Blatant set-up of island districts: China’s attempt for “legal files” for South China Sea monopoly

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Chinas attempt for legal files for South China Sea monopolyOn 18 April 2020, Chinese Global Television Network (CGTN) announced the Chinese government’s decision on the establishment of two districts, Xisha and Nansha, under the administration of Sansha city. According to CGTN, Xisha’s headquarters is in Woody Island (Paracel Islands), while that of Nansha locates in Fiery Cross (Spratlys). They are both under China’s illegal occupation. The Paracels was forcibly seized by China in 1974, while Fiery Cross has been under Chinese occupation since 1988. The two districts will exercise administration over the surrounding water of the two islands, extending to 200 nm of exclusive economic zone (EEZ), which is against international law.

In 2012, China established Sansha city to govern Paracel and Spratly Islands, which it named Xisha and Nansha respectively in Chinese. Vietnam has repeatedly voiced its opposition to the Chinese occupation, reclamation and administration of these islands, considering it an act of violation of Vietnam’s sovereignty. Beijing since then has not stopped at the above-mentioned illegal actions, but continues to step up. The establishment of these two island districts means that China translates Vietnam’s Paracel and Spratly Islands into two administrative units, Xisha and Nansha, under their so-called “city of Sansha”.
This act is a calculated step manifesting a violation of international law and ethics, showing the increasingly blatant intentions of exclusively control of the South China Sea, as shown in the followings:
First, the timing of the announcement is deliberately intended to gain the greatest advantages, because: 1. This is the time when the Covid-19 pandemic has not yet died down and the whole world is “struggling” to fight it, especially the United States who is tensely dealing with the disease. The USS Theodore Roosevelt aircraft carrier operating in the Western Pacific was diagnosed with many sailors infected and forced to return to base. Its combat readiness clearly decreased. In this context, Beijing saw this as an opportunity to “institutionalize” illegal occupation of the South China Sea without the fear of any consequences, given that the reaction of international community would be marginal. 2. China is facing quite a few problems in domestic politics, starting with the Covid-19 outbreak in Wuhan and spreading to other localities, then breaking out around the world. The Chinese government’s “cover-up” of the disease for the six most important days to be able to control the disease, along with inconsistent information about the actual death tolls, as well as the impacts of Covid-19 on the Chinese economy lead to the attacks by domestic political factions on the credibility and capacity of Chinese leaders. Facing such domestic political issues, the usual tactic that China often uses to appease public opinion is to provoke extreme nationalism of the Chinese people, particularly by the South China Sea issue. 3. The US and some other countries are putting pressure on China on the origin of the corona virus outbreak and Beijing will definitely need to provide the world with an answer. To alleviate the pressure, there is no other way than diverting the attention away, in which the South China Sea issue is considered an option for Beijing to “kill two birds with one stone”. Besides, China's actions took place after Vietnam sent a diplomatic note to the United Nations to oppose China’s “Four shas” claim in the South China Sea, so it could be considered as a move to place pressure and intimidate Vietnam, especially when Vietnam is the ASEAN Chair of 2020, a non-permanent member of the United Nations Security Council. If Vietnam does not have effective countermeasures, it would be regarded as a “fait accompli”, and as a result, China will show no compromise.
Second, the move is to strengthen the ability of de facto control of the South China Sea. Collin Koh, a defense expert at S. Rajaratnam School of International Studies, Singapore stated “China is seeking to increase its actual control over the Paracels and Spratlys Islands. Before land reclamation to create artificial islands, especially in Spratly, China has only one administrative office located on Woody Island (Paracel). It is thus a difficulty for Beijing to controls the entire area of two dispersed island groups (Paracels and Spratlys). With the artificial islands and essential infrastructure already in place since 2014, Beijing will now take a further step to expand its administrative system, divided into management groups”. He further said: “This move shows China’s disregard of the rejection of its claim by the 2016 judgment rendered by the Annex VII Arbitral Tribunal under Permanent Court of Arbitration (PCA) in The Hague, The Netherlands. Not only that, the move signalled that Beijing was likely to build more infrastructures and enhance its military presence in the area. This could be part of a long-term plan since the so-called “Sansha city” was established in 2012”. He went on: “This move also comes amid the ongoing negotiations on the code of conduct [governing behaviour in the disputed waters]. It’s clear that Beijing is seeking to further consolidate its gains in the South China Sea when the ASEAN’s response is not strong enough.”
Third, China's announcement of the establishment of the two districts is an utter illegitimate and illegal action for the following reasons: 1. China has absolutely no sovereignty over the Paracel and Spratly Islands. This is Vietnam’s consistent position. In its note to the United Nations dated March 30, 2020, the Vietnamese Government reiterated: “Viet Nam has sufficient historical evidence and legal basis to assert sovereignty over the Paracel and Spratly Islands, in accordance with international law. Vietnam affirms that the United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) is the sole legal basis, which regulates comprehensively the maritime entitlement enjoyed by Vietnam and China”. Accordingly, Vietnam has long standing sovereignty over these two archipelagoes and is supported with historical and legal evidence. 