam has relaxed 

its previous requirement from approval to notification. O’Rourke, 

“Maritime Territorial and EEZ Disputes,” p. 4; Lai, The United 

States and China in Power Transition, p. 121; Dolven, Kan, and Manyin, p. 32; and “South China Sea,” USEIA. In June 2011,Taiwan’s 

Foreign Ministry seemed to emphasize its support for the U.S. position on the principle of freedom of navigation in a press release. 

Sutter and Huang, p. 70.

321. Hong, p. 89; Dutton, p. 210; Brown; and Xue, pp. 181, 184.

322. Dutton, p. 215.
177

323. Greenfield, p. 36; and Valencia, Van Dyke, and Ludwig, 

p. 24.

324. Timo Koivurova, “Power Politics or Orderly Development?” Sanford Silverburg, ed., International Law, Boulder, CO: 

Westview Press, 2011, p. 365; 1958 Geneva Conventions on the Law 

of the Sea, UN, p. 312; and Chan and Li, pp. 2-3.

325. Adjudicated in the North Sea Continental Shelf cases. 

This decision sparked the need for the third UN Conference on 

the Law of the Sea starting in 1973, producing the current version 

of the Law of the Sea Treaty in 1982. Tonnesson, “History of the 

Dispute,” p. 14; and Van Dyke and Bennett, p. 81.

326. Koivurova, pp. 364-365; and Tonnesson, “History of the 

Dispute,” p. 14. Although UNCLOS refers to this region as the 

continental shelf, in geographic terms it is the continental margin 

which consists of the relatively flat and shallow continental shelf 

and the continental slope that drops to the deeper ocean floor. 

This distinction is relevant because the two defining factors for 

the extent of the legal continental shelf (the term this monograph 

will use in accord with UNCLOS) are “either shall not exceed 350 

nautical miles from the baselines from which the breadth of the 

territorial sea is measured or shall not exceed 100 nautical miles 

from the 2,500 meter isobath, which is a line connecting the depth 

of 2,500 meters.” UNCLOS, UN, p. 53. 

327. Valencia, Van Dyke, and Ludwig, p. 37.

328. UNCLOS, UN, pp. 54-55.

329. Tonnesson, “History of the Dispute,” p. 14.

330. Koivurova, p. 365.

331. Hong, p. 60; and Fravel, “Maritime Security in the South 

China Sea,” p. 36.

332. Fravel, “Maritime Security in the South China Sea,” 

pp. 36-37.

333. Hong, pp. 60-61.
178

334. Vidas, p. 340; and Valencia, Van Dyke, and Ludwig, 

p. 50.

335. “South China Sea” Map, CIA; and Greenfield, p. 35.

336. SRV, “Executive Summary,” pp. 3-8, especially Figure 

1; and “South China Sea” Map, CIA. The cover of the Executive 

Summary notes that this is only a partial submission of Vietnam’s 

claim, and could be changed or extended.

337. China also reserves the right to change or add to its continental shelf claims. People’s Republic of China, “Executive Summary,” Submission by the People’s Republic of China Concerning the 

Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part 

of the East Sea, Beijing, China: PRC, December 14, 2012, pp. 1-2, 

7, available from www.un.org/depts/los/clcs_new/submissions_files/

chn63_12/executive%20summary_EN.pdf; and “Maritime Claims of 

Northeast Asia” Map, CIA. 

338. Coincidentally, this arc of the EEZ runs roughly along 

the 2,500-m isobath line in the Paracels vicinity. “South China 

Sea” Map, CIA.

339. SRV, “Executive Summary,” Submission to the Commission on the Limits of the Continental Shelf, p. 5; “Maritime Claims 

of Northeast Asia” Map, CIA; and “South China Sea” Map, CIA.

340. In an interesting twist, Greenfield explains an argument 

used by the PRC in the Spratly Islands: 

That existing precedent, which has ignored small islands on 

shelf delimitation between states, is confined to those cases 

where midway islands in fact belonged to one or other of 

the states between which a line was sought to be drawn in 

a fairly limited area of sea space. In this case, if the Spratlys belong to China (which occupies some of them), they 

belong to a much more distant state, but in such cases any 

argument that such islands should in that case have a much 

wider shelf claim—rather than for example constitute a territorial sea enclave—would be one equally without much 

established precedent or authority.
179

This argument seems to work against any claim that the PRC 

might make for the continental shelf around the Paracels that extends into Vietnamese continental baseline claims. The only exception in international law from this precedent is the 1976 Channel 

Islands Case, but that was not repeated in the French-Canadian 

St. Pierre et Micquelon solution that followed. Greenfield, p. 37.

341. Fravel, Strong Borders, Secure Nation, pp. 267-269; Hong, 

p. 73; and Dolven, Kan, and Manyin, p. 12.

342. Tonnesson, “Geopolitics and Maritime Territorial 

Disputes,” p. 112.

343. These ASEAN states include Malaysia, the Philippines, 

and Brunei. Hong, p. 55; and “South China Sea,” USEIA.

344. Hong, p. 19; Valencia, Van Dyke, and Ludwig, pp. 36-37; 

and Joyner.

345. “South China Sea,” USEIA; and Amer, “Claims and Conflict Situations,” p. 31.

346. Greenfield, p. 40.

347. Valencia, Van Dyke and Ludwig, p. 27; Greenfield, 

pp. 38-39; and “South China Sea” Map, CIA.

