Juris Centre

The South China Sea Dispute

Part A: Geopolitical Concepts, Meaning, and Definitions

The South China Sea dispute is considered one of the most complex and important maritime issues in the modern international relations. As the world very largely depends on these routes of trade and limited supplies, the conflict is about how the political power is shaped by the geography of the seas and the maritime geopolitics. The main hazards are the rising demands of the nations, rewriting history and not following the rules that nations ones themselves agreed upon.

Defining the strategic and legal environment

To understand the South China Sea Dispute, one must know the legal principles that are established by the United Nations Convention on the Law of the Sea (UNCLOS), which is known as the “constitution of the oceans”. How the nations manage the maritime space in governed by the UNCLOS.

  • Territorial Sea- The costal state from its baseline has full sovereignty over a territorial sea which extends up to 12 nautical miles. The state has essential sovereign inside this are except the right of innocent passage of foreign vessels.
  • Exclusive Economic Zone- The EEZ gives sovereign rights to the state up to 200 nautical miles from the baseline. This right is given for the purpose of exploiting, exploring, conserving and managing the natural resources which includes both living i.e. fish and non-living i.e. gas and oil. In the contemporary time the dispute arises mainly from the overlapping Exclusive Economic Zone’s among China, the Philippines, Vietnam, Brunei and Malaysia.
  • Contiguous Zone- According to this zone the state up to 24 nautical miles from the baseline has right to enforce its customs, immigration, fiscal or the sanitary laws.
  • Archipelagic States-  A particular UNCLOS designation that allows the island nations that have multiple islands to create a baseline that links the most outer parts or points of the islands that encloses archipelagic waters and state has authority over it (important to the Philippines and Indonesia).

The Origin of the conflict: Resource Stakes and Historical Claims

The Nine-Dash line is the main legal challenge for the UNCLOS framework.

  • Nine dash line- The disputed China’s U shaped demarcations takes over jurisdiction and rights over the 90 percant of the South China Sea. This is a unclear and vague line that was created back in 1940 according to that time map. The china claims historic right over this which is directly against the EEZ claims of its neighbours. It often expands its resource management and jurisdiction beyond the UNCLOS rules. The impact of this claim is significant as it treats a large international waterway as the Chinese internal waters.
  • Territorial integrity and Sovereignty- For the states with small claimants this is an economical problem like for Vietnam, the Philippines etc. They are compelled to choose between economical conflict and military conflict because of the entrenchment on their EEZ’s that was internationally declared. This affects the sovereignty, their integrity over the territory and independent authority.
  • Competition for the resources- The SCS has abundance of resources. That area contains significant natural gases and oils according to the US Energy Information Administration. These resources are important for Asia’s fast developing countries. Along with this SCS is considered one of the most fertile ground for fishing which directly feeds the food and livelihood to millions of people in Southeast Asia. The desire for unilateral exploitation of the resources is one of the main cause for the conflict.

Strategic and Normative Concepts

  • Rule Based International Order (RBIO)- It is referred as the established system which consists of institutions, treaties, norms that has to be governed by the state e.g.-UN and UNCIOS. It is firstly championed by the US and its allies. Many believed that force was preferred above the rule of law after the militarisation and rejection of the verdict of 2016 by China that in result undermined the enforceability and universality of RBIO.
  • Freedom of Navigation (FON)- It is the fundamental principles of the states to have the right to navigate and over flight in the high seas and that within EEZ’s. This was backed by US. The disproportionate maritime claims by China are being challenged through Freedom of Navigation Operation (FONOP’s) by US and allies like France, UK and Australia, that intends to keep claims recognised by customary international law status.

Part B: Detailed explanation with insights and suitable examples.

Power change, historic nationalism and resource competition all these complicated patterns play an important role in the issue of SCS. A well thought strategy by China –“Salami Strategy” was a plan for long term for accumulating little, gradual actions that do not result to severe action from military but together produces new facts in the water.

2016 Arbitration Case – The Erosion of International Law

The ruling in Philippines vs. China by the Paramount Court of Arbitration (PCA) in 2016 is considered the most major judicial event. The Beijing’s rejection of this case is the most significant example of legal degradation and it offered a legal evolution of claims of China under UNCLOS.

Several question were addressed by the tribunals-

  1. Nine-Dash line status- The court decided that the claim of China of “Historic rights” within the Nine Dash Line was not compatible with UNCIOS and does not have any legal foundation.
  2. Status of Features- the Court ruled that the Spratly island features claimed by China were not legally capable to generate an EEZ or a continental shelf over 200 nautical miles long. This was ruled after examining the Subi reef and Mischief Reef. It also said that the Mischief Reef and the low tide elevations were part of the EEZ of Philippines

Impact- China’s unambiguous rejection stating the lack of jurisdiction and its approach of non-acceptance and non-engagement demonstrated that judicial solution will not be effective against a big power which is willing to use its economic and military power to alter the status quo even though the China’s claim was invalidated in the ruling. Despite the decision being legal it was not implemented which weakens the alleged authority of the UNCLOS and the PCA’s.

