"Pearls of the Emerald Sea" - so poetically the Chinese press has long called islets and atolls, usually of coral origin, located in the South China Sea. To travelers who visited these secluded corners of the earth in good weather, they really could seem the epitome of idyll.

However, the military-political situation developing around the islands is not calm. Two groups of these islets, reefs and atolls - the Paracel Islands and the Spratly Islands - have been the subject of an international territorial dispute for many years; they are claimed by the PRC and Vietnam, while the Philippines claims the island groups and reefs of the eastern part of the Spratly Islands, and Malaysia and Brunei claim the southern part.

The name "Spratly Islands" would obviously be more accurate to refer not to any particular group of islands, but to a huge elliptical area near the coast of the Philippines and Malaysia in the southwestern part of the South China Sea, stretching from northeast to southwest for more than a thousand kilometers. Previously, before the Second World War, this area, in which more than a hundred small island objects are scattered, was called Coral Islands, and in China - Tuanypa Qiundao. Now in China it is called Nansha Qiundao, in Vietnam-Kuandao Truongsha, and in the Philippines - Calayana (meaning only the northern part of the area, where the main part of island objects is located). With all the many island objects in the area, there are only nine islands, as defined by the international law of the sea, and the largest of them - the island of Itu-Aba-has an area of 0.42 square kilometers.

As for the Paracel Islands, called in China Xisha Qiundao, and in Vietnam-Kuandao Hoansha, located 200-300 kilometers from the coast of Vietnam and from the Chinese island of Hainan, the total area of all 15 islands included in them is only three square kilometers.

No island of either group has ever had a permanent population.

The South China Sea plays an important role in international trade and the normal functioning of the world economy: Together with the Strait of Malacca and the Andaman Sea to the west and the Taiwan Strait to the east, it is the main shipping route that connects the Pacific Ocean with the Indian Ocean. It is in the South China Sea that sea routes from Europe, Africa, the Middle East, South Asia to the Far East and America are intertwined in a kind of knot. This international shipping route is also of great importance for Russia, because the Northern Sea Route is still far from being developed. It is used by Russian vessels to transport cargo from their European ports to the Far East, which cannot be delivered by rail.

THE FIRST SPROUTS OF CONFLICT

The population of the Philippine and Sunda archipelagos, Indochina and Malay Peninsulas has long been engaged in fishing and seafood production in the shallow waters of the South China Sea. Chinese fishermen did not appear here until the end of the XIX century: the "sea ban" in force in the country - a ban on subjects of the Celestial Empire to move away from the coast of the country - completely excluded this possibility. Only occasionally did Chinese ships pass by the islands, which had received official permission to conduct overseas trade operations or were part of expeditions sent at the behest of the imperial court. Naturally, the question of the ownership of deserted, ownerless, abandoned and lost in the sea expanses of land did not arise.

The first sprouts of existing disagreements and disputes over their state affiliation were revealed only in the 30-40s of the XX century. It was at this time that the French colonial authorities of Indochina noticed the uninhabited and abandoned islands and took steps to survey them and assert their control. Although the French authorities paid more attention to the Paracel Islands, and French warships appeared in the Spratly region only from time to time, they were the first to formally join the territory of the Indochina Union in 1933, as French Indochina was then called. ¹ In 1938, the annexation of the Paracel Islands2 was announced .

The only country that protested to Paris against the annexation of the Spratly Islands in 1933 was Japan. Later, however, Chinese authors claimed that the Nanking government also undertook a "demarche of protest" ³ .

Announcing the annexation of the Paracel Islands and a number of islands-

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the Spratly Islands, the French authorities have taken steps to develop them. On the island of Itu Aba (Spratly region) and on the island of Patl, the Croissant group of the Paracel Islands (the archipelago consists of two island groups-Croissant, or Crescent and Amphitrite) began to erect lighthouses, build weather and radio telegraph stations. A French - Vietnamese border guard post was established on Patl Island.

However, in 1939, Japanese troops occupied all the islands of the South China Sea. They created support bases, operating from which the Japanese air and naval forces inflicted significant damage to the Allied military and merchant fleets during the initial period of the war in the Pacific.

