South China Sea Dispute: In Light of International Law of the Seas

The South China Sea (SCS) is one of the most disputed sea in the world, with contested maritime claims by Philippines, Indonesia, Vietnam, Malaysia, Taiwan and China. The geographical location of South China

Sea with its proximity with the Strait of Malacca in the West and Pacific Ocean in the East makes it an area of interest as an important water way not only for the regional states but also the hegemonic western states and United States in particular. Over the years China has invested heavily militarily in the region and has also changed the geo-graphical topography of the region to further its claims. While the western powers and United States with the help of international regimes such as United Nations Convention on the Law of the Seas 1982 (UNCLOS) and with the help of regional alliances is trying to counter the claims of China on the South China Sea. The SCS dispute depicts an important case study for the students of International Law and this study is aimed to analyze the legalities of the issue in the light of Laws of the Seas as constituted under UNCLOS.

Historical Background

The claims to the territory of SCS dates back to the Han Dynasty (206 BC-220 CE) Ming Dynasty (1403-1644) during which the water ways under consideration were regulated under the tributary system of the Chinese Empire. Historically China in order to increase its influence over the region and to avoid protracted border skirmishes devised the tributary system according to which the vassal states in the region were given autonomy to carryout trade and transit in the region, while, in return giving tribute to the Chinese emperor, acknowledging China’s dominance, in return China offered gifts and protection to the vassal states. These regulations were in contradictory with the freedom of Navigation and concept of trade by Western states when they entered into the region in search of trade routes by the early 16th Century. During this time period China’s South Sea Region trade was with Funan (present day Cambodia, Thailand and Vietnam) dating back to 502-587 CE and further trade and shipping with Malaya City states dating back to 13th Century. The tributary system saw its demise when China suffered humiliating defeat during the Opium Wars of (1839-42 and 1856-60). The tributary systems was replaced with treaties which resulted from the defeat during the Opium Wars.[1]

The historical claims drawn by the PRC over the control of SCS territory is based on nine-dash line which refers to the number of lines drawn in the original map to mark the boundaries of China’s maritime claim. These lines were drawn by geographer Yang Huarien in 1949, for the then Nationalist government of China. The geographer Yang’s map consisted of 11-dashes that were vaguely drawn in the SCS region to claim the contested regions of Paracel Islands, Spratly Islands, Macclesfield Bank, Pratas Islands and Scarborough Shoal. The two-dashes were removed on the behest of Mao Zedong when he ceded the Gulf of Tonkin to Vietnam in 1952, thus, reducing the total line to nine.[2]

Law of the Seas

Law of the Seas is defined as “constitution for the oceans” is a set of legal framework aimed to codify the international rules and laws regarding to the sovereignty of internal waters, territorial waters, sea lanes and ocean resources. The Law of the Seas is codified in the United Nations Convention on Law of the Seas (UNCLOS) in 1982 and came into force in 1994 after being ratified by more than 150 states.

The UNCLOS of 1982 was originally codified from the United Nations Conference on the Law of the Sea (UNCLOS I) in 1958 at Geneva. This conference drew upon four conventions relating to the Convention on Territorial Sea and Contagious Zone, Fishing and High Seas Conservation resources and Continental Shelf.[3] These rules regulate the rights of exploiting resources from the region, economic and navigational freedom and right of innocent passage within he maritime domain of an independent and sovereign coastal state. The UNCLOS defines the maritime territorial boundaries of a sovereign coastal state into following categories: 1) Territorial Sea 2) Contiguous Zone 3) Exclusive Economic Zone. 4) High Seas.