Impact on the environment and military- Building artificial island

One of the most impactful and visible development by China since 2013 is its massive campaign of constructing artificial Island and Militarization.

  • Scale and purpose- China dredged a large amount of sand into the low-tide elevations to create landmasses that covered a thousand of acres. They converted seven reefs that included Fiery Cross, Subi and mischief Reefs. Afterwards more infrastructures were built on it that includes 3,000-meter runways, radar system, surface-to-air missile batteries and hardened aircraft shelters.
  • Strategic Impact (A2/AD): The strategy of China of Anti-Access/Area Denial (A2/AD) is supported by this militarization. China with the help of these resources can project power throughout the SCS and can restrict the motion of the enemy troops like the US navy and can turn that area into a forward operating zone for the People’s Liberation Army Navy (PLAN). For Example China installed HQ-9 surface-to-air missile on the Woody islands that drastically increase the ability of China to control airspace. This resulted in an important and a long lasting shift in the military balance of that area.
  • Environmental Disaster- The marine life and the resources of fishing were severely impacted because of the construction and digging of the sand and it irreversibly damaged the coral reef ecosystem which was earlier an essential hatching and nursing area for the fishes. There was a complete loss of the marine habitat of that entire region because of dumping of the large amount of sands and rocks.

Strategic ideas- The Dynamic of Power Transition

The more extensive conflicts come from the power transition theory which states that the chance of war or other big conflicts increases when a growing power like china goes nearer to the leading global power like US.

  • Strategy of China- According to Beijing for safety and key national goals SCS is very important. To take control it strategically uses the China Coast Guard and the Maritime Militia that is the fishing boats that are run by the government and uses methods that are not considered as an actual military fighting. By this way china without even starting a full-fledged war with US and its supporter’s blocks access to and take over islands like they did in 2012 by taking away Scarborough Shoal from Philippines.
  • Strategy of US- US acts as the main supporter and protector of the Rules-Based International Order (RBIO) and is an established superpower. It is not concerned about the land but about China blocking one of the most important international shipping routes. For this making regional partnership is important. A significant step would be to enhance the Enhanced Defence Corporation Agreement with the Philippines as it will enable the US military to have access to some bases of Philippines bases that will challenge the position of China. This is an on-going tension and a small mistake between these two powers can result into something big.

The Regional Diplomatic Deadlock: ASEAN’s Unity Struggle

  • Lack of consensus- ASEAN need that everyone should agree and give consensus, but this most of the time is used as an advantage by China. Whenever a consensus is taken on an action by China which are criticised members like Laos and Cambodia have stopped from giving their opinion as they get help and investment from China. For Example in 2012 due to pressure from China, when Cambodia was serving as the ASEAN chair, they rejected a statement against China at the meeting of Foreign Ministers. The biggest setback is the inability to unite.
  • Code of Conduct (COC)- For replacing the non-binding Declaration of the Conduct of the parties (DOC) of 2002, China and ASEAN for past many years have been negotiating on an enforceable Code of conduct. China using the tactics of delaying the tacks and pushing it for weeks shows that Beijing would prefer diplomatic negotiation lined up rather than limiting its strategic and military option legally. This proves that china wants to keep on establishing new military installations on the sea and also wants to look good by talking.

Part C: Conclusion and opinion

The South China Sea dispute is not just a disagreement of territory over some rocks and reefs but is a main point of contention during the great power transition of the Twenty-first century and reflects the competition over the future structure of the international system. The core dispute is between an established status-quo US driven system that gives priority to the freedom of global maritime and the RBIO implementation and the growing modernist China that wants regional maritime authority.

The two factors that guarantees difficulty in solving this dispute are, Firstly, the idea of China of “historic rights” is not matching with what UNCLOS i.e. the law of sea says is legally correct. Secondly, the groups such as ASEAN that consists of many countries are not strong and united enough to agree on a same thing.

Because of these reasons a peace agreement which lasts for a long period of time is very unlikely to happen. Instead the dispute will be continued and will be managed by the military power and by threats in a very dangerous situation of “living side-by-side but competing”. This shows the weakness of the international law. It highlights how a strong country can easily disregard with the international law and with the agreements with other countries when it feels that its security and future are under a risk. Therefore South China Sea is the biggest test which will show that whether the rules and system we have on international level can endure the shift in the global power structure.

Author: Ayushi Shahi

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