Author: Deisha Gupta
Research Coordinator, GCTC
Areas of interest: Economics, Politics, Public Administration & International Relations, and Global Peace
The South China Sea, “the arm of western Pacific Ocean in Southeast Asia” encompasses regions of south of China, east & south Vietnam, west of the Philippines and north region of the island Borneo.
Until the first half of the 20th century, there was no evidence for the dispute over the South China Sea as well as on the islands present in that region..
It was only in 1947, when China claimed that a U-shaped line made up of eleven dashes on a map, covering almost all the area of the South China Sea’s area. The striking part of this theory is that two “dashes” claimed by them out of total eleven were removed in the early 1950’s, but still the remaining ‘nine-dash line’ covered almost 90% of the area of the South China Sea stretching over hundreds of kilometres in south and east of its southern Hainan Island. However, despite such claims, other countries in the region chose silence over this topic, as China was the only one to profess such a theory with hardly any truth with valid proofs in it. The matter started gaining unprecedented limelight in the year 1960’s with the discovery of huge reserves of the oil and natural gas in the respective region.
In 1982, Convention on the Law of the Sea by the United States was signed and adopted, stating extended maritime resource assertion in international law with almost six governments declaring their natural rights over the disputed Paracel and Spratly islands in the South China Sea. It was in the year 1994 this came into full effect. Hence, with the pure intentions of balancing the economic and security interests of coastal states with those of seafaring nations. Discussed at the UN forum, the “Law of the Sea Convention”was signed by almost every coastal country in the South China Sea who claimed their right over the region.
Now fastforwarding to the year 2002, it marked all the ASEAN countries and China joining hands with the aim of keeping the controversy away but didn’t have a fruitful impact. In the year 2009 Malaysia and Vietnam hit the road to some of their claims by sending a joint submission to the Commission on the Limits of the Continental Shelf (CLCS), but this was countered back by China submitting a map showing “nine-dash” line which further paved a road for no resolution regarding the conflict.
Since then, there has been a constant need for militarisation and checks on the status of the waters at its peak by various nations Brunei, the People’s Republic of China (PRC) , Taiwan, Indonesia, Malaysia, the Philippines, and Vietnam, wanting to secure its extension and influence over its various zones because of
following main reasons-
- The remarkablelocation despite being connected by Taiwan Strait with the East China Sea and by Luzon Strait with the Philippine Sea serving as the connection between the two important oceans Indian Ocean and the Pacific Ocean (Strait of Malacca).
- Significant geopolitical water body according to the UNCTAD- United Nations Conference on Trade and Development, as it carries trillions of trade with one-third of the global shipping passes via this route.
According to the DENR-Department of Environment and Natural Resources, Philippines, this sea alone has one-third of the entire world’s marine biodiversity and a good number of fishes for providing food security to the Southeast Asian nations.
In terms of the Spratlys, more than 60 geographic features are reportedly occupied by claimants, which consist of Taiwan, Vietnam, the Philippines, China and Malaysia. The Paracel Islands are the subject of overlapping claims by China, Vietnam and Taiwan.
Islands in South China Sea
It is basically a disagreement over the territory and sovereignty of the ocean areas, and the two island chains which are in whole or in part by a number of countries, namely the Paracels and Spratlys along with dozens of rocky outcrops, atolls, sandbanks and reefs of Scarborough Shoal.
Beijing often invokes the conflict of the nine dash line to justify its legitimate historic rights over most of the South China Sea, which are also claimed by countries like Taiwan, Malaysia, the Philippines and Brunei. Leveraging the issue to its peak, the nine dash line violates the principle of Exclusive Economic Zone (EEZ).
In 2016 the Arbitration Tribunal favoured the Philippines while rejecting China’s maritime claims stating the assertion is invalid as it breaches the Convention. However, China chose to ignore the decision ruled over this matter.
In the past few yearsChina has not only stepped up on showing military aggression by increasing its presence in the disputed area but also has created artificial islands for military and economic purposes in the South China Sea, which drew criticism globally.
