pragyan khare
Abstract
A hostage situation usually plays out like this: One party illegally takes control of an ‘entity’ while the other party is left helpless in the face of such violence, lacking any options to fight back or deter the opposing party. The innocent party is left to beseech a distinct third party, usually law enforcement, to ‘pull off a miracle’ and rescue them from this hellish situation. What if, however, the hostage situation plays out on a national level, with no real end in sight and a distinct lack of a powerful third party to ‘pull off a miracle?’ And what if the entity in question is not just a living person or persons, but a sea encompassing an area of around 3,500,000 km square, boasting of innumerable resources and is an economic boon to the affected party? That is exactly what the South China Sea is. This article attempts to dissect the South China Sea dispute through the perspective of the most proactive State in the region – China. The focus of this paper is a thorough evaluation of the conflict between China and Vietnam and China, and the Philippines as regards the South China Sea. This shall be done by evaluating UNCLOS III provisions in the region and the legality of the Nine-Dash Line by examining the Philippines v. China ruling.
The Dragon in the Room - China
The South China Sea is of great importance to the countries in its vicinity, serving as a crucial source of income, hosting enormous fisheries which contribute 12% of the world’s annual fish harvest.[1] With vast untapped reserves of natural gas and oil, amounting to approximately 190 trillion cubic feet and 11 billion barrels respectively, it plays a pivotal economic role for the regional countries.[2] Handling $3 trillion in trade annually[3] and accounting for over a third of global marine traffic,[4] the South China Sea connects China, Taiwan, Japan and South Korea to world markets.[5]
Consequently, the region has become a focal point of conflicting maritime jurisdictions, which elevates tensions and transforms the area into a volatile arena in conjunction with competing territorial claims. Despite relative peace in the early 21st century, recent events have pushed the neighbouring countries to take an antagonistic role towards the Middle Kingdom, risking a complete destabilization of the entire region and possibly the world at large.[6]
China asserts sovereignty over 80% of the South China Sea, including the Paracel Islands, Spratly Islands and Scarborough Shoal.[7] This vast maritime claim extends over 800 nautical miles from the Chinese island province of Hainan, overlapping with territories claimed by Vietnam and the Philippines.[8] China’s vital interests in the South China Sea are underscored by the fact that over 80% of China’s energy imports and nearly 40% of its total trade passes through the region.[9] This strategic control of important shipping lanes aligns with China’s objective of global superpower status and access to vast oil reserves, crucial for the world’s largest energy consumer.[10] According to scholar James Kraska, the dispute fundamentally revolves around China’s pursuit of global power status and strategic hegemony over the region.[11]
Maritime security further motivates China’s aggressiveness, as ongoing disputes and escalating tensions have presented challenges for shipping.[12] Over 80 percent of China’s imported oil passes into the South China Sea via the Strait of Malacca.[13] Should the Strait of Malacca be closed down and used as a strategic chokepoint by China’s rivals, alternate routes for shipping would include either the Sunda or the Lombok Straits, adding not just weeks for the ships to reach other markets, but also using more energy to reach their destinations.[14] Thus, a closure would have far-reaching consequences for the oil-hungry State. This has been described as the “Malacca Dilemma”, the phrasing coined by President Hu Jintao, which refers to China’s vulnerability should the Strait be closed down and the lack of possible alternatives.[15] To counter such a disastrous possibility, China has resorted to militaristic belligerence in the South China Sea to avoid the likelihood of the “Malacca Dilemma” taking place, aiding in the Chinese rationale of claiming sovereignty over the South China Sea.