1. Territorial Sea

The UNCLOS defines the limit and extent of territorial boundaries for every sovereign coastal state under which it can exploit the fishery and natural resources. The territorial waters extend to 12 nautical miles or approximately 22 km which are represented by baselines drawn beyond the coast or low water line, within this no foreign vessel can pass through and neither a plane can fly-by through the airspace above this area. The rules for establishing the baseline for the territorial seas of a coastal state are inscribed in Articles 5-11,13 and 14 of UNCLOS 1982 and also derives its legitimacy from Article 3 of Convention on Territorial Sea and Contiguous Zones of 1958. Moreover, the breadth of the territorial sea from the base line is limited up-to 24 nautical miles.[4]

2. Contiguous Zone

The contiguous zones under the UNCLOS is the region adjacent to the territorial sea of a state in the open seas. The Article 33(1) and (2) of UNCLOS 1982 which are similar to the Article 24 (1) of Convention on Territorial Seas and Contiguous Zones of 1958, defines the legitimacy of the contiguous zones. Under this law the  contiguous zone may not exceed or extend beyond the 24 nautical miles from the low water line or the baselines from where the width of the territorial seas is measured. Contiguous Zones which can be governed by the sovereign coastal state only for exercising the taxation, customs and immigration laws.[5]

3. Exclusive Economic Zones

The Exclusive Economic Zones (EEZ) which extends to 200 nautical miles or 370 km from the shore line of a state are defined by the Article 56(1) of the UNCLOS of 1982.[6]Within the EEZ a state has exploitative rights to all natural resources and fisheries in the sea, seabed and subsoil areas. A state can regulate but it should maintain the freedom of maritime navigation and over-flight in the region. A sovereign coastal state has right to construct artificial islands and installations within its EEZ for economic purposes. The Articles 62, 69-71 of 1982 Convention further explains that if a state is incapable of exploiting the resources within its EEZ can make arrangements for sharing the region with foreign states by requiring payment from them.

4. The High Seas

The term high seas signify all the parts of the sea which are not included in the territorial seas and contiguous zones of the states. According to the Article 2 of the 1958 Geneva Convention on the High Seas that states have freedom to exercise freedom of navigation, trade, fishing, laying submarine cables, pipelines and fly by the high seas freely. The land locked states have right to move freely in the high seas using their flags on the vessels. These rules were repeated in the Article 92 of 1982 UNCLOS.[7]

South China Sea Dispute

The South Chins Sea (SCS) dispute is a maritime claims dispute among various states including China, Taiwan, Philippines, Indonesia, Malaysia, Vietnam and Brunei. The states dispute over the claims of territorial control, freedom of navigation, fisheries, shipping lines and exploitation of natural resources of oil and gas in the South China Sea region. The disputed territories include various feature in the SCS such as Spratly Islands, Paracel Islands, Mischief Reefs, Johnson, Hughes, Fiery Cross, Cuarteron, Gaven (North) and Subi Reefs, Scarborough Shoals,  among various continental shelfs and banks.

China over the years has been exercising its influence in the region covered in the nine-dash line and building military bases and structures on the artificial islands in the Spratly and Paracel Islands. Thus, maintain an Area Access Area Denial (A2/AD) strategy, hampering freedom of navigation of western and especially American naval assets and hegemonic interests in the region. China has maintained a physical presence and claim in the region since late 1950’s. China has carried out various oil exploration and drilling expeditions off the coast of Vietnam near disputed Paracel Islands in SCS which led to a stand-off.[8]

Permanent Court of Arbitration; A  Case Study of Philippines vs China 

On 22 January 2013, Philippines registered arbitral proceeding against China  in the Permanent Court of Arbitration in Hague under the Annex VII of the UNCLOS 1982. According to the statement Philippines pleaded that China has violated its sovereign right of freedom of navigation and jeopardizing its access to maritime entitlements in the South China Sea by extending its territorial claim in the SCS region, creating artificial islands and maintaining excessive presence of surveillance vessels, naval assets and fishing boats in the region.

The Permanent Court of Arbitration in Hague over a period of four procedural hearing orders on July 12, 2016 issued the final award to the case. According to the award China had no legal basis for claiming the historic rights to maritime boundaries and resources in the areas falling in the Nine-Dash line. The UNCLOS does not recognize the group of continental shoals, reefs in the Spratly Islands collectively to generate maritime zones. The PCA further ruled that China violated the obligations of maritime safety under the Article 94 of UNCLOS. The arbitral tribunal also gave verdict that the Thomas Shoal and Mischief Reef and its adjacent continental maritime features are well within the 200 nautical miles range on Philippines and formulates its EEZ.

