DANGEROUS GROUND:

THE SPRATLY ISLANDS AND 

U.S. INTERESTS AND APPROACHES

Clarence J. Bouchat

U.S. ARMY WAR COLLEGE

Carlisle Barracks, PA and

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Strategic Studies Institute

and

U.S. Army War College Press

DANGEROUS GROUND:

THE SPRATLY ISLANDS AND U.S. INTERESTS 

AND APPROACHES

Clarence J. Bouchat

December 2013

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ISBN 1-58487-604-2
v

FOREWORD

Renewed interest in the Asia-Pacific region entails 

greater U.S. responsibilities and involvement in the 

area’s problems. Of all the issues the United States will 

face in the region, none may involve as many players; legal, economic, and security interests; intricate 

considerations; historic implications; or persistent, if 

low key, conflict as the intractable disputes around 

the Spratly Islands. And none of the issues are probably as poorly understood by U.S. policymakers as the 

South China Sea disputes. 

For these reasons, the Strategic Studies Institute 

(SSI) is pleased to publish this timely analysis of the 

Spratly Islands dispute. It examines the economic and 

security importance of the region to the surrounding 

claiming states: the People’s Republic of China, Taiwan, Vietnam, Malaysia, Brunei, and the Philippines, 

and the violent acts and potential for instability in the 

region that has resulted. To better understand the positions of these parties, this monograph then 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 better understand these positions 

and inform U.S. policymakers on actions the United 

States may take to promote peace and economic development in an important region consisting of allies 

and crucial trading and security partners. This monograph then makes practical suggestions to directly 

improve U.S. security and economic interests in the 

region. SSI will publish a second monograph on the 

South China Sea disputes around the Paracel Islands 

to complement this analysis.
In the end, the conflict in the Spratly Islands is not 

one for the United States to solve, but its ability to contribute, facilitate, balance, or to support is necessary 

toward 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

vi
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 an adjunct professor 

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

of Distance Education. His last assignment was as a 

faculty member of the USAWC. He served in several 

assignments in East Asia and has published articles 

about the region. Lieutenant Colonel (Retired) Bouchat 

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

University of Southern California.

ix

SUMMARY

The region around the Spratly Islands and the 

South China Sea is important to the economies of 

the surrounding states in terms of fish resources and 

the potential for natural gas and oil. This bonanza of 

riches spurs out-sized claims in the region that result 

in diplomatic and physical clashes. The large flow 

of maritime commerce around the Spratly 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. Their importance is 

seen in the 50 remote military garrisons on these islets 

by the claiming states, and the decades-long history 

of military and civilian enforcement clashes which 

increase the risk of conflict. 

The use of customary law and the United National 

Convention on the Law of the Sea (UNCLOS) in establishing claims to the Spratlys 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 the People’s 

Republic of China (PRC), Taiwan, and Vietnam using 

historic doctrine to claim the entire South China Sea, 

while they also use the doctrine of occupation to claim 

some land features, the method which the Philippines 

and Malaysia also employ. Each are also disputed 

with counterclaims by other South China Sea states, 
x

leaving no state holding effective legal sovereignty 

over all.

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 if awarded to Vietnam 

or China, both of which make such claims. Islands 

above the high tide mark establish territorial waters 

and a contiguous zone, which would carve 24 nautical 

mile (nm) zones like Swiss cheese around the Spratlys, 

but should allow innocent passage. The length of the 

200-nm exclusive economic zone (EEZ) allows much 

potential overlap among land masses and islands 

in the semi-enclosed South China Sea, and, like territorial waters, some states 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 the PRC, which is the most active 

in enforcing a restrictive EEZ. 

Freedom of navigation in the South China Sea is 

the most immediate concern for the United States to 

ensure naval vessels retain all rights of access. Current policy in China, Vietnam, and Malaysia restrict 

foreign naval activities in their zones beyond those 

normally attributed to UNCLOS. Concluding an Incidents at Sea Agreement with the PRC 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 
xi

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 so as 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 U.S. ratification of UNCLOS for nearly 

20 years. 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 and 

facilitate 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 states around the 

South China Sea. 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 issues, making it 

a useful interlocutor in resolving problems. 

In other circumstances, the United States has intervened in problems around the Spratly Islands in 

more parochial ways to balance the diplomatic field in 
xii

aid of allies and defense partners and to directly protect its freedom of navigation interests. This balancer 

role should deter aggression, is dictated by U.S. treaty 

obligation to the Philippines, and is needed because 

the Association of Southeast Asian Nations (ASEAN) 

lacks a defense arrangement by which to counter the 

influence of the PRC. The balancing role, however, 

should be minimal so as to not to overshadow the 

conciliator role.

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 Spratly Islands region to world trade, energy, 

and security, as well as its own national interests require careful American involvement. To best address 

the disputes, policymakers must understand the underlying territorial and maritime claims of the PRC, 

Taiwan, Vietnam, Malaysia, Indonesia, Brunei, and 

the Philippines 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 

Spratly 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.
xiii

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.
xiv

Source: “The Spratly Islands and Paracel Islands,” Map 801947, Washington, DC: Central Intelligence Agency (CIA), December 1995.

Map 2. The Spratley Islands.
1

DANGEROUS GROUND:

THE SPRATLY ISLANDS AND U.S. INTERESTS 

AND APPROACHES

Whoever dominates the sea dominates world trade; 

whoever dominates world trade dominates the Golconda [a location of great wealth]; whoever dominates 

the Golconda dominates the world. . . . Boost the shipping industry to expand the navy, let our national 

navy keep pace with the big powers and get into the 

rank of first-class powers. The only way for China to 

become prosperous is to develop its military arms.1

 Sun Yat-sen,

Founder and first President

 of the Republic of China

The South China Sea is one of the most strategic 

waterways in the world, for its sea lanes have been 

heavily used by fisherman, merchantmen, and war 

ships for 2,000 years. During that time, its tiny groupings of islets, reefs, banks, cays, shoals, atolls, and 

exposed rocks constituting the Maccelesfield Bank, 

Scarborough Shoal, and Paratas, Paracel, and Spratly 

Islands have posed deadly hazards to navigation that 

tarred this region with the maritime epithet of “the 

Dangerous Ground.”2

 Although modern navigation 

has reduced the risk of shipwreck in the region, it 

remains a junction where international interests and 

rivalries clash—sometimes quite violently—keeping 

the name of “Dangerous Ground” a politically apt 

one. The waters and islets of the South China Sea suffer conflicting claims in whole or in part made by the 

People’s Republic of China (PRC), Republic of China 

(ROC or Taiwan), Vietnam, the Philippines, Malaysia, Indonesia, and Brunei, and are vital international 
2

waters for maritime states like India, Australia, the 

Republic of Korea (South Korea), Japan, and the United States. The bitter nature of the claims to this area, 

which possesses rich fish stocks, oil and natural gas 

potential, and security importance, markedly increases their significance to the claimants in southeastern 

Asia, and to other nautical powers with interests in 

the high seas and stability in this rapidly developing 

strategic region.

Because the Spratly Islands are an especially complicated, emotional, and central part of the South 

China Sea disputes, this monograph delves into why 

this tiny archipelago warrants better understanding 

by U.S. policymakers in order to discuss nuanced 

responses to the region’s challenges. To attain that 

needed understanding, legal aspects of customary 

and modern laws are explored to analyze the differences between competing maritime and territorial 

claims, and why and how the parties involved stake 

rival claims or maritime legal rights. Throughout, the 

policies of the United States are examined through its 

conflicted 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. Since the problems 

in the waters around the Spratly Islands are daunting 

enough, dealing with the other disputed parts of the 

South China Sea are left for further study, although 

many topics discussed here may also be gainfully applied elsewhere in the region. U.S. contributions to 

regional solutions are predicated upon a better understanding of the many issues involved.
3

THE SPRATLY ISLANDS REGION 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 

Taiwan, the Philippines, Malaysia, Brunei, and Indonesia. Hundreds of tiny geologic features dot the 

122,648,000 square nautical miles (nm2

) of the South 

China Sea, or one and half times the size of the Mediterranean Sea, although its largest natural grouping, 

the approximately 1703 features of the Spratly Islands 

archipelago, covers a total of less than 3 nm2 of land 

above sea level nestled in an area spanning 58,000 nm2

of sea.4 The Spratly Islands are centered in the southern half of the South China Sea approximately 300-nm 

east of Vietnam, 200-nm west of the Philippines, and 

800-nm south of the Chinese mainland. The core Spratlys grouping stretches 315-nm from northern Northeast Cay to southern Louisa Reef, and 240-nm from 

western Ladd Reef to eastern Investigator Northeast 

Shoal. The ocean floor in this area is relatively shallow compared to the much deeper northern half, but 

is mostly cut off from the surrounding continental 

shelves by troughs as deep as 5,000 meters.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 disputes of the region and potential ways to 

address them.

Local Economic Importance of the Spratly 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 spe-
4

cies and commercial fish like tuna, mackerel, scads, 

and coral reef fish.6 The South China Sea is one of 

the earth’s most productive fishing zones in terms of 

its annual maritime catch representing about 10 percent of the world’s total take, and contributes about 

half of the fish eaten in the Philippines, Vietnam, and 

China—especially in poorer coastal areas.7

 Seafood 

was also Vietnam’s second largest foreign exchange 

earner in 2010 accounting for 7 percent of its exports, 

and composed over 4 percent of the Philippines’ gross 

domestic product (GDP) in 2009.8

 The nature 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.9

Since the late-1990s, over-fishing, 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 of fishing stocks.10

Instead, declining stocks in home waters have forced 

fisherman into waters 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 common in the South China Sea and sometimes lead to diplomatic or armed clashes.11

The extraction of hydrocarbon energy resources 

in the South China Sea also suffers under the tension 

of being an asset of the maritime commons. The shallower southern South China Sea, which includes the 

Spratly Islands, has been called a “second Persian 

Gulf” or “hydrocarbons Eldorado” for its rich potential.12 Certainly the possibility for energy strikes in the 
5

area’s sedimentary basins exists. However, the Spratly Islands region itself remains largely unexplored so 

estimates vary widely.13 The U.S. Energy Information 

Administration (USEIA) in 2013 gives proven or probable reserves in the Spratly region at virtually none for 

oil and only .1 trillion cubic feet (tcf) for natural gas. 

However, USEIA estimated the potential for undiscovered oil at between .8 and 5.4 billion barrels (bbl) 

and 7 to 55 tcf for gas. The PRC’s Chinese National 

Offshore Oil Company (CNOOC) offers a far more optimistic estimate of 125 bbl of oil and 500 tcf of gas in 

undiscovered resources,14 which is five times China’s 

current proven reserves in both resources. This may be 

skewed in order to encourage investment and exploration since China’s domestic production has peaked, 

and it depends heavily on imported energy.15 China 

needs the “sweeter” crude oil that comes from the 

South China Sea because it is easier for overburdened 

Chinese refineries to process, makes China more energy independent as its demand for oil doubles and 

natural gas quadruples in the next 25 years, and reduces the debilitating air pollution of burning coal 

which now accounts for much of its energy.16

The exploration for oil in the vicinity of the Spratly 

Islands started in the 1970s around Reed Bank by a 

Philippine consortium including U.S. companies, but 

the results were meager. The PRC started drilling in 

1992 near Vanguard Bank, using the American company, Crestone, while just to the west, the Vietnamese 

explored the Blue Dragon block with Mobil, and to 

the southeast, Malaysia contracted with Sabah Shell.17

Further afield in the South China Sea, commercial 

drilling proceeds in Malaysia’s Central Luconia gas 

fields off the coast of Sarawak, in Indonesia’s Natuan Island gas field, and Vietnam’s Lan Tay and Lan 
6

Do (or Nam Con Son) gas fields.18 The Philippine’s 

Malampaya field, northwest of Palawan island and 

just outside the Spratlys area, may hold 2.7 tcf of natural gas reserves, but is the only producing gas field 

in the Spratly region.19 The belief that such finds may 

extend to the Spratly Islands’ waters, whose central 

placement makes maritime possession uncertain, 

encourages the affected parties to make competing, 

sometimes outsized, claims for this wealth.20

The richest part of the Spratlys may be shallow 

Reed Bank, in the northeast corner and only 150-nm 

from the Philippine’s Palawan Island, but it is also 

claimed by the PRC, Taiwan, and Vietnam. After natural gas was discovered there in 2002, the Philippines 

assigned concessions for its development; however, 

Chinese pressure has halted subsequent activities in 

Reed Bank.21 Such overlapping claims make financing 

and exploration to confirm potential energy reserves 

in the region more costly and risky, as demonstrated 

by Beijing’s threats to the businesses of foreign companies in China if they help develop the stakes of 

other claimants.22 Further complicating the problem is 

that more than 200 international companies are contracted for oil and natural gas services in the greater 

South China Sea region which internationalizes and 

complicates the dispute because China disapproves 

of foreign companies being involved in the region.23

International energy companies have the expertise 

needed to develop these waters but remain reluctant 

to do so, needing long-term stability in the region.24

The potential for major energy finds in the Spratly 

Islands area has driven the energy-poor but rapidly 

developing surrounding states to press aggressive 

claims for this disputed commons which, in turn, hobbles their efforts by making exploration and exploita-
7

tion economically more risky, politically contentious, 

and militarily dangerous.25

Unfortunately, the states claiming this area “view 

the competition for access to and ownership of the resources as a zero-sum game.”26 For instance, after the 

2008 dissolution of the disappointing Joint Maritime 

Seismic Undertaking (JMSU), the first and only multilateral cooperative development arrangement among 

the South China Sea states, its former members, Vietnam, the Philippines, and the PRC, began to explore 

unilaterally in their overlapping claimed areas, and 

China increased the number of its enforcement vessels 

in the region.27 Claims have intensified as new technology has made previously difficult offshore oil and gas 

more accessible, while high energy prices make their 

potential more lucrative.28 Thus political and armed 

clashes may occur in order to develop this energy potential before others exploit it first.

If the waters around the Spratlys have historically 

been rich fishing grounds and today portend hydrocarbon wealth, the land features themselves have offered much less in economic activities and have never 

been permanently inhabited beyond recent military 

garrisons.29 The earliest visitors to the Spratlys may 

have been Chinese traders collecting feathers and tortoise shells, but most of the early Chinese references 

to the South China Sea mainly warned of the danger from the reefs, and the geologic features served 

mostly as landmarks to navigators and occasional 

shelter to fisherman.30 In 1877, Britain made probably 

the first Western-style claim to any of the islands for 

the southerly Spratly Island and Amboyna Cay to 

exploit their guano deposits (for use in making fertilizer and soap).31 Tomas Cloma started the Philippines’ 

unofficial claim to most of the Spratlys in 1947 also 
8

in order to gather guano and to establish a fish cannery.32 None of these activities were seriously pursued. The climate and tiny land area available in the 

Spratlys offers little agricultural promise, although the 

Taiwanese have grown pineapples on Itu Aba, the 

largest island in the Spratly group, and Vietnam has 

experimented with growing trees for shade and fencing on its occupied islets.33 Some experts see the possibility for marine based tourism in the region, such as 

Malaysia has done for its human-enhanced Swallow 

Reef which has become a premier dive resort sharing 

space with a military installation and airstrip.34 Collectively, transnational ecotourism has been targeted 

through the Brunei-Indonesia-Malaysia-Philippines 

East Association of Southeast Asian Nations (ASEAN) 

Growth Area (BIMP-EAGA) through government and 

private sector investment that could be followed in 

the South China Sea.35 However, all of this collecting, 

farming, and tourism potential of the land features financially pales in comparison to the surrounding waters’ fishing and drilling activities. The islets have yet 

to produce any sustained economic yield, or as Timo 

Kivimaki concludes in his anthology on the South 

China Sea, “these areas have only been economically 

meaningful when the small reefs and islands have disrupted sea lines of communication.”36

Regional Security Importance of the Spratlys.

Although economically not significant, the land 

features of the Spratlys may hold military importance 

for the states occupying or claiming them. The historically high amount of shipping which transits the South 

China Sea gives significance to the Spratly Islands for 

sea lane defense, maritime interdiction, early warn-
9

ing, and surveillance. During World War II, Japanese 

imperial forces claimed all and occupied key parts of 

the South China Sea, constructing a submarine support base on Itu Aba as part of their efforts to successfully cut Allied shipping in the region. The islets also 

served as forward staging bases for invasions of the 

Philippines, the Dutch East Indies (now Indonesia), 

and Malaya.37 From 1840 to 1949, one Chinese scholar 

counted 479 attacks launched against China from the 

sea, with 84 of those being major assaults.38 During the 

Vietnam War, U.S. bomber and surveillance missions 

were flown from Guam and Okinawa over the South 

China Sea, which China and North Vietnam protested 

as violating each one’s sovereignty.39 This military 

legacy particularly menaces modern China’s prosperity since 50 percent of its petroleum is imported from 

overseas, and 90 percent of its foreign trade is through 

shipping, much through the South China Sea from 

China’s booming southern provinces.40 To counter 

this potential threat, Chinese military leaders consider 

the South China Sea important to the PRC’s security, 

and their maritime “near sea strategy” is to neutralize 

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

line connecting Borneo with the Philippine, Taiwan, 

Ryukyu, Japanese, and Kurile Islands, to ensure access to the Pacific Ocean and prevent a “Great Wall 

in reverse.”41 Having actually sustained attacks from 

the Spratly Islands, other South China Sea states also 

want to control some or all of the Spratly features for 

their own protection. For instance, since the 1980s, the 

Philippines government considers the adjacent Spratly group “vital to the defense of its western perimeter” and to its economic survival.42 Such sentiment 

explains, in part, the regional land grab for otherwise 

uninhabited and unproductive land features. Terri-
10

torial disputes have often been a motive for fighting 

between states, which is why one analyst dubbed the 

Spratly Islands “the least unlikely trigger” to start a 

conflict in the South China Sea.43

In order to defend national security and further 

their claims, Taiwan, Vietnam, the Philippines, Malaysia, and the PRC have garrisoned many of the 

Spratly features. Accurate numbers and dispositions 

for military forces are difficult to ascertain, but reasonably reliable numbers are reported here to portray 

their scope. A total of over 1,500 troops are probably 

deployed to between 45 and 52 positions in the Spratlys.44 Following the abandonment of the Spratlys by 

the Japanese after World War II, the ROC was the first 

to occupy a position in 1946, but these forces were 

withdrawn after the Nationalist forces retreated to 

Taiwan.45 In 1956, about 500 marines were re-stationed 

on Itu Aba, Taiwan’s only occupation, but that force 

was reduced to 110 in the late-1990s. The islet was 

further demilitarized in 2000 by stationing only coast 

guardsmen there, although a 1,000 meter airstrip was 

completed in 2008 to allow rapid reinforcement.46 In 

1975, Vietnam occupied 13 positions, and today garrisons the most features at around 29, with about 600 

troops. Vietnamese forces maintain a 600-meter runway on Spratly Island itself, the region’s fourth largest 

island.47 Since 1971, the Philippines has occupied eight 

to nine of its approximate 53 claimed geographical 

structures with about 500 marines (down from 1,000 

in the 1990s), and completed a 1,300-meter runway in 

1981 on Thitu Island, the region’s second largest island.48 Since 1983, Malaysia has manned five of its 12 

claimed features with 70 soldiers. Its largest, the geographically enhanced Swallow Reef, also includes a 

600-meter commercial and military airport.49
11

The PRC was late in joining the scramble in 1988, 

but has aggressively settled about seven reefs and 

rocks, some since upgraded with helipads.50 Some of 

these features are close to those already occupied by 

other forces in a possible attempt to neutralize any 

claim by other states to the surrounding seas. The 1992 

People’s Liberation Army (PLA) landing on Da Ba 

Dau Reef, near Vietnamese occupied Sin Cowe East 

Island, resulted in a skirmish with nearby Vietnamese forces.51 The PLA’s 1995 seizure of Mischief Reef, 

previously abandoned by Philippine forces although 

within the Philippine’s Alcorn oil concession area, significantly raised tensions between the two countries. 

Tensions flared again after construction of upgraded 

military structures on these rocks in 1998—although 

no actual fighting ensued either time.52 A U.S. Government report placed the total contingent of Chinese 

marines at 325 in 1999, although other estimates report it as low as 260 personnel.53 Many of the smaller 

outposts, especially the Chinese ones, are precarious 

manmade platforms perched above tiny rocks or even 

submerged reefs.54 The seizure of features has stopped 

since the late-1990s, however, in part because the most 

suitable features are already occupied and because 

these remote desolate outposts are expensive to maintain.55 A “no new garrisons” policy was reinforced by 

the nonbinding Declaration of the Conduct of Parties 

in the South China Sea (DOC) in which China and 

all 10 ASEAN states agree to nonuse of force, peaceful settlements, and to refrain from further manning 

unoccupied features.56 In the spirit of the DOC, and 

despite the shortage of available real estate in the 

Spratly Islands, no country has attempted to drive off 

the troops of another country’s occupied base.57
12

This relative acquiescence toward intermingled 

military-occupied features has not extended to defending maritime and economic interests in the surrounding seas, however. The Dangerous Ground has lived 

up to its name with numerous clashes and challenges 

over the past several decades. The PRC, with its extensive claims and most capable naval and maritime civilian forces, has been the most involved against other 

states’ vessels, beginning with far-ranging naval patrols in 1987 throughout most of the South China Sea, 

protecting an area that China considers its “inherent 

territories.”58 The most deadly Spratlys clash occurred 

in 1988 when warships from the PLA Navy (PLAN) 

and Vietnam People’s Navy (VPN) exchanged fire off 

Johnson Reef South with each side sinking a vessel and 

around 70 Vietnamese sailors lost.59 This fight began 

a turbulent period in the South China Sea in which 

military forces played a prominent (although less lethal) role. For instance, in April 1994, a Vietnamese 

gunboat removed a Chinese research vessel from an 

area claimed by both countries, and in July, the PLAN 

blocked a Vietnamese-licensed oil rig.60 From 1992 to 

1996, Taiwan reported 134 incidents of its fishing fleet 

being boarded, harassed, detained, rammed, or fired 

upon by PLAN vessels in the northern South China 

Sea.61 Tensions started to calm in 1995, however, when 

the PRC’s foreign minister attended the ASEAN Regional Forum (ARF). Naval ships from all of the states 

have subsequently played a more subdued role in 

these waters.62

Instead of its navy, China has since used its maritime law enforcement ships to protect its claims, although backed by the PLAN which often shadows 

just over the horizon.63 Five disparate PRC maritime 

enforcement agencies64 have aggressively policed Chi-
13

na’s interests, and kept tensions high throughout the 

South China Sea. In 2013, the Chinese government consolidated four of these agencies into a single paramilitary coast guard under a new National Oceanic Administration, creating an “’iron fist’ that would replace 

ineffective operations scattered among a number of 

agencies.”65 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, characterized by strong reactions 

to provocations by other parties” still being practiced 

after the reorganization.66 Whereas, before the consolidation only the Maritime Police agency was armed, in 

the new expanded coast guard, all of its vessels will 

be armed, increasing significantly the weaponry available.67 In 2009, the PRC’s South Sea Region Fisheries 

Administration Bureau detained 33 Vietnamese ships, 

and seven in 2010.68 In one of five such incidents near 

Reed Bank in early 2011, two China Marine Surveillance ships aggressively maneuvered against a Philippine seismic survey ship, forcing it to leave the area. 

