The region around the Paracel Islands and the South China Sea is important to the economies of the surrounding states in terms of the fish resources and potential for energy reserves, which result in diplo¬matic and physical clashes. The large flow of maritime commerce around the Paracel Islands is also crucial to the economic well-being of the region and the world, and occupation of the islands dictates control of the surrounding sea’s maritime traffic, security, and economic exploitation. Although China currently occupies all of the Paracels, they are also vigorously claimed by Vietnam. The use of customary law and the United Nations Convention on the Law of the Sea (UNCLOS) in estab¬lishing claims to the Paracels and surrounding waters helps explain the perspectives of the disputants. Their legal positions are especially important for Ameri¬can policymakers as they inform possible solutions and suggest how to contribute to peace and prosper¬ity in the region. Three key legal questions must be answered to help sort the disputes: sovereignty over the islets, the nature of a claimed land feature, and the delimitation of maritime jurisdiction. Sovereignty is claimed through customary law, with China and Viet¬nam using historic doctrine to claim the entire South China Sea, while both have also used the doctrine of occupation, which now works to the advantage of China. Once sovereignty and feature type are deter¬mined, zones of authority may be established by the occupying state depending on the distance from its established shore baseline. Internal, archipelagic, and historic waters are maritime variations of near full sovereign control, which could be disruptive to economic and navigation activities if awarded to Viet¬nam or China, who make such claims. Islands above the high tide mark establish territorial waters and a contiguous zone, which would carve out 24 nautical mile (nm) zones around the Paracels but should allow innocent passage. The length of the 200-nm exclusive economic zones (EEZ) allows much potential overlap among land masses and islands in the semi-enclosed South China Sea. Like territorial waters, Vietnam and China restrict military activities within the EEZ. Although such arguments by claimants for more re¬strictions in these zones are tenuous, they could be useful justification to cover military actions by states like China, which is the most active in enforcing a restrictive EEZ. Freedom of navigation in the South China Sea is the most immediate U.S. concern to ensure naval ves-sels retain all rights of access. Current policy by China and Vietnam restricts foreign naval activities in their zones beyond that normally attributed to UNCLOS. Concluding an Incidents at Sea Agreement with China would clarify the rights and responsibilities between the two. Other forms of government-to-government interaction could build confidence in present and fu¬ture agreements, and leverage common interests. U.S. ratification of UNCLOS is another important step to in¬fluence the evolution of future interpretations of free¬dom of navigation toward more open use. Although a more difficult proposition, the United States should demand the clarification of the historic claims made in the South China Sea in order to facilitate negotiating a settlement and accelerate economic development.
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