The ‘Nine-Dash Line’ is Beijing’s primary legal basis for its claims, dating back to 1946 when the Republic of China claimed the Paracels, Pratas and the Spratly Islands following Japan’s surrender according to the Cairo Declaration[16], which stated “[that] Japan shall be stripped of all the islands in the Pacific which they have seized…. and all the territories that Japan has stolen from China…. shall be restored to the Republic of China.”[17] In 1947, the Republic of China published a map featuring an eleven-dash line delineating the geographic extent of its authority in the South China Sea.[18] After the Communist victory in 1949, The People’s Republic of China adopted the claim[19] and simplified it to nine dashes for convenient demarcation.[20]
The ambiguity of the Nine-Dash Line paradoxically allows it to be one of the most potent tools in the Chinese arsenal. It allows for Chinese foreign policy to remain flexible, as, on the one hand, it can give way to a ‘soft’ approach when dealing with the ‘noisy neighbours’ by being treated as an imaginary concept envisioned only in maps. On the other hand, it allows Beijing to alternate to a ‘hard’ way by mentioning the Nine-Dash Line to indicate displeasure. Despite the prominence of the Nine-Dash Line, it is still considered a flimsy legal pretext which serves primarily as a cover for Chinese expansionism. Professor Clive Schofield highlighted its ambiguity, reasoning that it switches from being a claim to sovereignty over all the territory bound by the lines, to a unilateral claim, to a maritime boundary, and to a form of historic waters, intended to cause confusion as to how to tackle this Hydra of a policy decision.[21]
UNCLOS III and the Question of Law
In 1982, the United Nations held the third Conference on the Laws of the Sea (UNCLOS III).[22] Although the convention yielded no provisions to determine sovereignty over off-shore islands, it has numerous provisions directly relevant to the dispute and legally binding on all parties involved, as all claimants involved in the conflict are signatories of UNCLOS III. Not only did it clarify the breadth of a territorial sea to be up to 12 Nautical Miles[23], it also allowed for the establishment of Exclusive Economic Zones (hereafter – EEZ) extending up to 200 Nautical Miles from the baselines from which breadth of territorial sea is measured.[24] Within this EEZ, the State holds exclusive rights to exploit sea life and other natural resources.[25] In a departure from UNCLOS I, islands have an added caveat where they must be capable of sustaining human or economic life on their own.[26] Article 60(8) of UNCLOS III states that although a State has the authority to build and operate artificial islands within their EEZ, they are distinguished from ‘islands’ and thus have “no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the EEZ or the continental shelf.”[27] Additionally in the South China Sea, many features can be categorised as low-tide elevations, which are distinct from islands and defined under Article 13(1) of UNCLOS III as ‘A naturally formed area of land which is surrounded by water at low tide but submerged at high tide.’[28] Consequently, low tide elevations are not capable of generating maritime claims, just like rocks.
In 1996, China declared a series of straight baselines around the Paracels, from which its territorial sea ought to be measured, thus not only extending Beijing’s territorial sea claim, but also declaring all space within the baselines constitute its internal waters.[29] Thus, China claims the same rights as archipelagic States.[30] UNCLOS III, under Article 49[31], states that the “Sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines…..regardless of their depth or distance from the coast.”[32] The ruling laid down in the Philippines v. China (2016)[33] denied China the status of being an archipelagic State.[34] Article 47 of UNCLOS establishes basic rules, such as baseline segments not exceeding 100 Nautical Miles and the ratio of water to land enclosed by the baselines not exceeding the ratio of 9:1.[35] The Paracel baselines enclose 17,290 sq. km of water, while the land is only 9.11 sq. km in the Paracels.[36] The ratio is 1898:1. China wishes to establish a territorial sea in the Spratly Islands from artificial islands.[37] However, UNCLOS explicitly prohibits claiming territorial sea from artificial islands, making this a point of contention.[38] China also contends that it has the right to regulate military activity in its Exclusive Economic Zone, a stance not supported by UNCLOS.[39] Lastly, China’s interpretation of the territorial sea asserts that a State has the exclusive right to make, apply and execute its laws in that space without foreign interference.[40] Nevertheless, UNCLOS grants all ships the right of innocent passage through other states’ territorial seas.[41] The right to innocent passage was codified as customary international law in the Corfu Channel Case between the United Kingdom and Albania.[42] The ICJ held that due to the continuous use of the channel for centuries as a ‘practice of customary international law,’ the straits shall be considered an ‘innocent passage.’[43] The same can be said regarding the South China Sea, irrespective of what Beijing proclaims.