The tribunal stated that the Chinese claim originating from various Reefs in the Spratly Islands hold no legitimacy as some reefs such as Mischief and Subi Reefs, Second Thomas Shoal are low tied elevations and have no entitlement of maritime zones. While various shoals such as Scarborough Shoal, Johnson Reef and Fiery Rock although under Article 121(1) of UNCLOS are high-tide areas of land surrounded by water. But they are categorized as rocks which are uninhabitable and do not generate any maritime zone claim under the Article 121(3) of UNCLOS of 1982. The PAC also ruled that China was unable to protect and preserve the maritime environment in the region and its naval and commercial activities in the region have violated the International Regulations for the Prevention of Collisions at Sea.[9] The tribunal further said in its award that China has violated the Articles 123, 192, 194(1), 194(5), 197 and 206 of UNCLOS by building artificial islands on the Cuarteron, Fiery Cross and Johnson, Hughes, Subi, Mischief, Gaven Reefs. Thus, the tribunal gave the verdict in the favor of the Philippines, which China refused to accept and released a White Paper stating that China would solve the issues bilaterally and pressed on its historical claims on the SCS region.[10]

China-Vietnam Oil Rig Standoff

China’s emerging economy and growing industrial infrastructure is dependent readily upon the oil and gas energy resources. As China lacks abundant natural oil and gas resources in its mainland and is dependent upon Middle Eastern, Gulf and African states to sustain its energy needs. The energy security of China has also increased as bulk of its energy resources transit through the congested straight of Malacca and disputed South China Sea. On May 1st, 2014, China’s state owned China National Offshore Oil Cooperation (CNOOC) oil-rig Haiyang Shiyou 981 (HYSY 981) along with three other oil and gas service ships were detected by Vietnam in the disputed SCS region claimed by Vietnam. The oilrig was deployed 120 nautical miles from Ly Son Island in the East of Vietnam and 180 nautical miles South of China’s Hainan province. Due to disputed territorial claims the rig feel in between the hypothetical boundaries of both China and Vietnam.[11] China claimed that the rig was deployed to conduct exploratory drilling and survey of the region and straddled upon hydrocarbon rocks in the region up till 15th August of that year. China further established a parameter of 1 nautical mile and prohibited any naval vessel movement in the area. Vietnam in order to intercept and disrupt the oil rig from establishing a fixed position dispatched six of its coast guard and surveillance vessels. China in order to protect its oil expedition vessels deployed forty naval, coast guard and civilian fishing ships.

Over the coming days the standoff between both states tensed with increase in deployment of naval ships. The incidents of ramming increased as China deployed over 130 naval vessels and aircrafts. While, people started riots across Vietnam and took to streets, various cases of vandalism were reported against Chinese businesses and six Chinese citizens were killed during the riots. China increased its military presence across the border regions also near the Yunnan and Guangxi provinces. After a high-level delegation from Chinese side visited Hanoi on June 18 and the oil rig moved to the North-Eastern region of Triton Island after the official claims of completion of its exploration. On July 15, CNOOC announced that its has withdrawn its oil rig as its endeavor has been completed a month ahead of the scheduled time period.

The stand-off between the two states showcased the limit to which China could take risks to establish its influence and demonstrate its hegemony over the SCS region. Although, Chinese leadership may have not apprehended the Vietnam’s resolve and accepting risks for a sustained period of time.

