Introduction If one were to combine all 650 atolls, reefs, rocks and islets that constitute Spratly Islands

into one landmass, it would barely make up five square kilometers. Scattered over 400,000 square kilometers of ocean, these islands might seem insignificant. By a twist of geography and international politics, however, they have managed to be a matter of dispute between no less than six countries. For various reasons China, Taiwan, the Philippines, Vietnam, Malaysia and Brunei have all deemed these scattered islands important enough to lay claim to them, establish a military presence on them, and even attempt colonization of them. All for a set widely flung sandy strips in the middle of the ocean. But why?

Location The Spratly Islands are situated roughly halfway between Philippines and Vietnam. This geographical position placed them squarely on the ideological fault line during the cold war. Today they are little better off as their position puts them uncomfortably close to some of the world's busiest waterways including trade routes connecting East Asia with India, the Middle East and Europe, and through which China, Japan and Korea get 80% of their much needed oil supply. Furthermore, according to preliminary surveys, the Spratlys themselves lie above vast reserves of oil and natural gas.

The Spratly Islands are situated in the southern part of the South China Sea, comprising one of the four main island groups present. 2 A semi-enclosed sea, the South China Sea covers an area of 648,000 square nautical miles stretching lengthwise from Singapore in the southwest to Taiwan in the northeast, and breadthwise from Vietnam to Sabah 3 Area total: less than 5 sq km Natural Resources fish, guano, undetermined oil and natural gas potential Natural Hazards typhoons; numerous reefs and shoals pose a serious maritime hazard Population No indigenous inhabitants There are scattered garrisons occupied by military personnel of several claimant states

Ecological Hazards Economy Economic activity is limited to commercial fishing. The proximity to nearby oil- and gasproducing sedimentary basins suggests the potential for oil and gas deposits, but the region is largely unexplored. There are no reliable estimates of potential reserves. Commercial exploitation has yet to be developed. Six governments claim all or part of the Spratly Islands. China, Taiwan and Vietnam claim sovereignty and jurisdiction over the Spratly Islands within the sweep of their broader claims to the South China Sea. The claims of Brunei, Malaysia and the Philippines are limited to parts of the Spratlys. The resulting overlap has created a volatile situation of contested claims and provocative actions and responses. Despite the launch of confidence-building measures through dialogue processes, resolution of the sovereignty issue that lies at the heart of the dispute remains elusive. As a result, the area remains a scab over a festering sore ready to be picked for political leverage. 1

Various Claims Both the Chinese and Taiwanese governments (PRC and ROC) as well as Vietnam base their claim on historical records, dubious medieval charts, and the sporadic presence of fishermen. The Filipino claim is based on much more recent history, the actions of Tomas Cloma. Cloma was a Filipino adventurer and fishing magnate who, in 1947, tried to claim some of the atolls for a personal micro-nation, the short lived and perhaps somewhat redundantly named "Free Territory of Freedomland." Malaysia also claims a part of archipelago because the islands lie on an extension of Malaysia's continental shelf. While tiny Brunei refrained from making any official claims, it established a fishing zone which overlaps with the southern section of the archipelago. At the moment, a permanent solution is not in sight. PRC, ROC, Vietnam, Philippines and Malaysia all maintain military presences on the islands.

Islands Occupied Itu Aba or Taiping at a tiny 1.4km in length and 400m in width, is the largest of the islands, and currently occupied by Taiwan (ROC). Itu Aba is at least large enough to accommodate a proper if rather small airport. Meanwhile the Filipino military was forced to artificially extend Pegasa Island, the second largest Island in the Spratly Islands, in order to even fit their runway. In order to boost its claim to Pegasa the Filipino government has tried to establish a natural community there by giving away free land, accommodations, secure jobs, and a supply of

food to any civilian willing to come and live on the island. At the moment the community consists of less then 200 people. It is currently administered as a part of municipality of Kalayaan, and even has its own mayor, who nonetheless has his office in Puerto Princessa on Palawan, the nearest settled Filipino island. Many different approaches have been taken to placing claim on the various islands. Malaysia has taken a soft, economic approach by making their island Layang Layang home to a tourist diving resort, complete with a connection with the mainland. The Peoples Republic of China, on the other hand, have taken a somewhat less subtle tact. Gaven Reefs, once merely a two meter high sand dune in the middle of the ocean, now supports a huge cement block with a raised metal frame, and a two-story building on top of that. At the very top of the bizarre structure, is the Chinese flag. [t]he total land area of the Spratlys above the highest astronomic tide has been estimated to be less than 8 km (3 sq. miles) yet they are scattered over an area of around 24,000 km In 2000, Vietnam occupied at least 19 features, the Philippines eight, China seven, Malaysia five and Taiwan one. 17 Brunei apparently claims Louisa Reef but has not occupied it. 18 Figure 4 shows features occupied in the Spratly Islands. References https://www.cia.gov/library/publications/the-world-factbook/geos/pg.html http://www.atlasobscura.com/places/spratly-islands