Analysis of the Conflict & Philippines v. China
International Law plays a contested yet undeniably relevant role in the South China Sea dispute,[44] where legal legitimacy holds considerable weight in consolidating political gains.[45] China’s actions in the region are intertwined with the question of their legality, and the potential international recognition of its claims would have far-reaching geopolitical consequences. Legal legitimacy is paramount to the Chinese Communist Party (hereafter – CCP). Legal legitimacy provides a framework for governance, fostering stability and public acceptance of their rule. It also helps in boosting international standing, as legal arguments regarding territorial claims strengthen their position on the world stage. This has prompted substantial efforts to research and present China’s legal and historical claims in the South China Sea.[46] Beijing contends that the Nine-Dash Line must be interpreted as a legitimate maritime boundary, and thus, within the line, China has the ability and legal backing to assert sovereignty over the island groups.[47] Thus, not only are the Chinese afforded the rights provided by UNCLOS, but China can assert its historic rights within the Nine-Dash Line, courtesy of Article 14 of China’s law on the EEZ concerning fishing, navigation and exploration of resources.[48]
To advance these interests, China has employed force to occupy islands or reefs, claiming sovereignty through occupation. This has heightened tensions, culminating in 2013 when Manila took the South China Sea dispute to an arbitral tribunal under UNCLOS due to China seizing the Scarborough shoal in Philippine waters and requested the panel to challenge the legality of China’s Nine-Dash Line and historic claims in the South China Sea.[49] The Philippines contended that China’s Nine-Dash Line violated UNCLOS agreements regarding EEZs.[50] China, refusing to participate in the arbitration process, insisted on bilateral negotiations to resolve disputes.[51] It published a position paper in 2014 arguing that the dispute was a matter of sovereignty rather than exploitation rights.[52] On 12 July 2016, the Permanent Court of Arbitration ruled that China’s Nine-Dash Line had no legal basis and China’s actions in Philippine waters violated International Law.[53] The court ruled that none of the territorial features in the Spratly Islands met the definition of an island under UNCLOS.[54]
China strongly criticised the ruling, saying that the verdict had contravened its ‘historical rights’ in the South China Sea, insisting it has had claims over the area for over 2000 years.[55] Analysts like Ian Storey outlined possible reactions – best, bad and worst. [56] China’s response to the ruling seems to be a mixture of the bad and worst ways, hardening its position and taking several unilateral administrative steps to augment its claims.[57] Coercion, rather than reconciliation, seems to have become the norm for Chinese tactics in the South China Sea. It has renamed 80 geographical features of the South China Sea[58] and established two new districts, Xisha and Nansha districts, in the southernmost Chinese province of Hainan to effectively administer South China Sea waters.[59] It has increased its coast guard and military activities in the disputed waters and continually harassed the other nations’ ships, claiming that the coast guard must enforce maritime law and protect China’s sovereignty.[60] A Chinese survey ship, Haiyang Dizhi 8, entered Vietnam’s EEZ near the Vanguard Bank offshore oil block on 3 July 2019.[61] Despite Hanoi’s protests and receiving U.S. condemnation in August, China did nothing to indicate that Haiyang would soon return to Chinese waters. The ship would eventually return in October.[62]
Other States' initiatives to counter Beijing’s aggressive strategy have been lethargic and lacking a joint, determined effort.[63] Nonetheless, some punitive measures have been undertaken by the South East-Asian States against China. For instance, Vietnam passed legislation requiring foreign vessels to give prior information in territorial waters.[64] Needless to say, this too goes against UNCLOS III, of which Vietnam is a signatory. The Philippines, in 2011, renamed the South China Sea as the ‘West Philippine Sea’ in their official documents.[65] The Philippines, in particular, have gone closer in the U.S. sphere due to China’s intimidation tactics, with Washington D.C. seeing an opportunity to contain China and ensure that UNCLOS III is followed as international customary law. In 2014, the Philippines signed the ‘Enhanced Defence Cooperation Agreement’ with the U.S., allowing U.S. troops access to the Philippines’ ports and airfields and conducting joint military exercises.[66]
In World War I, Austria-Hungary’s actions escalated the conflict from a regional dispute to a conflict involving 2 Great Powers on opposite ends, which led to Germany joining the fray to tip the balance of power into favourable hands, leading to France joining Russia and Serbia to prevent a complete hegemony and the rest, as they say, is history. The South China Sea is a dispute eerily reminiscent of the Great War. All competing and rival States engage in extreme puffery, trying to outdo each other in displays of power and projecting strength on other claimant States. As history shows us, the cost of escalation involving Great Powers can quickly become too great to rationally bear.