China-Malaysia Standoff

The most recent incident among the series of confrontation and disputes emerged when China and Malaysia standoff initiated in mid-April 2020 and lasted for a month till May 15, 2020. These latest turn of events started when Chinese survey vessel Dizhi-8 along with escort of Chinese coast guard ships drifted closer to a Malaysian drillship West Capella which was contracted by state owned Petronas oil firm in EEZ claimed by China, Malaysia and Vietnam in SCS. This standoff is also significant as during the unfolding of events US and China both maintained a constant military presence near the disputed area. US had deployed its guided missile cruiser, USS Bunker Hill and an amphibious assault vessel USS America in the region. US further displayed an excessive use of force as USAF B-52, B-1B Lancers conducted sorties along with EP-3E, P-3C Orion, P8-A Poseidon, RC-135W Rivet joint  reconnaissance planes not only over the SCS region but also over Taiwan Strait and East China Sea.[12] These events intensified and heated the already tensed region as both sides frowned at each other and remain locked eyeball to eyeball with each other for over a month. US maintained its claims of Freedom of Navigation (FoN) while challenging China’s assertiveness in the SCS, meanwhile, China during the unfolding of these events restrained itself from any engagement and withdraw from the region on May 15, 2020.[13] While, China afterwards in show of force initiated a month long naval exercises in July 2020 where it also deployed its indigenous Shandong Type 002 aircraft carrier.[14] Following which US carried out its largest naval drills comprising of three strike groups comprising of USS Nimitz, USS Ronal Regan and USS Theodore Roosevelt participated accompanied by cruiser, guided missile-destroyers in a show of force sending a strong message to Beijing.[15] Thus, the most recent strategic movements come at a time when the major powers were engaged in a volley of tariff war, uncertain health and economic system amid the Covid-19 pandemic. The issuance of flexing military muscles and assertion of dominance while defying international norms by China and reassertion of the status quo by the US has become a norm in the region, posing threat to international system.

China’s Approach of Expansion and Cooperation

Over the years China has gained sufficient economic power and has now been exercising its national interests using soft power. The Asia Pacific states which have been used by the West and mainly US to contain China in the region and various Quadrilateral alliances such as between US, India, Japan, Australia which emphasize upon naval and maritime cooperation and increase in freedom of navigation missions in the SCS to counter the Chinese claims. Similarly, renaming of Pacific Command of US Navy to Indo-Pacific Command also signifies the American aims and interests in the region towards countering the Chinese naval expansion in the region. The region has witnessed various aggressive maneuvers at sea and in the air between the military assets of both China and the US in the SCS. US with its immense naval resources, increasing in frigates, destroyers, anti-submarine warfare assets, and nuclear submarines in the region, has been facing challenges to its hegemony and freedom of navigation missions in the South China Sea in the face of increasing Chinese naval presence. China has been to strengthen its control over the SCS has created artificial islands by dredging and landfills and established military bases over them.[16]

For furthering its interests in the SCS region China has been engaging into economic cooperation with the SCS states. It has proposed to carry out joint initiatives for oil and natural resources exploration with Vietnam, Philippines and Brunei. China has been working on the framework of developing Code of Conduct for SCS through the framework of Association of South East Asian Nations (ASEAN) to overcome the territorial disputes. China’s policy of economic cooperation is shifting the geo-political dimensions in the South China Sea region which is a blow to the Western policy and hegemony. China’s continual defiance towards the international laws and regulations are also evident to the increasing Chinese power and weakening of the international regimes which are losing power to enforce their authority.[17]China is shaping the international law to its own liking and has been strategically investing into research and scholarly works to prioritize its national interests. US has to organize and gather regional and international support if it wants to force China to abide by the international law.[18]

Conclusion

The contemporary world order is defined by the western international regimes that govern and regulate the behavior of the states. International Law is defined to establish a recognized obligation framework under which states are compelled to operate. Evidently the norms and premise of the international law are being weakened and challenged as the emerging powers such as China has been playing around the international law. The revocation of UNCLOS in SCS by China in recent history is an evident example of this changing behavior and deterioration of the international norms. China has over the years attained significant economic muscles and to further its economic viability it is dependent upon the free transit of its oil and trade vessels through the South China Sea region until its Belt and Road Initiative is not matured. To counter the challenges it face in the South China Sea and beyond with increasing presence of US naval assets and alliances in the region China has to take resolute steps to maintain its territorial presence in the South China Sea and beyond. China has successfully sustained the pressures from international regimes and laws thus signifying the weakness and changing of the world order. The legitimacy of the international regimes has been challenged by the Chinese defiance and the US is gaining on and investing in establishing alliance in the region to counter and contain the Chinese influence. The US can resort to coercive actions as a last resort to maintain its weakening hegemonic stature, while, China is trying to avoid any direct conflict but at the same time is manipulating the International regimes in its favor by enhancing economic cooperation.