In May 2011, the Vietnamese claimed that a China Marine Surveillance ship cut the cables of a PetroVietnam 

oil 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.69 Just north of the Spratly Islands around 

Scarborough Shoal, a protracted 2-month standoff 

between PRC and Philippine vessels started in April 

2012 over rights to enforce fishery resource rules that 

blocked vessels and increased already taut tensions.70

Although events involving naval vessels have subsided, the level of police and commercial vessel incidents 

has increased as a result of China tripling its patrols at 
14

sea since 2008.71 Some incidents have been attributed 

to Chinese fishing vessels, which can be an auxiliary 

to enforcement agencies as demonstrated in the 2012 

Scarborough Shoal incident.72 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.”73

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.”74 “It is a brilliant strategy by China to establish their control over 

an area without firing a single shot,” observed Stephanie Kleine-Ahlbrandt, head of the Beijing office of the 

International Crisis Group.75 PRC vessels have been 

active in enforcing China’s maritime claims in the 

South China Sea, exacerbating the tensions among the 

states involved. 

As the Scarborough Shoal standoff shows, numerous incidents are also initiated by the ASEAN claimants. For example, during the especially contentious 

period of the 1990s, the Philippine Navy sank a Chinese fishing boat in 1993; a Malaysian patrol boat fired 

on a Chinese trawler in 1995, injuring four men; and 

in 1999, Philippine naval vessels twice bumped Chinese fishing boats, all taking place in disputed areas.76

Military incidents among the ASEAN states are rare, 

but one occurred in 1976 when Vietnamese forces on 

its then main garrison on Southwest Cay fired on a 

Philippines aircraft that flew too close, although without effect.77 Another confrontation almost occurred in 

1999 when aircraft from the Philippines and Malaysia 
15

“nearly engaged” over Malaysian controlled Investigator Shoal—although both afterwards dismissed the 

incident in more ASEAN-like conciliatory fashion.78

Under civilian authorities, incidents occur with “Increasingly assertive positions among claimants [that] 

have pushed regional tensions to new heights.”79 Examples in this monograph have offered only a few 

of many altercations in contested waters consisting 

of Malaysian intervention against Philippine and 

Vietnamese fishing boats, Philippine actions against 

Vietnamese and Malaysian vessels, and Vietnamese enforcement of its claims against the others.80 All 

have also forcibly reacted against Chinese commercial 

vessels as well.81 Since 1989, more than 300 incidents 

against Chinese trawlers have been reported, including being fired upon, seized, or expelled, with 10 ships 

detained by the Vietnamese in 2010, for example.82 Despite the many disputes among ASEAN states in the 

South China Sea, however, there have been very few 

casualties among them—in contrast to clashes with 

the PRC.83 As a 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.84 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.”85

Those assessments bode poorly for the region’s states 

and for the United States, which also has significant 

interests there.
16

Importance of the Spratly 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 and trade, and thus of immense importance to 

the United States and the international community. 

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.86 These massive movements link energy rich southwest Asia and northern 

Africa to economically vibrant northeast Asia. 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.87 These busiest shipping lanes in the world pass 

by either side of the centrally placed Spratly Islands,88

and their 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.89

Economic development in East Asia and the world 

would be seriously set back should maritime trade in 

the South China Sea be disrupted.90 The PRC, ROC, 

and Vietnam each claim all of the Spratly 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 
17

resources on what many parties consider high seas or 

international waters.91 U.S. economic interests are directly and indirectly entwined in the competition over 

the distant Spratly Islands.

As this monograph has shown, this region is not 

just another global hot spot, but one with important 

long-term economic, territorial, and security contentions. That makes it not just one of the world’s most 

disputed ocean areas, but also one of the few where 

violent incidents routinely occur at sea.92 For diplomatic, historic, and military capacity reasons, other 

states rely on the United States to ensure stability in 

the South China Sea.93 This dependence could make 

the Spratlys a convenient arena in which a rising China may 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.94 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 the decline of the U.S. and that the time was ripe to become 

more assertive.95

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.96 For these reasons, American 

journalist and Stratfor analyst Robert Kaplan dubbed 

the South China Sea the world’s “new central theater 

of conflict,” and “the heart of political geography in 

coming decades.”97 Yet mutual economic and political dependence among all of these states, and with the 

United States, argues against major conflict or even 
18

a Cold War-style rivalry.98 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 by force alone.99 Indeed, the 

United States and PRC signed an agreement in 1998 

entitled “Establishing a Consultation Mechanism to 

Strengthen Military Maritime Safety” (or the Military 

Maritime Consultative Agreement [MMCA]) to prevent incidents between them.100 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.101 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 legal bases for which 

are explained in the next section. The comprehensive 

claims by the PRC to all of the waters of the South China Sea, and its government’s interpretation of international law, encourages 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.102 Some analysts 

believe that U.S. surveillance actions in the northern 

South China Sea, which China contends trespass on 

its jurisdiction, risks drawing the United States into a 

conflict in the region.103 Although this concern is now 

based on events in proximity to Chinese mainland waters, should the PRC prevail in its claims to land fea-
19

tures and waters around the Spratly 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 Chinese 

vessels and U.S. craft exercising freedom of navigation rights. The most serious incident was the 2001 

collision of a Chinese fighter jet with a U.S. Navy EP-3 

which killed the Chinese pilot, and forced the American crew to an emergency landing at the Chinese base 

on Hainan Dao.104 On the surface, harassment by Chinese vessels has occurred against the U.S. ocean surveillance fleet, including the U.S. Naval Ships (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).105 During this last incident, five Chinese vessels 

surrounded the hydrographic survey ship roughly 75 

miles southeast of Hainan Dao, 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.106 While this 

monograph went to print in December 2013, a renewed round of tensions seem to have 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 expected 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.107 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.
20

LEGAL BASIS AND CLAIMS IN THE SPRATLY 

ISLANDS SCRUM

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

Spratly Islands? To best understand the issues and in 

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

governs disputes over sovereignty of land and some 

forms of maritime jurisdiction and rights, and the 

1982 UN Convention on the Law of the Sea (UNCLOS) 

which only addresses maritime issues, but in a more 

comprehensive and coherent manner.108 This section 

also examines how each of the involved parties applies these concepts to support its contentious claims. 

In this section, disputes over land sovereignty are 

generally 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 claims, as will be shown.109 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 over which the 

claimants contest.110 Concepts here are covered to the 

depth needed to apply to the Spratly Islands 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,111

and some modern legal regimes may conflict with 

customary precepts.112 Thus legal applications may 

not be the ultimate arbiter to resolve the many differences, but knowing the bases of these legal claims 
21

may better guide potential ways to manage multilateral disputes as they arise.113 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 

Spratly 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.114 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 a separate mechanism to establish sovereignty but which 

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

type of feature owned dictates the forms of maritime 

jurisdictions that may then extend from it.115 Customary law has evolved over the centuries, like common 

law, 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.116

Socialist governments around the South China Sea 

also assert that “Bourgeois international law serves 

the interests of the bourgeoisie only,” although they 
22

employ these methods to advance their interests even 

as they seek to change them.117 Customary law is also 

not codified and agreed upon in as rigorous a manner 

as UNCLOS, all of which leaves traditional law exceedingly complex and open to many interpretations 

and differences in its application.118

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.”119 Thus 

customary law is the usual means to settle sovereignty 

disputes over territory through international law (of 

course other means exist like conquest or purchase), 

and its maritime customs are still sometimes invoked 

today as well. UNCLOS has indirectly spurred island 

claims since its negotiations began in the 1970s by assigning oceanic jurisdiction to nearly any land feature, 

thereby converting previously avoided desolate rock 

obstacles into the focal points of potential oceanic 

riches, and igniting a form of gold rush in the Spratly 

Islands. There are a few cases where territorial sovereignty claims are pressed through UNCLOS as well. 

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.120

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 
23

area has been part of a state, through long continuous 

administrative control, economic use, or social links, 

which should give the claimant special consideration 

for inherent usage rights in the area; or as its internal 

waters or sovereign territory when the claim is generally recognized by other states.121 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 in 1951.122 In contrast, in traditional 

East Asian politics before Western legal concepts were 

practiced, a historic association of a region to a people 

or state would preclude the need for a formal legal 

claim to perennially oversee or control it.123

Although a practical customary precept, even in 

Western international law historic claims are broad 

and not well-defined traditionally or in the Law of the 

Sea Treaty.124 Generally, historic rights recognize that 

traditional activities may continue in a designated 

area, or, if specifically stated, may also include a claim 

to a land area or maritime jurisdiction.125 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 mean they may not be useful mechanisms for establishing control.126 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 

in writing and record keeping. Using this mechanism 

to establish sovereignty or jurisdiction under modern 
24

practices requires that claims be backed by effective, 

continuous, and unchallenged occupation or administration to be valid.127 These latter criteria are usually 

hard to establish, and thus may account in part for 

the past and present practice of challenging or ejecting nonsubject people from disputed areas in order to 

demonstrate some control over the claims,128 resulting 

in some of the violent incidents this monograph has 

documented. 

In the Spratly Islands region, there are two conflicting historic claims made by three parties: the PRC, 

ROC, and Vietnam, with the PRC and ROC sharing 

mutually supporting identical claims.129 Vietnam 

presents a classic historic case for all of the Spratly 

and Paracel Islands, and an undelimitated amount of 

most of the South China Sea built on four historical 

arguments presented in three White Papers in 1979, 

1982, and 1988.130 As evidence, Vietnam presents historic records and maps showing it was the first state 

to discover and name the Spratlys, using court documents from as early as the reign of King Le Tanh Tong 

(1460-97), and “that the ‘Feudal Vietnamese State’ 

effectively controlled the two archipelagoes since 

the 17th century according to international law.”131

Vietnam also invokes the 1884 French claim and administration over the Spratlys while the Vietnamese 

states were a French protectorate and ultimate successor to their Western legal-style claim.132 After it gained 

independence, a modern Vietnamese scholar could 

assert that:

a long time ago, regional countries pursued their 

normal activities in the East Sea133 without encountering any Chinese impediment and they have never 

recognized China’s historic rights in the South China 

Sea. . . .134
25

More archival records are being translated into 

English to bolster Vietnam’s historic claim to the 

entire region.135

The Vietnamese historic claim to any of the Spratly Islands tends to be inconclusive, however. Many 

non-Vietnamese scholars have found that basic Vietnamese knowledge about the Spratly Islands in its 

historic documents was weak and depended much on 

conveyed European misperceptions of the region.136

When more accurate information about the Spratlys 

was attained by Vietnamese authorities “there is little 

evidence that the Nguyen dynasty [1802-1945] upheld 

its claim through declarations, effective occupation, or 

utilization.”137

The Vietnamese claim has not been generally recognized, having been ignored in the 1951 peace conference in San Francisco in which Japan relinquished 

control of the islands after World War II; and the claim 

has been consistently protested and interfered with 

by other states since the 1950s.138 Other telling blows 

were official statements by the Democratic Republic of 

Vietnam’s (North Vietnam) 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. That same 

government today renounces the earlier support to 

PRC territorial claims as a necessity during their wars 

against foreigners,139 but such recent recantations cannot help underscore a weak historic claim that is difficult 

to support.

The Chinese claim to the South China Sea and its 

geologic features is even more extensive than that of 

the Vietnamese,140 but is just as ill-defined. Whether 
26

China claims all of the sea and resources of the region, as indicated in terms officially used like “territorial waters”; just the Spratlys and other land features 

within the South China Sea, as may be intended with 

assertions to “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.141

Chinese records show use of the sea that date to the 

Tang (618-907) and Song (960-1279) dynasties when 

a “Marine Silk Route” to Arabia and Africa developed.142 Political oversight of the Spratly Islands may 

have started during the Yuan dynasty (1271-1368), 

and economic activities like fishing followed during 

the Ming dynasty (1368-1644).143 Chinese association 

with the Spratlys is better documented from the mid1800s through artifacts, trading records, refuge for 

nomadic fisherman, and diplomatic interactions with 

European powers or policing actions against them.144

For instance, in 1876 China’s ambassador to Great 

Britain declared the Paracel Islands as Chinese territory, and in 1883 the Chinese expelled a German survey team on the Spratly Islands.145 To clarify its heretofore rather inconsistent claims against other powers 

in the South China Sea, a Chinese committee on land 

and water boundaries published a document in 1935 

listing 96 land features above low tide level as Chinese 

territory.146 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” or “U-shaped line,” see Map 1) enclosing most of the South China Sea waters and associated land features as its “indisputable sovereignty.”147

The 1948 announcement that followed to explain the 
27

claim was purposely vague as to what was actually 

claimed , whether all the waters, just its land features, 

unspecified rights in the region like use of the sea bed, 

or some combination of these—an ambiguity that 

both Chinese governments have continued to maintain.148 The Chinese claim their historic links to the 

Spratlys were well recognized until the 1930s when 

the French made claim to them through their then colonial possession of Tonkin (northern Vietnam), and 

the Japanese annexed them during World War II. In 

support, the Chinese cite an 1887 Sino-French 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.149

Despite Chinese documentation claiming the 

Spratlys, there are problems with its arguments because Chinese association with them has often lacked 

the clear consistent claims or effective administration required by modern international judgments.150

Although not itself strong because it suffers from 

the same flaws, Vietnam’s historic claim nonetheless 

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.151 Non-Chinese scholars also 

note that other competing claims for some or all of 

the Spratly islands have been made since the 1800s by 

France, Britain, and Japan, pushing China into asserting formal Western legal style sovereignty claims.152

As already shown, more recent claims by the Philip-
28

pines, Vietnam, Malaysia, and Brunei demonstrate 

that other states have not recognized China’s claims, 

and China has not sufficiently maintained continuous 

or effective control. 

Chinese counterarguments that its sovereignty 

over the Spratlys 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. For instance, an official Chinese 

report from 1928 delineates the Paracel Islands as China’s southern border, and did not include the Spratly 

Islands.153 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 Spratlys, despite the fact 

that decisions about occupied lands was a main topic 

of the conference. As noted earlier, the ROC also withdrew troops landed there after World War II in 1950 

and these were not replaced until 1956; and the PRC 

attempted no control of the islets until 1988. Also, during the 1951 negotiations over the peace treaty with 

Japan, 46 of 50 participating countries rejected a Soviet 

call to assign the Japanese conquered areas, including 

the Spratlys and Paracels, to the PRC.154 A senior intelligence officer at the U.S. Pacific Fleet in a personal capacity challenged Chinese historic claims even further 

when he declared in 2013 that the claims were:

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.155

Chinese and Vietnamese officials have shown 

historic use of the southern South China Sea and its 
29

features but not to the level needed to establish effective control and thus sovereignty, since other states 

were also using and claiming parts of this area during 

these periods.156 Some commentators believe China 

and Vietnam might have more success by converting 

their claims to one of historic rights to things like fishing, which are better documented historic activities by 

both in the region.157 In short, the Chinese and Vietnamese historic claims for control over the Spratly Islands and their surrounding waters “can generally be 

summarized as incomplete, intermittent, and unconvincing.”158 Widely accepted international precedents, 

like the Island of Palmas Case ruled by the Permanent 

Court of Arbitration in 1925 and in subsequent cases,159

find effective administration and occupation of land 

take precedence over first discovery, historic claims, 

or close proximity.160 The Vietnamese and Chinese 

historic claims to the Spratly Islands lack a sufficient 

weight of evidence to establish the requirements of 

persistent effective control by their respective governments, sustainable population, or enduring economic 

activity with the Islands sufficient to clearly establish 

sovereignty or rights to specific activities.161

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, Vietnam, the Philippines, and Malaysia 

have each staked out some or all of the Spratly Islands 

using this method. 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 first claim be 
30

made for a land feature and then consistently and effectively controlled to remain valid.162 This land must 

previously be res nullis (“nobody’s property”),163 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.164 In 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 Spratly Island disputes present them. In the 

South China Sea some formal discovery and occupation claims started in the 1800s, but many now cited 

originated after 1945 when defeated Japan renounced 

its World War II annexations leaving a void in ownership, and arguably resetting all the geologic features 

to res nullis. As examined below, each party derives its 

claim through discovery and occupation differently, 

but the evolving requirement for effective control and 

habitation accounts for the sudden interest in occupying the land features of the Spratly Islands (mainly 

through military garrisons so far) from which the occupying party would then seek to establish sovereignty over some or all of the islets.165

In addition to its historic claim, as well as supporting it, 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 1991.166 Under its modern application, discovery and occupation of the Spratly Islands began 
31

in 1946 after ROC President Chiang Kai-shek ordered 

the occupation of Itu Aba and followed this with the 

publication of the infamous U-shaped line claim to the 

South China Sea.167 Despite an interruption of its occupation from 1950-56 after losing the Chinese Civil 

War, Taiwan continued to assert its claim over the 

archipelago based on the 1952 Sino-Japanese Treaty 

which recognized Chinese sovereignty over the Spratlys. However, Japan had previously renounced all 

claims to the Spratlys, with no successor assigned, and 

the 1951 San Francisco Treaty refused to recognize any 

Spratly claims. Undeterred, Taiwan retorted that such 

actions could not nullify its sovereignty grounded on 

earlier historic claims and occupation.168 Taiwan, for 

instance, extends its civilian control over Itu Aba as a 

municipality that is part of Kaohsiung’s Cijin District, 

and it has its own postal code.169 Bracketing the ROC’s 

early single occupation are the much later occupations 

by the PRC to the same claims starting in 1988 when it 

established a physical PLA presence in the archipelago. This late occupation was preceded by much earlier 

discovery claims to all of the Spratlys by the PRC in 

1951, and maritime rights from these features in 1958. 

Administrative control was furthered under PRC laws 

passed in 1992 and 1998 specifying Chinese maritime 

jurisdiction and rights,170 and with the incorporation 

in July 2012 of Sansha, located on the Paracel’s Woody 

Island, as the administrative prefecture-level city for 

all of its South China Sea claims including the Spratly 

Islands.171 Physical possession of its seven features is 

crucial to supporting its claim, as demonstrated when 

the Philippines vacated and subsequently lost Mischief Reef to PLA occupation in 1995 as part of China’s 

final acquisition in the Spratlys.172

Just as the shared PRC and ROC historic claim has 

been vigorously contested, so too have their discovery 
32

and occupation claims for many of the same reasons. 

After World War II, France also sent an expedition to 

the Spratlys to contest the Chinese occupation and reestablish its claims, although the French did not leave 

a physical presence.173 Not only have Chinese claims 

to the Spratlys been contested by other states since 

they were first made under discovery and occupation, 

but its interrupted and limited control over the islands 

have not supported China’s extensive claims. Taiwan 

occupies only Itu Aba as its sole garrison in the Spratlys (and for 12 years the only one among all the disputants). It did so based on its understanding of customary law that, by occupying the major land feature 

in a group, control over the other associated features 

was assumed.174 This practice has not been honored 

by the other parties. The PRC’s administrative control 

activities only started during the 1970s followed by its 

first physical occupation after all other claimants.175

The PRC delayed its opportunity for effective control 

while turned inward during divisive political movements and modernization, allowing Vietnam, the 

Philippines, and Malaysia a 30-year lead in discovery 

and effective occupation through permanent outposts 

and structures built on previously vacant Spratly features.176 Chinese actions have been routinely disputed 

by other states, such as when Sansha City was established incorporating all of its South China Sea claims 

into the PRC’s municipal system, with Vietnam and 

the Philippines expectedly protesting but so did, unusually, the United States.177 Aggressive PRC actions 

in the South China Sea since the Sansha City disputes 

may in part be to make up for the appearance of weak 

administration over the Spratlys by asserting control 

through more enforcement of its national laws to show 

it sufficiently governs them as part of its jurisdiction.
33

Since Vietnam’s historic claim to the Spratly Islands 

is no stronger than China’s longer and more documented evidence, Vietnamese officials have instead 

gradually emphasized the principle of discovery and 

occupation claiming that the archipelago was res nullis 

before 1933. In reality, the original claim began in 1884 

when France established a protectorate over Vietnam 

along with both the Paracel and Spratly Islands.178 In 

1930, wary of Japanese expansion in East Asia, France 

consummated its earlier discovery by annexing Spratly Island and 3 years later claimed all of the Spratleys 

and occupied, for the first time, nine islets until they 

were, in turn, occupied by Japan between 1937 and 

1938.179 As the legal successor to French claims based 

from the Vietnamese protectorate, Vietnam asserts it 

subsequently assumed this claim to the Spratlys when 

it gained divided independence in 1954.180 However, 

South Vietnamese attempts at effective administration 

followed much later in 1974 when the Spratlys were 

incorporated into Vietnam’s Phuoc Tuy province, and 

off-shore oil exploration contracts were let.181 In 1975, 

North Vietnam took control of South Vietnam’s recently established Spratly garrisons and claim (along 

with the rest of the country), and placed additional 

forces on other features, growing from 13 to 21 positions by 1997 and to 29 garrisons today.182 To assert its 

control, Vietnam has since established Spratly Island 

as a township in Truòng Sa district, organized local 

elections and tours in the Spratlys, and has continued to award oil exploration contracts.183 Vietnam’s 

claims to the Spratlys were formally delimitated in a 

maritime law passed by the National Assembly in 

June 2012.184

These acquired claims are difficult to substantiate 

since the Chinese have routinely challenged all French 
34

and Vietnamese claims in the area, and, as noted earlier, North Vietnamese authorities during the 1950s officially supported the PRC claim to the Spratlys.185 Also, 

neither France nor the then semi-independent Vietnam pressed their claim during the 6 years from 1950 

to 1956 when the Spratlys were entirely unoccupied—

in part because both turned inward to address more 

pressing domestic troubles and wished to remain in 

good standing with China.186 Further condemning the 

Vietnamese claim is that France asserts that it made its 

claims to the Spratlys for itself rather than in the name 

of Vietnam.187 In 1950, responsibility for the defense of 

the Paracel Islands was transferred by the French to 

the Vietnamese, with subsequent Vietnamese licensed 

economic activity ensuing in the form of phosphate 

mining.188 However, no such turnover occurred with 

the Spratlys, and in 1956 both Vietnam and France 

delivered separate protests to the Philippines government when citizens from that country claimed parts of 

the Spratlys. However, in 1957 the French allowed its 

Spratly Islands claim to go passive, neither relinquishing nor defending its claim, leaving the Vietnamese 

inherited claim in limbo.189 Since then, the PRC, ROC, 

Malaysia, the Philippines, and Brunei all have routinely contested the extensive Vietnamese claims to 

most of the South China Sea in words and deeds of 

their own. Despite its historic documentation, assertions of discovery, and assumption of French claims, 

Vietnam’s stark physical possession of the many features in the Spratlys seems to be its strongest claim to 

the region 

With no historic claim of its own, the Philippines 

relies on the principle of discovery and occupation, 

and their close proximity, to claim nearly all of the 

Spratly Islands, except Spratly Island itself and other 
35

points west of it.190 Filipino involvement in the Spratlys 

was spurred by a private entrepreneur, Tomas Cloma, 

who by 1950 established several colonies on the islets 

to open a fish cannery and exploit guano deposits.191

With no official government action following, Cloma, 

with his brother Filemon and encouragement from 

the Philippine Vice President, formally claimed this 

region as his own in 1956, and named it Kalaya’an 

(Freedomland).192 Although these actions alarmed 

the ROC government, which rushed to re-establish 

its military presence on Itu Aba, the Philippines government only officially occupied five features in the 

nearby Reed Bank area in 1971 after the prospects for 

discovering oil were apparent. In 1978, the Philippines 

occupied two more islets in the Spratlys, and formally 

claimed the Kalaya’an Group, and incorporated it into 

Palawan province, through Presidential Decree Number 1596.193 The Philippines government also based its 

discovery and occupation on the features being res nullis and open to occupation after World War II. They interpret all earlier historic and occupation claims to the 

Spratlys 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. . . .”194

With a clean slate, military occupation, and active 

economic exploitation through fishing and drilling 

for energy (even if no sustained economic activity on 

the islets themselves), the Philippines government has 

staked its claim to Kalaya’an through discovery and 

effective occupation.