348. “Roiling the Waters,” p. 39; and Judy Hua and Chen 

Aizyu, “China’s CNOOC Tenders another 26 Offshore Blocks, 

Many in South China Sea,” Reuters, August 28, 2012, available 

from www.reuters.com/article/2012/08/28/china-cnooc-blocks-idUSL

4E8JS03R20120828.

349. Greenfield, pp. 38-39; Van Dyke and Bennett, p. 73; Fravel, “Maritime Security in the South China Sea,” p. 37; and “South 

China Sea” Map, CIA.

350. The Philippines has also challenged both Vietnam’s continental shelf submission in the northern South China Sea and the 

joint Malaysia-Vietnam submission in the southern South China 

Sea. Indonesia protested China’s protest as being too broad. “Submissions, Through the Secretary-General of the United Nations, 
180

to the Commission on the Limits of the Continental Shelf, Pursuant to Article 76, Paragraph 8, of the UN Convention on the 

Law of the Sea of 10 December 1982,” New York: UN Division 

for Ocean Affairs and the Law of the Sea, updated September 4, 

2013, available from www.un.org/depts/los/clcs_new/commission_

submissions.htm.

351. Sutter and Huang, pp. 71-72.

352. Joyner.

353. UNCLOS, UN, p. 67; and Valencia, Van Dyke, and 

Ludwig, p. 58.

354. Paal, “Territorial Disputes in Asian Waters.”

355. Jin; and South China Sea (II), ICG, p. 29.

356. Shicun Wu, p. 365; Joyner; Greenfield, p. 34; and Kivimaki, Odgaard, and Tonnesson, p. 153.

357. Hong, p. 66.

358. Joyner.

359. Fravel, “Maritime Security in the South China Sea,”

pp. 35-36.

360. Valencia, Van Dyke, and Ludwig, p. 44; and Greenfield, 

p. 36.

361. Dolven, Kan, and Manyin, p. 31.

362. Ian Townsend-Gault, “Legal and Political Perspectives 

on Sovereignty over the Spratly Islands,” Knut Snildal, ed., Perspectives on the Conflict in the South China Sea (Workshop Proceedings), Oslo, Norway: Center for Development and the Environment, University of Oslo, 1999, p.11.

363. O’Rourke, China Naval Modernization, p. 44; and Steven 

Metz, “Strategic Horizons: U.S. Must Change its Thinking on 

Conflict in Asia,” World Politics Review, December 12, 2012, avail-
181

able from www.worldpoliticsreview.com/articles/12561/strategic-horizons-u-s-must-change-its-thinking-on-conflict-in-asia.

364. Dolven, Kan, and Manyin, pp. i-ii.

365. Hillary Rodham Clinton, “Remarks at Press Availability,” Hanoi, Vietnam: National Convention Center, July 23, 2010,

available from www.state.gov/secretary/rm/2010/07/145095.htm; and 

Lai, The United States and China in Power Transition, p. 140.

366. Xinbo Wu, China and the United States: Core Interests, Common Interests, and Partnership, Washington DC: United States Institute of Peace, June 2011, pp. 1-2; and Clinton.

367. Sutter and Huang, p. 70.

368. Kivimaki, Odgaard, and Tonnesson, p. 151.

369. Fravel, “Maritime Security in the South China Sea,” p. 

47; and Constance Johnson, “China/Vietnam: South China Sea 

Agreement,” Washington, DC: The Law Library of Congress, 

October 11, 2011, available from www.loc.gov/lawweb/servlet/lloc_

news?disp3_l205402849_text.

370. Kate and Lerman.

371. Paal, “Dangerous Shoals.”

372. Hong, p. 84; O’Rourke, Maritime Territorial and EEZ Disputes, pp. 30-31; and Maritime Security and Navigation, Washington 

DC: Department of State, Bureau of Oceans and International Environment, undated, available from www.state.gov/e/oes/ocns/opa/

maritimesecurity/.

373. Lai, The United States and China in Power Transition, p. 120; 

Fravel, “Maritime Security in the South China Sea,” p. 35; “South 

China Sea,” USEIA; and O’Rourke, Maritime Territorial and EEZ 

Disputes, p. 33.

374. Hong, p. 30; and Sutter and Huang p. 69.
182

375. Fravel, “Maritime Security in the South China Sea,” p. 35; 

Shicun Wu, pp. 369-371; Xue, p. 184; O’Rouke, China Naval Modernization, p. 5; and Dolven, Kan, and Manyin, p. 23.

376. Kivimaki, Odgaard, and Tonnesson, pp. 139-140; and 

Wiencek and Baker.

377. Mahnken, p. 12.

378. Moller, p. 75; Valencia, Van Dyke, and Ludwig, pp. 100, 

131; and Hong, p. 84.

379. South China Sea (II), ICG, p. 24.

380. Dolven, Kan, and Manyin, p. 32. Vietnam established a 

new national Law on the Sea in July 2012, which also clarified its 

maritime jurisdictions, its desires to peacefully settle the disputes, 

and reiterated its claims over the Paracel and Spratly Islands, increasing tensions again with China. Loi Huynh, “Vietnam: New 

National Law Intensifies International Dispute,” Washington, 

DC: The Law Library of Congress, July 19, 2012, available from 

www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403248_text.