In mid-1945, the Japanese evacuated the islands, and in 1946, the Chinese government sent two naval expeditions to the Spratly and Paracel Islands. The Chinese destroyed all previously erected Japanese troops symbols belonging to the islands of Japan, replacing them with Chinese symbols. But if the expedition to the Spratly region ended with this, then a Chinese military garrison was stationed on the island of Boise (Woody) of the Amphitrite group of the Paracel Islands, and the construction of a support base began. Since the French - Vietnamese border police were stationed on the Croissant islands, it can be said that the Paracel Islands were actually divided between France (Vietnam) and China. At the same time, both sides claimed that they controlled the entire archipelago.

In December 1947, President Chiang Kai-shek of the Republic of China signed a decree that included all the islands of the South China Sea in the Hainan Special Administrative Region.

OCCUPATION-EFFECTIVE AND FICTITIOUS

By decrees of the French Governor-General of Indochina and the Emperor of Vietnam Bao Dai in 1933 and 1938, all these islands were incorporated into Vietnam, and by decree of President Chiang Kai-shek, they were also incorporated into China. But it is important to note that neither the Indochina authorities nor the Chinese government took any practical steps to actually develop the islands, which, apart from the military presence of France and China on the Paracels, continued to remain uninhabited, abandoned and abandoned. This circumstance is of fundamental importance for assessing the legitimacy of subsequent claims to the ownership of the islands of Vietnam, as the legal successor of France, and China.

The fact is that, in accordance with international law, a State can assert its sovereignty over uninhabited islands only by carrying out their effective occupation. The legal content of the concept of "effective occupation" of an uninhabited territory includes such actions as taking possession of it, developing it, and organizing management. The most important point in this case is the establishment of local authorities. Even if the State has officially declared the occupation and administration of a previously uninhabited territory and a permanent population has appeared on it, but local authorities will not be established within a reasonable period of time after that, an effective occupation is legally transformed into a fictitious occupation, and the State loses its legal basis for owning this territory.

As for declarations of ownership of an uninhabited territory, erecting certain symbols on it that should indicate its belonging to the relevant State, raising the flag, etc., it does not give this State any legal grounds for owning the territory and cannot restrict third countries in their actions in relation to these territories. ⁴

This is exactly the situation that emerged after the end of World War II on the Spratly Islands.

Although the positions of countries in the region, such as the Philippines and China, regarding the ownership of the South China Sea Islands were outlined in the most general terms back in the 1940s , ⁵ the international dispute on this issue was not officially formed until the very beginning of the 1950s.

On May 17, 1951, President of the Philippines E. Quirino declared that the islands of the northern Spratly Region are located near the coast of the Philippines, are closely connected with them geographically and, of course, should belong to them ^.6 The Chinese government immediately reacted to this speech, considering it in its protest as an attempt on Chinese territory ^.7 On August 15, 1951, Chinese Foreign Minister Zhou Enlai issued a statement regarding the US-British draft peace treaty with Japan and the San Francisco conference. Among other things, the document stated that all the islands of the South China Sea "have always been the territory of China" ⁸ . This document was general and preliminary in nature, it did not contain justification for the claims made. However, such arguments were not included either in the comments to this document in the Chinese press, or in official documents of the Chinese side in support of the claims made in subsequent years.

And on September 7, 1951, speaking at a peace conference in San Francisco, Prime Minister and Foreign Minister of the Saigon Government Tran Van Huy declared his country's claims to the Spratly and Paracel Islands, emphasizing that they "have always belonged to Vietnam" ⁹ .

China was not invited to the San Francisco Conference. The San Francisco Peace Treaty, signed on September 8, 1951, contained a clause on Japan's renunciation of all claims to the Spratly and Paracel Islands, but the question of their ownership was bypassed.

Thus, the two continental countries of the region - China and Vietnam-put forward claims to all the islands of the South-

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but-the China Sea, while the Philippines - only to the islands of the northern part of the Spratly region. Subsequently, they were joined by Malaysia and Brunei, which claim ownership of reefs and atolls in the southwestern part of the area adjacent to their coast.