The Philippines’ stake in the Spratlys is, of course, 

hotly disputed by other claimants. The Philippines 

makes no historic claim to the Spratlys because the 

Spanish-American treaty of 1898, which transferred 
36

possession of the Philippines to the United States, 

explicitly established a western limit that excluded 

the Spratlys. Upon Philippine independence in 1946, 

American advisors discouraged Filipino claims to the 

Spratlys based upon this treaty and to avoid conflict 

with the ROC, a wartime ally.195 When Tomas Cloma 

took private ownership of the islands in 1956, the ROC, 

France, and independent South Vietnam protested 

this action to the Philippine government.196 Each disputed that their previous claims were not abandoned 

or null, and instead found Cloma’s claim invalid since 

a private citizen may not claim land unless acting on 

behalf of a sovereign state, and the Philippines government did not sanction his actions. As further evidence, 

the Philippines did not include the nearby Kalaya’an 

area within its straight line baselines that officially 

declared the extent of the Philippine archipelago in 

1955.197 Contiguous proximity to the Spratlys, as the 

closest state adjacent to many of the Spratly features, 

also does not strengthen the Filipino claim, since the 

1925 Island of Palmas and subsequent cases established 

effective occupation as the standard for possession—

not distance.198 The Philippines also waited 25 years 

after they claimed the islands reverted to res nullis

before discovering and occupying any of them. Thus, 

the Philippine claim is no stronger than the others, 

and suffers from having no supporting claim through 

historic or proximity arguments. 

As Vietnam’s discovery and occupation claim to 

its protector’s much earlier discovery was undercut by 

subsequent French action, a potential Malaysian succession to an early discovery in the Spratlys was also 

undercut by the British—forcing Malaysia to make a 

separate and later claim of its own. The British were 

probably the first Europeans to land in the Spratlys, 
37

and the archipelago is named after a British sailor.199

The first documented Western legal claim to the Spratlys was made in 1877 for Spratly Island and Amboyna 

Cay by Britain based from its Labuan Crown Colony 

in Borneo. During the 1880s, Britain’s Central Borneo 

Company planned to gather guano commercially from 

these islets, but operations may not have followed.200

These islets were included on the British Colonial Office List, although little more was done to perfect the 

claim.201 In 1933, when the French pursued their Spratly claim more vigorously, the British allowed its claim 

to go dormant, neither abandoning its own discovery 

nor challenging the claims of others.202 Thus Malaysia 

had to make its own discovery and occupation claim 

after acquiring the northern Borneo states from Britain 

in 1963. Malaysia’s discovery began in 1979 with the 

official publication of a map claiming 12 Spratly features, with occupation following in 1983 at Swallow 

Reef and subsequently four other features.203

Malaysia’s claims are also contested in full by 

China, and in part by the Philippines and Vietnam. 

In fact, Amboyna Cay, for which the British made a 

claim in 1877, is currently occupied by Vietnamese 

forces, and thus Malaysia has not demonstrated effective control over its claim.204 Malaysia has resolved its 

overlapping differences in the South China Sea with 

the enclave country of Brunei, however.205 Of all the 

claimants, Malaysian diplomats are most effective at 

reasonably resolving disputes. They have established 

model agreements and bilateral joint development 

zones with both Vietnam and Thailand in disputed 

waters near peninsular Malaysia, and have submitted 

a joint continental shelf claim in the South China Sea 

with Vietnam.206 Nor does Malaysia claim all features 

and waters that it could if it pressed its maritime stake 
38

to a line equidistant from its national shores meeting 

in the middle similar claims for the Spratly Islands 

drawn for other states. Malaysia also resolved its 

South China Sea differences with Indonesia centered 

on Natuna Basar by defining the two maritime borders 

for peninsular and insular Malaysia. The Indonesian 

agreement may have set a bad precedent for other Malaysian claims, however, since it accepted less control 

over the disputed continental shelf than allowed under UNCLOS, with some commentators concluding 

that in such moderate actions “Malaysia has undercut 

its own potential claim to some extent. . . .”207

Under customary sovereignty law, historic ownership principles made by Vietnam and China are generally thought to be weak, and discovery and occupation 

is fiercely contested, although effectively executed, 

given the myriad examples cited here.208 Employing 

traditional methods of establishing sovereignty over 

the Spratlys has justified assertive actions that have 

created tension and frustration, and at worst precarious standoffs and pitched battles that have killed.209

Because of these sometimes violent disputes, the potential riches of the South China Sea are squandered 

through uncoordinated nonsustainable overuse in the 

case of fishing, or nonuse through lack of investment 

and development due to unstable political conditions 

in the case of hydrocarbon energy. The Spratly Islands 

have become a literal patchwork of intermingled seizures and occupations rendering confusing and overlapping potential maritime jurisdictions. Perhaps it is 

not surprising that the customary law used by European states to build and fight over empires in North 

America, the Middle East, South Asia, and Southeast 

Asia would also lead to tension when applied in the 

South China Sea. With the economic, political, and 
39

emotional issues involved, it may be highly unlikely 

to reverse the many resulting physical military occupations in the Spratlys, and “very difficult, if not impossible, for China to negotiate the ‘return’ of those 

islands” as Dr. Lai observes.210

These fixed positions of sovereignty may be a solution, although a messy one, to possession and exploitation of the Spratly Islands through 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, that is interpreted to mean 

land gained (often in war) remains with the occupier 

unless otherwise disposed through a treaty. This principle was upheld by the International Court of Justice 

in 1986 when it ruled to maintain the colonial borders 

inherited by independent states in the case Burkina 

Faso vs. Mali.

211 This law could apply to the Spratly Islands if the claimants kept their present possessions, 

under whatever method they were gained, unless a 

subsequent formal settlement is negotiated. However, 

this arrangement could lead to disputes and violence 

as the many yet unprocessed features, rocks, reefs and 

even underwater geologic protrusions, are snatched 

and occupied in a new “land rush” melee. This is an 

expensive and dangerous solution fraught with many 

perils of which the claimants should be wary, especially since not all parties may continue to adhere to 

the present consensus that garrisons in place remain 

undisturbed. Further conflict for possessions thus 

could occur following the lead of the great European 

imperial powers, with the strongest imposing its will 

on the others. 
40

United Nations Convention on the Law 

of the Sea and Spratly Claims.

Should the problem of sovereignty over each or all 

of the Spratly Islands be resolved, the issue of what is 

gained in the maritime realm through their possession 

is the province of UNCLOS. The U.S. position on this 

issue was revealed by then Secretary of State Hillary 

Clinton in 2010 at the 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.212

The issue of sovereignty is so central that some 

South China Sea claimants argue for the possession of 

land features using UNCLOS, although that is explicitly not its stated purpose. Land claims through UNCLOS are sometimes made when other claims through 

customary law seem weak or because of the perception that claims made through UNCLOS may have 

higher standing in the eyes of the international community. Because of the importance of UNCLOS, this 

section discusses its key points that affect the Spratly 

region dispute, 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 the South China Sea disputants 

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.213 Customary mari-
41

time law, through most of history, governed space, 

and actions on the seas by allocating 3-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 (also known as the Law of the Sea Treaty), which was negotiated from 1973 to 1982 and took 

effect in 1994. This treaty gives coastal states a 12-nm 

territorial sea, and an exclusive economic zone (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.214 These 

maritime boundaries of state control are premised on 

the type of land feature each emanates from (inhabitable land or unproductive rock), so that the issues of 

sovereignty, topography, and classification of a land 

feature determines maritime boundaries.215

Each of the states claiming the Spratlys has ratified 

this convention, although often with reservations. Taiwan, however, is not eligible to be a member, although 

it generally follows its rules, and the United States 

has signed but not ratified the treaty.216 Technically, 

UNCLOS does not apply to disputes started before it 

came into effect, including all of the Spratly claims, 

but an expectation exists for signatories to abide by 

its provisions nonetheless.217 Four forms of settlement 

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 
42

opt out of some of the Law of the Sea Treaty’s requirements. The PRC and the other claimant states, for instance, do 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.218 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.219

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 full consideration of all UNCLOS maritime 

zones and rights, although these can be constrained 

by surrounding zones. Continental states receive this 

full consideration for territorial waters and adjacent 

EEZ or continental shelf, while islands may be assigned some or all of those areas.220 However, what 

constitutes an inhabitable island is a major concern 

since a qualified speck of land could accrue control 

over 125,000 nm2 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.221
43

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 them 

regardless of the size of the rocks.222

Respected Spratly Island experts Mark Valencia, 

Jon Van Dyke, and Noel Ludwig have determined 

that 25 to 35 features in the region “are above water at 

high tide, and these qualify as islands . . . and appear 

to be entitled to territorial seas.”223 They also note, per 

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.224 Under these terms, some of the PRC’s 

current Spratly occupations might garner no maritime 

zones since they are perched upon submerged reefs, 

which may also pertain to some of the other countries’ 

occupations like Malaysia’s Swallow Reef, Vietnam’s 

Barque Canada Reef, and the Philippine’s Commodore Reef.225 In 1975, the International Court of Justice 

advised that the standard for formal displays of sovereignty, like markers and policing, are lower for uninhabited areas, which would also pertain to islands 

designated as rocks.226 This monograph has deliberately not used the word “island” indiscriminately, 

in order to accurately distinguish features as used by 

these various definitions.

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 

to interpret this clause. Whereas physical geography 

may distinguish between an island and a nonisland 

geologic feature, human needs distinguish between 
44

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?”227 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 

. . . on their own?” 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”?228 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.229 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: 

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. . . .230

The indeterminate nature of the habitable criterion 

leaves much room for the claimants and experts to argue and disagree.

Under some circumstances, rocks and inhabited 

islands may not receive full maritime zones.231 Rocks 

receive little consideration under international law 

to prevent them from impinging on similar rights of 

nearby islands or continents that are populous and 

economically active, to not interfere with opportuni-
45

ties that should be open to all seafaring nations when 

located on the high seas, and 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.232 Even habitable islands hold lesser status 

under UNCLOS when compared against the claims 

of a continental coast. In the 1984 International Court 

of Justice 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.233

Another example of a similar application pertinent 

to the Spratly Islands is that uninhabitable islands 

generating territorial waters would not impede the 

rest of the rights attributed to a larger maritime zone, 

like an EEZ, that may encompass it.234 This would apply, for instance, to Mischief Reef which, if it were 

found to at least meet the status of a rock, would generate territorial waters for the PRC within the Philippine’s EEZ, and with Amboyna Cay for Vietnam’s 

occupation within Malaysia’s EEZ. The vague considerations that are taken into account in determining 

maritime boundaries and the other short comings of 

UNCLOS means that most dispute settlements tend to 

be difficult, and usually considered on a case-by-case 

basis using precedent only as a guide if submitted 

for review.235

Questioning their habitability, the Spratly Islands’ 

conditions prove harsh for personnel living there, as 

one Chinese newspaper recorded that soldiers must 
46

endure “shortages of fresh water and vegetables, 

loneliness, bad weather, and hard life. . . .”236 The resulting cost of the financial and physical commitment 

by each occupying state is high,237 and may explain 

in part why the Philippines withdrew from Mischief 

Reef in 1995, allowing PLAN troops to occupy the 

feature in their stead. The nearest case of a disputed 

South China Sea feature meeting the requirements for 

a habitable island may be Woody Island, the largest 

of the Paracels, occupied and settled by the PRC with 

a decades-old population of some size.238 To demonstrate its control and habitability of this island, the 

PRC has made it an administrative capital and significantly upgraded its transportation and life support infrastructure.239 Itu Aba, occupied by Taiwan and the 

largest island in the Spratlys group, is reported to 

have two natural springs on the island, but has never 

had a permanent population nor sustained economic 

activity on its own, despite many attempts to show 

official control.240 Hasjim Djalal, an Indonesian expert 

who was President of the UNCLOS Assembly of the 

International Sea-Bed Authority and coordinator of 

the informal “Track II” workshops among the South 

China Sea disputants, doubts that any of the Spratly 

Islands could be considered habitable.241 In 2009 when 

establishing continental shelf claims with the UN, 

Vietnam and Malaysia made no shelf claims based on 

contested islands, indicating they did not meet Article 

121 viability or economic criteria to do so. The new 

principles and definitions in the 1982 UNCLOS law 

have stirred problems in the South China Sea, which 

some commentators believe could best be managed 

by declaring the features “legally uninhabitable,”242

or pooling the maritime zones each might generate to 

be “shared regionally and managed by a joint devel-
47

opment resource agency.”243 Within these bookends 

of open ocean and collective sovereign waters lays a 

continuum of maritime control by the coastal states. 

Maritime Jurisdictions.

After sovereignty over a geologic feature and its 

type are determined, then the maritime jurisdictions 

it controls are established through UNCLOS. The Law 

of the Sea Treaty determines how much authority a 

state asserts over neighboring sea as weighted by the 

type of land feature it is based upon and the 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, 

although 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 floor244—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 the potential maritime jurisdictions 

that are claimed in the Spratly Islands region, and 

their implications for U.S. interests.
48

Internal, Archipelagic, and Historic Sovereign Waters.

The most restrictive maritime zones are internal 

waters in which the state has complete sovereignty, 

as if 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.245 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 connects the outer most 

part of these features, as stipulated in Article 7 and 

subsequent guidance in UNCLOS.246 Applying this 

law, the United States has sovereign control over its 

Intracoastal Waterway on the landward side of the 

east coast barrier islands, but 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 grants sovereign 

control over adjacent waters, but, 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 are often liberally drawn, as 

have been done by the PRC, Malaysia, the Philippines, 

and Vietnam, and which have been protested by the 

United States as exceeding their rightful allowances.247

The only exception in UNCLOS to complete sovereignty over internal waters is to allow innocent passage across recently drawn straight baselines “which 
49

had not previously been considered as such,” mostly 

affecting states through whose waters traditional international shipping routes pass.248 Although straight 

baselines are not directly applied in the Spratly Islands, their use along neighboring shores does influence the amount of maritime jurisdiction that may be 

claimed among them from national boundaries.

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.249 Archipelagic waters were specifically 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.250 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.251 Although the Spratly Islands 

themselves are a geographic archipelago, they would 

not fall under this legal regime because they are not 

a sovereign state. Should the PRC or another continental state gain control over the Spratlys it could not 

control them through the archipelagic state provisions 

since the mainland is not a part of the archipelago.252

The Philippines, however, could be an exception 

since it is an archipelagic state as defined in 1961 in its 

Republic Act 3046, but which did not include the Spratlys among its homeland islands.253 Australian geographer Dr. Victor Prescott, however, postulated that the 

Philippines could claim Kalaya’an as an archipelagic 

appendage in a scheme using three archipelagic baselines between 100 and 125-nm and drying reefs, both 
50

of which are explicitly allowed under UNCLOS Article 47. This new configuration would also keep an 

acceptable land to water ratio of 1:2.4. 254 In 2009, the 

Philippine Congress updated its maritime borders in 

the Archipelagic Baseline Law of the Philippines to better comply with international law. Although this act 

claims both Kalaya’an and nearby Scarborough Shoal 

as Philippine, it did not do so through archipelagic 

baselines despite much debate in support of using that 

method.255 Thus, the Philippines claims the Spratlys 

through the island regime methods previously discussed, rather than these archipelagic procedures—

although the new Philippine baseline law specifically 

does not rule out this method in the future, but declares it would only do so in full compliance with UNCLOS stipulations.256

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.”257 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.258

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 
51

and curtails the exploitation of oceanic resources by 

the international community.259 As preceding law, 

historic waters may also override UNCLOS statutes, 

for instance allowing historic bays wider than 24-nm 

at the mouth, or giving precedence to historic waters 

contrary to overlapping territorial water claims which 

would otherwise be settled with a median line between them.260 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. 

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.

261 Nonetheless, UNCLOS 

was written to minimize the use of historic claims, 

and they are generally recognized by the international 

community only in exceptional circumstances.262 As 

already demonstrated in the Spratlys, 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 Spratly Islands in the South China Sea.263 Some officials in Beijing are reported to recognize that their 

sweeping claim for South China Sea historic waters 

conflicts with UNCLOS, and believe a more appropriate claim is for just the islets within its U-shaped line 

with their adjacent waters.264 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.265 Although not taken seriously by the international com-
52

munity, 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 sea 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 

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 each of the South China Sea 

states have established each of the UNCLOS allowed 

zones.266 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 

must still allow innocent passage to transiting foreign 

vessels.267 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 collection, firing weapons, or launching aircraft or boats in 

accordance with Article 19.268 Coastal states may, of 

course, prevent noninnocent passage through their 

territorial waters, and may also temporarily suspend 

innocent passage by all foreign vessels in specific areas as temporary security zones in their territorial sea 

per Article 25.269 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 oth-
53

erwise governed as part of the less restrictive EEZ.270

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, but also 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 major concern for the 

United States which relies on innocent passage for 

power projection. The 1958 convention that preceded 

UNCLOS clearly allowed warships innocent passage 

through territorial waters, and the drafting history of 

UNCLOS indicates the same rights.271 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 landlocked, enjoy the right of innocent passage through 

the territorial sea.”272 Despite this rule, China, Vietnam, Malaysia and, in the past, the Philippines have 

interpreted innocent passage to exclude warships or 

their activities, and protest such transit vigorously.273

Vietnam’s 1980 Enactment No. 30-CP prohibits military 

ships from both its territorial sea and contiguous zone 

without 30 days advance permission, although its 

2012 Law of the Sea has relaxed the requirement to just 

prior notification.274 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.275 Although these zones are 

north of the South China Sea, they demonstrate longstanding Chinese actions that ignore UNCLOS Article 

25, and could also be applied around the claimed 

Spratly Islands as permanent political obstructions to 

any foreign vessel’s passage in the region.
54

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.”276 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.277 The significance of maritime control 

and innocent passage for the PRC explains in part why 

China took more than 13 years to ratify UNCLOS, and 

the reason for its accompanying reservations.278 The 

issues of sovereignty and independence are the PRC’s 

highest priority in its policy of Five Principles of Peaceful Coexistence. The 1992 territorial waters law implied, 

and actions have shown, that the PRC will enforce its 

sovereignty for its claimed Paracel and Spratly Islands.279 Should this be fully enforced the international 

community would face sovereign zones carved out of 

the Spratly Islands region if the principle of discovery 

and occupation is applied, and could mean most or all 

of the sea becoming off limits without consent should 

China or Vietnam enforce historic rights to the 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.280 Unlike territorial seas, however, there is no state sovereignty over this zone, just 

the authority to regulate the environment and natural 
55

resources, establishment of installations, and conduct 

of “marine scientific research.”281 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.282 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 EEZs, 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 

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 many unilateral and overlapping EEZ claims in the Spratlys resulted.283 In such 

cases, delimitation establishes maritime jurisdiction 

boundaries between states’ valid claims for territorial 

seas, contiguous zones, EEZs, and continental shelf.284

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 

delimitate disputed areas that could not be otherwise 

settled.285 However, this straightforward method was 

modified in the 1970s 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.286 Of course, 

where no overlap occurs, all habitable islands receive 

full maritime zones, but when small islands’ juris-
56

dictions abut larger islands or larger islands’ zones 

overlap continental landmasses, the smaller feature 

will receive less than full effect depending on each 

circumstance.287 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.288

The awarding of an EEZ using these rules is important in the Spratly Islands because of the consequences for regional economic development and 

international navigation. Unlike territorial seas and 

contiguous zones, economically unviable rocks do not 

generate an EEZ or a continental shelf claim.289 Under 

these conditions, an exposed rock would then become an enclave of territorial waters for one state surrounded by the high seas or the EEZ of another state’s 

nearby eligible landmass.290 Since the Philippines, 

Malaysia, Vietnam, and Brunei all claim 200-nm EEZs 

from their baselines, the states closest to the Spratlys would dominate the region’s maritime resources, 

outside of the territorial waters given to some rocks. 

Thus Malaysia’s EEZ would regulate the seas around 

the southeastern Spratly Islands; the Philippines, the 

seas around the northeastern features; Vietnam, the 

waters out to a few of the western most features (such 

as Spratly Island, West Reef, and parts of Rifleman 

Bank); and Brunei’s EEZ would control around Louisa 

Reef.291 Since Vietnam, Malaysia, and the Philippines 

have each also determined that none of their Spratly 

Islands are habitable in their EEZ and continental 

shelf submissions in 2009 to the UN Commission on 

the Limits of the Continental Shelf, none of the islands 
57

may generate an EEZ in their judgment.292 This leaves 

a band of high seas stretching from the Northeast 

Cay 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.293 Where overlap occurs between their EEZs, 

Malaysia has shown a proclivity to delimitate its differences through diplomacy with Vietnam and Brunei 

in their joint EEZ and continental shelf claims—both 

accomplished in 2009.294 When interpreted under the 

intent of UNCLOS, establishment of EEZs is relatively 

straightforward in the Spratlys’ region.