For China and the other claimants, oil and gas production from fields in the deeper parts of the Spratlys is alluring as a means to offset current and projected oil import dependence. In practice, a number of caveats apply. They include uncertainty about estimates of the total oil and gas reserves present, the commercially viable volume, the opportunity cost of developing a new field compared to purchasing stocks in the international oil market, technical and environmental challenges of hydrocarbon development in deep water and the anticipated share of different fuels in the national energy structure. Fisheries The South China Sea is one of the worlds richest commercial fisheries, with pelagic species being the most important.
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Among the worlds fishing zones defined by the United Nations Food and Agriculture Organisation (FAO) the area encompassing the South China Sea (zone 71) ranks fourth in terms of total marine production.
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Citing estimates produced by others, John McManus notes that the annual catch from the waters of the Sabah-Palawan area of the Spratlys is about 10,000 tons, valued at approximately US$15 million.
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Target species in the South China Sea include scads, mackerels, tuna (skipjack and yellowfin), sardines, anchovies and shrimps.
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Most of the fishery resources in the area are either shared stocks or highly migratory species.
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The second strategic function of the South China Sea relates to its location astride major regional SLOCs. By volume, over half of the worlds supertanker traffic and merchant shipping passes through the South China Sea region each year. It is an important maritime bridge connecting Asia to markets and raw materials suppliers in Europe, South Asia, the Middle East, North America and Australasia as well as facilitating intraAsian trade. Unhindered movement of oil shipments from the Middle East to northeast Asia is important from both an energy and economic security perspective. For example, Japans dependence on open SLOCs is high given that 75 to 80 per cent of its oil imports from the Middle East are transported across the South China Sea.
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About 70 per cent of Taiwans oil and raw materials imports are transported across the sealanes of the South China Sea.
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South Korea also has an interest in open SLOCS given that it imports most of its oil supply. More generally, [f]ive of the top ten petroleum product routes in the world involve shipments to or within Asia.
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The region also accounts for significant volumes of iron ore, coal and grain shipments.
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disagree.
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There is consensus, however, that Malaysia also has a claim to the feature. The roots of Bruneis eastern and western boundary delimitations with Malaysia lie in the North Borneo (Definition of Boundaries) Order in Council No. 1517 and the Sarawak (Definition of Boundaries) Order in Council No. 1518 of 11 September 1958.
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Bruneis claim incorporating Rifleman Bank appears to be based on an extended continental shelf of 350 nm.
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If so then as a party to the LOSC Brunei must comply with the procedure set out in Article 76 concerning the definition of the continental shelf.
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This includes a requirement to submit information on an extended continental shelf claim to the Commission on the Limits of the Continental Shelf established under the convention. A complicating factor is that the Commission will not consider any submission unless all states involved in a continental shelf delimitation or territorial dispute consent.
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A further difficulty with Bruneis apparent extended shelf claim is that the East Palawan Trough terminates the natural prolongation of the continental shelf 60 to 100 miles off Brunei.
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Haller-Trost suggests Louisa Reef is probably a rock rather than a low-tide elevation.
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It is unable to sustain human habitation or economic life on its own in its existing state.
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Brunei has not allocated a territorial sea to the reef in its maps.
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China China claims indisputable sovereignty over the Paracel and Spratly Islands because it was the first to discover, name, exercise jurisdiction over, develop and undertake economic activities there.123 In the Spratlys its claim covers all the features present as a single entity.124 In support of its claim to both island groups, China cites historical evidence beginning with voyages by its ships across the South China Sea 2,000 years ago in the Han dynasty (206220 A.D.) and continuing during the Tang (618-960 A.D.) and Ming dynasties (1368-1644).
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Evidence of a Chinese presence in the Spratlys from the 19th Century includes trade with fishermen conducted by persons from Hainan Island and the unearthing of burial markers and personal effects. 132

