China has adopted a variety of strategies and used different toolkits and tactics to stake claims and exercise sovereignty over South China Sea. Expressions such as “creeping expansionism”, “salami slicing”, “aggressive posturing”, “wolf warrior diplomacy”, “cabbage strategy”, “hybrid Warfare” etc. have been attached to China’s approaches in the South China Sea and the international community has denunciated these.
At the strategic and operational levels, the Chinese Navy and the Coast Guard have been accused of intimidating smaller navies in waters of the South China Sea. Also, the recent Chinese Coast Guard Law has given unbridled power to this constabulary force under which it can rely on Gray Zone warfare (“unconventional tools, tactics and the use of non-state entities that do not cross over into formal state-level aggression”) to achieve political objectives, has exasperated the situation.
There is also widespread anguish among the other South China Sea claimant states i.e. Brunei, Malaysia, Philippines, Vietnam and Taiwan over China’s refusal to abide by the 2016 PCA conclusion that there is “no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’”.
The claimant states are now perplexed over China’s attempts to give names to islands, rocks and reefs in the South China Sea through ‘trademarks’. The Chinese ‘trademark registration’ process involves naming features in “stylized Chinese calligraphy” and the trademarks can be anything such as musical instruments or even legal services. Some of the logos are colorful illustrations of panoramic view of these features and in some cases the name are English “transliteration”.
Earlier this year in April, China announced “names for 25 islands, shoals and reefs, and 55 undersea mountains and ridges”. These 80 topographical formations include “ten unnamed sandbars and two small reefs in the Paracel Island chain; 13 smaller reefs around West Reef currently under control of Vietnam; and 55 underwater features spread across the South China Sea”.
This is not the first time that China has undertaken such an exercise; in 1983 as many as 287 features were selected for trademarking. In 2012, China set up the Sansha City and the authorities were given the responsibility to administer Xisha, Zhongsha and Nansha islands, isles and waters (Paracels, Spratlys, Scarborough Shoal, and Macclesfield Bank).
Although China does not frequently use these trademark names for features in South China Sea, but the logo of the “Sansha” group of islands is displayed on website, city’s supply ships and on podiums of the municipal government. The city has so far filed “domestic trademark applications covering 281 specific rocks, reefs, shoals, and other contested features as well as entire regions of the South China Sea”.
It could be tempting to argue that ‘trademark registration’ is yet another way for the Chinese government to reinforce claims in the South China Sea. However, there is a view that “trademarks are legal protections for the use of names or logos for commercial purposes,” which means that “trademarks would not generally be understood to bolster a country’s sovereignty claims under international law,”
The 1982 UNCLOS does not inform on the principles for giving geographic names or renaming a geographical feature particularly if it is in the “EEZ of others or in the high seas, as they do in China’s case”. However, the right to name the feature rests with State if the feature is found within an EEZ of the coastal state. Furthermore, in the case of a submerged feature which a country wishing to name, it may find it difficult to show that the “submerged feature is actually a continuation of their continental shelf and thus technically submerged land”. In the case of China, the PCA has dismissed the nine-dash line claims and “none of this will be of any real concern”.
Meanwhile, Taiwan’s Mainland Affairs Council has declared “unquestionable sovereignty over Itu Aba as well as long-term effective governance over the island” and therefore China’s trademarks are “inconsistent with international standards and criticized them as a deliberate attempt to create a false image of Chinese jurisdiction over Itu Aba”.
In the Philippines, the registration of features through trademark has been labelled dubious and the Intellectual Property Office of the Philippines has observed that it cannot be applied to physical features and islands.
Vietnam have rejected the legitimacy of such “trademarks” and it has set Vietnamese names to the seas, islands, rocks and reefs in the South China Sea. It is a Vietnamese government’s practice to use only official names of seas, islands, rocks and reefs in speeches, statements and correspondences.
Ironically, ‘trademarking’ has not been mainstreamed in the discourse on South China Sea and has “largely slipped under the radar” given that the registration process began several years ago.
Dr Vijay Sakhuja is Consultant Kalinga International Foundation, New Delhi.