REVscene Automotive Forum - US B-52 bombers challenge disputed China air zone

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Originally Posted by JoshuaWong (Post 8370085)

Besides people only tend to remember recent history, China discovered and lay claim to these islands way before Japan took them in WW2, which Japan is suppose to hand over all territory taken by force anyways... Its about time China start fending for its own.

Except that Japan didn't take them in WW2, heck there were at times hundreds of Japanese living on the islands from 1900ish through to 1940ish (the only recorded instance of people living there, I might add). This is a long, but insightful op-ed piece describing the claims to the islands and some potential solutions to the sovereignty dispute:

Getting Senkaku History Right | The Diplomat

Spoiler!

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Getting Senkaku History Right

Some of the claims to sovereignty over the Senkaku/Diaoyu islands don’t hold up well under scrutiny, argues Tadashi Ikeda.

East Asia this year has been marked by rising tensions over the Senkaku Islands (known in China as the Diaoyu Islands). As has been widely reported, China has dispatched government patrol and surveillance ships to intrude into Japan’s territorial waters off the islands, which lie in the East China Sea. Meanwhile, Beijing’s rhetoric has been more heated. In April, a Chinese Foreign Ministry spokesperson appeared to indicate that the Chinese government regarded the Senkaku Island issue as a core interest for China. This was the first government use of a term normally reserved for highly sensitive Chinese political concerns such as Taiwan, Tibet and the Xinjiang Uyghur Autonomous Region. And in recent days, China has made the very provocative decision to establish an air defense zone that encompasses the Senkaku skies.

With concerns rising that the situation could spiral out of control, it seems worth reviewing the facts regarding the sovereignty of the Senkaku and the options available for a sensible resolution to the issue.

Unfounded Assertions

Ever since it incorporated the Senkaku Islands into Japanese territory through a Cabinet decision in 1895, the Japanese government has consistently taken the position that the islands are an integral part of the territory of Japan. This stance accords with both international law and the historical facts. The Senkaku have consistently been under Japan’s effective control, except for a period (from 1945 to 1972) when the islands were placed under the administration of the United States as part of Okinawa prefecture.

Before 1971, neither China nor Taiwan made any claims to “territorial sovereignty” over the Senkaku Islands. For 76 years, neither government expressed any objection to Japanese sovereignty over the islands.

Why the change in position? In the late 1960s, a UN agency, the Bangkok-based Economic Commission for Asia and the Far East (ECAFE), surveyed the waters around the Senkaku. The survey suggested potentially rich deposits of oil beneath the seabed. After the ECAFE released its findings, in 1971, the Republic of China (Taiwan) made its first territorial claim to the islands. Several months later the People’s Republic of China followed suit.

So, let’s review the history of the issue more carefully. For ten years starting 1885, Japan conducted field surveys on the Senkaku Islands, scrupulously confirming that the islands had never been inhabited and showed no traces of having been under the control of China’s Qing Dynasty.

Based on this research, the Japanese government decided in January 1895 to erect national territorial markers on the islands, officially incorporating the Senkaku Islands into the territory of Japan. This administrative action was consistent with international law, namely the internationally accepted legal theory of terra nullius (land belonging to no one) concerning the rights of acquisition through occupation.

The Historical Record

As the record shows, Japanese inhabited the Senkaku from 1895 until immediately before the start of World War II. Japanese people sometimes lived on the islands to harvest albatross feathers. During another period, a factory was built to process dried bonito. The population of one of the islands, Uotsuri, topped 200 at one point. In 1920, residents of Ishigaki Island, which was under the jurisdiction of Okinawa prefecture, rescued Chinese fishermen caught in a storm in waters near the Senkaku. The Consul of the Republic of China in Nagasaki sent a signed and sealed letter of appreciation for the rescue in the area of “the Senkaku Islands in the Yaeyama District of the Japanese Empire’s Okinawa Prefecture.” The letter cited the names of the residents of Ishigaki Island, whom the consul noted “were willing and generous in the rescue operation.”

