South China Sea: A Commons for China Only?

As the center of the global economy shifts eastward, reflecting China’s rise as the second largest economy in the world, trade routes serving the area have acquired greater importance. It has also brought new attention to the 1982 United Nations Convention on Law of the Sea, or UNCLOS. This international legal regime has managed the global order at sea for the last decade and a half, and East Asia has emerged as a new arena of conflict.

China has sent signals of rejecting UNCLOS by asserting “indisputable sovereignty” over the South China Sea. The stance clashes with claims by six other states bordering the sea – Taiwan, Vietnam, the Philippines, Malaysia and Brunei – all of which have varying legal claims to its waters, features and islands based on UNCLOS.

The decades-old claims have become more urgent with China’s emergence as a major trading nation, ever more dependent on international shipping routes that extend from the waters of East Asia to the Middle East. China, once self-sufficient in energy resources, now imports oil and its dependency on imports of natural gas will grow markedly over the next two decades. China’s concerns for the safety of sea lines of communication and its need for hydrocarbon energy resources converge on the South China Sea, which is believed to contain substantial deposits of oil and gas.

UNCLOS came into effect in 1996 as a global legal regime regulating the rights and responsibilities of coastal states in the maritime domain. UNCLOS was a finely crafted compromise between coastal states and states that used the high seas for their economic well being.

Under UNCLOS, all coastal states were given the right to establish a 200 nautical mile Exclusive Economic Zones (EEZ) from their shorelines. They were given sovereignty over all the resources within this area including in the sea and seabed. Maritime user states were given the right to transit through EEZs by sea and over flight by air.

UNCLOS enjoined both coastal and user states to respect the rights of the other party.

In addition, UNCLOS made a distinction between islands and other features, such as rocks. Islands were defined as land areas surrounded by water that could support human habitation on their own and had an economic function. Islands under international law were entitled to a 200 nautical mile EEZ. Other features found at sea – including rocks, reefs, islets, sandbanks – were not given this entitlement.

The trouble over the South China Sea arises both due to its location in the center of the world’s second busiest shipping lanes linking East Asia to the Middle East and its complicated topography. It contains two archipelagoes: the Paracel Islands to the north and the Spratly Islands in the center. Both archipelagoes, with many numerous features, are marked as dangerous ground on navigation maps. The sea lines of communication skirt around these island groups for navigational safety reasons to the east near the Philippines and to the west near Vietnam. The South China Sea is economically important because of its fish stocks and hydrocarbon resources, both proven and potential.

China and Taiwan claim virtually the entire South China Sea on the basis of historical discovery. China occupies the entire Paracel Islands group and at least seven features in the South China Sea. Taiwan occupies arguably the only island – in the legal sense established by UNCLOS – in the Spratly Islands.

The rest of the Spratly Islands is parceled out as follows: Vietnam occupies more than 20 features, the largest number; the Philippines, nine; and Malaysia, at least five. Brunei does not occupy any feature and only claims its 200 nautical mile EEZ.

In 2002, the Association of Southeast Asian Nations (ASEAN) and China sought to manage their territorial disputes by adopting the Declaration on Conduct of Parties in the South China Sea (DOC). They pledged to resolve differences peacefully without resorting to the use or threat of force. This document also set out a number of cooperative activities and confidence-building measures that were never taken up.

Current tensions in the South China Sea were generated, in part, in May 2009 when the UN Commission on the Limits of the Continental Shelf set a deadline for submission of claims for extended continental shelves, that is, beyond 200 nautical miles. Vietnam and Malaysia, both separately and jointly, lodged their submissions. This provoked a protest by China.

China documented its case by officially tabling for the first time a map of the South China Sea containing nine dash lines forming a u-shape down the east coast of Vietnam to just north of Indonesia and then continuing northwards up the west coast of the Philippines. No further documentation was provided such as the precise geographical coordinates of the lines or how these lines were linked. China’s claim cuts deeply into the EEZs established by littoral states.

More importantly, China left its claims unclear: Did China’s u-shape map claim all sovereignty over all of the islands and features? Did the map claim all the maritime domain as China’s territorial waters? Or was China claiming that its rocks were in fact islands entitled to an EEZ?

China has pressured American companies not to assist other states in oil exploration. China has imposed an annual unilateral fishing ban aimed at Vietnamese fishermen. This year China demonstrated unusual aggressiveness in interfering with the commercial operations of oil exploration vessels operating in the EEZs claimed by the Philippines and Vietnam. Vietnam reacted to the cutting of cables on two of its vessels by sending one back to sea with armed escorts and by conducting a live-fire exercise in its coastal waters.

Southeast Asia’s claimant states seek to resolve their dispute with China by banding together and adopting a common position. They then want to negotiate with China on a multilateral basis. China insists that all territorial disputes be resolved on a bilateral basis by the nations directly concerned. This difference in approach has stymied diplomatic efforts between ASEAN and China to adopt guidelines to revive the moribund 2002 Declaration and upgrade the DOC into a more legally binding code of conduct.

The United States and other maritime powers insist they are legitimate stakeholders and should be part of this process. Secretary of State Hillary Clinton has asserted that the US has a national interest in freedom of navigation, open access to Asia’s maritime commons and respect for international law in the South China Sea.

China’s aggressive assertiveness has been counterproductive. It has driven ASEAN claimant states closer together and provided Indonesia, as ASEAN chair for 2011, the opportunity to assert ASEAN’s centrality in regional security. Southeast Asian states want the US to remain engaged and support their efforts in dealing with China. In addition, treaty allies the Philippines and the United States are collaborating more closely on defense matters. Vietnam and the United States are advancing their nascent defense relationship.

It is vital that ASEAN and its major power backers are successful in resolving territorial disputes in the South China Sea on the basis of UNCLOS. Otherwise “the strong do what they can and the weak suffer what they must,” as suggested centuries ago by Greek historian Thucydides. China’s conversion of the South China Sea into a modern-day version of “mare nostrum” will undermine an international legal regime that contributes to global order.

(Carlyle A. Thayer is emeritus professor with the University of New South Wales at the Australian Defence Force Academy, Canberra. This article is reprinted with permission from the Yale Center for the Study of Globalization.)