Conclusion
The South China Sea dispute requires a peaceful resolution to uphold the territorial integrity and maritime sovereignty of China, Vietnam and the Philippines. It lies at the intersection of Public International Law and Municipal Law, questioning the legitimacy of unilateral determinations of national borders. Recognising the strong nationalistic sentiments tied to territory and sovereignty, historical precedent emphasises the need for caution and adherence to International Law.
China’s illegitimate expansion into the sovereign waters of Southeast nations is not only unwarranted but also illegal. As a global powerhouse, China should prioritise upholding international law rather than trying to tear it down. The Chinese State's violation of the right of innocent passage showcases China’s nonchalance towards breaking customary international law, treated as an imposition levied upon Beijing to prevent its meteoric rise to once again reclaim the ‘Mandate of Heaven.’ However, disregarding customary international law doesn’t make many allies in a globalised world.
China’s forceful stance risks pushing regional nations further towards rival States, particularly the U.S. Should the Philippines continue to grow ever more swayed by Western promises of security, China can become geographically encircled on the Eastern side and lead to elevating the potential of conflict in the region. The situation may likely become like the Russia-Ukraine War, with similar casualties for the aggressor here. Just like Ukraine, the U.S. will not hesitate to send aid to the country being attacked by China to weaken their rival for years to come. This must be borne in mind by the foreign policy minds of the PRC. In a conflict often touted as the first domino in the build-up to a war to end all wars, compromise and equity must reign supreme. Foreign policy decision-making is a dynamic and cooperative process. It is the prerogative of both Beijing and the regional countries to collaborate and prevent unintended conflict escalation resulting from misconceptions.
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The Republic of the Philippines v. People’s Republic of China, PCA Case No. 2013-19.
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Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397.
17 Third UN Conference on the Law of the Sea, Plenary Meetings, Official Records, U.N. Doc. A/CONF.62/WS/37 and ADD. 1-2, 244 (1973-1982)
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Works Cited
[1] Hasim Turker, “Maritime Chessboard: The Geopolitical Dynamics of the South China Sea,” Geopolitical Monitor, 24 August, 2023, https://www.geopoliticalmonitor.com/maritime-chessboard-the-geopolitical-dynamics-of-the-south-china-sea/.
[2] Center for Preventive Action, “Territorial Disputes in the South China Sea,” Global Conflict Tracker, 26 June, 2023, https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea/.
[3] John Grady, “Panel: New U.S. South China Sea Report Designed to Push Back Against Beijing’s Expansive Claims,” USNI News, 22 January 2022, https://news.usni.org/2022/01/25/panel-new-u-s-south-china-sea-report-designed-to-push-back-against-beijings-claim/.
[4] China Power Team, “How Much Trade Transits the South China Sea,” ChinaPower, 2 August, 2017, https://chinapower.csis.org/much-trade-transits-south-china-sea/#easy-footnote-bottom-1-3073/.
[5] Ibid.
[6] Robert Beckman et. Al, Beyond territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources¸ Cheltenham: Elgar, 2013, 12.