Just over three years after the People’s Republic of China’s birth, a January 8, 1953 article in the People’s Daily, an organ of the Communist Party of China had the Senkaku as Japanese territory. A World Atlas published in China in 1960 showed the islands as part of Japan. According to notes taken at meetings of the Chinese government around 1950, copies of which were recently obtained exclusively by the Jiji Press news agency, Chinese government officials were using the Japanese name “Senkaku Islands,” indicating that they considered the Senkaku part of Okinawa prefecture.

When Okinawa prefecture was provisionally placed under U.S. administration in 1945, the U.S. military used some of the Senkaku Islands as firing and bombing ranges. With the reversion of Okinawa to Japanese rule in 1972, the Senkaku returned to Japan, as part of the prefecture. The U.S. has clearly and repeatedly stated the Senkaku are “within the range of application” of the Japan-U.S. Security Treaty.

China argues that Japan stole the Senkaku Islands during the Sino-Japanese war, from August 1894 to April 1895. The claim suggests Japan “usurped” the islands using the turmoil of war as an excuse. But in making that assertion, China deliberately ignores two key facts: (1) Over a period of at least 10 years before the outbreak of the Sino-Japanese War, the evidence showed that the Senkaku were terra nullius, and not under the control of China’s Qing Dynasty; and (2) Japan incorporated the islands into its sovereign territory using procedures in accordance with international law, prior to the conclusion of the Treaty of Shimonoseki, which ended the Sino-Japanese War.

Under the Treaty of Shimonoseki, signed in April 1895, the Qing Dynasty ceded Taiwan and the Pescadores Islands to Japan. No mention was made of the Senkaku Islands. There is no record of any discussions taking place on the Senkaku in the bilateral negotiations on the treaty. The incorporation of the Senkaku into Japan’s territory by exercising its rights of “acquisition through occupation” based on the legal principle of terra nullius was carried out three months before the Treaty of Shimonoseki was concluded.

During the 50-year period from 1895 to 1945, when Japan ruled both Taiwan and the Pescadores under the jurisdiction of the Governor-General of Taiwan (Formosa), the Senkaku Islands were under the jurisdiction of the Okinawa prefectural government as part of the prefecture’s Nansei Islands, a chain of islands extending from southwestern Kyushu to waters north of Taiwan. Administrative jurisdiction over the Senkaku was entirely separate from the administration of Taiwan and the Pescadores.

Searching for options, the Chinese government has recently begun quoting the 1943 Cairo Declaration and the 1945 Potsdam Declaration as evidence of its claims. Beijing argues that Japan’s acceptance of these declarations means that it agreed to return the Senkaku to China (the Republic of China) along with Taiwan and the Pescadores as “islands appertaining to Taiwan.”

To be sure, the Cairo Declaration obliged Japan “to restore to the Republic of China all the territories Japan has stolen from the Qing Dynasty of China such as Manchuria, Formosa and the Pescadores.” Article 8 of the Potsdam Declaration stipulated, “The Cairo Declaration shall be implemented.” However, there is no evidence that shows that the Allied powers, including the Republic of China, recognized the Senkaku Islands as among “the islands appertaining to Formosa.”

The San Francisco Peace Treaty, signed in September 1951, defined the territory of Japan after the war: Article 2 (b) of the treaty stipulated that Japan renounced territorial sovereignty over Formosa and the Pescadores, which the treaty said had been ceded by China to Japan after the Sino-Japanese War. However, the Senkaku Islands were not included “in the islands appertaining to Formosa” in the treaty. Had the Senkaku, at that time, been recognized as “islands appertaining to Taiwan,” the U.S. would not have placed the Senkaku under its administration as part of Okinawa prefecture. In this respect, China’s claims are without legal foundation.