As per the Law of the Sea Convention, the exclusive economic zone (EEZ), is defined as an area of the sea in which a sovereign state has special rights regarding the exploration and use of marine resources, including energy production from water and wind. Which in simple terms means that all states have the right to exploit the resources of the sea and seabed, measuring 200 nautical miles from its respective land territory. However, if the zones of two or more countries overlap, then states are requested to negotiate with other claimants to avoid any dispute in the near future.
But it seems like China is still not aware of the fact laid down in the law, because it’s sea is undoubtedly the source of many of the current tensions.
China, on the other hand asserts its sovereignty based on highly disputable evidence from ancient times, as well as more recent claims from 1902-’39. Japan occupied the islands during the Second World War and later recognised the claims, Taiwan, in a 1952 peace treaty.
The other claimants to the islands deny the validity of this evidence. Vietnam has equally credible evidence from the period before and during the second World War.
The broader question of China’s larger declaration to the waters within the u-shaped “nine-dash” line, which skirts the Philippines, Malaysia, Indonesia, Brunei and Vietnam, was first drawn by the Nationalist government of China in 1947.
In this conflict is Taiwan, which has been in disarmament with China over sovereignty issues since 1949 as it is not formally recognised as a state by most countries and is therefore not a signatory to the Law of the Sea Convention, nor legally entitled to claim the territory.
Third, there is a debate in international law about the type of land territory that can generate rights to an exclusive economic zone. The Law of the Sea Convention mandates the land must be able to sustain human habitation. And in 2016, the international tribunal in The Hague found no islands in the Spratly group met this criterion.
What do they claim?
Because of several countries competing in territorial demands and allegations over their rights on the South China Sea, it is now regarded as South-East Asia’s most dangerous point of conflict. Among many countries claiming territorial rights over the South China Sea the People’s Republic of China (PRC) and Taiwan are the only ones that claim almost the entire body as their own.
Competing claims include:
- Taiwan, China and the Philippines claim overScarborough Shoal.
- Malaysia and Singapore claim the area along the Strait of Johor and the Strait of Singapore.
- Either all or some of the islands are a concern of dispute among Vietnam, China, Brunei, Malaysia, the Philippines and Taiwan while there’s a dispute over waters west of the Spratly Islandsamong Vietnam, China and Taiwan.
- Indonesia, China, and Taiwan over waters NE of the Natuna Islands
- The Paracel Islandsare disputed between China, Taiwan and Vietnam.
- Malaysia, Cambodia, Thailand and Vietnam over areas in the Gulf of Thailand.
China claims its rights as archipelagic states because of the benefits that countries enjoy having archipelagic status is the waters between islands are considered to be the internal waters, like rivers inside a country while at the same time other countries do not get any right to transit these waters without permission. And in between this whole story the point to be noted is that till now only 22 countries are enjoying this status and China is not one of them.
It’s no doubt that China is a continental country, but Beijing claimed the water between the Paracel Islands as internal waters by drawing a straight baseline around the islands. Also, it can be noticed that Beijing has not done this solely for the purpose of acquiring Spratly islands area but also for giving counter replies to the other claimants!
China also affirms a 12 nautical mile (nm) territorial sea from the Paracel baseline, but not from the individual islands. China’s view of the territorial sea is of having ultimate exclusive rights to make, apply and execute according to its own laws without any kind of foreign interference, comments or judgements. But UNCLOS says that, “all ships, civilian or military, enjoy the right of innocent passage through other states’ territorial seas; the contiguous zone is considered as part of international waters, and states do not have the right to limit navigation or exercise any control for security purposes
China also asserts their rights to regulate military activity from 200 nm from the end of the territorial sea and also claims it as their exclusive economic zone (EEZ).
Because it has been already established in the International Law that “states do not have any right to limit navigation or exercise any control for security purposes in EEZs, the US insists that freedom of navigation of military vessels is universal.”