[7] Hidetaka Yoshimatsu, “China, Japan and the South China Sea Dispute: Pursuing Strategic Goals Through Economic and Institutional Means” Journal of Asian Security and International Affairs, vol. 4, no.3 (2017): 294-315. https://www.jstor.org/stable/48602159/.
[8] Benjamin Herscovitch, “A Balanced Threat Assessment of China’s South China Sea Policy,” Cato Institute, 2017. https://www.jstor.org/stable/resrep04873/.
[9] Supra, note 3.
[10] “South China Sea: The Battle for Territory and Resources,” Dryad Global, accessed 6 November 2023 https://dg.dryadglobal.com/why-does-china-claim-south-china-sea/.
[11] James Kraska, “The Nine Ironies of the South China Sea Mess,” The Diplomat, 17 September 2015 https://thediplomat.com/2015/09/the-nine-ironies-of-the-south-china-sea-mess/.
[12] International Chamber of Shipping, Maritime Security – A Comprehensive Guide for Shipowners, Seafarers and Administrations (Witherby Publishing Group, 2021).
[13] Supra, note 13.
[14] Supra, note 4.
[15] Paweł Paszak, “China and the Malacca Dilemma,” Warsaw Institute, 28 February 2021 https://warsawinstitute.org/china-malacca-dilemma/.
[16] Japan National DietLibrary, “Cairo Communiqué,” Birth of the Constitution of Japan, National DietLibrary, December 1, 1943, https://www.ndl.go.jp/constitution/e/shiryo/01/002_46/002_46tx.html
[17] Ibid.
[18] Peter J Brown, “Calculated Ambiguity in the South China Sea,” Asia Times, 8 December 2009, https://web.archive.org/web/20100105111857/http://www.atimes.com/atimes/Southeast_Asia/KL08Ae01.html/.
[19] Sourabh Gupta, “China’s South China Sea Jurisdictional Claims: When Politics and Law collide.” EastAsiaForum, 29 July 2012, https://www.eastasiaforum.org/2012/07/29/china-s-south-china-sea-jurisdictional-claims-when-politics-and-law-collide/.
[20] Hannah Beech, “Just Where Exactly Did China Get the South China Sea Nine-Dash Line From” Time, 19 July 2016, https://time.com/4412191/nine-dash-line-9-south-china-sea/.
[21] Supra, note 6.
[22] Tullio Treves, “United Nations Convention on the Law of the Sea,” Audiovisual Library of International Law, 10 December, 1982, https://legal.un.org/avl/ha/uncls/uncls.html/.
[23] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 3.
[24] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 57.
[25] “Signatories for UN Convention on the Law of the Sea,” The Danish Institute for Human Rights, accessed 5 November 2023, https://sdg.humanrights.dk/en/instrument/signees/2487/.
[26] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 121.
[27] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 60(8).
[28] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 13(1).
[29] “Reading Between the Lines: The Next Spratly Legal Dispute,” Asia Maritime Transparency Initiative, 21 March 2019, https://amti.csis.org/reading-between-lines-next-spratly-dispute/.
[30] Oriana Skyler Mastro, “How China is Bending the Rules in the South China Sea,” The Interpreter, 17 February, 2021, https://www.lowyinstitute.org/the-interpreter/how-china-bending-rules-south-china-sea/.
[31] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 49.
[32] Ibid.
[33] The Republic of the Philippines v. People’s Republic of China, PCA Case No. 2013-19.
[34] Ibid.
[35] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 47.
[36] Supra, note 29.
[37] Supra, note 36.
[38] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 60.
[39] 17 Third UN Conference on the Law of the Sea, Plenary Meetings, Official Records, U.N. Doc. A/CONF.62/WS/37 and ADD. 1-2, 244 (1973-1982).
[40] Supra, note 27.
[41] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 17.
[42] Corfu Channel Case, (UK v. Albania) (Merits) [1949] ICJ Rep 4.