No Agreement on “Shelving”

The term of “shelving” an issue refers to the acknowledgement by two parties that an issue exists, and the agreement to postpone resolution to a future date. Japan and China never agreed to “shelve” any issue related to the territorial sovereignty over the Senkaku Islands. Documents recently released by Japan’s Ministry of Foreign Affairs make this clear.

At the time of negotiations between Japan and China in 1972 to normalize diplomatic relations, Japanese Prime Minister Kakuei Tanaka and Chinese Premier Zhou Enlai briefly exchanged words on the Senkaku Islands. One document quotes Tanaka as asking Zhou: “What is your view on the Senkaku Islands? Some people say things about them to me.” The exchange ended abruptly with Zhou’s response: “I do not want to talk about it this time. If there wasn’t oil, neither Taiwan nor the United States would make this an issue.” That is the entire exchange, and it simply cannot be equated with an argument in favor of shelving the issue.

The record also reveals what Chinese Vice Premier Deng Xiaoping said about the Senkaku Islands in 1978 to then Japanese Prime Minister Takeo Fukuda. Deng was visiting Japan for an exchange of instruments ratifying the Japan-China Treaty of Peace and Friendship. During his meeting with Fukuda, Deng said, “There’s no need to raise subjects like this [the issue of what is called the Diaoyu in China and the Senkaku Islands in Japan] at a meeting like this.” Deng also said: “There’s probably insufficient wisdom to resolve this issue in our generation, but with the next generation likely to be wiser than us, they will probably be able to find some resolution to the issue.” Fukuda made no response.

At a press conference on the day he met with Fukuda, Deng reiterated his desire to leave a solution to the Senkaku problem to the next generation, as “people of our generation don’t have sufficient wisdom to settle this problem…Even if this means the issue is temporarily shelved, I don’t think I mind. I don’t mind if it’s shelved for 10 years,” Deng added.

As these records show, there was never any recognition that a territorial or sovereignty problem existed between Japan and China or that an accord or agreement to shelve the matter existed. Although Deng’s remarks were carefully and skillfully phrased at the press conference, he was merely offering his own opinion.

Tokyo’s Position

The Japanese government has consistently maintained that the Senkaku Islands are under the valid control of Japan as an integral part of its territory and therefore no issue of territorial sovereignty exists. This is obvious from remarks made by then Foreign Minister Kiichi Miyazawa in October 1975. During deliberations in Japan’s parliament on the Japan-China Peace and Friendship Treaty negotiations, the foreign minister asserted, “It can never be said the Japan-China negotiations are being conducted under the assumption of a so-called shelving [of matters related to the Senkaku].” Miyazawa added, “Ever since the 28th year of the Meiji era (1895), the Senkaku Islands have been part of Japan’s integral territory and they in fact have been under our country’s valid rights of administration.” Since then, the Japanese government has been consistent in its position that “shelving” the issue is out of the question.

In April 1992, 14 years after Deng Xiaoping held his press conference in Japan, China unilaterally enacted a domestic law, the Law on the Territorial Sea and Contiguous Zone of the People’s Republic of China, under which it incorporated the Senkaku Islands into its own territory. The Japanese government immediately issued a strong protest at the act, which in fact contradicts China insistence it was “shelving” the Senkaku issue. Japan, for its part, should demand that China amend or abolish the law before agreeing to a discussion on “shelving” the Senkaku sovereignty issue.

Beijing also maintains that proof of China’s sovereignty over the Senkaku can be found in descriptions of the islands in old documents from the Ming Dynasty and the Qing Dynasty. It says it named the islands. These assertions, however, are attributable mostly to China’s ancient notion of Sinocentrism in an age of nominal suzerain-tributary relationships between the Chinese Empire, which claimed to be cultural center of the world, and other nations. At that time imperial titles were given by Chinese dynasties to “barbarian” tributary states. This thinking has been superseded by modern international law.