Also, Australia is the only one who has this view as well, otherwise no other country concurs on this view. While countries like Argentina, Brazil, India, Indonesia, Iran, Malaysia, the Maldives, Oman and Vietnam concurs with China that warships have no automatic right of innocent passage in their territorial seas, several other countries around twenty or so generally developing countries including India insist that military activities such as close-in surveillance and reconnaissance by a country in another country’s EEZ infringe on coastal states’ security interests and therefore are not protected under freedom of navigation.
AUSTRALIA AND THE SOUTH CHINA SEA:
Australia, like any other member country, has always shown significant interests in the South China Sea, both geopolitically because of the US’s rule of upholding the “rule-based” order in the region, and economically, in terms of both having freedom of trade and navigation. Everyone is aware of the fact since 1980 that Australia has been conducting airborne surveillance operations of its own, both in the South China Sea and Indian Ocean. These patrolling are conducted by maritime aircraft, P-3 Orion. UnLike US Navy who has conducted surface FONOP operations, Australia carried out regular naval presence patrols, exercises and port calls throughout the region. As a closest ally in the region of Washington’s, it has been felt that Australia may come under growing pressure from the United States to make its presence felt in the South China Sea beyond statements of diplomatic support for freedom of navigation.
Vietnam says that for all past years it has actively ruled over both the Paracels and the Spratlys islands especially since the 17th Century and even has necessary and proper documents to prove it before the 1940s.
Both China and the Philippines claim the Scarborough Shoal which is also known as Huangyan Island in China and is also a little more than 100 miles or about 160km from the Philippines and some around 500 miles from China.
- The Philippines considers the reef to be a part of its exclusive economic zone and continental shelf and protested the Chinese presence.
- Currently, Philippine military aircraft and navy are monitoring the situation daily, and China has been warned that there will be an increased military presence to conduct ‘sovereignty patrols’.
- If China is successful with its moves, the Philippines may lose another fishing ground, similar to what happened in 2012 when China took control of Scarborough Shoal.
Malaysia and Brunei:
Both Malaysia and Brunei claim to have their right over territory in the South China Sea as the region falls within their economic exclusion zones, as defined by UNCLOS – the United Nations Convention on the Law of the Sea. While Malaysia claims a small number of islands in the Spratlys, Brunei does not claim anything of the disputed islands.
Taiwan and the Taiwan Strait
Chinese military prioritises its strong presence, exercising sea control and power projection in the waters around Taiwan. Bringing “renegade province” to heel has been sworn by both President Xi Jin-ping and the Chinese leaders.
While on the one hand they want to do it through patience on the other they will be willing to use military force if necessary.
The Taiwanese are keeping a time to time check on China’s activity as it is violating the agreement saying to follow the “one country, two systems” system with Hong Kong, negotiated with the British in 1997. They recognize their future within greater China would include a loss of democracy and human rights.
With Taiwan over 8,000 miles from Hawaii but around 100 miles from the Chinese mainland, the challenges for the U.S. Navy are profound. U.S. support for Taiwan’s security is bipartisan — but the longstanding U.S. policy of “strategic ambiguity,” supporting Taiwan militarily without a formal commitment to defending it, is dangerously fuzzy. It could lead to a miscalculation by the Chinese (or the Taiwanese) and set off a larger conflict.
Japan and the East China Sea
Japan and China have a long and difficult history, including two significant military confrontations in the modern era. The first Sino-Japanese War, which was largely over the control of Korea began in 1894, while the second began in 1937 and lasted until the end of World War II and withthe Japanese killing, wounding, raping and imprisoning millions.
Both China and Japan had laid down claims over a group of islands in the East China Sea known as the Senkaku in Japanese and the Diaoyu in Chinese. These five uninhabited islands located close to Taiwan, are important because they provide a 200-nautical-mile exclusion zone and buttresses competing claims around them.
Having control here will provide either of the countries with the following benefits-
- Providing fishing rights,
- Access to exploit hydrocarbons, and the
- Scope of deep-seabed mining.
To avail such benefits China has always focussed upon increasing the numbers and capability of air and sea patrols around and over the islands. Warships, long-range patrol aircraft have always shown their frequent appearances, leading to similar steps by the Japanese as well.