381. Dutton, p. 213; Bernard Moreland, “US-China Civil 

Maritime Operational Engagement,” Andrew S. Erickson, Lyle J. 

Goldstein, and Nan Li, eds., China, the United States, and 21st Century Sea Power, Newport, RI: Naval Institute Press, 2010, p. 168; 

and Brown.

382. Lai, The United States and China in Power Transition, p. 119.

383. O’Rourke, “Maritime Territorial and EEZ Disputes,” 

pp. 37-38.

384. Moreland, pp. 168-169; and Dutton, p. 225.

385. Zbigniew Brzezinski, “Balancing the East, Upgrading the 

West: U.S. Grand Strategy in an Age of Upheaval,” Foreign Affairs, 

Vol. 91, No. 1, January-February 2012, p. 101; and O’Rourke, Maritime Territorial and EEZ Disputes, pp. 49-50.
183

386. Eric A. McVadon, “Humanitarian Operations: A Window to US-China Maritime Cooperation,” Andrew S. Erickson, Lyle J. Goldstein, and Nan Li, eds., China, the United States, 

and 21st Century Sea Power, Newport, RI: Naval Institute Press, 

2010, p. 266.

387. Jeremy Page, “China Won’t Necessarily Observe New 

Conduct Code for Navies,” The Wall Street Journal, April 23, 2014, 

available from online.wsj.com/news/articles/SB100014240527023047

88404579519303809875852.

388. This agreement was renewed as the United States/Russian 

Federation Incidents as Sea and Dangerous Military Activities Agreement in 1998 and is still enforced. Chief of Naval Operations, “United States/Russian Federation Incidents as Sea and Dangerous 

Military Activities Agreement” OPNAVINST 5711.96C, Washington, DC: Headquarters, U.S. Navy N3/N5, November 10, 2008, 

available from www.fas.org/irp/doddir/navy/opnavinst/5711_96c.pdf.

389. Lai, The United States and China in Power Transition, p. 

122; and Sam Bateman, “Maritime Confidence and Security 

Building Measures in the Asian Pacific Region and the Law of the 

Sea,” J. Crawford and D. R. Rothwell, eds., The Law of the Sea in 

the Asia Pacific Region, Boston, MA: Martinus Nijhoff Publishers, 

1995, p. 228.

390. These previous general international agreements include 

the October 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREGS) and the Western Pacific Naval 

Symposium’s Code for Unalerted Encounters at Sea (CUES) released 

in 2000. The MMCA lacks established communications signals to 

be used at sea and an annual review of the process, both of which 

the INCSEA included. O’Rourke, Maritime Territorial and EEZ Disputes, pp. 512-513; and Brown.

391. Griffiths, p. 43; and Hong, p. 89.

392. Shicun Wu, p. 371; and Jin.

393. McVadon, p. 266; Kate and Lerman; and Brown.
184

394. Shicun Wu, p. 372; and Huayou Zhu, “Enhancing SinoUS Maritime Security Cooperation in Southeast Asia,” Andrew 

S. Erickson, Lyle J. Goldstein, and Nan Li, eds., China, the United 

States, and 21st Century Sea Power, Newport, RI: Naval Institute 

Press, 2010, p. 383.

395. Audrey McAvoy, “Chinese Ships Visit Hawaii for Exercises with U.S,” Associated Press, September 9, 2013, available from 

www.military.com/daily-news/2013/09/09/chinese-ships-visit-hawaiifor-exercises-with-us.html?comp=7000023468025&rank=1.

396. Shicun Wu, p. 371, and Xue, p. 184.

397. Dolven, Kan, and Manyin, p. ii.

398. Dutton, p. 223; and Goldstein, p. 127.

399. Dutton, p. 223; McVadon, pp. 280-281; Fravel, “Maritime 

Security in the South China Sea,” p. 46; and Moreland, p. 154.

400. Perlez, “Chinese, with Revamped Force,” p. A9.

401. Gabriel Collins, p. 31.

402. Indeed, the U.S. Army has already jump-started the process of gaining regional expertise in a variety of other ways. Training and Doctrine Command (TRADOC) has formed the TRADOC 

Cultural Center (TCC), expanded operations at the Defense Language Institute Foreign Language Center (DLIFLC), and developed the University of Foreign Military and Cultural Studies 

(UFMCS). Proper recruitment, management, and retention of so 

many selected skills will be a challenge to the Institutional Army, 

as it may already realize through managing its Special Forces soldiers, and it will require a sustained investment in money and 

resources. Scott G. Wuestner, Building Partner Capacity/Security 

Force Assistance: A New Structural Paradigm,” Carlisle, PA: Strategic Studies Institute, U.S. Army War College, 2009, pp. 12-13, 

available from www.strategicstudiesinstitute.army.mil/pubs/display.

cfm?pubID=880; Steve Griffin, “Regionally-Aligned Brigades: 

There’s More to This Plan Than Meets the Eye,” Small Wars Journal, September 19, 2012, available from smallwarsjournal.com/jrnl/

art/regionally-aligned-brigades-theres-more-to-this-plan-than-meets-
185

the-eye; David Vergun, “Army Partnering for Peace,” U.S. Army 

New Service, October 25, 2012, available from www.army.mil/

article/90010/Army_partnering_for_peace__security/; and “Regional 

Alignment in Joint and Combined Exercises,” Stand To, Washington, DC: U.S. Army, August 28, 2013, available from www.army.

mil/standto/archive_2013-08-28/?s_cid=standto. 