2. China’s use of force to occupy the entire Paracel Islands and 7 features in the Spratly Islands is a violation of international law under Article 2.4 of the UN Charter. Accordingly, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. In addition, Resolution No. 2625 of the UN General Assembly in 1970 also clearly stated not to accept the use of force to violate the territorial integrity of other countries. And so, even if these features are currently under Chinese control, China cannot establish lawful sovereignty over them. 3. China’s declaration also violates international law of the sea, governed by UNCLOS 1982. In its Note Verbale dated 30 March 2020, Vietnam made it clear: “low-tide elevations or submerged features are not capable of appropriation and do not, in and of themselves, generate entitlements to any maritime zones”. This view is based on the important principle of law of the sea that “land dominates the sea”. This is a general principle of international law developed from customary international law and through the decisions of international courts, including the North Sea Continental Shelf Department in 1969 and reiterated in later rulings of the International Court of Justice (ICJ) thereafter, this principle was codified in Article 121 (2) of UNCLOS 1982. According to this principle, low-tide elevations (LTEs) and submerged features are not subject to appropriation, sovereignty can only be claimed over land and islands, which is defined as a natural land but surrounded by water and always float above the water at high tide. Therefore, the claim of sovereignty over LTEs and submerged features by the Chinese Government is a serious violation of international law of the sea. The Macclesfield Bank, which China calls Zhongsha, is a feature that is always submerged. Therefore, China’s announcement of the establishment of the administration offices in these areas is nothing but a farce, which is also contrary to international law.
Fourth, despite knowing that it is contrary to international law, China still adopted the decision, essentially in order to consolidate its “legal record”, which is also Beijing's major weakness. After China announced the establishment of the two districts, Prof. Stephen Robert Nagy at International Christian University, Japan, and a scholar at the Asia-Pacific Foundation in Canada, said that the move is part of China’s plan to create “evidence” of administrative control over the South China Sea. “For a long time, Beijing's claims in the South China Sea have been dismissed in part because China has no evidence of the administrative system for its claimed maritime areas. Through the establishment of the Xisha and Nansha districts, China is seeking to establish the so-called evidence of administrative control to strengthen its legal record” he said.
Fifth, the move once again shows China’s ambition of controlling the South China Sea, even in tough times. Dr. James R. Holmes, a strategy expert at the US Naval War College (USNWC) shared this view, saying that the recent moves proved that China did not hide its objectives in the South China Sea. They use many tools to achieve those goals. He commented: “Their aim, as we all know, is to seek sovereignty over the sea, the airspace and features within the nine-dash line drawn by China, which encompasses most of the South China Sea. Sovereignty ultimately means control and ownership. Beijing is trying to assert its sovereignty within the nine-dash line delineating its territorial claim. Beijing wants to enforce it according to its own will and force other countries to respect.”
According to James, China considers itself as having sovereignty in many areas of the South China Sea, relying on the “sovereignty” pretext to carry out actions that sovereign states are allowed to take. They allow their fishermen to fish and exploit natural resources in the exclusive economic zone of other coastal states. 
In other cases, China challenges the coast guards and navies of Southeast Asian countries. China believes that countries that cannot chase their ships will be discouraged and stop trying. It is the time when China turns this area into an area of its “indisputable sovereignty”. He emphasized that we often think of international law as written treaties. But “international customary law” is also an important part. He said: “If China continues to assert its sovereignty in the nine-dash line for a long time and no state effectively opposes to it, its claims will start to become customary and even becoming international law eventually. This is Beijing’s long-term strategy. China is trying to turn its illegal claims that are outlawed by UNCLOS and judicial decision into sovereignty.”
Sixth, the Beijing’s illegal act poses a very serious problem, affecting security in the region, because: 1. Once the administrative authority is established, the next step will be setting up local units and agencies according to their functions, divisions in their administrative system. 2. China will increase investment and build infrastructure in places where it establishes administrative units. China's strategy is first building houses and offices for civilian purpose, which will then gradually develop into buildings and cities at sea with no difference compared to its land territory. 3. After the illegal establishment of administrative units, China can deploy and mobilize troops to guard and protect areas where it illegally declared sovereignty. 4. Once China has completed with the establishment of administrative units, China will expand the encroachment of other features in the South China Sea, increasing its military presence at sea.

Thus, it can be concluded that: The Chinese establishment of the two administrative districts to manage the Paracels and Spratlys under Vietnam’s sovereignty is a provocative and illegal move in contrary to international law, a violation of the Declaration on the Conduct of Parties in the South China Sea (DOC). This act causes serious damages to the negotiation on a legally binding Code of Conduct in the South China Sea (COC) between China and ASEAN member states and go against the spirit and content of “Agreement on basic principles guiding the settlement of sea-related issues” between Viet Nam and China, agreed by the two leaderships in October 2011. Accordingly, during the process of negotiating maritime issues, the two sides should abide by agreements and the consensus reached by the senior leaders of the two countries and the principles and spirit set out in the DOC. Regarding the maritime dispute between Vietnam and China, the two sides will settle through friendly negotiation and consultation. If the dispute involves other claimants, it will negotiate with the other claimants. Beijing’s continued breach of its commitments will increasingly undermine other countries' trust in China and place it in an increasingly isolated position on the international stage.

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