It should be noted that this refers not only to the PRC, but also to Taiwan. On a number of issues of international relations, the positions of both Chinese states coincide or are close. This is not surprising, since the basis of Beijing's current approaches to many international issues was originally developed by the Kuomintang government and later adopted by the Chinese government. One of them is the issue of the South China Sea Islands.

Claiming ownership of the Spratly Islands, for many years the Chinese side justified them only by general references to the statement of Zhou Enlai of August 15, 1951. The thesis that the islands were part of Chinese territory from time immemorial has never been confirmed in official documents, publications of the People's Republic of China and Taiwan, or in the Chinese-language press of Asia. It wasn't until November 24, 1975, that the Guangming Daily published a lengthy article claiming - again without proof - that the Chinese were the first to discover the islands, and that the Chinese Government "continuously" exercised its jurisdiction and sovereignty over them.

In this regard, it should be noted that not a single researcher who visited the Spratly islands found any traces of human activity in the past, with the exception of the remains of structures erected there by Japanese troops in 1939-1945. There were no signs that the Chinese, as stated by the Guangming Daily, "continuously developed and exploited" the islands. In these circumstances, the claim of China's "jurisdiction and sovereignty" over completely deserted and abandoned islands seems unconvincing.

The position of Vietnam is similar in content to that of China. It also builds its claims to the islands on the basis of the principle of "ancestral ownership" of them.

As for the position of the Philippines, it has been repeatedly stated by E. Quirino, F. Marco Som, K. Garcia and other politicians of the country and is reduced to three main provisions: the islands are uninhabited, abandoned and ownerless, therefore, they will belong to the one who first carries out an effective occupation of them; the islands are located in close proximity to the coast of the Philippines, are geographically connected to them; the islets are of great importance to the national security of the Philippines.

APPLICANTS MOVE ON TO ACTIONS

Since the late 1960s, claimants to the islands have been taking practical steps to assert their real control over them.

In the late 60s and early 70s, Philippine military garrisons were established, and later businesses were established on a number of islets and major atolls; in 1988, the Philippine Government established an administrative unit and held community administration elections ^.10

For its part, the Government of South Vietnam has been active in asserting its control over some islets, atolls, and reefs in the Spratly region. In 1975, the South Vietnamese garrisons were replaced by units of the Armed Forces for the Liberation of South Vietnam, and later the Socialist Republic of Vietnam established a local administration on the Spratly Islands that manages all island facilities under Vietnamese control.

The Taiwanese press later noted that as early as 1947, the Chinese authorities established their own garrison and began building a support base on the island of Itu-Aba, where the Japanese built an airstrip, a seaplane port and a submarine base during the Pacific War ^.11 However, reliable information about the existence of a Taiwanese military base on the island only dates back to the mid-1950s ^.12

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The main focus of the PRC was on the Paracel Islands, which, as indicated, were actually divided between the Chinese and Franco - Vietnamese (later - Vietnamese) sides. In January 1974, taking advantage of the withdrawal of US forces from Vietnam, Chinese troops conducted a military operation to capture the Croissant island group of the Paracel Islands, which have since been completely under Chinese control. Considering the question of ownership of the archipelago resolved, Beijing refuses any negotiations with Vietnam on this topic.

If we talk about the conformity of such a method of "resolving the issue" with the norms of international law, we should recall the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, adopted in 1970 by the XXV session of the UN General Assembly. In particular, it states: "Each State is obliged to refrain from the threat or use of force for the purpose of violating the existing international borders of another State or as a solution to international disputes and questions concerning State borders." And further: "No territorial gains resulting from the threat or use of force should be recognized as legitimate." ¹³

In the Spratly region, the flag of the People's Republic of China appeared only in the late 80s. At the same time, the Chinese side refrained from using force here. Since the most important and large island sites were already controlled by Vietnam and the Philippines, Beijing has moved to establish its control over small reefs and atolls, apparently seeking primarily to "designate" its physical presence in the area. At the same time, the PRC took a completely extraordinary step: it began to build an artificial alluvial island based on the Fire Cross Atoll.