Some aspects of EEZ claims in the South China 

Sea, however, are nonstandard or ambiguous, and 

their vigorous pursuit complicates the region’s maritime delimitation. For instance, Brunei uses its 200-nm 

EEZ to claim Louisa Reef, with two small rocks above 

high tide, and then claims an EEZ around those rocks 

extending it to an equidistant line with Vietnam’s 

zone that puts Rifleman Bank in Brunei’s super-extended EEZ. Such a claim is probably not sustainable, 

however, since effective occupation, not UNCLOS, is 

the method to claim Louisa Reef, and Brunei has not 

done so nor enforced its maritime laws effectively in 

the EEZ. Furthermore, rocks cannot generate an EEZ 

on their own.295 A different EEZ complication comes 

with the possibility of the Philippine’s annexing the 

Spratlys as integral to its archipelago. In 1978, President Ferdinand Marcos proclaimed Kalaya’an as part 

of the Philippines and established an EEZ around 

all the Philippine Islands—which some commentators believe included the Spratlys—which could give 

the Philippines an additional baseline to establish 

an EEZ.296 Although the Philippine government has 
58

not yet employed the archipelagic rules to annex the 

Spratlys, it reserves that option for the future. However, given the EEZ claims from neighboring states, 

this resolution to Spratlys’ ownership would probably 

only generate different disputes over the delimitation 

of conflicting EEZs.

Should ROC-occupied Itu Aba be determined as 

the only habitable island in the Spratlys, another EEZ 

complication arises. Itu Aba’s position inside the very 

western edge of the Philippine EEZ means it would 

probably have little to no EEZ of its own to its east, but 

to the west could control the waters in the erstwhile 

high seas from well north of Northeast Cay to Rifleman Bank.297 Should these be determined to be internal waters, as Vietnamese or Chinese historic waters, 

EEZs would be of diminished consequence in any scenario since these would be sovereign seas that would 

impinge upon the lesser authorities of an EEZ. These 

historic claims might complicate the South China Sea 

maritime disputes, however, based upon the extent 

of Vietnam and China’s ambiguous historic claims 

which probably overlap with the 200-nm EEZ originating from Indonesia’s undisputed Natuna Island, 

between Borneo and Vietnam. Each claim encompasses at least some of the proven Natuna maritime 

natural gas fields, and thereby embroils Indonesia in 

the South China Sea dispute.298 Within any of these 

scenarios, historic rights, like fishing access to an area 

or modified delimitation of a zone, may also be pursued against another country’s EEZ.299 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 tradi-
59

tional fishing areas, that cannot be otherwise attained 

through UNCLOS methods.300 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 in most cases 

occupying islands in the sterile Spratlys will probably 

gain little in the surrounding waters.301

In addition to the delimitation of EEZs, how they 

are 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 them under UNCLOS.302 At well over 

400-nm from the nearest Chinese landmass, no Chinese EEZ would influence the Spratly Islands region 

directly. However, should China start enforcing an 

EEZ around Itu Aba or other occupied features in the 

Spratlys, it would challenge foreign military vessels 

and aircraft to seek permission to operate within these 

EEZs as it now does in its mainland EEZ.303 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).304 China treats its EEZ as a military buffer zone, 

contending that U.S. military surveillance ships and 

reconnaissance flights violate the spirit of UNCLOS 

and China’s historic rights in the South China Sea, and 

seeks to restrict such activities.305 Thus PRC laws maintain peace in its EEZ by barring foreign military vessels citing 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.”306 If the coastal state’s laws are disputed, 

Chinese scholars declare that deference be given to the 
60

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.”307

The United States rejects this interpretation contending it is a minority view held by only 27 of the 

161 ratifying states (although significantly, Malaysia 

is also one of the states enforcing a restrictive EEZ).308

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.”309 Through applying maritime law 

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

adjunct to [its] military forces to achieve anti-access 

maritime objectives.”310 The triple problem of whether 

its occupied features can even generate an EEZ, the 

amount of EEZ such a feature 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.311 However, it could be a useful justification for 

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

a security standpoint, which China could then better 

defend militarily than legally. In the case of Malaysia, 

its coastline EEZ does encompass many of the Spratly 

Islands, but its contention that bars military vessels 

still keeps it 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. 
61

Continental Shelf Claims.

Although not a jurisdiction that includes a water 

column like the spaces discussed above, 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 meter isobaths or the depth 

of exploitability.312 By 1969 the International Court of 

Justice 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.313 The 

resulting UNCLOS articles updating this extended authority were a compromise that allowed a coastal state 

to control surrounding seabed to the natural length of 

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

the baseline, but also gave geographically challenged 

states with little adjacent continental shelf at least a 

200-nm EEZ that also controlled the seabed below it.314

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.315 In Articles 

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

airspace above it, to include navigation and the unfettered laying of submarine cables and pipelines.316

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.317
62

These rights over the more distant areas from the 

claimants’ shores come with more obligations than 

other UNCLOS zones in how they are delimitated. 

Here the claiming state must first scientifically stake 

the extent of its continental shelf beyond 200-nm with 

the UN’s Commission on the Limits of the Continental 

Shelf, which then must qualify it for technical compliance.318 This is an exacting process that must be 

completed within 10 years of ratification of UNCLOS, 

although many developing countries received an extension to May 2009. Even then the Philippines had 

to rush to meet this closing date in which it also established refined baselines that did not incorporate 

archipelagic rules, explaining an action cited earlier in 

this monograph. The Commission cannot qualify an 

extended continental shelf claim, however, if it is part 

of a territorial or maritime disagreement with another 

state, by the Rules of Procedure of the Commission.319

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.320 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.321

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 negotiated by two parties. Split continental 

shelf and superjacent EEZ ownership are uncommon, 

and no resolution in the Spratlys region has resorted 

to this yet—with the few negotiated settlements instead using a single line for both EEZ and continental 

shelf.322 These continental shelf rules, however, make 
63

already complicated circumstances around the Spratly 

Islands that much more difficult to resolve.

South China Sea continental shelf complications 

are manifested in novel sovereignty claims and overlapping maritime jurisdictions. China, the Philippines, 

Malaysia, and Brunei each make territorial claims to 

submerged features in the Spratlys, rather than maritime jurisdictional control over them as stipulated in 

UNCLOS.323 The three ASEAN states assert sovereignty over these submerged features based on their 

extended continental shelf. Unable to resort to historic 

or archipelagic claims, Malaysia relies on continental 

shelf extension as its second method to stake sovereignty over geologic features in addition to discovery 

and occupation. In its Continental Shelf Acts of 1966 and 

1969, based on the 1958 Law of the Sea Treaty, Malaysia 

stated its continental shelf is to 200 meters depth or 

the limit of exploitability. During the UNCLOS formulation discussions, Malaysia produced in 1979 its 

Map Showing the Territorial Waters and Continental Shelf 

Boundaries delimitating its extensive continental shelf 

and claiming all of its geologic features.324 Malaysia 

thus counts sovereignty over 12 islands and reefs:325

based principally on certain continental shelf provisions in the 1982 UNCLOS. . . . The clear inference 

from Malaysia’s claims is that a state possessing a continental shelf also possesses sovereign rights over land 

formations arising seaward from that shelf.326

Without an accompanying occupation of Louisa 

Reef or Rifleman Bank, Brunei’s sovereignty claim 

to both depends solely on its continental shelf and 

EEZ claims extending to a median line with Vietnam’s claims, as unilaterally made in 1985. Its justification follows arguments similar to those made by 
64

Malaysia.327 The Philippines claims Kalaya’an through 

the natural prolongation of its shelf, but also its contiguous nature to the Philippine islands and through 

occupation of some of the features.328 For each of these 

states, UNCLOS is an important way to defend its 

sovereignty over claimed parts of the Spratly Islands.

As with the other forms of claims, however, those 

made through UNCLOS have serious weaknesses. 

The first weakness is legal since, despite these interpretations, much of the international community does 

not recognize sovereignty claims to territory made 

through UNCLOS continental shelf articles, a purpose 

for which they were not intended.329 The second weakness is geographic. The natural prolongation of a continental shelf stretches only to a point on its slope that 

plunges to the ocean’s depths creating a natural marine boundary. Should a state’s shelf plunge close to 

shore, then it is limited to just its 200-nm EEZ. Malaysia, Brunei, and the Philippines’ claims to an extended 

continental shelf, much less sovereignty over geologic 

features in the extended area, fall short in the deep Palawan and Manila trenches which effectively moat off 

the length of the Spratly Islands from the main shores 

of all three states to their southeast.330 Thus Malaysia 

has determined its continental shelf limit only extends 

as far as its EEZ, while Brunei and the Philippines have 

not yet declared a continental shelf limit in the South 

China Sea.331 The very deep northern South China Sea 

extends a finger shielding virtually all of the Spratlys 

from Vietnam’s shelf also, to as far south as Rifleman 

Bank.332 Thus Vietnam makes no extended continental 

shelf claims encompassing the Spratlys, but has settled 

potential overlapping claims with Malaysia through a 

joint submission to the Commission on the Limits of 

the Continental Shelf, and has negotiated a boundary 

line with the PRC in the shallow Gulf of Tonkin.333 The 
65

sub-maritime geographic configuration of the Spratly 

Islands, then, is that of a relatively shallow sea table 

isolated by peripheral bands of much deeper waters. 

Although useful in establishing a jurisdiction over the 

resources of the contiguous seabed, the extended continental shelf allowed by UNCLOS does not sanction 

states to claim sovereignty over geologic features, and 

does not seem to apply geographically to the Spratly 

Islands even for extended control over its seabed.

The distance and the intervening ocean topography do not allow China to claim a continental shelf 

extension to the Spratlys from its homeland shores. 

However, interesting scenarios concerning the EEZ or 

continental shelf still ensue should China, or another 

state, convert one of its unique claims in the Spratlys, 

as already covered, into reality. The most vexing perhaps 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 subsurface features.334 This encompassing claim squarely 

conflicts with EEZ and continental shelf claims made 

by each of the ASEAN claimant states.335 In the southwestern part of the South China Sea, the depths are 

shallow at generally less than 200 meters and a submitted joint extended continental shelf claim splits 

the region with an equidistance median line between 

Vietnam and Malaysia.336 However, China’s historic 

claims cover much of this area and its actions seem 

to disregard UNCLOS assigned jurisdictions. For instance, in 1992 the PRC created the Crestone oil exploration block around Vanguard and Prince of Wales 

Banks (the most southwestern of all the Spratly features but also within 200-nm of the Vietnamese baseline, and both banks occupied by Vietnam), in order 

to conduct drilling operations within what otherwise 
66

would be Vietnamese jurisdiction.337 A similar problem exists in the southern South China Sea, where 

parts of Malaysia’s continental shelf down to only 200 

isobaths is claimed by the PRC in its U-shaped line 

to include North and South Luconia Shoals, Friendship Shoals, and James Shoals. This puts Malaysia’s 

EEZ and continental shelf claim in direct conflict with 

China’s historic claim, although here China has taken 

no actions to exploit its claim.338

Since the Spratly Islands sit on an elevated table of 

land mostly surrounded by continental shelf ending 

trenches, should Itu Aba or other islands be judged 

habitable, each could generate an EEZ and continental 

shelf extension claim of its own to at least the edge of 

the Spratlys’ shallow sea slope and to where the surrounding states’ EEZs or continental shelves did not 

overlap it.339 This scenario would remove nearly the 

entire available high seas to the southwest and north 

of Itu Aba, to the limits allowed by UNCLOS, from exploitation by other states.340 In another case, a successful Philippine archipelagic claim to Kalaya’an would 

gain an EEZ and continental shelf from the new archipelagic baselines that would absorb much of the 

current high seas areas in the southern South China 

Sea. The amount of high seas seabed available in the 

South China Sea is of interest to the United States 

since high seas areas are exploitable by any state for 

their resource wealth, 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. 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.
67

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” above that normally 

expected of other maritime states.341 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.342 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 geopolitical positions.343 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 Spratly 

Islands disputes.344 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, 

which makes this an important issue to address, in 

order to prevent miscommunication, accident, or impatience to be used to justify the use of force to settle 

the disputes.
68

Until now, however, the disputants have mainly 

resorted to making outsized claims to maximize any 

future negotiated outcome, or strengthen their case 

before arbitration or a tribunal.345 China, Vietnam, 

Malaysia, and the Philippines have each asserted sovereignty through discovery and occupation, the most 

internationally accepted legal method,346 and, in this, 

Vietnam leads with 29 garrisons or about as many as 

the rest of the stations in the Spratlys combined. Vietnam and China also make ill-defined historic claims as 

another approach to territory, waters, and/or rights, 

although a method not well-regarded by the international community and, in its collective judgment, lacking sufficient documentation in its application.347 Under UNCLOS principles, the Philippines has not yet 

tested its basis for Kalaya’an through the archipelagic 

articles, while land claims espoused by Malaysia, the 

Philippines, and Brunei through proximity, EEZs, or 

continental shelf extensions are dubious for legal or 

geographic reasons. None of the economically unproductive Spratlys may themselves even generate extended maritime zones, or, if some could, they would 

probably be given diminished domain against larger 

land masses under the equitable principle, thereby 

greatly reducing their significance and the importance 

of sovereignty over them.348 Although each of the disputants involved has 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.349 Under 

the current island sovereignty approach in the Spratly 

Islands dispute, probably “no government today can 

establish sufficiently substantial legal grounds to validate its claim in the eyes of the international community,”350 and these legal stances have done little so far 

to create solutions.351
69

U.S. INTERESTS AND RESPONSES TO THE 

ISSUES AROUND THE SPRATLY ISLANDS

With this background established, it is clear that 

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

interests. The information given so 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 well 

informed and nuanced. This section reviews the most 

relevant U.S. interests in the Spratly Islands region 

in terms of freedom of navigation, economic activities, and the competing U.S. roles of honest broker for 

peace and stability among the disputants and regional 

balancer 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 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 more the diplomatic, information, 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 Perry opened Japan in 1854.352 In particular, five 
70

important U.S. global interests are represented there 

today, including 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 providing support to U.S. allies and defense 

partners.353 Secretary of State Hillary Clinton reiterated these interests specifically for the South China 

Sea region at the ASEAN Regional Forum 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.354

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.355 However as an interested 

party, the United States is also maintaining a relatively 

balanced playing field which might make it a “little bit 

easier for the governments in the region to acquire the 

necessary political will” to resolve their disputes.356
71

Increased U.S. involvement may have started this 

process 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.357 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.

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.358 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.359 China, 

Vietnam, and Malaysia hold restrictive passage views 

concerning their coastal home waters and potentially 

in their claimed territorial waters, contiguous zone, 

and EEZs around the Spratly Islands. These positions 

place them at odds with most other states’ open-use 

positions, and China sees this issue as an excuse for the 

United States to continue to intervene in South China 

Sea issues.360 The PRC has more aggressively and consistently enforced such restrictions in its claims 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.361 After the 
72

1995 PRC occupation of Mischief Reef in the midst of 

the Philippine EEZ, the United States made clear its 

stance for freedom of navigation in the region, and in 

1998 specifically sent a carrier battle group near the 

Spratlys to assert American prerogatives.362 Thus the 

United States demonstrated how important it considers these rights for itself and those of other interested 

third parties like Japan.363

Despite the chronic tensions, with the growth of 

prosperity in the region, the need for stability and security, and 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.364 This 

better understanding may have contributed to Vietnam relaxing its coastal EEZ transit requirements in 

2012 to be more in accord with UNCLOS standards.365

As the PRC’s economy grows and its international 

commitments expand, China’s interests may converge 

with the more global U.S. views in balancing broad 

international maritime rights with coastal state rights 

that China now favors.366 The PRC is the world’s largest exporter and second largest importer, and thus 

highly depends on the maritime commons to keep its 

economy growing and 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.367 Among 

the largest merchant marine fleets and navies in the 

world, China’s perspective should transition to accept 

the majority interpretation of UNCLOS—meaning 
73

more open use of sea jurisdictions and a conventional 

interpretation of coastal states’ rights in its EEZ and 

territorial sea. 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 to enable completion of some of these suggestions.368

To spur this convergence of interests, specific steps 

should be taken by the United States to defuse the freedom of navigation issue, especially with China where 

the most active differences lie. The United States could 

back away from its insistence on exercising its rights 

to navigation 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 with 

support of others, but doing this for long could needlessly weaken U.S. and other states’ worldwide commitment to UNCLOS open-sea provisions.369 Instead, 

as the United States invites the PRC to take a more 

involved role in ensuring stability and security in the 

international commons, it 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 

although quite imperfectly applied it as a useful confidence building measure.370 The next step should follow the lead of the 1972 U.S.-Soviet Union Incidents at 

Sea Agreement (INCSEA).371 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 juris-
74

dictions. Through uniform procedures both sides may 

follow and observe ships from the other side, but may 

not interfere with their lawful passage, regardless of 

prior notification, cargo, arms, or type of propulsion.372

INCSEA is a practical, tested method which could be 

tailored to reduce tensions, support both sides longterm interests, and accelerate a process of confidence 

building between the two—especially in the ambiguous Spratly Islands region.373

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

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

region as envisioned by Secretary Clinton.374 A telling 

example followed the major 2009 incident involving 

the USS Impeccable, after which such incidents ceased 

as both sides realized that cooperation on issues like 

North Korea and the global economic recession were 

more important.375 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 Sino-U.S. Joint 

Maritime Search and Rescue Exercises,” as well as the 

Container Security Initiative signed in 2003 to combat 

terrorism.376 Because of their nature, some new initiatives would be easier to implement such as information exchanges on piracy and terrorism, and maritime 

disaster mitigation plans. With increased understanding and trust, combined personnel training for humanitarian missions or counterterrorism could fol-
75

low, with standardized procedures and methods for 

data and awareness sharing being developed.377 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.378

The most promising cooperation has been through 

the U.S. Coast Guard (USCG), which may be more 

politically acceptable to other governments when emphasizing its enforcement and rescue over its military 

roles.379 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.380 The 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.381 Coast Guard cooperation with China is a model to expand into other venues to increase understanding and reduce tensions for 

issues both sides deem imperative.

Other U.S. military services should also play a 

role in expanding trust and cooperation between the 

United States, China, and the Southeast Asian states 

through greater theater engagement using regionally 

aligned forces. This is especially true for land forces 
76

because armies tend to dominate the region’s defense 

forces in terms of budgets, leadership, and influence. 

A Department of Defense (DoD)-wide program to assign regionally aligned forces to the region’s militaries under U.S. Pacific Command (PACOM) integration would implement security assistance to enhance 

states’ military capabilities. This should allow the 

states in the dispute to negotiate in a more level environment, build regional understanding with guidance 

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

Regionally aligned forces entail specific units assigned 

in military-to-military partnerships resulting in a better understanding by U.S. forces of local cultures and 

languages, geography, military capabilities, and challenges.382 U.S. units and individuals gain insight and 

establish enduring personal relations through training-focused visits in platoon to battalion size units.383

This approach in Southeast Asia especially makes 

sense since China is the most likely U.S. peer rival, 

so that recurring engagements 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.

The emphasis on land force engagement also 

makes sense considering that the new AirSea Battle 

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

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

supporting and protecting the interests of allies and 

partners in the region. 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 U.S. Army, U.S. Marine Corps, and 
77

Special Operations forces as proposed by former Under Secretary of Defense for Policy Michele Flournoy.384 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 the United States to understand 

Chinese positions. 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.”385 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.

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, with the Army soon to add active duty conventional forces also. Special Forces units have long specialized to improve partner states’ capabilities, build 

their competence in the world’s regions as advisors 

and operators, and build interoperability and trusted 

relationships. The 1st Special Forces (SF) Group at Ft 

Bragg, NC, currently operates under Special Operations Command Pacific covering Southeast Asia, Chi-
78

na, and the rest of the Pacific region, along with the 

U.S. Army National Guard 19th SF Group headquartered in Draper, UT.386 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) and 97th CAB at Ft Bragg also align with PACOM, as does the Army Reserve 364th CA Brigade in 

Portland, OR.387 As part of its greater regional alignment initiative, in 2014 the 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.388

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

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.389 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 2006,390

and the People’s Army of Vietnam and Oregon National Guard partnered in 2012.391 State Partnership 

Programs are sought-after force enablers which are 

part of PACOM’s theater security cooperation plan. 

These partnerships facilitate stability and security by 

building partner capacity through exchanging military skills and experience, professional development, 

exercising, and interagency cooperation.392
79

As U.S. strategy emphasizes the Asia-Pacific region, aligning more Army units to support PACOM’s 

security and engagement plans is a needed initiative 

for peacetime shaping operations in order to resort 

less to direct intervention.393 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.394 One easy-to-correct flaw in the active 

duty conventional unit regional alignment scheme is 

that units are only assigned to support a region for 

1 year, unlike the long-term engagements of SF, CA, 

and State Partnership units.395 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 reduce, more units should be regionally aligned to PACOM to allow them to focus on 

a sub-region like the states bordering the South China 

Sea.396 The current scheme has SF, CA, and conventional forces supporting PACOM from Mongolia to New 

Zealand which dilutes the merits of regionalization. 

Units assigned to smaller regions or even to critical 

countries, 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.
80

Regional alignment and specialization of units to 

engagement and shaping tasks does come with problems and challenges. The first challenge is to get the 

affected states 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 reluctant participant because of its need to balance U.S. overtures 

with those of the Chinese and its past history with the 

United States. Malaysia, more distant and on better 

terms with the PRC than the other two, has cordial 

military contacts with the United States but has not, 

for instance, elected to partake in the State Partnership Program.397 As noted earlier in this section, the 

nature of engagement with the PRC would be different than with the ASEAN countries, emphasizing different tasks and units, as accomplished by the USCG, 

and must overcome deep historic and geopolitical 

mistrust.398

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 have to be protected too, 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.399 Of course, task, equipment, and personnel 

specialization comes with a price to large unit combat 

skills, flexibility, and traditional force structure.400 In 

a major operation elsewhere that requires the use of 

PACOM aligned units, all of this specialization will be 

for naught, and necessary maneuver, fire, and effects 
81

skills not as strong as their more often used engagement skills.401 In austere fiscal times, however, some 

risk must be assumed in strategy and force structure 

decisions, as U.S. Army Chief of Staff, General Raymond Odierno, has made 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. . . .402

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.403 In austere fiscal times, one 

potential advantage of regionally aligned forces rotating into a region is that less infrastructure and cost is 

required in comparison to as many units permanently 

stationed overseas.404

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 and legal grounds to better 

support the rules-based-order that the United States 

espouses, but also to be able to directly guide and protect U.S. interests in international fora and on the seas. 

