The South China Sea is an area of about 3,500,000 sq. kms in the Pacific Ocean, lying between the Karimata and Malacca Straits and the Strait of Taiwan. It is an important trade route, with an estimated 270 merchant ships using the route each day in 1980; a figure three times that of Suez Canal and five times more than that of Panama Canal. An extensive reserve of oil (pegged to be around 11 billion barrels) and natural gas (estimated at a whopping 190 trillion cubic feet), its islands, most notably the Paracels and Spratlys, are believed to have a rich treasure trove of natural resources around them, including an abundant supply of fishing opportunities. As a result, the sea with its numerous uninhabited islands has been subject to competing claims of sovereignty and jurisdiction by border countries like the People’s Republic of China, Nation of Brunei, Republic of China (Taiwan), Malaysia, the Republic of Philippines and the Socialist Republic of Vietnam for centuries.
In the last decade however, the dispute has heated up, even more so than usual, due to China stepping up its activities as a means to assert its claim to the area, including land reclamation projects by the conversion of corals into artificial islands (it has already reclaimed more than 2,900 acres since December 2013) and the building of airstrips, missile launchers, barracks, satellite communication antennas and other security equipment on these islands. In addition, it has engaged in deployment of militia- cum- fisherman contingents across what it calls its national “blue soil” and also taken to issue threats to any ships passing through its “Exclusive Economic Zone”, as it did with India’s INS Airavat, which was on a routine call to the Vietnam Port. Apart from creating sovereignty issues, these activities have raised concerns about China’s burgeoning power projection, its operational range extended by as much as 1000 km in the east and south; leaving some to question whether the islands are actually for civilian purposes, as claimed by the Chinese Government. All these activities, coupled with China’s forcible takeover of the Philippine claimed Scarborough Shoal, which falls well within the latter’s Exclusive Economic Zone, ultimately culminated in the Philippines taking China to the International Court of Arbitration at The Hague in January 2013. The present blog post will analyze the dispute as regard the claims made by China and the other countries, the judgment delivered by the Permanent Court of Arbitration and China’s reaction to the it. It will also look at what the judgment holds for the other direct stakeholders and the world in general.
China rests its claims to almost 90% of the South China Sea region by way of a nine -dash line, a 1940’s demarcation line that stretches hundreds of kilometers east and south of its Hainan Island, and covers the strategically important Paracels and Sprately Islands, as well as the Scarborough Shoal. It says that its right dates back centuries ago, when the Paracels and Spratley were a part of its territory and has even produced maps dating back to the late 1940’s as proof of its claims.
However, China’s claim remains dodgy at best, with a lot of unexplained issues, the first of which is whether the claim to the line includes only the land territory, or the territorial waters as well. China also needs to verify if it has added a tenth dash to the east of Taiwan, as some sources have reported. A third controversy arises from the fact that the history of the dash line map predates the coming into existence of the present day China. Some researchers have also questioned the claim on the ground of it violating international maritime law, which states that a national boundary line must be stable and defined whereas the nine dash line was reduced from 11 to 9 dashes without any justification, and also no proper coordinates have been assigned to the line.
Claims by the other Stakeholders
China’s claims attracted a lot of opposition by other nations, the most prominent of which is Taiwan, given that it refuted China’s claims by making its own claim to the nine- dash line, an area covering virtually all disputed territories. Taiwan’s claims date back to the end of WWII, when the Japanese having been defeated, were forced to surrender control of the Paracels and Sprately islands under the Cairo and Potsdam Declarations. Though no beneficiary was named, Taiwan declared its authority over both these territories and even published a map in 1947 showing an eleven- dash line, with two dashes represented inside the Gulf of Tonkin. This map most commonly known as the ‘Map of South China Sea Islands’, originated from an earlier map published by the Republic of China’s Land and Water Maps Inspection Committee in 1935. The eleven- dash line was however revised by the present day China in 1949 to a nine- dash line (the two dashes in the Gulf of Tonkin were removed) and it is this nine- dash line that forms the backdrop of Taiwan’s present claims to the Paracels and Sprately Islands.