403. John Vandiver, “AFRICOM First to Test New Regional 

Brigade Concept,” Stars and Stripes, May 17, 2012, available from 

www.stripes.com/news/africom-first-to-test-new-regional-brigade-concept-1.177476; and Vergun.

404. Otto Kreisher, “DOD Too Cautious: ‘We Have to be Willing to Fail,’ Says Flournoy,” AOL Defense.Com, December 12, 2012, 

available from defense.aol.com/2012/12/12/dod-too-cautious-we-haveto-be-willing-to-fail-says-flournoy.

405. Robert M. Chamberlain, “Back to Reality: Why Land 

Power Trumps in the National Rebalance toward Asia,” Armed 

Forces Journal, May 2013, available from www.armedforcesjournal.

com/archive/issue/2013/05/toc; and Foreign Military Training and 

DoD Engagement Activities of Interest, 2009-10, Washington DC: 

U.S. Department of Defense and Department of State, 2010, Vol. 

I, Sec. III-I, p. 44, available from www.state.gov/t/pm/rls/rpt/fmtrpt/.

406. Raymond T. Odierno, 2012 Army Strategic Planning Guidance, Washington DC: U.S. Department of the Army, April 19, 2012, 

p. 6, available from usarmy.vo.llnwd.net/e2/c/downloads/243816.pdf.

407. David J. Berteau and Michael J. Green et al., U.S. Force Posture Strategy in the Asia Pacific Region: An Independent Assessment,

Washington DC: Center for Strategic and International Studies, 

2012, p. 91, available from csis.org/files/publication/120814_FINAL_PACOM_optimized.pdf; Michelle Tan, “Army Assigns 4-Star, 

79,000 Troops to USARPAC,” Army Times, June 4, 2013, available from www.armytimes.com/article/20130604/NEWS/306040003/

Army-assigns-4-star-79-000-troops-USARPAC; and Amber Robinson, “USARPAC Becomes 4-Star Headquarters during Change 

of Command,” Washington DC: U.S. Army Public Affairs Office, 

July 3, 2013, available from www.army.mil/article/106821/.
186

408. U.S. Army, “Regional Alignment in Joint and Combined 

Exercises.”

409. James Dunnigan, “If It Works for Special Forces . . .” 

Strategy Page, October 8, 2012, available from www.strategypage.

com/dls/articles/If-It-Works-For-Special-Forces...-10-8-2012.asp.

410. “Active Component Army Civil Affairs Units,” Civil 

Affairs Association, undated, available from www.civilaffairs

assoc.org/civilaffairsassociation/our-nations-civil-affairs-units/activecomponent-army-civil-affairs-units/; and GlobalSecurity, “364th Civil Affairs Brigade (Airborne),” Alexandria, VA: GlobalSecurity.org,

undated, available from www.globalsecurity.org/military/agency/

army/364ca-bde.htm.

411. Michelle Tan, “1st Regionally Aligned BCT to Deploy to 

Africa,” Military Times, February 20, 2013, available from www.

militarytimes.com/article/20130220/NEWS/302200333/1st-regionallyaligned-BCT-deploy-Africa; and Vergun.

412. State Partnership Program: Improved Oversight, Guidance, and Training Needed for National Guard’s Efforts with Foreign 

Partners, Washington DC: U.S. Government Accountability Office (USGAO), May 2012, pp. 9, 25, available from www.gao.gov/

assets/600/590840.pdf.

413. Vergun; and USGAO, p. 36.

414. “Oregon National Guard, Vietnam Sign Partnership Pact,” 

Armed Forces Press Service (AFPS), November 30, 2012, available 

from www.defense.gov/News/NewsArticle.aspx?ID=118666.

415. “Oregon National Guard Wraps Up State Partnership 

Program Workshop with Vietnamese Delegation,” Washington 

DC: US Army National Guard, April 25, 2013, available from 

www.nationalguard.mil/News/ArticleView/tabid/5563/Article/3928/

oregon-national-guard-wraps-up-state-partnership-program-workshopwith-vietname.aspx.

416. USGAO, pp. 2, 7-9; AFPS, “Oregon National Guard”; and 

U.S. Army National Guard, “Oregon National Guard Wraps Up 

State Partnership Program Workshop.”
187

417. Lewis M. Stern, “U.S.-Vietnam Defense Relations: Deepening Ties, Adding Relevance,” No. 246, New York: Strategic 

Forum, 2009, available from usacac.army.mil/cac2/call/docs/10-51/

ch_6.asp; and John David Ciociari, The Limits of Alignment: Southeast Asia and the Great Powers Since 1975, Washington, DC: Georgetown University Press, 2010, p. 122.

418. Sutter and Huang, p. 70; and Pan.

419. Berteau and Green, p. 36. 

420. Paul McLeary, “U.S. Unit’s Africa Deployment Will 

Test New Regional Concept,” Defense News Online, September 

26, 2012, available from www.defensenews.com/article/20120926/

DEFREG04/309260003/U-S-Unit-8217-s-Africa-Deployment-WillTest-New-Regional-Concept.