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 provisions of UNCLOS, like maritime 

jurisdictions and rights of passage, are in accord with 

U.S. policy so that U.S. domestic laws generally adhere 

to UNCLOS statutes, as they also do with customary 

international laws.405 The Departments of Defense and 
82

State both support ratification to give the United States 

“greater credibility in invoking the convention’s rules 

and a greater ability to enforce them.”406 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.407 A direct American voice in the Law of the Sea Treaty debates would 

give the United States a stronger voice advocating for 

freedom of navigation and other U.S. interests, thus 

countering the historic trend toward circumscribing 

rights and limiting areas of operation on the high seas. 

Foreign military navigation rights through an EEZ are 

a prime example of such restrictions, with 27 countries 

supporting Chinese, Vietnamese, and Malaysian positions, including major maritime states such as India 

and Brazil.408 The Senate needs to ratify this treaty to 

allow the United States to actively defend 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 adjudicate effectively an area as openly used as the South China 

Sea, and the ensuing disputes unnecessarily hobble 

economic development and peace.409 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.410 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.411 Nonetheless, their restrictive interpretations of transit rules in conjunction with 
83

expansive Chinese and Vietnamese claims to historic 

waters, if enforced, could 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.412 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.”413

To defuse this problem what is required is that 

China and Vietnam declare what their historic rights 

entail—for example, waters, islands, rights to activities, or some combination—and where they are 

claimed, since China has not explained its U-shaped 

claim beyond publishing a map.414 So far, it has cost 

the historic claimants little to hold these bargaining 

positions with such sweeping ambiguous claims, and 

it has become a convenient distraction and delaying 

tactic. 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. 415 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 multilayered “insurance” approach each state employs. Either 

method could successfully remove the dead weight 

of historic claims to allow much needed economic development around the Spratlys, while also reducing 

the specter of security threats that could derail other 

initiatives and engulf the region in violence.
84

Vietnam will find it particularly difficult to uphold its less documented and shorter duration historic 

claim against China in a legal dispute, nor can it militarily match China’s ability to back its historic claim 

with might (as proven by Vietnam’s physical loss of 

the Paracel Islands, also a Vietnamese historic claim, 

to Chinese occupation). However, Vietnam does have 

a strong occupation presence in the Spratlys upon 

which to rely. It might be convinced to transform its 

undefined historic claims for the steadier position of 

occupation and UNCLOS laws, especially if given 

strong international support for current Vietnamese 

island sovereignty, and coastal EEZ and continental 

shelf claims that comply with UNCLOS. Such a policy 

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.416 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.417 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 and innocent 

passage in its territorial seas, and drop its claim to historic waters or title in the South China Sea.

Unfortunately, there may be less incentive for China to clarify any of its claims in the Spratly Islands. 

There are legal and political advantages for China to 

obscure its historic, other customary, and UNCLOS 
85

based claims by “rigidly refus[ing] to clarify the basis 

for its claims.”418 China’s historic claims are challenged 

in the international community. Its occupation claims 

(except for Taiwan’s Itu Aba) are also on literal and 

figurative shifting ground, and it has little recourse to 

coastal EEZ or proximity claims in the Spratly Islands. 

An ambiguous stance therefore allows China to shift 

its claim-support as circumstances dictate and not be 

held accountable to defend its claims in the context of 

international law, “even as the growth of its military 

and maritime assets gain physical leverage over its 

weaker neighbors.”419 China may use ambiguity as a 

way to deflect U.S. and other outside maritime states’ 

involvement by obscuring issues during negotiations, 

and thereby keep what it considers regional bilateral 

issues from being internationalized.420 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.421 China may 

be playing a weak 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 desiring 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 it, especially if mutually acceptable 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 
86

historic waters being “gradually turned into the EEZ 

and continental shelf of the Paracel and Spratly archipelagos,” without actually foregoing yet its assertions 

for historic rights.422 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 

by Secretary Clinton.423 PACOM’s regional strategy 

also 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,”424 making this economic issue one also 

linked to security. Within the bounds of UNCLOS, 

economic access includes universal rights for commercial shipping and the opportunity to exploit the 

natural resources of the high seas. 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 maritime jurisdictions.425 Thus, the issue of 

commercial passage through the South China Sea, an 

important U.S. national interest, is directly linked to 

the determination of historic waters in the region. 
87

If commercial navigation is not currently a problem, commercial exploitation of South China Sea resources may be. By 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, are the common heritage of mankind, the exploration and exploitation of which shall 

be carried out for the benefit of mankind.”426

Although UNCLOS does regulate fishing and mineral extraction that are the most common forms of economic use in these deep sea areas,427 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 Sea-Bed Authority (ISA) to regulate the remote gathering of strategic 

metals from the seabed floor, considered the potentially most lucrative activity of the high seas, and to 

provide for distribution of part of the gained profits to 

all nations.428 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,429

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.430

Each of the South China Sea states has demonstrated 

its desire to maximize natural resource gains from the 

sea, which this monograph has shown is a major factor in the disputes and violence among them.431 U.S. 

interests in the economic uses of the high seas would 

be governed by UNCLOS if the United States joins, 
88

but potentially also by the South China Sea neighbors 

based on their maritime claims or cooperative administration as a semi-enclosed sea.432

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—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.433 Should China succeed in its claim 

for the Paracel Islands and prove they are habitable, 

which is better supported than any of the Spratlys being so designated, a large swath around Macclesfield 

Bank would become Chinese EEZ and significantly reduce the size of the northern high seas area.434 Should 

Itu Aba or other Spratly Islands be awarded to a state 

and recognized as habitable, or if the Philippines establishes its claim to Kalaya’an through archipelagic 

rules, then nearly all of the South China Sea would 

be blotted from high sea status because the newly established EEZs would butt up against those from the 

main lands.435 Commercial rights to sea life, mineral, 

and energy resources on the high seas depends in part 

on how territorial claims and maritime jurisdictions 

are delimitated based on island sovereignty, because 

the remainder becomes high seas for any state’s access. How this is resolved is of interest to the United 

States to ensure open access to the high seas here and 

elsewhere in the world, and to maintain the peace. 
89

U.S. economic interests face two problems then 

in the Spratly Islands region: the UNCLOS rules concerning exploitation of the high seas, and whether 

there may even be high seas available in the area. The 

United States has not formally ratified UNCLOS for 

several reasons, a main one is that objections to Part XI 

cover exploitation of the deep seabed. Its provisions 

are considered statist and not free-market oriented, 

and the ISA is expensive and inefficient.436 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, they argue, these political issues 

do no change whether the United States is a member 

or not.437 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.438 By its present stance, 

the United States gains freedom from the ISA to potentially mine sea bed 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 Sea Treaty system to guide it and employ its provisions for future 

U.S. benefit. 

Of greater importance for U.S. interests than the 

rules covering the economic exploitation of the high 

seas are the regimes that may govern these waters. In 

addition to the different possibilities for maritime ju-
90

risdictions based on awarded sovereignty presented 

herein, several multilateral governing regimes have 

been proposed, especially diplomatic solutions relying on joint development of the sovereign and/or international zones of the South China Sea. Indonesian 

scholar Hasjim Djalal proposed a “doughnut formula” 

in which the international waters at the center of the 

South China Sea would be managed by the neighboring states 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 per UNCLOS Article 123.439 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.440

On a small scale, successful joint development areas 

already operate between Vietnam and Malaysia (with 

weak joint commission oversight), and Thailand and 

Malaysia (with strong oversight).441 Such cooperative 

agreements could be expanded to be multilateral and 

cover some or all of the Spratly Islands or the entire 

South China Sea. By sharing resources and finally generating some of its economic potential, joint management could calm the conflicts among the South China 

Sea parties. 

Several models of joint development have been offered, which vary in how much sovereignty the group 

claims over the high seas, how dominant anyone state 

is in controlling the region’s administration, and the 

acceptance of such solutions and participation by the 

international community. One precedent proposed is 

to apply the Svalbard Treaty of 1920 as a model for 

the Spratly Islands, granting one state restricted pow-
91

ers as the administrator over the islands, while other 

treaty participants would retain wide economic rights 

to the area and continue to use currently occupied 

land features which would be demilitarized.442 Which 

country would be given control would be contentious 

with China vying as the dominant power (militarily, 

in its historic assertion, and as occupier of Itu Aba the 

key Spratly land feature) to which the others would 

probably not agree. Valencia, Van Dyke, and Ludwig 

refine this concept, adding a Spratly Management 

Authority administered in one of three ways: shares 

are given and China holds a plurality stake; the area 

is managed through bilateral agreements between 

China and the other states; or the Authority is open 

to admittance by all states that ratify a Svalbard-like 

“Spratly Islands Treaty.”443 This third solution awards 

sovereignty of the islands to a state, but shares its development and profits with other states that invest under the agreement. Opening the treaty to all states to 

sign and participate would give it wider international 

legitimacy that the current unilateral state claims lack, 

and could ensure that the high seas remain international for economic development. 

A variation to this Svalbard solution is that the disputant states submit to UNCLOS archipelagic rules in 

defining the Spratlys and then divide interests in the 

entity. In this case, one of the weakest states, the Philippines, would have to be the sovereign as the only eligible archipelagic state. The responsibilities and benefits for the economic development and administration 

of the region could be split among the five claimants 

in several ways, but if coastline length on the South 

China Sea were used (which is what the International 

Court of Justice uses when adjusting for fairness under the “equity principle”), the shares would be: PRC 
92

and Taiwan, 37 percent; the Philippines, 28 percent; 

Vietnam, 20 percent; Malaysia 14, percent; and Brunei, 

2 percent.444 This solution, too, would award clear sovereignty to one state, and, as part of an archipelago, 

the Spratlys would have baselines that generate an 

EEZ which would encompass most of the current high 

seas. This solution fulfills Secretary Clinton’s goals of 

land and maritime claims based on recognized international (UNCLOS) law in a collaborative diplomatic 

process.445 Awarding sovereignty to one of the militarily and economically weakest states in the region 

might hold appeal to the other disputants, especially 

if China gets the most shares. The United States might 

also concur with a traditional ally as the choice. This 

solution would eliminate, however, most of the high 

seas areas in the South China Sea, and shut out other 

states from use of the region.

The opposite approach to assigning sovereignty 

over the islands and sharing in their economic development is to follow the Antarctica Treaty System 

model in the Spratlys. Applying Antarctic Treaty principles here would envisage that all land claims and 

resource interests be set aside (neither recognized nor 

renounced), the region be demilitarized, and environmental protections and scientific research take precedence.446 Rather than a state, an international body like 

the proposed “International Spratly Authority” composed of treaty members with demonstrated interests 

in the region, would oversee the area’s economic development under a scheme similar to the Convention 

on the Regulation of Antarctic Mineral Resource Activities. The region could also become a marine park 

under rules similar to Antarctica’s Environmental 

Protection Protocol and UNCLOS provisions enjoining states around a semi-enclosed sea to protect its en-
93

vironment.447 The languishing Coordinating Body of 

the Seas of East Asia (COBSEA) could be revitalized 

under this scheme to better coordinate and manage 

fisheries and protection of the environment.448 Under this scheme, no sovereignty is awarded, and the 

waters remain international. Occupying states could 

retain their bases, as research stations are maintained 

in Antarctica, but would have to be demilitarized. Although China, Malaysia, Japan, and the United States 

are among the signatories of the Antarctic Treaty, a 

similar South China Sea Treaty would probably be rejected by the claiming states, especially the dominant 

state China, for their loss of economic opportunity and 

reduced security interests. For the United States, this 

solution meets its stated national interests and uses a 

collective diplomatic process to arrive at a solution. 

But without the support of the South China Sea states, 

there is little prospect for long-term security or stability; thus, this would not be a viable option. 

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 group entity. In some of these options, a jointly 

shared regional commons is formed around the Spratlys through combining historic interests or the convenient interpretation that maritime jurisdictions are 

generated from the islands. The resulting commons 

then pools the region’s resources 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 nation-
94

al maritime jurisdictions and shared claims through 

a condominium would eliminate all international waters from the South China Sea.449 Although still very 

hypothetical, such joint solutions, that liberally interpret international law to economically benefit regional 

states and bring peace and security to the region at the 

expense of the economic interests of outside parties, 

pose a dilemma for the United States. A condominium 

solution may impede the potential to exploit the high 

seas in the region, or introduce undetermined restrictions to navigation, both contrary to U.S. interests. 

On the other hand, such a solution would 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. The ensuing conflict in U.S. goals for 

the region means that, if such solutions are seriously 

proposed, they need to include wide international influence to balance all interests and be open to all states 

much like the Svalbard Treaty. Although these would 

be difficult negotiations, if successful, they would 

produce enduring and positive results for all of the 

parties involved. 

Some of these joint development solutions 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, but of which other leaders are wary.450 This enduring Chinese perspective has 

burdened cooperative proposals and the DOC, signed 

in 2002 by the PRC and ASEAN, which established 

a political framework for peace and stability in the 

region, and potential for cooperative development 

agreements among the parties.451 The only multilat-
95

eral economic arrangement pursued so far has been 

the JMSU in 2005 in which the state oil companies 

from the PRC, Vietnam, and the Philippines agreed to 

conduct joint seismic surveys for oil in their disputed 

areas as a confidence building measure.452 The agreement expired in acrimony in 2008, however, because 

the smaller states believed the PRC only wished to 

explore in disputed areas near their shores, but not in 

contested areas in which China was unilaterally exploiting.453 Despite this failure and China’s overbearing policy, U.S. policy supports joint projects in the 

region such as the start of drafting a code of conduct 

to the DOC in 2011.454 The United States also supports 

Philippine President Benigno Aquino’s proposal for 

the multilateral Zone of Peace, Freedom, Friendship, 

and Cooperation to establish joint research and economic development bodies over undisputed areas, 

which has proven difficult to implement since everything in the region seems disputed.455

Any joint development or governing deal in the 

South China Sea is burdened by the lack of compromise and division among the ASEAN countries, and 

distrust of a domineering PRC as demonstrated in 

this monograph.456 The PRC, for its part, is also suspicious that other states are encroaching on its claims 

and prosperity.457 An analysis of this situation by the 

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 . . . are pushing claimants toward more assertive behavior. . . . [C]laimants 

would benefit from taking concrete steps toward the 
96

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.458

Thus, it is unlikely that China will enter into 

negotiations or a cooperative economic agreement as 

an equal with other regional sovereign states, which 

affects the United States and ASEAN countries’ 

approaches in this region.459 The proposals discussed 

here show that the South China Sea disputes persist 

not for lack of innovative solutions, but because of 

the lack of political will and domestic agendas of the 

participants. 

United States: Honest Broker or Balancer?

Based on U.S. interests and policies 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 navigation and economic development, 

and as changing circumstances dictate. 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.460 The new Secretary of Defense, Chuck 

Hagel, has also stressed addressing threats through 

engagement.461 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 Unit-
97

ed States to take some parochial positions for its own 

benefit or to support an enduring overall solution.462

These U.S. approaches 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.463

Brzezinski recently summed up this dual role for the 

United States as the “balancer and conciliator between 

the major powers in the East.“464 This could be similar 

to the U.S. position between Taiwan and the PRC in 

that it both supports and restrains its partner while 

also constructively engaging a sometime competitor 

and collaborator. For this reason, harmonizing these 

two roles is crucial to American, ASEAN, and Chinese 

long-term interests in regional peace, cooperation, 

and prosperity.

When it serves to advance solutions in the Spratly Islands, 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.465 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.466 The role of honest broker in the 

South China Sea will encourage this engagement with 

China as equals, while offering additional benefits of 

allowing the United States to represent general international interests in the region, and dampen ASEAN 

claimants’ potential to overplay a position when the 

United States acts as a balancer on their behalf.467 As 
98

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.468

Following this line, PACOM’s strategy supports 

multilateral approaches with regional groups like 

ASEAN to develop relationships that build trust 

and reinforce international norms, and also engages 

with China to achieve a variety of common bilateral 

and multilateral goals.

469 Secretary Clinton especially singled out the long awaited 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.470 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.471

U.S. and regional state interests are best served 

with an involved United States that can play the conciliator role when needed. This monograph has outlined why U.S. interests are served this way, but so 

are regional stability and peace. 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.472 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 nega-
99

tive legacy that makes it distrusted in the region, can 

substitute in this role.473 Indonesia, through the Track 

II talks it has hosted since 1990, has played the role of 

diplomatic conciliator in the South China Sea disputes, 

but Indonesia, too, has maritime conflicts with China 

and lacks the substantial resources that the United 

States can bring to influencing solutions.474 The United 

States can be a good mediator because it has enough 

interests in the disputes to remain engaged, the power 

to be heeded in council, important overlapping interests with each party (especially China) to be cautious 

and balanced, sufficient distance from the region to 

prefer local initiatives and solutions, and is willing 

to include all affected states in the process through 

programs like its Global Maritime Partnership.475

This U.S. stance has been called “active neutrality,” 

but when necessary that includes direct actions like 

confronting the PRC when U.S. navigation interests 

are threatened, while also restraining an ally, such as 

when President Obama reminded President Aquino, 

when looking for more support for Philippine claims, 

that, “The United States will provide support for principled negotiations and a peaceful resolution, but not 

specific outcomes.”476 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, but 

the United States has done so by allowing the states 

involved to take the initiative for mediation.477

As shown, however, the U.S. position has not been 

strictly neutral, and the United States has become 

involved in disputes when deemed necessary. Until 

the 1995 Mischief Reef incident, the United States did 

not intervene in the Spratlys because the disputes did 

not affect global stability or major U.S. interests. Since 
100

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 has 

become more willing to intervene.478 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.479 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. The ASEAN states have found China’s 

claims and behavior in the region to be overbearing 

and threatening, and quietly welcome the U.S. commitment to deterring potential aggression from the 

PRC to ensure security and allow negotiations toward 

a settlement.480 Their fear is that when vital Chinese 

interests have been threatened, the PRC has resorted 

to conflict to protect them, even against a superior 

power, 481 and there is a possibility that the South 

China Sea may prove to be one of those core Chinese 

interests.482 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-of-power much less 

significant.”483

Partiality in the disputes is due in part because the 

United States holds formal defense treaty alliances 

with Japan and the Philippines. The United States and 

the Philippines share a 1951 Mutual Defense Treaty 

which was reaffirmed by both defense chiefs in June 

2013. It is usually interpreted not to include defending 
101

the disputed Spratly Islands, however, and the United 

States did not, for instance, intervene in the Philippine’s Mischief Reef incident with the PRC.484 However, the treaty also allows the Philippines to request 

assistance from the United States if any of its forces 

are attacked anywhere in the Pacific region, which 

could apply to some scenarios in the South China Sea. 

The Southeast Asia Collective Defense Treaty also requires the United States to take action for the common 

defense (both the Philippines and Thailand) if peace 

in the treaty area is threatened; the treaty area specifically includes the South China Sea.485 Although the 

organization part of the Southeast Asia Treaty Organization (SEATO) dissolved in 1977, the collective defense treaty and its obligations remain in effect.486 The 

Obama administration has also worked to promote 

more unity within ASEAN, which has no real defense 

arrangement, to better withstand Chinese pressure. 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.”487 Brzezinski 

concludes that in Asia the United States should play 

the dual role of conciliator and regional balancer, as 

the United Kingdom (UK) did in 19th-century European politics, by “mediating conflicts and offsetting 

power imbalances among potential rivals.”488

American balancing actions have weighed against 

China when needed but usually in a way to not endanger its role as conciliator. 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 ac-
102

tions 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 to 

procedure, while offering the olive branch of conciliation at the same time to rectify the situation.489 Balancing also means strengthening the ASEAN states’ 

military capabilities through establishing or strengthening military cooperation agreements and forward 

deploying U.S. forces into East Asia.490 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 clout.491 U.S. intervention has been overt as well. The United States, 

for instance, loudly condemned Chinese actions to 

establish the Sansha municipality on the South China 

Sea islands, while not criticizing similar earlier actions 

by Vietnam and the Philippines.492 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.”493 However, for the 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. . . .”494

The United States must adroitly manage its dual 

roles. Because of its own interests and formal obligations, the United States should continue to play the 

balancer role, but needs to account for the significant 

benefits and hazards to the region in terms of peace 
103

and stability.495 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).496 For instance, after Secretary Clinton’s greater interest in the South China Seas at the 2010 ARF, 

a Vietnamese diplomat could exclaim that China did 

not take Vietnam seriously before, but “they talk to 

us now.”497 The United States must be alert, however, 

to not let such support embolden some states and increase regional instability, as a Philippine presidential 

spokesperson appeared to do when commenting that 

the U.S. presence “bolsters our ability to assert our 

sovereignty over certain areas.”498 United States support to a common ASEAN position in the South China 

Seas could be seen as hostile by the Chinese and make 

the region more violent.499 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.500 Too much 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.501

Because of many mutual interests and strong economic embrace, the United States must remain delicate and agile in its involvement in the region, but it 

must 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 bal-
104

ancer, the United States sets the conditions needed for 

all states to engage as bilateral or multilateral equals 

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 or combination of states, 

and is sometimes obligated by treaty to do so. China 

and the ASEAN states should accept the United States 

as an honest broker to keep America’s role relatively 

neutral, but also allow it to balance to ensure better 

solutions are determined in equal negotiations or under international law. Should the United States play 

its dual roles correctly, it can be called upon to be both 

mediator and deterrent to aggression as envisioned 

by former Philippine President Fidel Ramos.502 Should 

the United States over emphasize either role, it could 

embolden aggression by appearing too weak to enforce stability or too partisan to contribute to peace. 

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.“503

CONCLUSION

The region around the Spratly Islands and the 

South China Sea may be called the Dangerous Ground 

indeed. It is fraught with physical, economic, political, 

and military hazards that require delicate navigation. 

This region is important to the economies of the surrounding states in terms of the fish they eat and sell 

and the vast potential for natural gas and oil needed to 
105

fuel their growing economies. This bonanza of riches 

spurs much of the out-sized 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 the region and the world. Although the waters around the Spratly Islands are economically important, the islands themselves have not 

been. However, occupation of the islands dictate control of the surrounding sea’s wealth and navigation, 

and could legally or militarily control maritime traffic 

and the waters’ economic exploitation. Thus, the land 

features are important to these states for security purposes, and because possession of them may be the key 

to controlling the coveted surrounding waters. Claim 

and authority over these land features is strengthened 

by the establishment of around 50 remote military 

garrisons on these islets, which increases the militarization of the dispute with an increased risk of conflict. 

Although direct military confrontations among 

the claimant states 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 its own interests in maintaining freedom of navigation rights and economic 

development of the international sea bed, 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 region through 
106

confrontation with the PRC over rights of navigation 

through claimed waters and in support of partners 

and allies. The United States must be wary, then, of 

both overplaying its position or having an ally 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 Spratlys 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 they also 

use the doctrine of occupation to claim some land features, the method which the Philippines and Malaysia 

also employ. The establishment of UNCLOS precepts 

made otherwise unproductive land features valuable. 

