The sovereignty question

The question as to who has sovereignty over the Xisha Islands is at the heart of the current situation. If Vietnam had sovereignty over the islands, there would be no dispute. However, despite much global commentary suggesting that Vietnam has a case to support its sovereignty claim, closer analysis of the history of the dispute suggests otherwise.

Vietnam's current claim is seriously weakened by North Vietnam's recognition of Chinese sovereignty over the Xisha Islands in 1958 and its lack of protest between 1958 and 1975. A number of governments, including the United States, have explicitly or implicitly recognized Chinese sovereignty over some or all of the islands. China has occupied Yongxing Island since the end of World War Two. North Vietnamese occupation of that large feature may have significantly affected American operations against North Vietnam during the Vietnam War.

The US has urged the claimant countries to exercise care and restraint. Against the historical background of American acceptance of China's sovereignty over Yongxing Island, it would be hypocritical now for Washington to make any stronger statement that might be seen as supportive of Vietnam's position.

Where to now?

Previous incidents around the Xisha Islands mainly related to fisheries management issues and China's arrest of Vietnamese fishing vessels attempting to fish in or near the islands. Undoubtedly Vietnam can make a strong case that its fishermen have traditionally fished in these waters - in much the same way as China claims traditional rights for its fishermen elsewhere in the South China Sea.

Vietnam may well have been better off to agree to China's sovereignty over the Xisha Islands in return for China conceding traditional fishing rights in the area to Vietnamese fishermen and agreeing to pursue the joint development of marine resources in the waters between the islands and the coast of Vietnam. Unfortunately, however, the two countries have probably passed the point of no return in being able to reach such a negotiated settlement. Vietnam is playing for high odds by endeavouring to muster global and regional support for its position when in fact, it may end up with nothing.

Hard line positions by all the parties to the sovereignty disputes in the South China Sea are short-sighted and will inevitably lead to increased tensions and regional instability. There will be 'losers' in this approach when potentially all could be 'winners' if the parties accepted the need for functional cooperation in managing the sea and its resources. The geographical reality is that straight line maritime boundaries will be impossible to achieve in some parts of the sea, and as a consequence, the sole ownership of resources will also not be possible.

The irony of the current situation is that functional cooperation is not just something that would be nice to have but is an actual obligation under Part IX of UNCLOS covering semi-enclosed waters such as the South China Sea. That obligation has been forgotten while countries continue to assert their unilateral sovereignty claims and risk a 'win-lose' outcome.

Sam Bateman is a Senior Fellow in the Maritime Security Program at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University. He is a former Australian naval commodore with research interests in regimes for good order at . Rsis Analysis originally published in Lianhe Zaobao