The U.S. recognizes the islands as part of Japan, thus a Chinese move to occupy them would activate the U.S.-Japan mutual defence treaty, something successive American presidential administrations have made clear.
The US and the South China Sea
The U.S. has no claim in the South China Sea, instead it demands free navigation of commercial vessels in the South China Sea which according to them is vital for regional and international trade.
Hence, the Philippines and Japan, Australia, and Indonesia conducted joint military patrols. Following which the US with these countries also increased the financial support for enhancing the military capabilities of ASEAN and East Asian countries as well strengthened bilateral defence collaboration.
India and the South China Sea
India from all those past years has remained neutral considering its official position of neither being party to the disputes nor taking sides for many years. But with increasing ties with East Asian countries (Act East Policy) it is clearly reflected in the joint by the Governments of U.S. and India issued in 2014 India indirectly started raising concerns about Chinese illegitimate claims in the South China Sea.
The joint statement issued by both countries “urged the concerned parties to pursue resolution of their territorial and maritime disputes through all peaceful means, following universally recognized principles of international law, including the United Nations Convention on the Law of the Sea.”It further “affirmed the importance of safeguarding maritime security and ensuring freedom of navigation throughout the region, especially in the South China Sea.”
India undoubtedly has commercial interest in the South China Sea (SCS) region but just because of its policy of not involving itself in the disputes between sovereign nations it does not do anything.
- India is obligated to take a principled stand on the issue of freedom of navigation and commercial access enshrined in the UNCLOS only after the aftermath of the Hague Tribunal’s verdict on the South China Sea.
- India’s interest in the South China Sea is just because of the security of its trade flows and energy interests which is actually more of a concern. Hence when Vietnam offered India seven oil blocks in its territory of the SCS India didn’t let this down and signed energy deals with Brunei too which of course didn’t go down well with China.
- India continues its oil exploration in Vietnam’s exclusive economic zone (EEZ) in the South China Sea from where ONGC Videsh Limited supplies oil to Vietnam despite China’s protests.
- India also supports a negotiated settlement of Brunei’s maritime dispute with China and has inked Defence cooperation agreement that would provide an institutional foundation for more collaborative work on maritime security and secure India’s energylanes to Brunei.
- China controlling the whole of the region will upset the global trade practices and many countries especially developing like India will directly get affected. Any action by China can hamper India’s foreign trade passing through that region. Therefore, India has a stake in ensuring freedom of navigation in the region.
While the Law of Sea Convention settled most international laws governing the sea, some things are still left unresolved related to military activities, especially “innocent passage” in territorial seas by warships. Law of the Sea Convention says that, as long as a foreign warship takes a direct route and doesn’t conduct military operations it can pass within the 12 nautical miles of another state. However, the issue is, states disagree on what constitutes innocent passage and hence Maritime powers, just to challenge what Washington calls “attempts by coastal states to unlawfully restrict access to the seas”, like the US, UK and Australia routinely conduct freedom of navigation operations! And by conducting FONOPs within 12 nautical miles of the islands by one of the Maritime Powers, the US, upsets China. Their aim was not to claim any sort of right over islands or resource zones but just to assert its rights for carrying freedom of navigation.
Australia isn’t much interested in following the high-profile freedom of navigation operations like that of US because it might provoke a negative and dreadful response from China – but that position could change soon!
While on the one hand China opposes this thing plus that naval ships should not “operate” in other countries’ exclusive economic zones for several reasons on the other Beijing, ignores this, i.e. between their this position and its own activities in the sea, where its naval ships regularly operate in the claimed EEZs of other states.
India’s Stand on South China Sea Issue
- India and the UK discussed ensuring their freedom of navigation in the waters and resolving further disputes according to UNCLOSin a Joint Strategic Vision for the Asia-Pacific and the Indian Ocean Region. But the moment the Philippines in its favour arbitration award in 2016, India separated itself from the dispute.
- Till 2020 New Delhi, India has not conductedany sort of defence cooperation, navigational patrols and naval exercises with either of the claimant states in the South China Sea, except with Vietnam on 26 December 2020, called PASSEX.