[1]Daniel Wei Boon Chua, “China’s History and the South China Sea,” Asia Dialogue, March 6, 2017, https://theasiadialogue.com/2017/03/06/chinas-history-and-the-south-china-sea/, (Accessed on May 11, 2019).

[2]Ben Black, “The South China Sea Disputes: A Clash of International Law and Historical Claims,” Penn StateJournal of Law and International Affairs, March 22, 2018, https://sites.psu.edu/jlia/the-south-china-sea-disputes-a-clash-of-international-law-and-historical-claims/, (Accessed on May 11, 2019).

[3] Peter Malanczuk, Akehurst’s Modern Introduction to International Law (New York; Routledge, 1997) p. 173

[4] Ibid, 182-183.

[5] Ibid, 184.

[6]Robin R. Churchill, “Law of the Sea International Law (1982),” Britannica, December 8, 2006, https://www.britannica.com/topic/Law-of-the-Sea#accordion-article-history, (Accessed on May 11, 2019).

[7] Malanczuk, 185-186.

[8]Michael Green, Kathleen Hicks, Zack Cooper, John Schaus And Jake Douglas, “Counter-Coercion Series: China-Vietnam Oil Rig Standoff,” Asia Maritime Transparency Initiative, June 12, 2017. https://amti.csis.org/counter-co-oil-rig-standoff/, (Accessed on May 11, 2019).

[9]The South China Sea Arbitration (The Republic of Philippines v. The Peoples Republic of China), Permanent Court of Arbitration, https://pca-cpa.org/en/cases/7/, (Accessed on May 11, 2019).

[10]PTI, “China releases white paper, reasserts claim over South China Sea,” Economic Times, July 13, 2016, https://economictimes.indiatimes.com/news/defence/china-releases-white-paper-reasserts-claim-over-south-china-sea/articleshow/53187848.cms, (Accessed on May 11, 2019).

[11]Green, Hicks, Cooper, Schaus, Douglas, Jun, “Counter-Coercion Series: China-Vietnam Oil Rig Standoff,”  (Accessed on May 11, 2019).

[12] “Two US warships in South China Sea amid China-Malaysia standoff,” Aljazeera, April 21, 2020, https://www.aljazeera.com/news/2020/04/warships-south-china-sea-china-malaysia-standoff-200421055333993.html

[13] Rozanna Latiff, “Chinese ship leaves Malaysian waters after month-long South China Sea standoff,” Reuters, May 15, 2020,  https://www.reuters.com/article/us-china-security-malaysia/chinese-ship-leaves-malaysian-waters-after-month-long-south-china-sea-standoff-idUSKBN22R1SN

[14] “China to hold military drills in South China Sea,” BBC News, July 4, 2020, https://www.bbc.com/news/world-asia-36700583

[15] “US Sends Stern Message To China; Deploys 3 Aircraft Carriers In South China Sea,” Eurasian Times, June 13, 2020,  https://eurasiantimes.com/us-sends-stern-message-to-china-deploys-3-aircraft-carriers-in-south-china-sea/

[16]Black, “The South China Sea Disputes: A Clash of International Law and Historical Claims,” (Accessed on May 11, 2019).

[17]Mercy A. Kuo, “The Geopolitics of Oil and Gas in the South China Sea,” The Diplomat, https://thediplomat.com/2018/12/the-geopolitics-of-oil-and-gas-in-the-south-china-sea/, (Accessed on May 11, 2019).

[18]Lynn Kuok, “Countering China’s Actions in the South China Sea,” August 1st, 2018, https://www.lawfareblog.com/countering-chinas-actions-south-china-sea, (Accessed on May 11, 2019).

Source: moderndiplomacy.eu

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