Taiwan is also referred to as Formosa, a derivation from the Portuguese Ilha Formosa, meaning “beautiful island.” Does that mean Taiwan should be Portuguese territory? Extending this false notion of Sinocentrism, it could be argued that Okinawa (the Ryukyu Archipelago), which once paid tribute to both Japan and China, was “part of the sovereign territory of China.” News reports this year have a high-ranking Chinese government official suggesting China could claim sovereignty over Okinawa. Subsequently, the Global Times, the People’s Daily’s international version, argued in an editorial in May 2013 that the territorial status of Okinawa remained undecided.

Agreement with Taiwan

Taiwan’s position on the Senkaku is similar to that of the People’s Republic of China. It asserts the islands were Chinese territory since the Ming and Qing dynasties. Nevertheless, when the People’s Republic of China called on Taiwan recently to join hands with it in dealing with Japan “on the basis of defending Chinese sovereignty” over the Senkaku, Taipei refused.

As it turns out, Taiwan is mainly worried about fishing. Although Tokyo and Taipei have met more than 15 times since the mid 1990s to negotiate fisheries rights, divisions remained, with Japan placing priority on the Japan-Taiwan median line and Taiwan demanding its traditional fishing grounds. In 2008, when I was chief Japanese representative to Taiwan, a Japan Coast Guard patrol boat rammed and sank a Taiwan fishing boat near the Senkaku. In the wake of this incident, anti-Japanese sentiment surged, albeit temporarily, in Taiwan. That experience made me all the more aware of the importance of the fisheries problem between Japan and Taiwan and the need to resolve them at the earliest possible time.

In April of this year, after long and careful preparation, Japan and Taiwan signed a fisheries agreement. This was a groundbreaking event that deepens friendly Japan-Taiwan relations and is a positive development on the Senkaku sovereignty issue. Separating fisheries negotiations from any territorial question has proved useful.

China, which regards Taiwan as part of its territory, objected to the Japan-Taiwan accord. Despite the fisheries accord, it seems that the Taiwan government authorities will continue to make claims to the Senkaku in a way unique to Taiwan, although pressure from Taiwan fishermen to deal firmly with Japan will likely ease.

Could the ICJ Help?

One option on the Senkaku issue would be to seek arbitration by the International Court of Justice (ICJ). Since Japan is certain of the legitimacy of its sovereignty over the Senkaku, it would be pointless for it to lodge any claim. But if China did so, and agreed to accept whatever ruling was handed down, Japan might also think it beneficial to defer to the ICJ, demonstrating that it is ready to abide by internationally accepted rules. Both Japan and China would have to be prepared to run the risks inherent in such a decision.

However, if China complied with an ICJ ruling on the Senkaku, Beijing could be inundated with calls to accept ICJ rulings on other “core interests,” including Taiwan, Tibet, the Xinjiang Uyghur Autonomous Region and even the South China Sea. Given that, it seems highly unlikely that China would run the risk of an adverse ICJ ruling.

For Japan, deferring to the ICJ carries the risk of having the legitimacy of its sovereignty over the Senkaku decided by a third party. Would all 15 ICJ judges be well versed in Japan’s assertions? In a territorial dispute between Colombia and Nicaragua over a group of islands, the ICJ recently handed down a ruling that split the islands between the two countries. Colombia relinquished its ICJ affiliation in protest. If it were to agree to ICJ arbitration, Japan would have to be prepared to face a similar situation.

Personally, I see no need for Japan to run such a risk in light of this country’s extremely well laid-out position both in terms of legality and historical facts. Japan should continue to hold to the position that it has maintained for more than 100 years. Compromising on territorial integrity and sovereignty could open the door to more challenges.

What Will China Do?

Any improvement in China-Japan relations should be welcome. Both countries refer to it as “a strategic relationship of mutual interest.” Needless to say, Japan and China should maintain dialogues and exchanges and use compromise where possible to contain tensions.

That does not mean, however, rushing to compromise at the expense of a nation’s territorial integrity and sovereignty. Japan wants China to act as a responsible Asian power and to play a constructive role by adopting a policy of international cooperation. This is roughly what Americans have in mind when they call for a “China as a responsible international stakeholder.”