421. Tan, “1st Regionally Aligned BCT.”

422. McLeary.

423. Berteau and Green, pp. 91-92.

424. U.S. Navy Task Force 73 Public Affairs, “U.S. Navy Begins Fourth Annual Naval Engagement Activity with Vietnam,” 

Fort Smith, HI: US Pacific Fleet, April 23, 2013, available from 

www.pacom.mil/media/news/2013/04/23-usnavy-4th-annual-navalengagement-with-vietnam.shtml.

425. Margaret Hughes, “USMC Forms MCTAG; Consolidates 

Reconnaissance Training,” Small Wars Journal, November 19, 2007, 

available from smallwarsjournal.com/blog/usmc-forms-mctag; and 

Brian Villard, “U.S. Marine Corps Security Cooperation Group: 

Partnering with Foreign Militaries to Enhance Global Stability 

and Security,” The Official Web Site of the U.S. Marine Corps, October 3, 2011, available from www.mcscg.marines.mil/News/NewsArticleDisplay/tabid/2925/Article/70823/us-marine-corps-security-cooperation-group-partnering-with-foreign-militaries-t.aspx.

426. Dunnigan.
188

427. Stern; and Berteau and Green, p. 36.

428. Stern.

429. Berteau and Green, pp. 36-37.

430. Griffin; and Dan Cox, “An Enhanced Plan for Regionally 

Aligning Brigades Using Human Terrain Systems,” Small Wars 

Journal, June 14, 2012, available from smallwarsjournal.com/jrnl/

art/an-enhanced-plan-for-regionally-aligning-brigades-using-humanterrain-systems.

431. Griffin; and Wuestner, pp. 14-16, 36-37.

432. Griffin.

433. Mcleary. These phases refer to DoD’s six phases of the 

Continuum of Military Operations. Phase 0 is “Shape the Environment,” Phase 1 is “Deter the Enemy,” and Phase 2 is “Seize the 

Initiative.”

434. Berteau and Green, p. 90.

435. Wuestner, p. 30; and Vergun.

436. Vandiver.

437. Xue, p. 187.

438. Roger Rufe, “Statement of Roger Rufe, President of the 

Ocean Conservancy [Private],” Testimony before the Senate 

Committee on Foreign Relations, Washington, DC, October 21, 

2003, pp. 2-3, available from www.foreign.senate.gov/imo/media/doc/

RufeTestimony031021.pdf.

439. Dolven, Kan, and Manyin, p. 32.

440. Dolven, Kan, and Manyin, pp. ii, 5; Clinton; and 

Shearer, p. 200.

441. Dolven, Kan, and Manyin, p. 32; and Fravel, “Maritime 

Security in the South China Sea,” p. 35.
189

442. Shearer, p. 219. One major historic maritime claim case 

settled by the International Court of Justice was the Gulf of Fonseca Case in 1992. This was different, however, because the surrounding geography of the Gulf of Fonseca was a minor bay 

between Honduras, Nicaragua, and El Salvador, and the claims 

stemmed from an established unified claim from the Federal Republic of Central America. After the demise of the Federal Republic in 1839, this claim was not defined among its subsequent members. This would not be a good precedent for the South China Sea, 

which is more open and never had a recognized unified claim. 

Valencia, Van Dyke, and Ludwig, p. 17.

443. Hong, pp. 70-71.

444. Valencia, Van Dyke, and Ludwig, p. 26.

445. Valencia, Van Dyke, and Ludwig, p. 25; Shearer, p. 208; 

and Clinton.

446. Clinton.

447. Djalal, “South China Seas Island Disputes,” p. 129; South 

China Sea (II), ICG, pp. 29-30; Swaine and Fravel, “China’s Assertive Behavior—Part One: On ‘Core Interests,’” p. 10; and USEIA, 

“South China Sea.”

448. Valencia, Van Dyke, and Ludwig, p. 78.

449. Dodds, p. 14.

450. Hong, p. 67.

451. Hong, p. 63. This split of rights would be similar to the 

Torres Strait Treaty negotiated between Papua New Guinea and 

Australia in 1978. Here, the inhabitants of Australian islands in 

the EEZ of Papua New Guinea were given rights to fish in the 

area, but other rights were kept for the coastal EEZ state. Van 

Dyke and Bennett, p. 83.

452. Dodds, p. 14; South China Sea (II), ICG, p. 4.
190

453. South China Sea (II), ICG, p. 20.

454. Paal, “Dangerous Shoals.”

455. Sutter and Huang, p. 70.

456. Valencia, Van Dyke, and Ludwig, p. 78; and Paal, “Dangerous Shoals.”

457. South China Sea (II), ICG, p. 4.

458. Valencia, Van Dyke, and Ludwig, p. 1.

459. Amer, “Ongoing Efforts in Conflict Management,” 

p. 120; and South China Sea (II), ICG, p. 30.

460. Lai, The United States and China in Power Transition, p. 140.

461. USPACOM, p. 2.

462. O’Rourke, “Maritime Territorial and EEZ Disputes,” 

Summary page.

463. “South China Sea,” USEIA; and Fravel, “Maritime Security in the South China Sea,” p. 35. Not challenging commercial 

transit through historic waters presents a dilemma for Chinese 

and Vietnamese claims. Allowing uncontrolled passage undercuts their historic claims, since historic waters should be governed 

as closely as internal sovereign waterways. However, to regulate 

free passage in one of the world’s busiest waterways would unleash an international outcry and action that could eliminate any 

support for their current assertions and remove historic waters as 

a bargaining position. This is an example of why international approbation is a necessary part of the International Court of Justice’s 

criteria for granting historic waters status. Valencia, Van Dyke, 

and Ludwig, p. 28.