It was noted that the earliest official Chinese claim to and international agreement on the South China Sea islands was the Convention on the Delimitation of the Frontier between China and Tonkin signed between France and China on 26 June 1887. Chinese officials have argued that the inference of the delimitation set out in the convention is that the Paracel and Spratly Islands were part of China and recognised as such by France.135

Monique Chemillier-Gendreau counters this, noting that neither side brought up the issue of the Paracels and Spratlys during the 137134138 negotiations.140 She concludes that the 1887 convention does not deal with the archipelagos and could therefore have no legal consequences for their status, even indirectly.141 Indeed, her view is that in the 1880s Vietnamese title was real and effective. It was not challenged by China either on the ground or at the diplomatic level.142 After the convention was concluded neither France nor China exhibited interest in the Paracels or Spratlys.143 Neither an 1894 Chinese map of the unified empire nor a 1906 Chinese geography textbook show the Spratlys as belonging to China. 144 Chemillier-Gendreau concludes that by the late 19th Century China had voiced no clear claim to either [the Paracels or Spratlys] archipelago and even at the beginning of the 20th 145 Century it did not demonstrate an interest in the islands. At the end of the Second World War the status of the South China Sea islands was confused. While the February 1946 Treaty of Chung-King authorised the Republic of Chinas Chiang Kaishek to occupy the Paracels he unilaterally extended this to include the Spratlys.
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In October 1946 a French warship, the Chevreud, reportedly landed crew on Spratly Island and Itu Aba Island, placing a stone marker on the latter to denote Paris ownership. The Chinese government responded by sending a four-boat force to take possession of both the Paracels and Spratlys and in December 1947 it formally incorporated the four island groups (Paracels, Spratlys, Pratas Island, Macclesfield Bank) into Kuangtung Province.
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France did not protest this action.

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In 1947 the Chinese government published a map showing a U-shaped line that stretches from offshore Vietnam south to near the Natuna Islands before turning back to parallel the coast offshore from Sarawak, Brunei and Sabah, Palawan Island, Luzon and finally through the Bashi Channel between Taiwan and the Philippines. It is unclear whether the line denotes a claim to the waters and resources enclosed therein; Beijing has never given an official explanation of the line, creating ambiguity about its meaning and co-ordinates.

In 1988 China seized Fiery Cross Reef from Vietnam and throughout the 1990s re-affirmed its claim to sovereignty in the Spratlys through a number of means. They included the erection of boundary markers, letting of oil exploration concessions, lodgement of diplomatic protests against the actions of other claimants and occupation of and construction on features.

Malaysia

Malaysias claim traces to 1979 when it published a map (the Peta Baru, or New Map) showing the boundary of its claimed continental shelf, 182 arguing that it has title to features within the enclosed area.
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In addition to extension of its continental shelf, Malaysia cites discovery and occupation as the basis of its claim. In total, Kuala Lumpur claims 12 islands and features in the southern part of the Spratlys. Of this number, eight features were occupied in 2003: Ardasier Reef, Dallas Reef, Erica Reef, Investigator Shoal, Louisa Reef, Marivales Reef, Royal Charlotte Reef and Swallow Reef.
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Of the remaining features claimed by Kuala Lumpur, Commodore Reef is occupied by the Philippines, Amboyna Cay and Barque Canada Reef are occupied by Vietnam and Luconia Reef is unoccupied.
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The continental shelf extension argument is difficult to sustain. First, under the LOSC a coastal state has sovereign rights not sovereignty over the seabed.
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Second, neither the LOSC nor Malaysias 1966 Continental Shelf Act indicate that the continental shelf refers to features that rise above sea level. Third, conventionally under international law title to land generates the right to maritime zones, not vice-versa.
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Fourth, some of the claimed features, such as Amboyna Cay, lie beyond 200nm from the inferred baselines of Malaysias 1979 map. While the LOSC permits a continental shelf claim up to 350nm from coastal baselines, certain criteria have to be met. Recognising the problems with the continental shelf extension argument, Malaysia has tended to now emphasise the discovery and occupation rationale. This is also problematic. Precedents established under international law imply that in itself discovery of unoccupied land is insufficient to establish title. Evidence of occupation also needs to be demonstrated and other criteria may be applied, such as effective exercise of authority and acquiescence by other nations.
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In the case of Malaysia, its occupation of features is relatively recent (dating from 1983), its claim is contested by other states and it controls only some of the claimed features.
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Philippines