Establishing control over them using customary law 

has sometimes spurred clashes. 

Since the historic claims are expansive and unconvincingly documented in the views of many experts, 

claims made through discovery and occupation are 
107

more influential. In this, Vietnam, the Philippines, 

Malaysia, the PRC, and Taiwan each lay claim to parts 

of Spratly features based on their status as once res 

nullis during various times in modern history. Taiwan 

also claims all of the land features based on its occupation of the largest island which is an interpretation 

of customary law that is in dispute. The Philippines 

Kalaya’an claim to most of the islands through its proximity is not backed with effective occupation. Each of 

these states supports its claims with efforts at effective 

administration through establishing laws governing 

its possessions under municipal governments, economic activities, or military occupation. Each state’s 

claims are also disputed with counter-claims by other 

South China Sea states leaving physical possession of 

a feature the surest guide to ownership with no state 

holding effective legal sovereignty over all. General 

recognition of the current occupation situation of the 

Spratly Islands would settle some of the disputes, but 

could launch other dangerous problems through a 

new round of seizures, claims, and possible violence 

to gain the potential benefits of as yet unoccupied 

land features.

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 
108

only some of the occupied areas in the Spratlys eligible to establish a modest maritime jurisdiction, and 

probably none meet the habitable standard to garner 

full jurisdiction. This would leave the waters around 

the Spratlys mainly under the maritime control of 

the surrounding land masses, or as international waters unless the claiming states cooperate under the 

guise of the enclosed sea rules 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 nearfull sovereign control, which could be disruptive to 

economic and navigation activities if awarded to any 

state to govern all of the Spratly waters. Vietnam or 

China, for instance, could control the entire South 

China Sea if either historic claim was affirmed, or the 

Philippines would control its Kalaya’an claim with an 

extensive EEZ if the Spratlys were determined to be an 

extension of the Philippine archipelago. Islands above 

the high tide mark establish territorial waters and a 

contiguous zone, which would carve 24-nm zones like 

Swiss cheese around the Spratlys, but should allow innocent passage even if restricting most other maritime 

activities. However, Vietnam, Malaysia, and China 

do not recognize innocent passage for naval ships, 

which makes such zones a major concern for the U.S. 

Government. 

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, some states 
109

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 under 

several scenarios then 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 like China, which is the most 

active in enforcing a restrictive EEZ. 

Freedom of navigation in the South China Sea is 

the most immediate concern for the United States to 

ensure naval vessels retain all the rights of access allowed in the region under international maritime law. 

Current policies in China, Vietnam, and Malaysia restrict foreign naval activity 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 to reduce the number of maritime incidents between the two countries. Concluding an Incidents at Sea Agreement 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 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. 
110

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 pursue 

U.S. policy that countries comply with generally accepted views of international law. 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. The United States has 

several options in the region to preserve freedom of 

navigation in the South China Sea.

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 has been 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 
111

yet to become commercially viable. However, while 

the United States remains outside the treaty, 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 stability and 

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 attaining a diplomatic settlement 

through recognized international law. 

Joint solutions could include a sharing arrangement through a Svalbard-like Spratly Islands Treaty 

in which the United States could participate, or shares 

in a Philippine administered archipelagic annexation 

from which the United States would be excluded. 

A different approach in which no sovereignty was 

awarded would follow the Antarctic Treaty model in 

which the Spratlys would be administered by an international authority, but the resulting diminution of 

bordering states’ security and development interests 

in this choice makes it less viable. Any joint or shared 

solution would be more acceptable to the international community if outside states could also be a party to 

it, but the more inclusive a solution the less attractive 

it becomes to the PRC which sees itself as the original sole owner with a growing ability to enforce that 

claim. To support any of the joint 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, and its own freedom of navigation and 

economic interests, the United States must delicately 
112

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, 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 Spratly Islands 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 limits 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 by U.S. treaty obligation to the Philippines, and 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 ASEAN states’ military capabilities and cooperation, and challenged Chinese actions which Chinese officials have complained “internationalizes” the 

issues. The balancing role should be minimal so as not 

to 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 ultimately all the 

states 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, 
113

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 allies and 

partners may represent themselves as full sovereign 

states in 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. 

The importance of the Spratly Islands region to 

world trade, energy, and security; the intricacy of the 

bitter problems involved; and its own interests require careful American involvement in this Dangerous Ground. To best address the disputes, policymakers must understand the underlying territorial and 

maritime claims of the PRC, Taiwan, Vietnam, Malaysia, Indonesia, Brunei, and the Philippines 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 Spratly Islands is not one for 

the United States to solve, but its ability to contribute, 

facilitate, balance, or support is necessary to achieve a 

solution from which all may benefit.
114

ENDNOTES

1. 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 2st Century Sea Power, Newport, RI: 

Naval Institute Press, 2010, pp. 479-480.

2. Jon M. Van Dyke and Dale L. Bennet, “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; 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-new-dangerous-ground-for-us-china-rivalry/; and Mark J. 

Valencia, “The Spratly Islands: Dangerous Ground in the South 

China Sea,” Pacific Review, Vol. 1, No. 4, 1988, p. 438.

3. The number of features counted in the South China Sea 

varies widely depending on the definitions used. The criteria includes whether a feature is exposed above sea level or not, but 

some are debated as marginal and could go either way. 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 for analysis. While Hong’s count of 170 features is 

cited here, Greenfield cites 500 features, 100 of which have been 

named, and 20 are above sea level at high tide (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. 27-28), and Fravel counts 

230 features in the Spratleys alone (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. 34). David Lai reports 30,000 features in the Spratlys, with 50 

considered as islands (David Lai, The United States and China in 

Power Transition,” Carlisle, PA: Strategic Studies Institute, U.S. 

Army War College, 2011, p. 131). Such technicalities are important and much disputed since they influence island sovereignty 

and maritime claim issues. For ease of reference, the South China 
115

Sea discussion herein does not include the waters south or west of 

the line drawn from southern most coastal Sarawak on Borneo to 

the southernmost point in Vietnam running through Indonesia’s 

Natuna Basar (Island). This excludes Cambodia, Thailand, and 

Singapore from the discussion, but their influence is no greater 

in these particular disputes than other Southeast Asian states like 

Laos, Burma, or East Timor.

4. Nong Hong, UNCLOS and Ocean Dispute Settlement: Law 

and Politics in the South China Sea, New York: Routledge, 2011, pp. 

55, 57; “South China Sea,” Washington, DC: United States Energy 

Information Administration (USEIA), February 7, 2013, available 

from www.eia.gov/countries/regions-topics.cfm?fips=SCS; and 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 

https:// www.hsdl.org/?view&did=730456.

5. Greenfield, “China and the Law of the Sea,” pp. 28, 34; 

Van Dyke and Bennett, p. 54; and “South China Sea,” Map 

737328, Washington, DC: Central Intelligence Agency (CIA), 

December 1995.

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, pp. 43-4; and Dolven, Kan, and Manyin, p. 20.

8. Note: Not all of the seafood reported here originated in 

the South China Sea, but this sea is a major source. International Crisis Group (ICG), “The South China Sea (II): Regional Responses,” Asia Report 229, Beijing/Jakarta/Brussels: ICG, July 24, 

2012, pp. 16-17, available from www.crisisgroup.org/en/regions/asia/

north-east-asia/china/229-stirring-up-the-south-china-sea-ii-regionalresponses.aspx.

9. Hong, p. 220; and Valencia, Van Dyke, and Ludwig, p. 188.
116

10. Valencia, Van Dyke, and Ludwig, p. 188; ICG, “The South 

China Sea (II),” 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, Confidence-Building Measures, and the Spratly Islands Disputes, Westport, 

CT: Praeger Publishers, 2002.

11. Fravel, p. 37; ICG, “The South China Sea (II),” 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.

12. 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/Jun 2010, pp. 37-8; Hong, p. 5; and Pan.

13. “Spratly Islands,” The 2012 World Factbook, Washington, 

DC: CIA, 2012, available from https://www.cia.gov/library/publications/the-world-factbook/geos/ni.html; Ramses Amer, “Ongoing Efforts in Conflict Management,” Kivimaki, ed., p. 120; and Valencia, Van Dyke, and Ludwig, p. 10.

14. USEIA, “South China Sea.”

15. In 2011, China ranks between 15th and 17th worldwide 

in proven oil reserves, and 13th in natural gas. However, as the 

world’s largest consumer of energy, and second largest consumer 

of oil, it 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,” Washington, DC: USEIA, September 4, 2012, available 

from www.eia.gov/countries/country-data.cfm?fips=CH; and CIA, 

“South China Sea.”

16. 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 Andrew Higgins, “In South China Sea, a Dispute over Energy,” Washington Post, September 7, 2011, available from www.

washingtonpost.com/world/asia-pacific/in-south-china-sea-a-disputeover-energy/2011/09/07/gIQA0PrQaK_story.html.
117

17. Valencia, Van Dyke, and Ludwig, pp. 9-10; and Stein Tonnesson, “The Economic Dimension: Natural Resources and Sea 

Lanes,” Kivimaki, ed., pp. 56-57.

18. Hong, p. 75; and Dolven, Kan, and Manyin, p. 22.

19. ICG, “The South China Sea (II),” p. 15; Higgins; and 

USEIA, “South China Sea.”

20. Hong, p. 66.

21. USEIA, “South China Sea.”

22. ICG, “The South China Sea (II),” 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.

23. Fravel, 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 between 

Russia’s Gazprom and PetroVietnam to explore two blocks on the 

Vietnamese continental shelf signed in April 2012, or joint exploration with India. ICG, “The South China Sea (II),” p. 33.

24. Hong, p. 186; Valencia, Van Dyke, and Ludwig, p. 9; 

ICG, “The South China Sea (II),” p. 33; and Dolven, Kan, and 

Manyin, p. 21.

25. Douglas H. Paal, “Territorial Disputes in Asian Waters,” 

Washington, DC: Carnegie Endowment for International Peace, 

October 16, 2012, available from carnegieendowment.org/2012/10/16/

territorial-disputes-in-asian-waters/e1ez; and ICG, “The South China 

Sea (II),” p. 14.

26. ICG, “The South China Sea (II),” p. 14.
118

27. Ibid., p. 7.

28. Dolven, Kan, and Manyin, p. 20.

29. Hong, p. 57.

30. Stein Tonnesson, “The History of the Dispute,” Kivimaki, 

ed., p. 7; Pan; and Van Dyke and Bennett, p. 65.

31. Hong, p. 7.

32. Christopher C. Joyner, “The Spratly Islands Dispute: Legal Issues and Prospects for Diplomatic Accommodation,” Baker 

and Wiencek, eds.

33. Valencia, Van Dyke, and Ludwig, pp. 188, 230.

34. Ness, p. 43; Valencia, Van Dyke, and Ludwig, p. 179; and 

GlobalSecurity, “Spratly Islands Conflicting Claims,” Alexandria, 

VA: GlobalSecurity.org, undated, available from www.globalsecurity.org/military/world/war/spratly-conflict.htm.

35. Timo Kivimaki, “Conclusion,” Kivimaki, ed., p. 168.

36. Ibid., p. 165.

37. Valencia, p. 438; Valencia, Van Dyke, and Ludwig, p. 7; 

and Van Dyke and Bennett, p. 67.

38. Lai, The United States and China in Power Transition, p. 213.

39. Ibid., p. 136.

40. Rongsheng Ma, “Geostrategic Thinking on Land-andSea Integration,” China Military Science Journal, Vol. 1, No. 1, 

2012, p. 58.

41. Gabriel B. Collins, “China’s Dependence on the Global 

Maritime Commons,” Erickson, Goldstein, and Nan Li, eds., p. 

21; Peter A. Dutton, “Charting the Course: Sino-American Naval 

Cooperation to Enhance Governance and Security,” Erickson, 

Goldstein, and Nan Li, eds., p. 214; Michael D. Swaine and M. 
119

Taylor Fravel, “China’s Assertive Behavior – Part One: On ‘Core 

Interests,’” China Leadership Monitor, Vol. 34, Winter 2011, pp. 

7-9, available from www.carnegieendowment.org/files/CLM34MS_

FINAL.pdf; and Kaplan.

42. Valencia, p. 440; and Valencia, Van Dyke, and 

Ludwig, p. 33.

43. Timo Kivimaki, “Introduction,” Kivimaki, ed., p. 1.

44. Baker and Wiencek, eds., “Introduction”; CIA, “Spratly 

Islands”; Lai, The United States and China in Power Transition , p. 

131; and Shicun Wu, “Opportunities and Challenges for ChinaUS Cooperation in the South China Sea,” Erickson, Goldstein, and 

Nan Li, eds., p. 366.

45. Van Dyke and Bennett, p. 64.

46. David G. Wiencek and John C. Baker, “Security Risks of a 

South China Sea Conflict,” Baker and Wiencek, eds.; Joyner; and 

Dolven, Kan and Manyin, pp. 28-29.

47. Joyner; Wiencek and Baker, “Security Risks of a South 

China Sea Conflict”; Valencia, p. 439; and Baker and Wiencek, 

“Introduction.”

48. Van Dyke and Bennett, pp. 74-75; Joyner; ICG, “The South 

China Sea (II),” p. 38; Fravel, p. 34; and Valencia, p. 440.

49. Valencia, Van Dyke, and Ludwig, p. 37; Joyner; Baker and 

Wiencek, “Introduction”; ICG, “The South China Sea (II),” p. 38; 

and Fravel, p. 34. 

50. Joyner; Hong, p. 13; and Dolven, Kan, and Manyin, 

pp. 28-29.

51. Studeman.

52. Dolven, Kan, and Manyin, p. 9; Wiencek and Baker, “Security Risks of a South China Sea Conflict”; and Joyner.

53. Joyner; and Baker and Wiencek, “Introduction.”
120

54. Joyner.

55. Timo Kivimaki, Liselotte Odgaard, and Stein Tonnesson, 

“What Could be Done?” Kivimaki, ed., War or Peace in the South 

China Sea? p. 149; Fravel, p. 34; and Wiencek and Baker, “Security 

Risks of a South China Sea Conflict.”

56. Hong, p. 189.

57. Studeman; and Tonnesson, “The History of the 

Dispute,” p. 15.

58. Greenfield, p. 30; and Yu, p. 474.

59. The number of Vietnamese 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. This skirmish followed an earlier 

naval clash in 1974 between the Republic of Vietnam (then South 

Vietnam) and PRC forces over the Parcel Island archipelago in 

which several frigate and escort size vessels were reported sunk 

on both sides, with 53 Vietnamese and an unreported number of 

Chinese sailors killed. Adding to the animosity was a brief but 

intense border war in 1979 in which Vietnam suffered between 

35,000 and 62,000 casualties, and China between 20,000 and 

63,500. Joyner; Van Dyke and Bennett, p. 59; Fravel, pp. 35-36; 

and ICG, “The South China Sea (II),” pp. 2-3.

60. Studeman.

61. Wiencek and Baker, “Security Risks of a South China Sea 

Conflict.”

62. Fravel, p. 36.

63. O’Rourke, Maritime Territorial and Exclusive Economic Zone 

(EEZ) Disputes Involving China, pp. 20, 23.

64. These are sometimes referred to as five “dragons stirring up the sea.” The five maritime agencies include: Maritime 

Police of the Border Control Department (BCD), the largest and 

only armed agency; Maritime Safety Administration, the second 
121

largest, under the Ministry of Transportation; Fisheries Law Enforcement Command (FLEC) under the Ministry of Agriculture; 

General Administration of Customs; and the Marine Surveillance 

Force (MSF) over pollution and science of the State Oceanic Administration. See Lyle J. Goldstein, “Improving Chinese Maritime 

Enforcement Capabilities,” Erickson, Goldstein, and Nan Li, eds., 

p. 127; and Dolven, Kan, and Manyin, pp. 23-24.

65. This new organization appears to be modeled on the U.S. 

Coast Guard. Jane Perlez, “Chinese, with Revamped Force, Make 

Presence Known in East China Sea,” The New York Times, July 28, 

2013, p. A.9.

66. ICG, “The South China Sea (II),” p. 28.

67. O’Rourke, Maritime Territorial and Exclusive Economic Zone 

(EEZ) Disputes Involving China, pp. 20-21.

68. Fravel, p. 45. 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, although this does not seem to have transferred 

over to the more sensitive energy exploration sector. During this 

time, however, enforcement against Filipino vessels worsened 

with the deterioration of relations between the two. Relations 

between Malaysia and the PRC have generally remained good, 

which, when combined with the distance between the two countries, explains why there are few incidents between them. ICG, 

“The South China Sea (II),” p.11.

69. ICG, “The South China Sea (II),” pp. 4-7; Fravel, p. 38; and 

Hong, p. 31.

70. The incident was over the boarding and confiscation of 

illegal shark and coral finds on Chinese fishing vessels by the 

Filipino coast guard. The incident also involved Chinese Marine 

Surveillance Agency vessels and a Filipino warship, although 

the latter was quickly withdrawn and the government publicly 

admitted that was an inappropriate use of that vessel. The PRC 

retaliated by restricting imports of Filipino fruits into China and 

warning its tourists against travel to the Philippines. The ultimate 

Chinese motive behind the standoff was to demonstrate effective 

Chinese administrative control in its claim and occupation of the 
122

shoals. Dolven, Kan, and Manyin, pp. 23, 25; and ICG, “The South 

China Sea (II),” pp. 8-9, 28. 

71. O’Rourke, Maritime Territorial and Exclusive Economic Zone 

(EEZ) Disputes Involving China, pp. 23-24.

72. Ibid., p. 27.

73. ICG, “The South China Sea (II),” p. ii.

74. Robson.

75. O’Rourke, Maritime Territorial and Exclusive Economic Zone 

(EEZ) Disputes Involving China, p. 23.

76. Hong, pp. 21, 74; and Valencia, Van Dyke, and 

Ludwig, pp. 98-99.

77. Valencia, p. 439.

78. Amer, “Ongoing Efforts in Conflict Management,” p. 128.

79. ICG, “The South China Sea (II),” p. ii.

80. Fravel, p. 38.

81. Only Brunei seems exempt from this melee since it does 

not occupy any of its claimed geologic features nor does it actively patrol its small maritime claim. Incidents between Malaysia 

and the PRC are also relatively few, perhaps in part due to the 

greater distance between them than is true for the PRC in relation to the Philippines and Vietnam, and because Malaysia seems 

to have struck an informal understanding with China. Reports of 

incidents between ASEAN states and Taiwan are rare, and may 

be because of a greater discipline that Taiwan may impose on its 

fishing fleet due to its more tentative international standing and 

need to cultivate friends. However, one such incident occurred in 

May 2013 when the Philippine Coast Guard killed a Taiwanese 

fisherman in disputed waters. In retaliation, Taiwan imposed economic sanctions on the Philippines, froze visas on Filipino workers, and conducted naval drills in the Bashi Channel between 

the two parties. Valencia, Van Dyke, and Ludwig, p. 9; Dolven, 

Kan, and Manyin, pp. 11-12; Hong, p. 74; Valencia, p. 438; ICG, 
123

“The South China Sea (II),” pp. ii, 2; and Ashish Kuman Sen, “Taiwan-Philippines Dispute Erupts after Fisherman’s Killing,” The 

Washington Times, May 20, 2012, available from www.washingtontimes.com/news/2013/may/20/taiwan-philippines-dispute-erupts-afterfishermans/?page=all.

82. Fravel, p. 38.

83. Ramses Amer and Timo Kivimaki, “The Political Dimension: Sources of Conflict and Stability,” Kivimaki, ed., p. 89.

84. Hong, p. 21; Studeman; and Bjorn Moller, “The Military 

Aspects of the Disputes,” Kivimaki, ed., p. 77.

85. Dolven, Kan, and Manyin, p. i; ICG, “The South China Sea 

(II),” p. iii.

86. USEIA, “South China Sea.” In 2004, 74 percent of Chinese 

oil imports originated from the Middle East or Africa, and most 

of that transited the South China Sea en route to Chinese ports. 

As the Chinese economy grows and its domestic production levels, this number has since grown. Over half of China’s oil and 

over a quarter of its natural gas was imported in 2011. CIA, World 

Factbook, “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.

87. Wiencek and Baker, “Security Risks of a South China Sea 

Conflict”; Pan; and Hong, p. 5.

88. Fravel, p. 35; Greenfield, p. 26; and CIA, “South China 

Sea” map.

89. USPACOM Strategy, Camp Smith, HI: U.S. Pacific Command, January 22, 2013, p. 2.

90. Baker and Wiencek, “Introduction.”

91. Fravel, pp. 33-34.
124

92. Van Dyke and Bennett, p. 88; and Shicun Wu, p. 368.

93. Japan, for instance, is militarily able to project naval power into the South China Sea but is politically hobbled by its constitution and historical enmity after World War II to play a direct 

role in the region. See Wiencek and Baker, “Security Risks of a 

South China Sea Conflict.” 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 is 

militarily weak, and relies heavily on its defense alliance with the 

United States to maintain its security. Other states see the U.S. 

presence as a counterbalance to a militarily strong and actively 

involved PRC.

94. Fravel, p. 42; and Kivimaki, Odgaard, and Tonnesson, 

p. 141.

95. Robson.

96. Roger Baker, “China Tests Japanese and US Patience,” Austin, TX: STRATFOR, February 26, 2013, available from www.stratfor.

com/weekly/china-tests-japanese-and-us-patience?utm_source=freelistf&utm_medium=email&utm_campaign=20130226&utm_

term=gweekly&utm_content=readmore&elq=8c6ebca11e10439b995e3

aa98be897d4.

97. Fravel, p. 33; and Kaplan.

98. Pan; Erikson and Goldstein, “Introduction,” Erickson, 

Goldstein, and Nan Li, eds., 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.

99. Valencia, Van Dyke, and Ludwig, p. 2; and Kivimaki, 

“Introduction,” p. 1.
125

100. David N. Griffiths, “Challenges in the Development of 

Military-to-Military Relationships,” Erickson, Goldstein, and Nan 

Li, eds., pp. 38-39.

101. Bloomberg News, “China Streamlines Maritime Law 

Enforcement Amid Island Disputes,” Bloomberg News Services, 

March 10, 2013, available from www.bloomberg.com/news/2013-

03-10/china-bolsters-maritime-law-enforcement-amid-island-disputes.

html; and Valencia, Van Dyke, and Ludwig, p. 131.

102. 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, as has the PRC.

103. Dolven, Kan, and Manyin, p. 5.

104. O’Rourke, China Naval Modernization, p. 8; ICG, “The 

South China Sea (II),” p. 18; and O’Rourke, Maritime Territorial 

and EEZ Disputes, p. 4.

105. Lai, The United States and China in Power Transition, p. 120; 

and O’Rourke, China Naval Modernization, p. 8.