[43] Quincy Wright, ‘The Corfu Channel Case’ (1949) 43 American Journal of International Law.
[44] Douglas Guilfoyle, “The Rule of Law and Maritime Security: Understanding Lawfare in the South China Sea,” International Affairs 95(5) (2019): 999-1017. https://dx.doi.org/10.2139/ssrn.3378904/.
[45] Christine Elizabeth Macaraig & Adam James Fenton, “Analyzing the Causes and Effects of the South China Sea Dispute: Natural Resources and Freedom of Navigation,” The Journal of Territorial and Maritime Studies, vol. 8, no.2 (2021).
https://www.jstor.org/stable/48617340/.
[46] Ibid.
[47] Supra, note 7.
[48] Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China, The Laws of the People's Republic of China (1983–1986).
[49] The Republic of the Philippines v. People’s Republic of China, PCA Case No. 2013-19.
[50] Ibid.
[51] Greg Torode, “Philippines South China Sea Legal Case Against China Gathers Pace,” Reuters, 27 September, 2013, https://www.reuters.com/article/us-china-philippines-idUSBRE98Q0BX20130927/.
[52] “China Says U.S. Trying to Influence Philippines’ Sea Case,” Reuters, 24 July, 2015, https://www.reuters.com/article/southchinasea-china-usa-idUSL3N1043AM20150724/.
[53] Israel Kanner & Assaf Orion, “Maritime Claims on the Rocks: The International Arbitration Ruling on the South China Sea,” Institute for National Security Studies, 2016. https://www.jstor.org/stable/resrep08530/.
[54] Ibid.
[55] “China Releases White Paper to Refute Tribunal Verdict on South China Sea,” The Hindu, 13 July, 2016, https://www.thehindu.com/news/international/world/China-releases-white-paper-to-refute-South-China-Sea-tribunal-verdict/article60526986.ece/.
[56] “Assessing Responses to the Arbitral Tribunal’s Ruling on the South China Sea,” Institute of Southeast Asian Studies, Perspective, no.43 (2016): 4-5. https://www.iseas.edu.sg/.
[57] Pratnashree Basu, “Sovereignty vs. Sovereign Rights: De-escalating Tensions in the South China Sea,” Observer Research Foundation, 14 August 2023, https://www.orfonline.org/research/sovereignty-vs-sovereign-rights-de-escalating-tensions-in-the-south-china-sea.
[58] Kristin Huang, “Beijing Marks out Claims in South China Sea by Naming Geographical Features,” South China Morning Post, 20 April 2020, https://www.scmp.com/news/china/diplomacy/article/3080721/beijing-marks-out-claims-south-china-sea-naming-geographical.
[59] “China’s Sansha City Establishes Xisha, Nansha Districts in Major Administrative Move,” CGTN, 16 April 2020, https://news.cgtn.com/news/2020-04-18/China-s-Sansha-City-establishes-Xisha-Nansha-districts-PN5hyJkgFy/index.html.
[60] “China’s Xi tells Coast Guard to Enforce Maritime Law,” Reuters, 1 December 2023, https://www.reuters.com/world/china/chinas-xi-tells-coast-guard-enforce-maritime-law-2023-12-01/.
[61] Trinh Le, “The Vanguard Bank Standoff Shows that China Remains Undeterred,” The Interpreter, 16 August 2019, https://www.lowyinstitute.org/the-interpreter/vanguard-bank-standoff-shows-china-remains-undeterred.
[62] “China’s Maritime Disputes,” Council on Foreign Relations, https://www.cfr.org/timeline/chinas-maritime-disputes.
[63] Supra, note 57.
[64] Supra, note 62.
[65] Supra, note 63.
[66] Armando J. Heredia, “New Defense Agreement Between the Philippines and the U.S.: The Basics,” US Naval Institute, 29 April 2014, https://news.usni.org/2014/04/29/new-defense-agreement-philippines-u-s-basics.