Among other things, this action by Beijing raised a number of legal issues, because this is the first time such a case has occurred in world practice, and its legal consequences are not reflected in the 1982 UN Convention on the Law of the Sea.

THERE IS AN OIL BIAS IN THE DISPUTE

For a long time, the disputes concerned only the islands themselves in the South China Sea. They still retain formally the same character today. However, now the issue of ownership of the islands is primarily related to the rights to the continental shelf of the area, the subsoil of which contains hydrocarbon raw materials in volumes, according to some researchers, comparable to the reserves in the Middle East14 . This is especially important for China, which is located more than a thousand kilometers from the shallow waters of the Spratly region.

However, the question arises: from the point of view of international law, does the possession of island objects of the area give any legal grounds for obtaining sovereign rights on the continental shelf to a State lying at a considerable distance from both the shelf and the island objects located on it?

The continental shelf, or continental shoal, is a shallow leveled part of the underwater margin of the continent adjacent to the land, and has a common geological structure with it. Geological science believes that in the distant past, the continental shelf was a part of the continent, which then became flooded by the sea.

In full accordance with this approach, modern international law considers the continental shelf as an extension of the land territory of a coastal State, and therefore it has a number of sovereign rights on the shelf adjacent to its coast.

The outer limits of the continental shelf were first defined at the First United Nations Conference on the Law of the Sea in Geneva in 1958 and were in principle based on a 200-meter isobath. The new UN Convention on the Law of the Sea, adopted in 1982, expanded the content of the legal concept of the "continental shelf" to include not only the shelf itself, but also the underwater margin of the mainland, and defined its limits as 200 nautical ^miles from the coast15 .

The sovereign rights of coastal States on the continental shelf are limited only to the exploration and exploitation of its natural resources. These rights are exclusive and are reserved to the coastal State regardless of whether it is engaged in offshore exploration and development or not. At the same time, the surface of the covering waters retains the status of an open sea.

The rights of a coastal State with respect to its shelf, as the International Court of Justice has repeatedly stressed when considering disputes in this regard, arise "by virtue of the very fact and nature" of the shelf, since it is a natural extension of the land territory. ¹⁶

As for the islands of the South China Sea, their important feature is that they are not geologically connected with the land territory of coastal states. They are of coral origin and were formed as a result of the vital activity of coral polyps. Attached to the bottom surface, coral colonies form a calcareous skeleton that forms the basis of an island or atoll. In essence, they are peculiar foreign growths on the bottom surface.

However, if such islands are located on the shelf belonging to one State, but are controlled by another State, in accordance with the norms of law, they must have their own territorial waters and contiguous zone. But in this case, we can't talk about any kind of our own shelf or exclusive economic zone.

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At the first stage of the dispute, Beijing's position on the South China Sea islands was based on overestimated assessments of their military-strategic importance and aimed at asserting China's control in the region, primarily over navigation through the islands. As highlighted in the Guangming Daily article of November 24, 1975, " the islands of the South China Sea lie along the arc - shaped Guangzhou - Hong Kong - Macao - Manila-Singapore shipping line, which determines the enormous importance of the geographical location of these islands."

The discovery of rich hydrocarbon deposits on the shelf of the Philippine and Sunda archipelagos forced the Chinese side to subsequently modify its claims. Now, while continuing to insist that the islands belong to the PRC, it bases its approach on a very peculiar interpretation of a number of provisions of international legal instruments. This is primarily the case with article I (b) of the 1958 Geneva Convention on the Continental Shelf and article 121 (2) of the 1982 United Nations Convention on the Law of the Sea, which states that the islands have their own territorial sea, contiguous zone, continental shelf and exclusive economic zone. At the same time, by applying these provisions to the specific situation in the Spratly region, China completely ignores the fundamental provisions of article I (a) of the Geneva Convention and article 76 (1) of the 1982 Convention, which clearly define that the very concept of "continental shelf" refers primarily to the surface and subsoil of the bottom adjacent to the sea. to the territory of the coastal state ¹⁷ .