464. UNCLOS, UN, p. 25.

465. For instance, in Article 116 “Right to Fish on the High 

Seas” and Articles 186 to 191 under the “Settlement of Disputes 

and Advisory Options” section pertaining to the Seabed Disputes 
191

Chamber of the International Tribunal of the Law of the Sea. UNCLOS, UN, pp. 65, 95-97. 

466. Valencia, Van Dyke, and Ludwig, p. 146. In the same 

vein, Article 82 requires coastal states to also make a payment 

of 1 to 7 percent on the value or volume of production from the 

continental shelf area between 200 and 350-nm offshore, which is 

the extended continental shelf that reaches into otherwise international waters. UNCLOS, UN, pp. 55-56.

467. UNCLOS, UN, p. 67.

468. Valencia, Van Dyke, and Ludwig, pp. 48, 146; Chinkin, 

p. 249; and Xue, p. 176.

469. Studeman; and Fravel, Strong Borders, Secure Nation,

p. 267.

470. Valencia, Van Dyke, and Ludwig, pp. 55-56.

471. “South China Sea” Map, CIA; and Valencia, Van Dyke, 

and Ludwig, pp. 31, 56, 264.

472. Valencia, Van Dyke, and Ludwig, p. 265.

473. Other objectionable economic provisions concerning 

mandatory transfer of technology and production limitations 

were not enforced. Shearer, p. 200; and Rufe. 

474. Hong, p. 139; and Dolven, Kan, and Manyin, p. 33.

475. Three reasons account for the lack of commercial success 

in mining polymetallic seabed nodules, which were the target of 

the ISA regime. First is the high cost and technical difficulty of 

mounting such operations under the severe conditions of openocean and extreme depths. Second is the continuing relative low 

cost of competing land-based sources. Third is the additional 

cost levied by the ISA as a “tax” to pay for its administration and 

to distribute to states around the world. Wikipedia, “Manganese 

Nodule,” Wikipedia.org, undated, available from en.wikipedia.org/

wiki/Manganese_nodule. 
192

476. Hong, p. 2.

477. Valencia, Van Dyke, and Ludwig, pp. 3, 215.

478. Kivimaki, Odgaard, and Tonnesson, p. 152; Valencia, 

Van Dyke, and Ludwig, pp. 183-184; and “South China Sea” 

Map, CIA.

479. Clinton.

480. Valencia, Van Dyke, and Ludwig, pp. 45, 56, 205.

481. Dodds, p. 14.

482. Jin; and Studeman.

483. Normally this is interpreted to mean shelving the maritime jurisdiction disputes, not those over island sovereignty. 

Fravel, “Maritime Security in the South China Sea,” p. 45; Djalal, 

“South China Seas Island Disputes,” p. 125; and Hong, p. 181.

484. Valencia, Van Dyke, and Ludwig, p. 97; Dolven, Kan, 

and Manyin, p. 26; South China Sea (II), ICG, p. 7; Studeman ; and 

Trillanes, p. 7.

485. South China Sea (II), ICG, p. 34.

486. Valencia, Van Dyke, and Ludwig, p. 101.

487. Hong, p. 73; and Dolven, Kan, and Manyin, p. 12.

488. Boudreau, “China Vietnam Expand Joint Exploration 

Deal.”

489. Fravel, “Maritime Security in the South China Sea,” p. 46.

490. Sutter and Huang, p. 69.

491. Transnational ecotourism initiatives have had some intra-ASEAN success in the form of the Brunei-Indonesia-Malaysia-Philippines East ASEAN Growth Area (BIMP-EAGA) through 

government and private sector investment, which could include 

the Spratly Islands. Kivimaki, “Conclusion,” p. 168.
193

492. Hasjim Djalal, Preventive Diplomacy in Southeast Asia: Lessons Learned, Jakarta, Indonesia: The Habibie Center, 2002, p. 79.

493. South China Sea (II), ICG, p. 6; and Hong, p. 185.

494. Boudreau, “China Vietnam Expand Joint Exploration 

Deal.”

495. Chan and Li, p. 7; and Wong.

496. David M. Ong, “The 1979 and 1990 Malaysia-Thailand 

Joint Development Agreements: A Model for International Legal 

Co-operation in Common Offshore Petroleum Deposits?” The 

International Journal of Marine and Coastal Law, Vol. 14, No. 2, 

1999, p. 213, Tonnesson, “Geopolitics and Maritime Territorial 

Disputes,” pp. 112-113; and Djalal, “South China Sea Island Disputes,” p. 116.

497. Tonnesson, “Geopolitics and Maritime Territorial 

Disputes,” pp. 112-113; and Odgaard, p. 32.

498. Dolven, Kan, and Manyin, p. 30; Clinton; and Hong, 

p. 14.

499. Chamberlain.

500. Clinton.

501. Kreisher.

502. Dolven, Kan, and Manyin, pp. i-ii.

503. Hong, p. 197.

504. Brzezinski, p. 97.

505. Chamberlain.

506. Jianzhong Zhuang, “China’s Maritime Development and 

US-China Cooperation,” Andrew S. Erickson, Lyle J. Goldstein, 

and Nan Li, eds., China, the United States, and 21st Century Sea 
194

Power, Newport, RI: Naval Institute Press, 2010, p. 8; Lai, The 

United States and China in Power Transition, p. 198; Fravel, Strong 

Borders, Secure Nation, p. 1; and Sanderson.