Will China adopt a policy of international cooperation or will it pursue a hegemonic path that uses its military strength to flout international law? In light of recent events in the East China and the South China Seas, it seems clear that China has superpower status in mind. China’s defense outlays – those that have been made public – have consistently risen at a double-digit clip over the past two decades.

Article II of the 1978 Treaty of Peace and Friendship between Japan and China stipulates, that “Neither of the two countries should seek hegemony in the Asia-Pacific region and each is opposed to efforts by any other country or group of countries to establish such hegemony.” Is this stipulation still valid or has it become a remnant of the Cold War? Japan and China should have a candid exchange of views on this point.

While Deng Xiaoping’s remarks proposing the shelving of the Senkaku sovereignty issue are widely known, few people are aware that Deng made a statement to the effect that Japan should object if and when China began to show signs in the future of seeking hegemony. This brings to mind a 1980s statement by the chief of the general staff Wu Xiu-quan of the Chinese People’s Liberation Army, who said – probably in reference to China’s military tensions with the then Soviet Union at the time – that Japan should spend at least 2 percent of its gross national product on its defense, double Japan’s actual defense spending at the time.

As China’s economic growth slows, it is likely to face social unrest over wealth disparities, corruption, environmental issues and human rights. There is an obvious temptation for the government to distract from these issues by casting Japan as a “villain.”

On the Senkaku issue, Beijing has been making outrageous claims implying that Japan is going to ruin “the postwar peace order.” It has been trying to link today’s Japan with its 1940s version, as exemplified by a statement by Premier Li Keqiang that China will “never accept any comments or actions that seek to deny or glorify the history of fascist aggression.”

China’s moves are mainly designed to hold Japan in check while at the same time trying to drive a wedge between Japan and the United States. China’s rigid diplomatic stance today is likely to remain unchanged at least for the immediate future, particularly given the domestic problems it faces.

Japan should maintain the position that it is always ready to talk with China about any issue without condition. At the same time, Japan should bolster its alliance with the United States. It should also maintain an effective defense of the Nansei Islands, which include the Senkaku in Okinawa. In other words, seek peace by all means, but prepare to defend its own core interests.

Tadashi Ikeda is Visiting Professor at Ritsumeikan University and was formerly Director-General of Asian Affairs Bureau, Deputy Vice-Minister at the Japan Ministry of Foreign Affairs and Chief Representative to Taiwan.

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Originally Posted by Nlkko (Post 8370041)

True but only to an extend. I speculate the only reason US is involved is because Japan is one of their closer allies. More than anything, it's a political gesture signifies the Chinese government to simmer down a little bit.

The Chinese government has been bullying other countries of their islands for a while. They have been doing the same thing to Vietnam with disputes over the Paracel Islands since 1974.

Not sure if I agree with the "bullying" term as it seems more like a media thing in response to China's ascent in world power. Also, judging from the claims, some countries are much weaker than others IMO like Brunei and Malaysia. Anyways, thought this was interesting background information on the dispute. Seems like most people here are unaware of it.

Professor Joyner's article: http://www.stimson.org/images/upload...mapspratly.pdf

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Eight states claim title to these South China Sea islands. Singapore and Malaysia dispute claims over Pisang Island and Pulau Batu Puteh, strategically situated in the congested waters of Malacca and Singapore Straits. China, Taiwan, and Vietnam contest each other’s claims to sovereignty over the Paracel Islands, a group of fifteen islets and several reefs and shoals scattered over a 200-kilometer area in the middle of the Gulf of Tonkin. Taiwan also contests China's claims to Pratas Island and the Macclesfield Bank. As for the Spratlys, six states assert claims: China, Taiwan and Vietnam claim the entire archipelago, while the Philippines, Malaysia and Brunei claim sovereignty over portions of the Spratlys.