Other nations like the Philippines have refuted China’s claim of the nine- dash line on the premise that it is against the provisions of the United Nations Conventions on the Laws of the Sea (UNCLOS), with the line falling within what the law defines as their own Exclusive Economic Zone regions. According to the UNCLOS, landmasses that remain submerged during high tide or those that were previously submerged but have been raised by reason of construction cannot be laid claim to by countries. Also, they have contended that since most of the features in the South China Sea cannot sustain life on their own, they cannot be given their own continental shelf as per the convention. As far as the claims are concerned, Philippines, China and Taiwan are laying claim to the Scarborough Shoal, Malaysia and Singapore to the Straits of Johore and Singapore, Indonesia, China and Taiwan to the waters lying north- east of the Natuna Islands, Vietnam, China and Taiwan over the waters west of Sprately Islands, with the islands themselves being disputed between the majority of the border nations. Additionally the conflict also includes the Gulf of Thailand with Malaysia, Thailand, Cambodia and Vietnam laying claim to it and the Paracels Islands, which are being disputed between China, Taiwan and Vietnam.
The United States of America though not a direct stakeholder (since it is not a signatory to the UNCLOS), has also become a part of the dispute for the fact that its defense treaty with Manila could draw it into the China- Philippines conflict over the fishing opportunities in the Scarborough Shoal or the natural gas deposits in the Reed Bank, which is also a site of conflict. Also, the South China Sea being an important trade route, USA wants to preserve the present status quo and is thus raising concerns about freedom of navigation and the securing of sea lines of communication. It has on a number of occasions directly and indirectly attacked China, including an attempt to deploy its naval assets within 12 nautical miles of the Spratly Islands that evoked strong reactions from Beijing, which warned USA against infringing its sovereignty in the name of ‘freedom of navigation’.
The Trial and Judgment
In a bold move, Philippines took China to the Permanent Court of Arbitration, arguing for the invalidity of the nine- dash line based on UNCLOS provisions. It made 15 submissions to the Court, out of which 7 were deemed to be under the jurisdiction of the Court. These were- Scarborough Shoal is a rock under the Article 121 (3), that Mischief Reef, Second Thomas Shoal, and Subi Reef are low tide elevations that do not generate entitlement to maritime zones, Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that do not generate any maritime entitlements of their own, the question of whether or not Johnson Reef, Cuarteron Reef, and Fiery Cross Reef generate an entitlement to an exclusive economic zone or continental shelf. The other contentions were related to China’s unlawful prevention of Philippine fisherman from carrying out traditional fishing activities in the Scarborough Shoal, its inability to preserve the marine environment at the Scarborough and the Second Thomas Shoals as well as its violations of the Convention on the International Regulations for the Prevention of Collision at Sea and the UNCLOS.
Other countries such as Vietnam also took part in the proceedings by making written submissions to the bench, supporting Philippines decision to sue China and also asking the bench to acknowledge their individual claims. Brunei sent a preliminary submission, whereas Malaysia and Vietnam opted to file their claims with the International Tribunal for the Law of the Sea.
The arbitration proceedings were however completely written off as illegal by China, which showed several agreements with Philippines, which stated that border disputes would be resolved by bilateral negotiations. In addition, it cited the voluntary declaration on the Conduct of Parties in the South China Sea, signed between ASEAN and China to hit back at Philippines. Also, according to it, the issue being one of sovereignty and not exploitation rights, the arbitration court had no locus standi to deliver any award.
Notwithstanding China’s objections, The Permanent Court of Arbitration, in a highly anticipated ruling, ruled in favor of Philippines, writing off China’s historical claims to the nine- dash line. Noting the wide scale destruction caused to the environment, including the coral reef system and endangered marine species such as the sea turtles, as a result of China’s activities, the Court also issued a direction stopping China from further engaging in land reclamation activities in the region.
China’s reaction to the Judgment
China has refused to follow the arbitration court’s award, taking advantage of the fact that the judgment is not legally enforceable, though it is legally binding. It has in fact, sped up its construction activities on the disputed reefs. A statement given by Wu Shengli, commander of the People’s liberation army to the effect that China will not abandon its activities on the Nansha Islands, reveals the country’s stand aptly.
What the judgment means for the stakeholders as well as the world in general:
For the countries previously engaged in a headlock with Beijing over the disputed territories, the judgment means good news, as they will now have better leverage to assert their claims.
For the rest of the world however, the judgment, on a continued refusal by China to follow it, could spell doom as it would lead to the undermining of international laws, ultimately destabilizing world relations. In addition, the South China Sea could become a cause of war between superpowers China and USA, on the latter’s insistence to conduct military operations in the part of the Sea falling within the former’s purported EEZ. There is also the contingency of smaller displays of physical aggression on the part of Philippines, if China continues to disregard the country’s claims over natural gas deposits, located most prominently in the Reed Bank or Vietnam, over the seismic surveys and drilling for oil and gas.
It is important that regional actors take the center stage by engaging China in dialogue to diffuse the situation, before a state of no return is reached.
By: Shubhi Goyal, NALSAR