507. People’s Republic of China, “China, U.S. Pledge to Build 

Constructive Strategic Partnership,” Washington, DC: Embassy of 

the People’s Republic of China, April 1999, available from www.

china-embassy.org/eng/zmgx/zysj/zrjfm/t36212.htm; Randy Forbes, 

“China. There, I Said It,” PacNet, Vol. 34, Pacific Forum CSIS, June 

5, 2012, p. 1, available from www.pacforum.org; and Erikson and 

Goldstein, p. xi.

508. Odgaard, p. 33. Since 1949, China has been involved in 

23 territorial disputes in which it has negotiated settlements to 

17, sometimes offering substantial compromises. China’s motivation for land concessions in territorial disputes may be to manage 

internal ethnic unrest in those areas in order to better govern its 

dominions. In disputes involving its designated core homeland, 

like Tibet or Taiwan, and in island disputes China has been much 

less accommodating. This leads some to question China’s commitment to coexistence, especially concerning “national identity 

issues.” Odgaard, pp. 31-34; and Fravel, Strong Borders, Secure Nation, pp. 1-2, 6. 

509. Sutter and Huang, p. 67; and Ciociari, p. 127.

510. Amer, “Ongoing Efforts in Conflict Management,” 

pp. 119-120.

511. Fravel, “Maritime Security in the South China Sea,” p. 47; 

and Ciociari, p. 131.

512. National Security Presidential Directive 41, Maritime Security Policy, Washington DC: The White House, December 21, 2004, 

available from www.fas.org/irp/offdocs/nspd/nspd41.pdf; and Dutton, p. 197.

513. USPACOM, pp. 3-5.

514. Clinton.

515. Andrew S. Erickson, “Chinese Views of America’s New 

Maritime Strategy,” Andrew S. Erickson, Lyle J. Goldstein, and 
195

Nan Li, eds., China, the United States, and 21st Century Sea Power, 

Newport, RI: Naval Institute Press, 2010, p. 431.

516. Valencia, Van Dyke, and Ludwig, p. 5; and Hong, p. 198.

517. Wiencek and Baker; Moller, p. 75; Amer, “Ongoing Efforts in Conflict Management,” p. 123; and Kivimaki, Odgaard, 

and Tonnesson, p. 146.

518. Valencia, Van Dyke, and Ludwig, p. 111.

519. Kivimaki, Odgaard, and Tonnesson, p. 143; Wiencek 

and Baker; Spitzer; Erickson, p. 431; Xinbo Wu, US Security 

Policy in Asia: Implications for China-US Relations, Washington 

DC: The Brookings Institution, September 2000, available from 

www.brookings.edu/research/papers/2000/09/northeastasia-xinbo; Kate 

and Lerman; and Dutton, p. 208.

520. Wiencek and Baker; Chan and Li, p. 9; and Perlez, “China 

and Vietnam Point Fingers.”

521. Wu, US Security Policy in Asia: Implications for ChinaUS Relations; Fravel, “Maritime Security in the South China 

Sea,” p. 34.

522. Kivimaki, Odgaard, and Tonnesson, pp. 139-140; Shicun Wu, pp. 368-369; Forbes, p. 1; and Wu, US Security Policy in 

Asia: Implications for China-US Relations. Following the Mischief 

Reef incident: 

on 16 June 1995 . . . Joseph Nye, then US Assistant Secretary of Defense for International Security, said, ‘if military 

action occurred in the Spratlys and this interfered with the 

freedom of the seas, then we would be prepared to escort 

and make sure that navigation continues.’ This was the first 

time that a US high-level official expressed the possibility 

of US military intervention on the SCS [South China Sea] 

issue on the basis of its interference with navigation (Shicun 

Wu, p. 369).

523. Lai, The United States and China in Power Transition, 

pp. 137, 143. 
196

524. Kevin Rudd, “A New Road Map for U.S-Chinese Relations,” Foreign Affairs, Vol. 92, No. 2, March/April 2013, pp. 12-13.

525. Lai, The United States and China in Power Transition, p. 137; 

Hong, p. 196; and Kivimaki, Odgaard, and Tonnesson, pp. 142-

143, 147.

526. Other regional access includes Thailand’s U Tapao, Malaysia’s Lamut, and Indonesia’s Surabaya, and basing rights at 

Singapore’s Changi Naval Base and the Philippines’ former-U.S. 

naval base at Subic Bay. Moller, p. 76; Hong, p. 198; Gopal Ratman, 

“Cam Ranh Bay Lures Panetta Seeking Return to Vietnam Port,” 

Bloomberg News, June 4, 2012, available from www.bloomberg.com/

news/2012-06-04/cam-ranh-bay-lures-panetta-seeking-u-s-return-tovietnam-port.html; Michael Cohen, “Philippines, U.S. Confirm US 

Navy’s Return to Subic Bay,” IHS Jane’s Defence Weekly, October 

10, 2012, available from www.janes.com/article/13538/philippinesus-confirm-us-navy-s-return-to-subic-bay; and Jamie Laude, “US 

Troops Can Use Clark, Subic Bases,” The Philippine Star, June 

6, 2012, available from www.ajdigitaledition.com/pdfs/PDF/2012_

LA/2012_06_09/2012_LA_06_09_A%2014.pdf. Treaty allies offer 

basing rights in Japan, South Korea, and Australia at Darwin, and 

support for a continued strong U.S. presence in the Asia-Pacific 

region. Robson.