In May 1956 Filipino businessman Tomas Cloma proclaimed a new state, Kalayaan (Freedomland), covering a group of 33 features in the Spratlys that he had discovered six years earlier and colonised by 1950.
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The PRC and the Republic of Vietnam protested Clomas claim while the Philippines government obfuscated its official position.
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Clomas claim failed but it galvanised a renewed interest in the South China Sea by countries, including the Philippines. On 4 December 1974 Cloma signed a Deed of Assignment and Waiver of Rights of his Kalayaan claim to the Philippines government.
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In 1971 the Philippines government declared that the 53 islands within Kalayaan were terra nullius and that Manila effectively occupied and controlled Thitu, Flat and Nanshan islands.
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A year later Kalayaan was incorporated within the administrative area of Palawan province.
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Presidential Decree 1596 of 11 June 1978 reaffirmed this. The decree also identified the coordinates of the Kalayaan Island Group and declared the areas sea-bed, subsoil, continental margin and air space as part of Philippine territory.
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Spratly Island itself was not included.

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Decree 1596 identified several justifications for the claim. The proximity of the Kalayaan Island Group was vital to the Philippines security and economic 197 survival; much of the area formed part of the continental margin of the Philippine archipelago; the area did not legally belong to any state but because of history, indispensable need and effective occupation and control it now belonged to the Philippines; and other countries claims to some of the area had lapsed through abandonment and could not prevail over the Philippines on legal, historical and equitable grounds.
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Of these justifications, Yorac argues that the Philippines has a persuasive argument for title based on abandonment, terra nullius and effective occupation.
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The oil factor is considered to have played a part in the timing of the presidential decree.
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The oil crises of the early 1970s highlighted the Philippines dependence on Middle Eastern sources and the political, economic and security implications of this.
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In addition, three years after its discovery the Nido Reef field offshore from Palawan was almost entering production. And exploratory drilling in the Reed Bank area had commenced in 1976.
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Several weaknesses are apparent in the Philippines arguments. First, Clomas claim carries no weight in international law since it was the action of an individual and not a government or its representative agent.
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Second, under international law proximity is not a criterion to establish title.

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Third, the nonacquiescence of the other claimants undercuts Manilas assertions of effective Occupation and abandonment.
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Fourth, the Palawan Trough separates the Spratly Islands from the Philippine archipelago so that there is no natural prolongation of the continental shelf.
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This rebuts the argument that much of the claimed area is part of the Philippines continental shelf.
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Taiwan In area, Taiwans claim in the South China Sea parallels that of the Peoples Republic of China. History, geography, international law and facts underlie Taiwans sovereignty claim to the Spratly Islands, the Paracel Islands, Macclesfield Bank and the Pratas Islands according to the 10 March 1993 Policy Guidelines for the South China Sea adopted by Taipei.
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The guidelines also state that [t]he South China Sea area within the historic water limit is the maritime area under the jurisdiction of the Republic of China, in which the Republic of China possesses all rights and interests.
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This latter claim is based on the U-shaped line published on a 1947 map issued by the then Nationalist government of China.

Taiwan claimed the Spratly Islands group in 1946.

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Between that year and 1950 it occupied Itu Aba but was then absent until 1956.
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In response to the 1956 Kalayaan claim made by the Filipino Tomas Cloma, Taiwan reoccupied Itu Aba on 11 July that year 217 and continues to do so. In the early 1960s Taipei strengthened its presence in the Spratlys through reinforcement of the garrison on Itu Aba, establishment of a regular patrol system among the islands and erection of boundary markers on several features.
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Following the signing in November 2002 of the ASEAN-China Declaration on the Conduct of Parties in the South China Sea, Taiwan reiterated its sovereignty over the four main island groups located therein.
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Taipeis assertion of sovereignty over the Spratlys as a whole, as opposed to the one feature of Itu Aba, based on continuous occupation and effective control is difficult to sustain.

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And while Article 2 of the 1952 Sino-Japan Peace Treaty stated that Tokyo renounced to China all right, title and claim to the Spratly Islands, inter alia, it remains unclear whether this means the Peoples Republic of China or the Republic of China.
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Despite this conundrum, neither Taipei nor Beijing has challenged the others claim in the South China Sea nor engaged each other in any military conflict there.
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Finally, Taipeis historic waters claim in the South China Sea is problematic.
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Like Beijing, Taipei has yet to explain the meaning and co-ordinates of the area enclosed by a U-shaped line depicted on a 1947 map issued by the Chinese government. Vietnam Vietnams sovereignty claim in the Spratly Islands, an area it refers to as Truong Sa, is based on history.
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Various dates have been suggested from which Vietnam considered it held title, including between 1460 and 1497 during the reign of King Le Thanh Tong,
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and 1650 to 1653.