106. ICG, “The South China Sea (II),” p. 18; Fravel, p. 35; and 

Hong, pp. 30-32. 

107. 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 <http://news.yahoo.com/us-takes-aim-china-ups-navalaid-se-105727402--politics.html.

108. Hong, p. 94.

109 . Fravel, p. 34; and Ivan Shearer, “Navigation Issues in the 

Asian Pacific Region,” Crawford and Rothwell, eds., p. 219.

110. Valencia, Van Dyke, and Ludwig, p. 17; and Hong, p. 58.

111. Hong, p. 222.

112. Ibid., p. 93; and Van Dyke and Bennett, p. 89.
126

113. Hong, p. 223.

114. Joyner.

115. Hong, pp. 42, 54-55.

116. 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.

117. Hong, pp. 109-110.

118. ICG, “The South China Sea (II),” p. 29.

119. Hong, p. 54; and Shicun Wu, p. 365.

120. Kivimaki, Odgaard, and Tonnesson, p. 154.

121. The International Law Commission in 1962 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.

122. Hong, p. 66; and Valencia, Van Dyke, and Ludwig, p. 26.

123. Hong, p. 16; and Lai, The United States and China in Power 

Transition, pp. 127-128.

124. Valencia, Van Dyke, and Ludwig, p. 66; and Hong, 

pp. 66, 70-71.

125. Hong, pp. 63, 130.

126. Valencia, Van Dyke, and Ludwig, p. 25; and Hong, 

pp. 64-65.
127

127. ICG, “The South China Sea (II),” p. 29.

128. Wiencek and Baker, “Security Risks of a South China 

Sea Conflict.”

129. 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. This mutual position could be termed “China’s” or the “Chinese” claim, terms 

which this monograph will employ as pertaining to both unless 

otherwise noted. See Joyner; Ramses Amer, “Claims and Conflict 

Situations,” Kivimaki, ed., p. 34. Although this claim was first 

formally proclaimed by the ROC in 1947, it was echoed by the 

PRC in 1951 by claiming sovereignty over the Paracel and Spratly 

Islands, and in 1958 over maritime rights. These claims were formally reiterated in PRC law in 1992 and 1998, and diplomatically 

in 2009. See Fravel, p. 41. Both parties have periodically and recently reasserted their historic claim to the South China Sea. This 

area of common interest has offered interesting opportunities for 

both sides to work together including joint oceanographic expeditions, economic development schemes, and the only representation by both parties in multilateral negotiations, the Indonesian 

sponsored Track II talks which includes each of the South China 

Sea claimants. See Hong, p. 211; Tonnesson, “The History of the 

Dispute,” p. 19. Taiwanese participation in international fora is 

otherwise proscribed under the PRC’s “one China policy.” Although the claims are the same for both, the Taiwanese government has rarely asserted them as boldly or physically as has the 

PRC. ICG, “The South China Sea (II),” pp. 1, 12, 30, 36; Valencia, 

Van Dyke, and Ludwig, p. 96; Greenfield, p. 33; and Dolvern, 

Kan, and Manyin, p. 10.

130. USEIA, “South China Sea”; Hong, p. 17; ICG, “The South 

China Sea (II),” p. 37.

131. ICG, “The South China Sea (II),” p. 37; Valencia, Van 

Dyke, and Ludwig, p. 30; Shicun Wu, p. 366; Van Dyke and 

Bennett, p. 68.

132. ICG, “The South China Sea (II),” p. 37; Hong, p. 17.

133. Vietnam refers to the South China Sea as the “East Sea,” 

and the Chinese use the name “South Sea.” The Philippines be-
128

gan referring to it as the “West Philippine Sea” in 2011 to reinforce its own claim and undercut that of the Chinese. See 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%99s-west-philippinesea%e2%80%99. Throughout this monograph, the standard 

names used by the U.S. Board on Geographic Names is employed 

for consistency.

134. Hong, p. 69.

135. Dr. David Lai, Interview on February 21, 2013, at Carlisle 

Barracks, PA.

136. Valencia, Van Dyke, and Ludwig, p. 32; and Hong, p. 17.

137 . Hong pp. 6-7; and Tonnenson, “The History of the Dispute,” p. 8.

138. Hong, p. 12; and Valencia, Van Dyke, and Ludwig, p. 21.

139. Tonnenson, “The History of the Dispute,” p. 16; and 

Hong p. 17. 

140. Although Vietnam, the PRC, and the ROC all claim the 

Paracel and Spratly Islands in their entirety, along with Malaysia, the Philippines, and Brunei who partially claim 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 the Chinas. Lai, The United States and China in Power 

Transition, p. 131.

141. Valencia, Van Dyke, and Ludwig, p. 25; USEIA, “South 

China Sea”; Lai, The United States and China in Power Transition, p. 

222; and Dolven, Kan, and Manyin, p. 6. Taiwan codified its historic waters claim to the region within its U-shaped line in 1993 in 

its South China Sea Policy Guidelines. Hong, p. 68.

142. Greenfield, pp. 21-22; and Hong, p. 16.

143. Dolven, Kan, and Manyin, p. 8; and Hong, p. 16.
129

144. Valencia, Van Dyke, and Ludwig, p. 21; and Tonnenson, 

“History of the Dispute,” p. 9.

145. Hong, p. 16.

146. 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.

147. Hong, p. 68; and ICG, “The South China Sea (II),” p. 36.

148. Such ambiguity has been consistent and probably purposeful, since it allows flexibility on the Chinese side and has 

made negotiations for the other claimants more difficult. The Chinese claim was originally drawn with 11-dash lines, but revised 

to 9-dash 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 bilaterally negotiated 

a partial maritime border in the Gulf of Tonkin in 2000. See ICG, 

“The South China Sea (II),” p. 36; Fravel, pp. 41-42; 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-dash line were 

for land features and not to the entire water area. See ICG, “The 

South China Sea (II),” 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.

149. Greenfield, p. 32; Van Dyke and Bennett, pp. 63-64; and 

Hong, p. 16.

150. Greenfield, pp. 29-30; and Tonnesson, “History of the 

Dispute,” p. 7.
130

151. “Vietnam Refuses to Stamp New Chinese Passport,” 

AFP, November 27, 2012, available from www.google.com/hostednews/afp/article/ALeqM5jf38Wx8pQuvIrgmrwcibPlxqOzQg?docId=C

NG.fd699e45805ce0638bbada0e1806e749.71; and 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, pp. 67-78, see especially p. 68.

152. Van Dyke and Bennett, pp. 62-63.

153. Valencia, Van Dyke, and Ludwig, pp. 22-24; and Hong, 

pp. 16, 64.

154. Lai, The United States and China in Power Transition, pp. 

129, 221; and Fravel, p. 34.

155. Robson.

156. Valencia, Van Dyke, and Ludwig, pp. 26-27; Hong, p. 70; 

and Lai, The United States and China in Power Transition, p. 140.

157. Hong, pp. 68-69, 116.

158. Valencia, Van Dyke, and Ludwig, p. 39.

159. 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 International 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.

160. Lai, The United States and China in Power Transition, p. 221.
131

161. Valencia, Van Dyke, and Ludwig, pp. 28, 39; and ICG, 

“The South China Sea (II),” p. 30.

162. Valencia, Van Dyke, Ludwig, p. 37.

163. “Res Nullius Law & Legal Definition,” USLegal, 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”), 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.” 

See “Terra Nullius Law & Legal Definition,” USLegal, available 

from 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. Because the 

ownership claims to the Spratly Islands over the years have been 

overlapping and difficult to determine, this monograph uses the 

term res nullis for the status of the Spratly 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.

164. Joyner; and Valencia, Van Dyke, and Ludwig, pp. 19-20.

165. Lai, The United States and China in Power Transition, 

pp. 130-131.

166. Greenfield, pp. 29-30.

167. Hong, p. 10; and Amer, “Claims and Conflict Situations,” 

pp. 27-28.

168. Van Dyke and Bennett, pp. 64-65; and Hong, pp. 10, 17.

169. “Taiping Island,” Wikipedia, available from en.wikipedia.

org/wiki/Taiping_(island).
132

170. Fravel, p. 41.

171. British Broadcasting Corporation (BBC), “Q&A: South 

China Sea Dispute,” BBC News Asia, January 22, 2013, available 

from www.bbc.co.uk/news/world-asia-pacific-13748349; and ICG, 

“The South China Sea (II),” p. 5.

172. Dolven, Kan, and Manyin, p. 7; Wiencek and Baker, “Security Risks of a South China Sea Conflict”; and Valencia, Van 

Dyke, and Ludwig, p. 41.

173. Hong, p. 10.

174. Studeman.

175. Valencia, Van Dyke, and Ludwig, p. 23.

176. Lai, The United States and China in Power Transition, p. 133.

177. 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-china-sea/

dc0c; and BBC, “Q&A: South China Sea Dispute.”

178. Hong, p. 17.

179. Tonnesson, “The History of the Dispute,” p. 10; Hong, p. 

10; Shicun Wu, p. 365; and Greenfield, pp. 28-29.

180. Joyner.

181. Greenfield, pp. 32-33; and Hong, p. 13.

182. Tonnesson, “History of the Dispute,” p. 17; and Joyner.

183. Swaine and Fravel, pp. 15-16; and Shicun Wu, p. 374.

184. Dolven, Kan, and Manyin, p. 11.

185. Shicun Wu, p. 365.
133

186. Tonnesson, “History of the Dispute,” p. 11.

187. Ibid., p. 12.

188. Van Dyke and Bennett, p. 72.

189. Tonnesson, “History of the Dispute,” p. 13.

190. Shicun Wu, p. 368; Valencia, Van Dyke, and Ludwig, 

p. 33; Greenfield, p. 33; and Hong p. 18.

191. Joyner.

192. Hong, p. 12; and Tonnesson, “History of the 

Dispute,” p. 13.

193. Hong, p. 13; and Van Dyke and Bennett, pp. 74-75.

194. Hong, p. 18; and Valencia, Van Dyke, and Ludwig, 

pp. 33-35.

195. Hong, p. 12; and Tonnesson, “History of the Dispute,” 

p. 11.

196. Tonnesson, “History of the Dispute,” p. 13; and Van 

Dyke and Bennett, pp. 68-69.

197. Hong, pp. 18-19; and Valencia, Van Dyke, and 

Ludwig, p. 35.

198. Valencia, Van Dyke, and Ludwig, p. 17; and Lai, “The 

United States and China in Power Transition, p. 221.

199. Lai, The United States and China in Power Transition, p. 128.

200. Van Dyke and Bennett, p. 65; Tonnesson, “History of the 

Dispute,” p. 9; and Hong, p. 7.

201. Hong, p. 7.

202. Van Dyke and Bennett, p. 66; and Hong, p. 10.
134

203. Valencia, Van Dyke, and Ludwig, p. 37; Joyner; ICG, 

“The South China Sea (II),” p. 38; and Hong, p. 20.

204. Valencia, Van Dyke, and Ludwig, p. 37; and ICG, “The 

South China Sea (II),” p. 38.

205. Dolven, Kan, and Manyin, p. 13.

206. CIA, “South China Sea” Map; Dolven, Kan, and Manyin, 

p. 13; USEIA, “South China Sea”; ICG, “The South China Sea (II),” 

p. 38; Fravel, pp. 36-37; and Amer and Kivimaki, p. 101.

207. Valencia, Van Dyke, and Ludwig, p. 37; and Hong, p. 20.

208. Hong, p. 58.

209. ICG, “The South China Sea (II), p. ii.

210. Lai, The United States and China in Power Transition, p. 133.

211. “Uti Possidetis Law & Legal Definition,” USLegal, available from definitions.uslegal.com/u/uti-possidetis/; and ”Uti Possidetis,” Wikipedia, available from en.wikipedia.org/wiki/Uti_possidetis.

212. Lai, The United States and China in Power Transition, p. 140.

213. 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.

214. Anthony Bergin, “The High Seas Regime—Pacific Trends 

and Developments,” Crawford and Rothwell, eds., The Law of the 

Sea in the Asia Pacific Region, pp. 183-185.

215. Bateman, p. 29.

216. Hong, pp. 46, 96; and Dolven, Kan, and Manyin, p. 31.

217. Christine Chinkin, “Dispute Resolution and the Law of 

the Sea: Regional Problems and Prospects,” Crawford and Rothwell, eds., The Law of the Sea in the Asia Pacific Region, p. 248.
135

218. Hong, pp. 43-46, 72.

219. ICG, “The South China Sea (II),” p. 29.

220. Bergin, p. 195.

221. 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. (Hereafter UN UNCLOS)

222 . Hong, p. 51.

223. Valencia, Van Dyke, and Ludwig, pp. 41-42.

224. Ibid., p. 40; and Bergin, p. 196.

225. Joyner; and Greenfield, p. 29.

226. See Advisory Opinion on Western Sahara, 1975; Valencia, 

Van Dyke, and Ludwig, p. 61.

227. Hong, p. 52.

228. Bergin, p. 196.

229. Valencia, Van Dyke, and Ludwig, pp. 41-42; and Van 

Dyke and Bennett, p. 89.

230. Valencia, Van Dyke, and Ludwig, p. 43; and Van Dyke 

and Bennett, pp. 78-79.

231. Van Dyke and Bennett, p. 75. 

232. Hong, pp. 51-52; and Van Dyke and Bennett, p. 79.

233. 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.
136

234. These decisions were formed through the International 

Court of Justice rulings in the 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. 

235. Van Dyke and Bennett, p. 77; and Hong, p 243.

236. Baker and Wiencek, “Introduction.”

237. Ibid.

238. Van Dyke and Bennett, p. 89.

239. Dolven, Kan, and Manyin, p. 33.

240. Greenfield, p. 29; Valencia, Van Dyke, and Ludwig, 

p. 230; and Hong p. 59.

241. Valencia, Van Dyke, and Ludwig, pp. 44, 48.

242. Greenfield, p. 38.

243. Valencia, Van Dyke, and Ludwig, p. 56.

244. Dutton, p. 204; and UN, UNCLOS, p. 70.

245. 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. UN, UNCLOS, p. 28; and 

Shearer, p. 208.

246. UN, UNCLOS, p. 28.

247. “Maritime Claims of Northeast Asia,” Map 772221AI, 

Washington, DC: CIA, July 2006; CIA, “South China Sea” Map; 

Jin-Hyun Paik, “East Asia and the Law of the Sea,” Crawford and 

Rothwell, eds., The Law of the Sea in the Asian Pacific Region, p. 8; 

Tonnesson, “History of the Dispute,” p. 15; and Hong, pp. 51, 127. 

Under their baseline proclamation, Vietnam can claim internal 

waters of 27,000 square nm with 9 of the 11 base points on islands 

ranging from 7.6-nm to 80.7-nm from shore. Hong, pp. 130-131.
137

248. UN, UNCLOS, p. 28.

249. Valencia, Van Dyke, and Ludwig, p. 26.

250. UN, UNCLOS, pp. 40-43; and Joyner.

251. UN, UNCLOS, p. 40; and Shearer, p. 204.

252. UN, UNCLOS, p. 40.

253. Greenfield, pp. 37-38.

254. Valencia, Van Dyke, and Ludwig, p. 47. UNCLOS allows 

an exception for up to 3 percent of the archipelagic base lines used 

to measure between 100 and 125-nm. See UN, UNCLOS, p. 40. 

Dr. Prescott’s proposal would require three baselines measuring 107, 119, and 120-nm, and a relatively simple fix to increase 

the present 80 baselines used to define the Philippines sovereign 

maritime boundary to at least 100 baselines to comply with the 3 

percent rule. See Valencia, Van Dyke, and Ludwig, p. 47; and ICG, 

“The South China Sea (II),” pp. 19, 38. In another notable exception from the rest of UNCLOS, Article 47 allows the use of drying 

reefs, land features exposed only at low tide, when determining 

archipelagic baselines, which are provisions Dr. Prescott employs 

in his work. See UN, UNCLOS, pp. 29, 40.

255. ICG, “The South China Sea (II),” pp. 19, 38; and Valencia, Van Dyke, and Ludwig, p. 48. Option 4 of this bill, to include 

Kalaya’an and Scarborough Shoal within the Philippine archipelago, required 135 baselines, with 4 between 100 and 125-nm long. 

This proposal was House Bill 3216, but was not accepted in the 

final Republic Act 5446. To complete an archipelagic claim under 

Bill 3216, UNCLOS would have required building lighthouses on 

the low tide elevation features at Sabina Shoal and Iroquois Reef. 

The practical obstacle to adding the Kalaya’an to the Philippines 

was that seven base points in this scheme are currently occupied 

by the PRC, Vietnam, or Malaysia. As Philippine Senator Trillanes 

concluded: 

contravention of the 2002 ASEAN-China Declaration on the 

Conduct of Parties in the South China Sea . . . may cause 
138

outrage among affected States. Designating base points on 

uninhabited, though contested areas such as Scarborough 

Shoal can be defended legally and politically. But to place 

base points on foreign-occupied territory, no matter how 

strong our claim, is an act of aggression. 

The Philippines was under pressure from an already extended international deadline to establish its archipelagic baseline in 

order to also make a continental shelf claim in accordance with 

UNCLOS. This forced them to draw the current baseline without 

Kalaya’an, but not to give up the Spratlys or a future archipelagic 

claim for them. Antonio F. Trillanes IV, “The Baseline Issue: A 

Position Paper,” Manila, Philippines: Congress of the Philippines, 

undated, circa 2008, pp. 4, 6, 9, available from verafiles.org/docs/

trillanes-position-paper.pdf.

256. Chinkin, p. 238; and Hong, p. 18.

257. UN, UNCLOS, pp. 29, 30.

258. Hong, p. 62.

259. Shearer, p. 208; and Valencia, Van Dyke, and 

Ludwig, p. 28.

260. Shearer, p. 208; and Hong, pp. 64-65.

261. Hong, pp. 60, 64, 67; and ICG, “The South China Sea (II),” 

pp. 29-30.

262. Hong, p. 71. 

263. Valencia, Van Dyke, and Ludwig, p. 28.

264. ICG, “The South China Sea (II),” p. 36.

265. Amer, “Claims and Conflict Situations,” pp. 30-31.

266. UN, UNCLOS, pp. 35, 66; Valencia, Van Dyke, and Ludwig, p. 47; and Under Secretary of Defense for Policy, Maritime 

Claims Reference Manual, DoD 2005.1-M, Washington, DC: Department of Defense, June 23, 2005, pp. 126-127, 690, available from 

www.jag.navy.mil/organization/documents/mcrm/vietnam.pdf.
139

267. Joyner; Dutton, p. 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.

268. UN, UNCLOS, p. 31; and Hong, p. 72.

269. UN, UNCLOS, p. 33; and Shearer, p. 211.

270. UN, UNCLOS, p. 35; Dutton, p. 203; and Wu and 

Zou, pp. 4-5.

271. Paik, p. 12; and Shearer, p. 206.

272. UN, UNCLOS, p. 30.

273. Dutton, pp. 210-211; USEIA, “South China Sea”; Shearer, 

pp. 211, 219; and UNCLOS Declarations and Statements. New York: 

UN, Division for Ocean Affairs and the Law of the Sea, October 

14, 1996, Malaysia Articles 2-4, available from www.un.org/depts/

los/convention_agreements/convention_declarations.htm#Malaysia. 

274. Hong, p. 132; and Dolven, Kan, and Manyin, p. 32.

275. Paik, p. 10; and Hong, p. 128.

276. Erikson and Goldstein, p xvii; Guifang Xue, “China 

and the Law of the Sea: A Sino-US Maritime Cooperation Perspective,” Erickson, Goldstein, and Nan Li, eds., p. 176; and 

Dutton, p. 211.

277. Paik, p. 11; Greenfield, p. 30; Xue, p. 177; and Wiencek 

and Baker, “Security Risks of a South China Sea Conflict.”

278. Hong, p. 114; Xue, p. 176; and UN, UNCLOS Declarations 

and Statements, China Article 4.

279. Hong, p. 110; Wiencek and Baker, “Security Risks 

of a South China Sea Conflict”; Studeman; and Swaine and 

Fravel, p. 7.
140

280. UN, UNCLOS, pp. 43-44.

281. Dutton, p. 203; UN, UNCLOS, pp. 43-44; and Wu and 

Zou, p. 5.

282. Shearer, p. 221; and UN, UNCLOS, pp. 44-49.

283. Shicun Wu, p. 366; and Bateman, “Good Order at Sea in 

the South China Sea,” p. 29.

284. 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.

285. 1958 Geneva Conventions on the Law of the Sea, Geneva, 

Switzerland: UN 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.

286. Valencia, Van Dyke, and Ludwig, p. 135.

287. 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.

288. Valencia, Van Dyke, and Ludwig, pp. 50-51.

289. Greenfield, p. 36.

290. Valencia, Van Dyke, and Ludwig, p. 48.

291. Amer, “Claims and Conflict Situation,” p. 29; Valencia, 

Van Dyke, and Ludwig, p. 31; Greenfield, p. 32; CIA, World Factbook, pp. “Malaysia,” “Philippines,” “Vietnam,” “Brunei”; CIA, 

“South China Sea” Map. Although the claims from the Philippine islands and Malaysian Borneo are indeed from islands, some 

scholars have asserted that they are “outlying components of the 

Asian continental margin, shielding the Asian marginal seas from 

the Pacific, and constitute out riding frontiers of the mainland 
141

against the abyssal Pacific Ocean floor.” This implies that both the 

Malaysian and Filipino coasts would have equal weighting with 

continental mainland coastlines when overlaps are delimitated 

using the equitable principle based on the ICJ’s 1969 North Sea 

Continental Shelf cases. Greenfield, p. 34.

292. Valencia, Van Dyke, and Ludwig, p. 31; ICG, “The South 

China Sea (II),” p. 29. In a promising sign for resolving overlapping claims, China and Vietnam signed a delineation agreement 

settling disputes in the Tonkin Gulf along with a fishing protocol 

in 2000 that took effect in 2004. See also Hong, pp. 73, 127.

293. Valencia, Van Dyke, and Ludwig, pp. 55, 146; UN, UNCLOS, p. 57; Hong, p. 59; and CIA, “South China Sea” Map.

294. USIEA, “South China Seas”; and ICG, “The South China 

Sea (II),” p. 38.

295. Hong, p. 20; Valencia, Van Dyke, and Ludwig, p. 38; and 

CIA, “South China Sea” Map.

296. Hong, p. 18; and Valencia, Van Dyke, and Ludwig, p. 34.

297. CIA, “South China Sea” Map; Hong, p. 60; and Valencia, 

Van Dyke, and Ludwig, p. 53.