527. Such conflict includes PRC involvement in the Korean 

War, the shelling of the Taiwanese-occupied offshore islands of 

Quemoy in 1958, the PRC’s brief war with India in 1962, the border skirmishes with the Soviet Union in 1969, and the PRC invasion of Vietnam in 1979. Fravel attributes this behavior in part to 

concerns with its own weakness, as China has used force either 

in disputes with its militarily most powerful neighbors or in conflicts where it has occupied little or none of the land that it has 

claimed. Kivimaki, Odgaard, and Tonnesson, p. 144; and Fravel, 

Strong Borders, Secure Nation, pp. 2, 7, 272.

528. Controversy from remarks made by mid-level Chinese 

officials in 2010 have left it uncertain if one of the PRC’s declared 

core interests of sovereignty over China’s territory, which it considers non-negotiable, also includes the South China Sea islands. 

If indeed that was not the intent of the Chinese government, some 

believe that China’s interests are nonetheless moving in that di-
197

rection. Swaine and Fravel, “China’s Assertive Behavior—Part 

One: On ‘Core Interests,’” p. 2; Fravel, “Maritime Security in the 

South China Sea,” p. 42; Dueck; and Jisi Wang, “China’s Search 

for a Grand Strategy: A Rising Great Power Finds Its Way,” Foreign Affairs, Vol. 90, No. 2, March-April 2011, pp. 70-71.

529. Kivimaki, Odgaard, and Tonnesson, pp. 134-135; and 

Moller, p. 76.

530. In 2010, President Obama cancelled two Asian trips due 

to domestic crises over passing healthcare reform and the Gulf 

of Mexico oil spill, and in 2013 cancelled attendance at both the 

Asia-Pacific Economic Cooperation and the East Asia Summit 

conferences in Southeast Asia over the government shutdown crisis, conceding the diplomatic initiative to China and leaving some 

analysts wondering how much the United States is committed to 

the region and the extent of its leadership in the world.

531. “Roiling the Waters.”

532. Hong, p. 196; Boudreau, “Vietnam Leader in China Seeks 

Export Gains Amid Sea Tension”; Kivimaki, Odgaard, and Tonnesson, p. 142; and South China Sea (II), ICG, p. 26. 

533. Dueck; and Mahnken, pp. 1, 14.

534. O’Rourke, “Maritime Territorial and EEZ Disputes,” 

pp. 16-19. 

535. South China Sea (II), ICG, p. 32; Kivimaki, Odgaard, and 

Tonnesson, p. 139; and Hong, p. 196.

536. USPACOM, pp. 2-3.

537. Chan and Li, p. 1; Sutter and Huang, p. 67; and South 

China Sea (II), ICG, p. 23. 

538. Brzezinski, pp. 99-100.

539. Dueck; Forbes, p. 1; and Kaplan, “Future of Conflict,” 

pp. 82-83.
198

540. South China Sea (II), ICG, pp. 23-25; and Paal, 

“Dangerous Shoals.”

541. These myriad activities include the frequent presence of 

U.S. naval ships in the region; the expansion of military bases on 

the U.S. island territory of Guam; naval exercises with Vietnam, 

including the USS George Washington aircraft carrier; a tripling of 

port calls to Malaysia over 10 years; and an agreement for much 

needed enhanced bilateral security cooperation with the Philippines, such as a land-based radar to track ships and Hamilton class 

cutters. Kivimaki, Odgaard, and Tonnesson, pp. 141-142; Shicun 

Wu, p. 370; Wu, US Security Policy in Asia: Implications for ChinaUS Relations; Pan; Hong pp. 28, 30, 196-198; South China Sea (II), 

ICG, pp. 11, 26; Sutter and Huang, p. 70; and Dolven, Kan, and 

Manyin, p. 29.

542. Mahnken, pp. 1, 4. 

543. Pan. 

544. Paal, “Dangerous Shoals.”

545. Sutter and Huang, p. 69.

546. Shicun Wu, p. 370; and Lai, The United States and China in 

Power Transition, p. 140.

547. Kivimaki, Odgaard, and Tonnesson, p. 147; and Valencia, 

Van Dyke, and Ludwig, p. 92.

548. Kivimaki, Odgaard, and Tonnesson, p. 141.

549. Ibid., pp. 135, 147; and Fravel, Strong Borders, Secure 

Nation, p. 5.

550. South China Sea (II), ICG, p. 25.

551. Dolven, Kan, and Manyin, p. 23.

552. Ciorciari, p. 124; and Valencia, Van Dyke, and Ludwig, 

p. 131.
199

553. Kaplan, “Future of Conflict,” p. 82.

554. Hong, p. 30.

555. South China Sea (II), ICG, p. 27.

556. Sutter and Huang, p. 70.

557. Ibid., p. 67; and Ciorciari, p. 127.

558. Valencia, Van Dyke, and Ludwig, p. 99.

559. Odgaard, p. 20.

560. Brzezinski, p. 97.
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