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Neither Vietnam nor China has yet produced documentation that equivocally demonstrates possession before the 18
th

Century, however.
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An 1838 map, the Dai Nam Nht Thng Ton D, identifies the Spratlys under the name Van Ly Truong Sa and shows it as part of Vietnamese territory even though the location of the area is incorrectly identified.
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In 1852 the French occupation of Cochin China began and in the following decades the Empire of Vietnam lost interest in the offshore islands. Austin suggests that the earliest specific official act that Vietnam can cite in a title claim over the Spratlys is Frances occupation of one of the islands in 1930.
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Subsequently, and as noted earlier, in July 1933 France issued a notice in its Journal Officiel identifying seven features it had annexed. Vietnam claims this action was made on its behalf, a doubtful proposition in Austins view. He

argues, moreover, that [t]here is no evidence that France specifically passed on its rights in the Spratly Islands to the RVN [Republic of Vietnam] when the latter was granted independence on 4 June 1954.
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Even if this successor state assertion were sustainable, Haller-Trost identifies a problem of internal logic in Vietnams argument: Frances 1933 annexation notice referred to only seven of the more than 300 features in the Spratlys whereas Vietnam claims all of them.

In the September 1951 San Francisco Peace Treaty negotiations, Vietnam reaffirmed its claim to sovereignty over the Paracels, Spratlys, Pratas Island and Macclesfield Bank.
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Samuels suggests this was a protest against an identical claim made in August 1951 by Communist Chinas Foreign Minister Zhou Enlai.
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On 1 June 1956 the South Vietnamese government released a communiqu reiterating sovereignty over the Paracel and Spratlys Islands and
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referred also to its statement in the 1951 San Francisco treaty negotiations. More troubling in trying to sustain a case of Vietnamese title in the Spratlys were statements by North Vietnam in 1956 and 1958 conceding sovereignty over the area to the Peoples Republic of China.
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In 1971 and 1973 Hanoi sought to go back on these statements by claiming the Spratlys as Vietnamese territory. South Vietnam was also active, incorporating ten of the islands into Phuc Tuy province on 6 September 1973 and letting oil concessions.
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In the immediate aftermath of the collapse of the South Vietnamese regime in April 1975, Hanoi quickly occupied the six features in the Spratlys previously held by Saigon to deny them to China.
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Following reunification in 1976 the Socialist Republic of Vietnam replaced the Republic of Vietnam and Democratic Republic of Vietnam, the appellations of the former southern and northern governments respectively. In 1976 the new government issued a map of a unified Vietnam showing the Paracels and Spratlys as Vietnamese territory, to Chinas concern.
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The government of the Socialist Republic of Vietnam now argues that the 1956 and 1958 statements were a practical necessity of the times. As HallerTrost notes, however, any statements issued in relation to territorial matters by the former North Vietnam Government are still binding.
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An attempt by a government to go back on a previously stated position invokes the legal principle of estoppel. The aim of estoppel is to preclude a party from benefiting by his own inconsistency to the detriment of another party who has in good faith relied upon a representation of fact made by the former party.
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As Bowett remarks,
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the principle of good faith lies at the very root of the doctrine of estoppel. This requires that a party adhere to its statement whether it be true or not. Bowett goes on to identify three essential conditions of estoppel: a clear and unambiguous statement of fact; the statement is made voluntarily, unconditionally and is authorised; and there must be reliance in good faith upon the statement either to the detriment of the party relying on it or to the advantage of the party making it.
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Even where the conditions of estoppel are unmet, an admission by a party may be used as evidence to show a lack of consistency or weakness in its position.
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In the early 1990s both Vietnam and China used American oil companies

as surrogates for their respective territorial claims in the Spratlys.

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This involved the granting of oil exploration concessions by China to Crestone Energy Corporation and by Vietnam to Mobil in adjacent, contested areas. In 1992 Hanoi distinguished its continental shelf claim in two parts: a mainland shelf that includes Vanguard Bank and Prince of Wales Bank, and the Spratly Islands. It maintains, however, its claim to the entire Spratlys whether by reason of sovereignty or by right of mainland continental shelf jurisdiction.
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