This blog post, however, does not seek to assess the respective merits of these claims – entire books can and are being written on that subject – but rather analyse from an international law standpoint a recent tributary of the dispute, namely the refusal by the Vietnamese authorities to stamp new Chinese passports on which a map of China which includes the disputed area is displayed on every page. Rather, according to the BBC, border authorities have instead been issuing visas on separate pieces of paper and stamping those issued previously as invalid. The Philippines at the time of writing, is still accepting the passports, but is considering its options and has presumably reserved its right to protest if it feels it to be necessary.
This is by no means the first time that China’s allegedly exorbitant territorial claims have been met with official action by those against whom the claims are made. India, which contests two Himalayan areas claimed by China, has elected to deal with the situation by stamping its own map on visas issued to Chinese citizens.
All this prompts the question of whether the Vietnamese and Indian authorities are onto something from the perspective of international law. Could it be argued that by refusing such passports, they avoid impliedly acknowledging the validity of the Chinese claim and thereby surrendering their own rights in the South China Sea? Put another way, can it be said that by stamping the passports, the other nations of the area are acquiescing to China’s claim?
In this light, it is worth referring to an authority originating from another part of South East Asia, namely the decision of the International Court of Justice in Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962 p 6 (Temple). In that case, Cambodia and Thailand contested the ownership of the eponymous temple as part of a wider dispute concerning the border between the two countries. The question had originally fallen to be resolved by way of a Mixed Commission, which met for the last time in 1907 without having concluded its business. Two facts, however, were relevant. In the first place, the Commission had produced a series of maps delineating the frontier between the two countries. Although these were not included in the final workings of the Commission and were hence without binding effect, the Court nevertheless gave them considerable weight, noting that Thailand (then Siam) had had ample opportunity to object to the maps as being the ‘outcome of the work of delimitation of the frontier in the region of Preah Vihear’ but had conspicuously failed to do so (Temple, 32).
In the second, the Court drew attention to a 1930 incident in which Prince Damrong, the former Siamese Minister of the Interior and at this time President of the Royal Institute of Siam, undertook a quasi-official visit to the Temple, whereupon he was received by the French Resident of the adjoining province of Cambodia (then a French territory) ‘with the French flag flying’. The Court held:
The Prince could not possibly have failed to see the implications of a reception of this character. A clearer affirmation of title on the French Indo-Chinese side can scarcely be imagined. It demanded a reaction. Thailand did nothing. Furthermore, when Prince Damrong on his return to Bangkok sent the French Resident some photographs of the occasion, he used language which seems to admit that France, through her Resident, had acted as the host country (Temple, 30).
The Court continued:
Looking at the incident as a whole, it appears to have amounted to a tacit recognition by Siam of the sovereignty of Cambodia (under French Protectorate) over Preah Vihear, through a failure to react in any way, on an occasion that called for a reaction in order to affirm or preserve title in the face of an obvious rival claim (Temple, 30–1).
The question therefore arises—did Vietnam and India appreciate the possibility of such a challenge to sovereignty here? Was it apprehended that if the offending passports were to go unchallenged, the nations in question were in risk of acquiescing to China’s territorial claims? Whatever the situation, any concern was wholly unnecessary from a legal standpoint. The answer to the question of whether the stamping of a passport—even repeatedly—could ground a claim to acquiescence is clearly ‘no’, and it arises on multiple bases.
As a substantive legal concept, acquiescence forms part of the wider doctrine of unilateral acts, and has its roots in the common law—though civil law systems undoubtedly know of a similar principle. An early account of its recognition arises in the decision of a 1910 arbitral tribunal constituted to delimit the maritime boundary between Norway and Sweden in Maritime Boundary Dispute between Norway and Sweden (1910) 4 AJIL 226 (Norway v Sweden). The tribunal upheld Swedish sovereignty on the basis that Norway had not contested the former’s extensive activity in the region, which included lobster fishing, the conducting of measurements and the stationing of a light boat. It concluded that:
It is a settled principle of the law of nations that a state of things which actually exists and has existed for a long time should be changed as little as possible (Norway v Sweden, 233).
The legality of the long-accepted practice of using baselines to determine the dimensions of the territorial sea was also established in this manner. In Fisheries (UK v Norway), ICJ Reports 1951 p 116 (Anglo-Norwegian Fisheries), the International Court held that the UK was unable to protest Norway’s use of baselines on the basis that:
The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom (Anglo-Norwegian Fisheries, 139).
This case thereby sets out the general requirements of international law with respect to a claim for acquiescence: (a) a notorious set of facts, (b) general toleration of said facts by the international community, and (c) tolerance by a state the interests of which are specially affected. Adding to this is the dictum of the court in North Sea Continental Shelf (FRG/Netherlands; FRG/Denmark), ICJ Reports 1969 p 3, 25, that the assumption of obligations by conduct was ‘not lightly to be presumed’ and required ‘a very consistent court of conduct’. An example of this was highlighted in the Preliminary Objections phase of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), ICJ Reports 1984 p 392, 411–13 (Nicaragua), in which Nicaragua’s ‘constant acquiescence’ of the publication of its name in the International Court’s Yearbook on the list of those who had accepted the Court’s jurisdiction was held to reflect ‘constant acquiescence’.
It is clear from the above that in this circumstance, the relatively high threshold required by international law to establish acquiescence is not present. Although the facts in question are certainly notorious, the notion that there is general toleration of these facts by the international community is far from clear.
More particularly, it is difficult to comprehend how the acceptance of a passport displaying purportedly offensive map could in this case be considered to be an affirmation of a Chinese claim to the South China sea. As discussed, the act of acquiescence in Temple was based on two acts, neither of which is analogous to the situation here. In the first place, the map on the relevant passports cannot be seen as the equivalent of a map produced—albeit unofficially—by a Commission empowered by the parties to determine the border between them. Rather, it is clearly considered to be a Chinese map prepared in order to reflect certain territorial claims. The air of impartiality which permeated the map in Temple is simply not present.
Second, unlike the visit of Prince Damrong to Preah Vihear, the passport is being received by a border official that plays no role in the crafting of Vietnamese or Indian foreign policy and cannot be considered an individual of similar stature to a former Cabinet minister. Moreover, the act of stamping the passport cannot be considered to be an acceptance of the Chinese territorial claims depicted within, as the purpose of the act in question is merely to certify that the holder of the passport is a Chinese national capable of entering the receiving state for a defined period of time. It is conceivable, however, that if the holder of the passport was a resident of one of the islands of the South China Sea or the contested Himalayan territories, and had not otherwise acquired Chinese nationality, the repeated acceptance of such a passport with awareness of the circumstances in which it was issued could perhaps be problematic.
But perhaps the definitive argument in the circumstances arises from the third element identified in the Anglo-Norwegian Fisheries case, namely a tolerance of the general situation by Vietnam and India, the two states who are specially affected by the Chinese claims. Unlike the situation of Sweden in Sweden v Norway, the UK in Anglo-Norwegian Fisheries, Nicaragua in Nicaragua or Siam/Thailand in Temple, the Chinese claims have not been met with silence, but with heated opposition. It is submitted in the present case that the strident statements of the Vietnamese and Indian Foreign Offices is more than sufficient to drown out any alleged whisper of acquiescence that would arise through the acceptance of a passport.
So what then do we have? Certainly not a response generated by legal concerns, the refusal of these states to accept unmodified the contents of the offending passports takes on the proportion of a public relations stratagem – one more in the long series of diplomatic chess moves in which international law often seems a helpless bystander.