- Also it might appear that because of the recent development of affairs with Japan and Russia that India wants to raise its strategic presence in the South China Sea but it is not the case at all. Firstly, because India is not a party to the maritime territorial disputesin the region and does not want to interfere.
India wants to preserve its “Wuhan Consensus” with China, in which both nations respect each other’s spheres of influence in their adjacent water bodies.
China’s reaction and naval expansion
- When the idea of Quad was just a theory; the Chinese, called it as an Asian version of the North Atlantic Treaty Organization.
- The sole reason behind such a behaviour of China was just that such a grouping would not let China’s intention for naval expansion by focusing on the Indo-Pacific maritime space.
- China, overlooking international laws and regulationslike the UN Convention on the Law of the Sea, has always shown negligence, denial and a sense of superiority.
- China’s behaviour of bullying North Korea’s has attracted US aircraftsin the troubled waters.
- Undefined geographic locationof the South China Sea; different approaches used by different countries to manage conflict like that of having self-restraint, mutual trust, and confidence building, and the undefined legal status of the Code of Conduct (COC) add to it.
- The different histories of distant, largely uninhabited archipelagosof the sea make the matter more complicated and multifaceted.
- The ASEAN members (Association of Southeast Asian Nations) andChina to manage the South China Sea maritime and territorial disputes have engaged in discussions on a potential COC for a very long time and finally have believed to settled for a non-binding Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002. In 2005, the first draft of guidelines to implement the DOC was drawn up, but was not adopted until 2011.
- But in 2016 after having consultations, in 2017ASEAN and China adopted a bare-bone framework for the COC.
Declaration on the Conduct of Parties in the South China Sea (DOC), 2002
Finally, ASEAN members and China agreed to promote a peaceful and harmonious environment in the South China Sea for the enhancement of economic growth, peace, and prosperity in the region.
A positive agenda built around collective action in humanitarian assistance and disaster relief, will decidedly re assure the littoral States that the Quad will be a factor for regional benefit and many other things like monitoring shipping for search and rescue or anti-piracy operations in the disputed waters, infrastructure assistance to climatically vulnerable states, connectivity initiatives and similar activities, will help, and will turn out to be a far cry from Chinese allegations that it is some kind of a military alliance.
The South China Sea Dispute has been affecting many territories, therefore the concerned authorities need to come forward to solve the dispute to promote economic growth througheffective diplomacy.
- Forming a group like NATO or European Union (EU) or the concept of joint development zones should be adopted with China as a member, in Asia to settle Asian problems like environmental protection, disaster relief and humanitarian perspectiveand counter-piracy control, might help resolve disputes like this.China’s behaviour and power should be checked to ensure that it follows all the intergovernmental and international agreements and conventions as directed and asked and does not overlook it according to its wish.
- Claimant countries should focus on finding some middle path which would help all the countries in the long run.
- All the claimants, especially China should abide by theUnited Nations Convention on the Law of the Sea (UNCLOS) rule.
- Another possible solution for this could be that all the claimants should choose a neutral country to solve the dispute among them based on the UNCLOS or any other relevant international laws.
- Claimant countries can divide the benefits obtained from this in equal share.
Although China has put forward a bilateral negotiation point of view, it has not been accepted by the other countries because they believe that China being China may be having some unsaid advantage in the distribution of the water body.
The bigger picture:
- China and the Philippines, along with other Southeast Asian countries, have long been part of disputes over sovereign claims over the region’s islands, reefs and sea-beds.
- A third of the world’s maritime trade travels through the South China Sea annually.
- The sea-beds here are believed to be reserves of oil and natural gas while being home to fisheries essential for the food security of millions in South Asia.
- The majority of the disputes concern the lack of adherence to the international ‘Exclusive Economic Zones’ which stretch up to 200 nautical miles from the coast of any state.
- China, especially, has been notorious for disregarding the law on various occasions.
International disputes in line with international laws on the principle of safeguarding maritime security, navigation and overflight rights and freedoms should be settled by peaceful means.