298. Hong, p. 132-133; CIA, “South China Sea” Map; Valencia, Van Dyke, and Ludwig, p. 98; Shicun Wu, p. 365; and Amer, 

“Claims and Conflict Situation,” p. 36. At least with China’s historic claim, some authors do not believe there is a physical overlap between claims or that it is not yet determined if there is a 

conflict. Wiencek and Baker, “Security Risks of a South China 

Sea Conflict”; Joyner; Dolven, Kan, and Manyin, pp. 10, 26; and 

Greenfield, p. 30. 

299. Hong, p. 65. 

300. Hong, p. 70; Malaysia and the Socialist Republic of 

Vietnam, “Executive Summary,” Submission to the Commission on the Limits of the Continental Shelf, Hanoi, North Vietnam: 

Ministry of Foreign Affairs, April 2009, p. 5, available from www.

un.org/depts/los/clcs_new/submissions_files/vnm37_09/vnm2009n_

executivesummary.pdf. 
142

301. Valencia, Van Dyke, and Ludwig, p. 50.

302. 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/PDFFILES/chn_1998_eez_act.

pdf; and Law on the Exclusive Economic Zone and the Continental 

Shelf of the Republic of China, Taipei, Taiwan: 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.

303. Dolven, Kan, and Manyin, p. 32; Fravel, p. 35; Dutton, p. 

210; Xue, p. 193; and O’Rourke, China Naval Modernization, pp. i, 8.

304. 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, and 138; and Dutton, p. 211.

305. Lai, The United States and China in Power Transition, p. 121; 

and Fravel, p. 35.

306. UN, UNCLOS, 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.

307. UN, UNCLOS, p. 44; and Dutton, p. 212.

308. The Congressional Research Service reported 27 countries. 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. See O’Rourke, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China, 

p. 4; Lai, The United States and China in Power Transition, p. 121; 

Dolven, Kan, and Manyin, p. 32; and ICG, “The South China Sea 

(II),” p. 11. Taiwan’s Foreign Ministry, in a June 2011 press release, seemed to emphasize its support for the U.S. position on the 

principle of freedom of navigation. See Sutter and Huang, p. 70.
143

309. Hong, p. 89; Dutton, p. 210; and Xue, pp. 181, 184.

310. Dutton, p. 215.

311. Greenfield, p. 36; and Valencia, Van Dyke, and 

Ludwig, p. 24.

312. Timo Koivurova, “Power Politics or Orderly Development?” Silverburg, ed., International Law, p. 365; and UN, 1958 

Geneva Conventions on the Law of the Sea, p. 312.

313. Adjudicated in the North Sea Continental Shelf cases. This 

decision sparked the need for the third UN Conference on the 

Law of Sea starting in 1973, and 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.

314. 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 metres. UN, UNCLOS, p. 53. 

315. Valencia, Van Dyke, and Ludwig, p. 37.

316. UN, UNCLOS, pp. 54-55.

317. Tonnesson, “History of the Dispute,” p. 14.

318. Koivurova, p. 365.

319 . Hong, p. 60; and Fravel, p. 36.

320. Fravel, pp. 36-37.
144

321. Hong, pp. 60-61.

322. Vidas, p. 340; and Valencia, Van Dyke, and 

Ludwig, p. 50.

323. Hong, p. 55; Valencia, Van Dyke, and Ludwig, pp. 8, 36; 

USEIA, “South China Sea”; Joyner; and Amer, ”Claims and Conflict Situations,” p. 27.

324. Hong, pp. 13, 19; and Valencia, Van Dyke, and 

Ludwig, p. 36.

325. Reefs are natural formations in the ocean that come 

up to or just below the water’s surface, and as such are usually 

considered to be hazards to navigation. Their characteristic of 

having no permanent feature above sea level means that under 

customary law they may not be claimed as sovereign territory, 

although a state could have jurisdiction rights assigned by UNCLOS over submerged objects in the continental shelf area. Malaysia may claim up to five of these features, the most important 

Swallow Reef, while Amboyna Cay is claimed by another state, 

Vietnam.

326. Amer, ”Claims and Conflict Situations,” pp. 28-29; 

Shicun Wu, p. 368; and Joyner.

327. Shicun Wu, p. 368; USEIA, “South China Sea”; Valencia, 

Van Dyke, and Ludwig, p. 38; and Joyner.

328. Hong, p. 18; Van Dyke and Bennett, pp. 74-75; Valencia, 

Van Dyke and Ludwig, p. 33; and Joyner.

329. Hong, p. 19; Valencia, Van Dyke and Ludwig, pp. 36-37; 

and Joyner.

330. Greenfield, p. 35; Hong, pp. 18-20; CIA, South China Sea 

Map; and Valencia, Van Dyke and Ludwig, pp. 35, 48.

331. Malaysia and Socialist Republic of Vietnam, “Executive Summary,“ Joint 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 1982 in Respect of the 
145

Southern Part of the South China Sea, Kuala Lumpur, Malaysia, 

and Hanoi, North Vietnam: Malaysia’s National Security Council and Vietnam’s Ministry of Foreign Affairs, May 2009, p. 5, 

available from www.un.org/depts/los/clcs_new/submissions_files/

mysvnm33_09/mys_vnm2009excutivesummary.pdf. 

332. CIA, “South China Sea” Map. A 2,500 meter deep isobaths line traces the outline of the Spratly Islands along much 

of its northwest, north, and southeast. The region southwest of 

the Spratlys, the gap between Borneo and peninsular Malaysia, 

is not so deep. However, there is also no northwest-to-southeast 

coast line within 350-nm of the Spratlys within that gap that could 

claim any of this region through an extended continental shelf.

333. Socialist Republic of Vietnam, “Executive Summary,” 

p. 5; Malaysia and Socialist Republic of Vietnam, “Executive Summary,“ p. 5; Valencia, Van Dyke, and Ludwig, p. 48; and Amer, 

”Claims and Conflict Situations,” p. 32.

334. USEIA, ”South China Sea”; and Amer, “Claims and Conflict Situations,” p. 31.

335. Greenfield, p. 40.

336. Valencia, Van Dyke, and Ludwig, p. 48; and Dolven, 

Kan, and Manyin, p. 11.

337. Valencia, Van Dyke and Ludwig, p. 27; Greenfield, 

pp. 38-39; and CIA, “South China Sea” Map.

338. Greenfield, pp. 38-39; Van Dyke and Bennett, p. 73; 

Fravel, p. 37; and CIA, “South China Sea” Map.

339. Valencia, Van Dyke and Ludwig, p. 134.

340. CIA, “The South China Sea” Map; Joyner.

341. UN, UNCLOS, p. 67, and Valencia, Van Dyke, and 

Ludwig, p. 58.

342. Paal, “Territorial Disputes in Asian Waters.”

343. Jin; and ICG, “The South China Sea (II),” p. 29.
146

344. Shicun Wu, p. 365; Joyner; and Greenfield, p. 34.

345. Hong, p. 66.

346. Joyner.

347. Fravel, pp. 35-36.

348. Valencia, Van Dyke, and Ludwig, p. 44.

349. Dolven, Kan, and Manyin, p. 31.

350. Joyner.

351. ICG, “The South China Sea (II),” p. 29.

352. 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, available from www.worldpoliticsreview.com/articles/12561/strategic-horizons-u-s-must-change-its-thinking-on-conflict-in-asia.

353. Dolven, Kan, and Manyin, pp. i-ii.

354. 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.

355. 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.

356. Kivimaki, Odgaard, and Tonnesson, p. 151.

357. Fravel, 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.

358. Paal, “Dangerous Shoals.”
147

359. Hong, p. 84; and Department of State, “Maritime Security and Navigation,” Washington, DC: Bureau of Oceans and International Environment, available from www.state.gov/e/oes/ocns/

opa/maritimesecurity/.

360. Lai, The United States and China in Power Transition, p. 120; 

Fravel, p. 35; USEIA, “South China Sea”; and Hong, p. 30.

361. Fravel, p. 35; Shicun Wu, pp. 369-371; Xue, p. 184; 

O’Rourke, Maritime Territorial and Exclusive Economic Zone (EEZ) 

Disputes Involving China, p. 5; and Dolven, Kan, and Manyin, p. 23.

362. Kivimaki, Odgaard, and Tonnesson, p. 140; and Wiencek 

and Baker, “Security Risks of a South China Sea Conflict.”

363. Moller, p. 75; Valencia, Van Dyke, and Ludwig, p. 131; 

and Hong, p. 84.

364. ICG, “The South China Sea (II),” p. 24.

365. 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.

366. Dutton, p. 213; and Bernard Moreland, “US-China Civil 

Maritime Operational Engagement,” Erickson, Goldstein, and 

Nan Li, eds., p. 168.

367. Lai, The United States and China in Power Transition, p. 119.

368. Moreland, pp. 168-169; and Dutton, p. 225.

369. Zbigniew Bzezinski, “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.
148

370. Eric A. McVadon, ”Humanitarian Operations: A Window to US-China Maritime Cooperation,” Erickson, Goldstein, 

and Nan Li, eds., p. 266.

371. This agreement was renewed as the United States/Russian Federation Incidents at Sea and Dangerous Military Activities Agreement in 1998 and is still enforced. Chief of Naval Operations, “United States/Russian Federation Incidents at 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.

372. Lai, The United States and China in Power Transition, p. 122; 

and Bateman, p. 228.

373. Griffiths, p. 43; Hong, p. 89.

374. Shicun Wu, p. 371; and Jin.

375. McVadon, p. 266.

376. Shicun Wu, p. 372; and Huayou Zhu, “Enhancing SinoUS Maritime Security Cooperation in Southeast Asia,” Erickson, 

Goldstein, and Nan Li, eds., p. 283.

377. Shicun Wu, p. 371; and Xue, p. 184.

378. Dolven, Kan, and Manyin, p. ii.

379. Dutton, p. 223; and Goldstein, p. 127.

380. Dutton, p. 223; McVadon, pp. 280-281; Fravel, p. 46; and 

Moreland, p. 154.

381. Collins, p. 31.

382. 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) 
149

and developed the University of Foreign Military and Cultural 

Studies (UFMCS). See Scott G. Wuestner, Building Partner Capacity/Security Force Assistance: A New Structural Paradigm, Carlisle 

Barracks, PA: Strategic Studies Institute, U.S. Army War College, 

2009, pp.12-13, available from www.strategicstudiesinstitute.army.

mil/pubs/display.cfm?pubID=880. In September 2012, the Army 

also reopened the Military Accessions Vital to the National Interest (MAVINI) fast track to citizenship program meant to recruit 

native speakers in 47 languages, six of which are spoken in the 

South China Sea region: Cebuano, Mandarin, Indonesian, Malay, 

Moro, Tausug, Maranao, Maguindanao, and Tagolog. See Department of the Army (MAVINI). Proper recruitment, management, 

and retention of so many selected skills will be a challenge to the 

Institutional Army, as it may already have realized through the 

challenge of managing its Special Forces soldiers, and will require 

a sustained investment in money and resources. See 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-brigadestheres-more-to-this-plan-than-meets-the-eye. Also see Wuestner; 

Department of the Army, “MAVINI Information Sheet,” Washington, DC: U.S. Department of the Army, Office of the Assistant 

Secretary for Manpower and Reserve Affairs, undated, available from www.goarmy.com/content/dam/goarmy/downloaded_assets/

mavni/mavni-language.pdf; Griffin; 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 United States Army, “Regional Alignment in Joint 

and Combined Exercises,” Stand To, August 28, 2013, available 

from www.army.mil/standto/archive_2013-08-28/?s_cid=standto.

383. 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.

384. 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.
150

385. 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.

386. Dunnigan, James, “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.

387. “Active Component Army Civil Affairs Units,” Civil Affairs Association, available from www.civilaffairsassoc.org/civilaffairsassociation/our-nations-civil-affairs-units/active-component-armycivil-affairs-units/; and “364th Civil Affairs Brigade (Airborne),” 

GlobalSecurity, available from www.globalsecurity.org/military/

agency/army/364ca-bde.htm.

388. Michelle Tan, “1st Regionally Aligned BCT to Deploy 7 

to Africa,” Military Times, February 20, 2013, available from www.

militarytimes.com/article/20130220/NEWS/302200333/1st-regionallyaligned-BCT-deploy-Africa; and Vergun. 

389. 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, p. 9, available from www.gao.gov/assets/600/590840.pdf.

390. Vergun; and USGAO, p. 36.

391. “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.

392. USGAO, pp. 2, 7-9; and AFPS, “Oregon National Guard.”

393. 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.

394. Tan.
151

395. McLeary.

396. 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, pp. 91-92, available from csis.org/files/publication/120814_FINAL_PACOM_optimized.pdf.

397. ICG, “The South China Seas (II)” p. 10.

398. Berteau and Green, p. 91.

399. 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.

400. Giffin; and Wuestner, pp. 14-16, 36-37.

401. Griffin.

402. 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.

403. Berteau and Green, p. 90.

404. Vandiver.

405. 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.

406. Dolven, Kan, and Manyin, p. 32.

407. Ibid., pp. ii, 5; Clinton; and Shearer, p. 200.

408. Dolven, Kan, and Manyin, p. 32; Fravel, p. 35; and 

O’Rourke, Maritime Territorial and EEZ Disputes, p. 4.
152

409. Shearer, p. 219. One major historic maritime claim’s 

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.

410. Hong, pp. 70-71.

411. Valencia, Van Dyke, and Ludwig, p. 26.

412. Ibid., p. 25; Shearer, p. 208; and Clinton.

413. Clinton.

414. ICG, “The South China Sea (II),” pp. 29-30; Swaine, p. 10; 

and USEIA, “South China Sea.”

415. Valencia, Van Dyke, and Ludwig, p. 78.

416. Hong, p. 67.

417. 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.

418. Paal, “Dangerous Shoals.”

419. Ibid.; and Valencia, Van Dyke, and Ludwig, p. 78.

420. Hong, p. 30; and ICG, “The South China Sea (II),” p. 4.

421. Valencia, Van Dyke, and Ludwig, p. 1.
153

422. Amer, “Ongoing Efforts in Conflict Management,” 

p. 120; and ICG, “The South China Sea (II),” p. 30.

423. Lai, The United States and China in Power Transition, p. 140.

424. USPACOM, p. 2.

425. USEIA, “South China Sea”; and Fravel, p. 35. Not challenging commercial transit through historic waters does present 

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.

426. UN, UNCLOS, p. 25.

427. 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 

Chamber of the International Tribunal of the Law of the Sea. UN, 

UNCLOS, pp. 65, 95-97. 

428. 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. UN, UNCLOS, pp. 55-56.

429. Ibid., p. 67.

430. Valencia, Van Dyke, and Ludwig, p. 146; Chinkin, p. 249; 

and Xue, p. 176.

431. Studeman.
154

432. Valencia, Van Dyke, and Ludwig, pp. 55-56.

433. Ibid., pp. 31, 56, 264; CIA, “South China Sea” Map.

434. Valencia, Van Dyke, and Ludwig, p. 265.

435. Joyner.

436. Other objectionable economic provisions concerning 

mandatory transfer of technology and production limitations 

were not enforced. Shearer, p. 200; and Rufe. 

437. Hong, p. 139; and Dolven, Kan, and Manyin, p. 33.

438. 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 extreme conditions of open 

ocean and abysmal 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. “Manganese Nodule,” Wikipedia, available from en.wikipedia.org/wiki/Manganese_nodule. 

439. Hong, p. 2.

440. Valencia, Van Dyke, and Ludwig, pp. 3, 215.

441. Kivimaki, Odgaard, and Tonnesson, p. 152; Valencia, Van 

Dyke, and Ludwig, pp. 183-184; and CIA, South China Sea Map.

442. Also known as the Spitzbergen Islands Treaty for the former name of this Arctic Ocean archipelago, Norway was awarded 

sovereignty based on its association with and proximity to the islands. However, the islands had long been used by many other 

states as a common area, and the treaty allows the citizens of any 

ratifying state to take up residence and economic endeavors on 

the islands under Norwegian law and the stipulations of the treaty. There are 25 states in the treaty, including the United States, 

Russia, China, India, Japan, New Zealand, Saudi Arabia, and Afghanistan. See Valencia, Van Dyke, and Ludwig, pp. 182-183.
155

443. Ibid., pp. 182-183.

444. Ibid., pp. 206, 218-219.

445. Clinton.

446. Valencia, Van Dyke, and Ludwig, pp. 171-172.

447. Ibid., p. 179; and Greenfield, p. 39-40.

448. Ness, p. 46.

449. Valencia, Van Dyke, and Ludwig, pp. 45, 56, 205.

450. Normally this is interpreted to mean shelving the maritime jurisdiction disputes not those over island sovereignty. Fravel, p. 45; and Hong, p. 181.

451. Hong, p. 30.

452. Ibid., p. 185.

453. ICG, “The South China Sea (II),” p. 6.

454. Dolven, Kan, and Manyin, p. 30; Clinton; and 

Hong, p. 14.

455. Dolven, Kan, and Manyin, p. 11; Hong, p. 14; and Jin.

456. Valencia, Van Dyke, and Ludwig, p. 97; Dolven, Kan, 

and Manyin, p. 26; ICG, “The South China Sea (II),” p. 7; and 

Trillanes, p. 7.

457. Studeman.

458. ICG, “The South China Sea (II),” p. 34.

459. Valencia, Van Dyke, and Ludwig, p. 101.

460. Clinton.

461. Kreisher.
156

462. Paal, “Territorial Disputes in Asian Waters”; and Dolven, 

Kan, and Manyin, pp. i-ii.

463. Hong, p. 197.

464. Brzezinski, p. 97.

465. Jianzhong Zhuang, “China’s Maritime Development 

and US-China Cooperation,” Erickson, Goldstein, and Nan Li, 

eds., p. 8.

466. “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; and Erikson and Goldstein, p. xi.

467. Fravel, p. 47; and Paal, “Territorial Disputes in Asian 

Waters.”

468. Maritime Security Policy, National Security Presidential 

Directive 41, Washington, DC: The White House, December 21, 

2004, available from https:// www.fas.org/irp/offdocs/nspd/nspd41.

pdf; and Dutton, p. 197.

469. USPACOM, pp. 3-5.

470. Clinton.

471. Erickson, p. 431.

472. Valencia, Van Dyke, and Ludwig, p. 5; and Hong, p. 198.

473. Moller, p. 75; Amer, “Ongoing Efforts in Conflict Management,” p. 123; and Kivimaki, Odgaard, and Tonnesson, p. 146.

474 . Valencia, Van Dyke, and Ludwig, p. 111.

475. Kivimaki, Odgaard, and Tonnesson, p. 143; Wiencek and 

Baker, “Security Risks of a South China Sea Conflict”; Erickson, p. 

431; Xinbo Wu, US Security Policy in Asia: Implications for China-US 

Relations, Washington, DC: The Brookings Institution, September 
157

2000, available from www.brookings.edu/research/papers/2000/09/

northeastasia-xinbo; and Dutton, p. 208.

476. Wiencek and Baker, “Security Risks of a South China Sea 

Conflict”; and Paal, “Dangerous Shoals.”

477. Wu, US Security Policy in Asia: Implications for China-US 

Relations.

478. Kivimaki, Odgaard, and Tonnesson, pp. 139-140; Shicun 

Wu, pp. 368-369; 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 Spratleys 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 issue on the basis of its 

interference with navigation.

Shicun Wu, p. 369.

479. Lai, The United States and China in Power Transition, 

pp. 137, 143. 

480. Lai, The United States and China in Power Transition, 

p. 137; Hong, p. 196; and Kivimaki, Odgaard, and Tonnesson, 

pp. 142-143, 147.

481. Such conflict includes PRC involvement in the Korean 

War:

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.

Kivimaki, Odgaard, and Tonnesson, p. 144.
158

482. Controversy from remarks made by mid-level Chinese 

officials in 2010 have left uncertain if one of the PRC’s declared 

core interests of sovereignty over China’s territory, which it considers non-negotiable, also includes the Spratly Islands. If, indeed, 

that was not the intent of the Chinese government, some believe 

that China’s interests are nonetheless moving in that direction. 

Swaine, p. 2; Fravel, p. 42; 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.

483. Kivimaki, Odgaard, and Tonnesson, pp. 134-135; and 

Moller, p. 76.

484. Dolven, Kan, and Manyin, p. 28; Valencia, Van Dyke, and 

Ludwig, p. 80; Hong, p. 140; Kivimaki, Odgaard, and Tonnesson, 

p. 140; and “U.S. Reaffirms Defense Treaty with Philippines,” The 

Peninsula, Qatar, June 1, 2013, available from thepeninsulaqatar.

com/latest-news/239548-us-reaffirms-defence-treaty-with-philippines.

html.

485. Valencia, p. 440.

486. “Southeast Asia Treaty Organization,” in West’s Encyclopedia of American Law, Farmington Hills, MI: The Gale Group, 

2008, available from legal-dictionary.thefreedictionary.com/Southeast

+Asia+Collective+Defense+Treaty.

487. ICG, “The South China Sea (II),” p. 32; Kivimaki, 

Odgaard, and Tonnesson, p. 139; and USPACOM, pp. 2-3.

488. Brzezinski, pp. 99-100.

489. ICG, “The South China Sea (II),” p. 25; and Paal, 

“Dangerous Shoals.”

490. These include a myriad of activities including frequent 

presence of U.S. naval ships in the region; the expansion of military bases on the U.S. island territory of Guam; access rights in 

Thailand (U-Tapao), Malaysia, (Lumut), Indonesia (Surabaya), 

and Australia (Darwin); naval exercises with Vietnam through a 

budding military relationship; Singapore expanding Changi naval base to accommodate the Seventh Fleet with the permanent 
159

basing of a U.S. logistics unit there; a tripling of port calls to Malaysia over 10 years; and an agreement for U.S. Forces to again access the Philippine’s Clark and Subic Bay bases, along with much 

needed enhanced bilateral security cooperation, 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 China-US Relations; Moller, 

p. 76; Pan; Hong, pp. 28, 30, 196-198; ICG; “The South China Sea 

(II),” pp. 11, 26; Dolven, Kan, and Manyin, p. 29; 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.

491. Pan. 

492. Paal, “Dangerous Shoals.”

493. Shicun Wu, p. 370; and Lai, The United States and China in 

Power Transition, p. 140.

494. Kivimaki, Odgaard, and Tonnesson, p. 147; and Valencia, 

Van Dyke, and Ludwig, p. 92.

495. Kivimaki, Odgaard, and Tonnesson, p. 141.

496. Ibid., pp. 135, 147.

497. ICG, “The South China Sea (II),” p. 25.

498. Dolven, Kan, and Manyin, p. 23; Fravel, p. 47.

499. Valencia, Van Dyke, and Ludwig, p. 131.

500. Hong, p. 30.

501. ICG, “South China Sea (II),” p. 27.

502. Valencia, Van Dyke, and Ludwig, p. 99.

503. Brzezinski, p. 97.
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