China

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China’s assertions of sovereignty in the South China Sea rest on historical claims of discovery and occupation. The Chinese case is well documented, going back to references made in Chou Ch'u-fei's Ling -Wai- tai-ta (Information on What Lies Beyond the Passes) during the Sung dynasty (12th century) and in the records of Chinese navigators during the Qing dynasty (18th century). Notable problems of authenticity and accuracy exist, however, in describing coastal points as implied references for the Spratly Islands. These problems are compounded by the fundamental question of whether proof of historical title today carries sufficient legal weight to validate acquisition of territory. Modern international law clearly recognizes that mere discovery of some territory is not sufficient to vest in the discoverer valid title of ownership to territory. Rather, discovery only creates inchoate title, which must be perfected by subsequent continuous and effective acts of occupation, generally construed to mean permanent settlement. Evidence of such permanent settlement is not compelling in the case of China's claim to the Spratlys.

Taiwan

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Claims by Taiwan today mirror those of the PRC and evidence suggests that both governments have made efforts to coordinate positions on Chinese claims in international discussions of the Spratly issue. The legal bases for Taiwan's claims are its longstanding historic ties to the islands. Consequently, Taiwan’s claims suffer from deficiencies like those of the PRC namely, that discovery of, and intermittent contact with, scattered island formations are insufficient cause to establish legal title to sovereignty. Taiwan was the first government to establish a physical presence on one of the Spratlys following the Japanese departure after World War II. Taiwan announced its claim to the atoll in 1947 and has occupied the largest island of the Spratlys, Itu Aba, constantly since 1956. Interestingly enough, this unchallenged exercise of control over Itu Aba for more than four decades may qualify as a display of continuous and peaceful sovereignty, a condition necessary for supporting a legal claim to the island. From the mid-1950s through the late 1980s, Taiwan maintained a force of some
500 soldiers on Itu Aba, although by 1999 the number of troops had been reduced to about 110.

Vietnam

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The legal grounds for Vietnam’s claims to South China Sea islands flow from historic activities during the Nguyen dynasty (17th–19th centuries). Maps and other supporting historical evidence for Vietnam’s claims were compiled and set out by the government in two white papers, Vietnam’s Sovereignty Over the Hoang Sa and Trung Sa Archipelagoes issued in 1979 and 1982, respectively. Vietnam’s evidence for asserting claims to title is diluted by the failure to specifically identify and distinguish between the Spratly and Paracel archipelagoes. Both island groups are treated generically, without one being geographically distinguished from the other, which has compounded the difficulty of assessing the lawfulness and propriety of claims. Considerable doubts also arise over the authenticity and accuracy of the historical record itself. Such doubts explain why international law usually regards mere historical claims, without evident occupation and permanent settlement, as only arguably binding and susceptible to legal challenge for assuring valid claim to title over territory in the oceans. Vietnam also bases its claims to sovereignty over the Spratlys by right of cession from a French claim to the islands first made in the 1933. The French, however, made no subsequent effort s to perfect title to the Spratlys by occupation. Nor did the French act by returning after Japan’s departure following World War II, or by acting after Japan formally relinquished all title and future claims to the islands at the San Francisco Conference of 1951. Consequently, France possessed no lawful title to the Spratly group to which Vietnam could succeed. In any event, Vietnam moved in 1975 to secure its claim to possession of the Spratlys when it occupied thirteen islands of the group. In September 1989 Vietnam occupied three more islets, and has since taken at least nine additional atolls. By 1999, Vietnam had stationed 600 troops on at least twenty-seven Spratly land formations