Claims for control over the entire shelf of the area are put forward by China, based on the premise that the islands themselves belong to China, which does not correspond to the actual state of affairs.

In principle, the island countries of the region understand the desire of the coastal continental states of the South China Sea basin, that is, the PRC and Vietnam, to participate in the exploration and development of the resources of the bottom of its shallow part. They have repeatedly put forward various projects for such participation of continental countries and cooperation with them in this matter. However, each time such initiatives came across a tough position of China, which wants to secure exclusive control over almost the entire shelf. Back in 1977, speaking at one of the closed meetings, the then Chinese Foreign Minister Huang Hua unequivocally stated that "any exploration of the resources of the Nansha Islands (Spratly-E. S.) and adjacent waters can only be legal with the consent of China. You can do some scouting if you want, but when the time comes, we'll completely commandeer it. " ¹⁸

Officially, Beijing refrains from announcing the extent of its claims, limiting itself only to the image on maps published in the PRC of its "sea borders" in the South China Sea, which essentially include most of it as part of Chinese territory. But in 1995, the Institute of World Conflict and Cooperation at the University of California (USA) published a report by one of China's leading experts in the field of maritime law, Professor Ji Guoxin, which also addressed this issue. In his opinion, the coral islands of the Spratly region have a preferential right to the continental shelf on which they are located and which is a natural extension of their land territory. Therefore, the limits of the zone of their national jurisdiction, as well as the island states, should be "adjusted" and determined not by Article 76 of the 1982 UN Convention, but solely taking into account Chinese claims and based on the fact that the question of ownership of the islands themselves has allegedly already been decided in favor of China.

The area of national jurisdiction of island States does not cover the entire shallow waters of the Spratly region. Their exclusive economic zone can not be more than 200, and the continental shelf-200, a maximum of 350 nautical miles. These are the provisions of the 1982 UN Convention on the Law of the Sea, which China ratified in 1996. Outside the zone of national jurisdiction lies the International Maritime Area (referred to as the "Area" in the 1982 Convention), which is open to exploration and exploitation of its resources by all countries of the world. These resources may be developed in agreement with the International Seabed Authority under the conditions set out in the Convention.

Such an approach would help eliminate the source of tension in the South China Sea and stabilize the situation in the region and create normal conditions for the development of resources in its shallow areas.

¹ "Journal officiel de la Republique Francaise", 26 juillet 1933.

² "Nam Truen Quoc Ngu Cong Bao", 1938, N 8.

³ "People's China", 1956, N 13.

⁴ See Oppenheim L. Mezhdunarodnoe pravo, vol. 1 p/t. 2. Moscow, 1949, pp. 128-134.

5 Heinzig D. Disputed Islands in the South China Sea. Wiesbaden, 1976, s. 38 - 39; Guoxin Ji. Maritime Jurisdiction in the Three China Seas. Institute on Global Conflict and Cooperation. University of California. Policy Paper 19. October 1995, p. 15.

⁶ "Tap San Su Dia" (Saigon), 1975, N 29.

⁷ "People's China", 1951, vol. IV, N 5.

⁸ Collection of Documents of Foreign Policy of the People's Republic of China, vol. 2. Peking, 1958, p. 32 (in Chinese).

⁹ " France-Asie Revue", 1951, N 66 - 67.

¹⁰ "Chine-actuelle". Juillet 1988.

¹¹ "Zhongyang Daily", 19.01.1974.

^{Heinzig D.,} 12 op. cit., p.42.

¹³ United Nations. Collection of documents, Moscow, 1981, p. 463.

¹⁴ "The China Business Review", 1977, vol. 4, N 7.

¹⁵ Morskoe pravo v dokumentakh [Maritime Law in Documents], Moscow, 1969, p.139; Morskoe pravo. Official text of the UN Convention on the Law of the Sea. New York, 1984, p. 40.

¹⁶ North Sea Continental Shelf. International Court of Justice Report 1969.

¹⁷ Law of the Sea in Documents, p. 139; Law of the Sea, p. 40, 59.

¹⁸ "Background on China". B77 - 012. 26.12.1977.

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