Philippines

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The Philippines justifies its claims to the Spratlys principally on “discovery” of certain islands by Thomas Cloma in 1947. In 1956 Cloma proclaimed the creation of a new island state, “Kalayaan” (Freedomland), with himself as chairman of its Supreme Council. While no government ever recognized the lawfulness of this “state,” Cloma persisted with his claim until 1974, when “ownership” was officially transferred under a “Deed of Assignment and Waiver of Rights” to the Philippine government. The first official claim by the Philippine government came in 1971, mainly in response to a Philippine fishing vessel being fired upon by Taiwanese forces stationed on Itu Aba Island. The Philippine government reacted by protesting the incident and then asserted legal title by annexing islands in the Spratly group based on Cloma's claim. In 1978 the Marcos government formally annexed the archipelago to the Philippines and placed it under the administration of Palawan province. Interestingly enough, the official Philippine position contends that the Kalayaan Islands group are separate and distinct from the Spratlys and Paracels. This Philippine claim is predicated on a geological assertion that the continental shelf of the so-called Kalayaan Island group is juxtaposed to the Palawan Province and extends some 300 miles westward, into the heart of the Philippines’ EEZ. To defend its claims, the Philippines currently has 595 marines stationed on eight islands. These bases are fortified with heavy artillery and are equipped with radar facilities, a weather station, and ammunition depots. More recently, Malaysia and Brunei have asserted claims to certain islands and reefs in the Spratlys, based principally on certain continental shelf provisions in the 1982 LOS Convention. These provisions describe in detail what legally constitutes a “continental shelf” for a state, and the sovereign rights a state may exercise for purposes of exploring and exploiting the resources of its continental shelf.

Malaysia

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Malaysia has claimed sovereignty over twelve islands in the Spratly group, but those claims appear ill-founded. Serious doubt remains about the legal propriety of Malaysia’s assertions, which arises from Malaysia’s basing its claims to certain islands on ocean law principles associated with prolongation of a continental shelf seaward, rather than the accepted legal means of validating claim to title over territory through permanent occupation. 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. That inference is misguided and flawed under contemporary international law. The 1982 LOS Convention neither stipulates nor invites such an interpretation. The Convention does set out a regime for an island, which is defined as a “naturally formed area of land, surrounded by water, which is above water at high tide.” The Convention also gives to a state with established sovereignty over an island the right to exploit living and non-living resources in the water column and on the seabed within that island’s territorial sea, contiguous zone, and exclusive economic zone. he critical legal consideration for acquisition of sovereign title over an island formation, however, is not the geological affinity of a coastal state to island formations arising from continent al shelves offshore. Rather, ownership derives from occupation, demonstrated by a continuous and effective display of sovereignty through permanent settlement. As generally construed, establishing a few military outposts may be considered vestiges of occupation. Even so, for that military presence to meet the test of “effective occupation” through permanent settlement will depend on the longevity of the presence, and whether settlers can be “permanently” attracted to inhabit the region. Such occupation has yet to be effected by Malaysia. Moreover, while Malaysia may use the continental shelf provisions in the 1982 Convention to support its claims to seabed resources, those provisions do not legally uphold assertions to sovereignty over land formations that are permanently above sea level. Malaysia is the most recent claimant to occupy part of the Spratlys militarily. In late 1977, Malay troops were landed on Swallow Reef. Since then, about seventy soldiers have been stationed on three of the twelve islets claimed by Malaysia.

Brunei

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Brunei has only one claim to the Spratly group, that being to a naturally submerged formation known as Louisa Reef. Similar to Malaysia, the legal premise for substantiating Brunei’s claim flows from continental shelf provisions in the 1982 LOS Convention. Unlike Malaysia’s claims to island formations, however, Louisa Reef is a submarine feature and part of the seabed. Hence, it may be regarded legally as an extension of a continental shelf. The critical point here, of course, is Brunei’s ability to demonstrate that Louisa Reef is indeed part of the extension of its continental shelf. Settlement here is neither necessary nor possible; the key criterion to be satisfied for ownership is whether the continental shelf can be substantiated as a natural prolongation seaward from the coastal territory of Brunei. Granting that, Brunei would enjoy the exclusive right to exploit resources of the reef. Brunei remains the only claimant without a military presence in the Spratly Islands. Even so, Louisa Reef is also claimed by Malaysia, which took possession of it in 1984.