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South China Sea: A Commons for China Only?

The 1982 UN Convention on Law of the Sea recognizes the common heritage of the world’s oceans with a set of laws organizing exclusive zones for nations 200 nautical miles from their respective coasts. Waters beyond are open for use by all in ways that contribute to peace and friendly relations. By declaring sovereignty over the South China Sea, China rejects the convention, argues Carlyle A. Thayer, with the University of New South Wales at the Australian Defence Force Academy. Current tensions over the South China Sea began in 2009 after the UN Commission on the Limits of the Continental Shelf set a deadline for submitting claims for extended continental shelves beyond UNCLOS’s 200 nautical miles. After Vietnam and Malaysia submitted claims, China submitted a map with nine dotted lines, claiming most of the sea. Six nations border the sea, and other nations also have great stakes in the outcome. That extensive claim lies behind the growing tension in the South China Sea. – YaleGlobal

South China Sea: A Commons for China Only?

China rejects UN treaty by asserting sovereignty over the South China Sea
Carlyle A. Thayer
YaleGlobal, 7 July 2011
Island claim: China has created structures like these in the South China Sea, to claim sovereignty over water

CANBERRA: 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’s 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 UN Convention
on Law of the Sea regulates the rights
and responsibilities
of coastal states.

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.

China's nine dash claim over South China Sea. Enlarge Image

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.

The South China Sea is part of busy shipping lanes linking East Asia to the Middle East.

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.

Claimant states seek to resolve their dispute with China by banding together and adopting a common position.

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.
Rights:Copyright © 2011 Yale Center for the Study of Globalization

Comments on this Article

3 August 2011
Idiot, are you saying the Vietnamese and the Philippines don't really believe something -in this case, the islands- are theirs? They wanted to bring it to the court because the court is where at least basic fairness can be achieved. Your argument made me puke.
-Viet
--------
...
China's position:
a) If you really believe something is yours, and the court agrees with you, what so you win? Nothing
b) If you really believe something is yours, and the court disagrees with you, you lose.
In both cases, you lose.
Philippine and Vietnam's position:
a) If you do not really believe something is yours but you claim it anyway, and the court agrees with you, you win.
b) If you do not really believe something is yours but you claim it anyway, and the court disagrees with you, you lose nothing.
In both cases, you win.
Therefore, logically, one can see why Vietnam and the Phillippine are so eager to play up the victim's card in this dispute.
-Nguoi Phan Bien , New York
-vietsoft , california
25 July 2011
Watch out for the coming collapse of the Chinese economy.
-Alvaro Gomes , Lisbon Portugal
19 July 2011
AMERICAN HITLER LEAVING WESTERN PACIFIC SOON AFTER 150 YEARS OF BR AND AMERICAN IMPERIALISM
-HECTOR , SINGAPORE
18 July 2011
I almost fell off my chair laughing when reading your response! In fact, your emotions have been totally under my control. You responded exactly the way I wanted you to respond. Now I don't even think you are worth 50 cents, a quarter maybe.
The fact is you don't know what constitutes an argument. You don't even read well let alone trying to give a logical rebuttal. Want proof? You wrote: " ...It may be easier for Nguoi phan Bien to get paid by China's government for his extra propaganda job then trying to tutor others on Confucianism for a fee!..."
This shows that you don't even understand the sarcasm embedded in my original writing.
Another proof, again you wrote: "...As to "Ad hominem" reference, it resounds like another blatant misuse of an old western cultural concept here. Sounds like a child who discovers new word and tries to put it everywhere in the hope of looking "smart"..."
You see, anyone who has ever had even some rudimentary training in logic would be able to see that your statement is not a logical argument but an emotional expression. More, you referred to my reference of 'ad hominen' as a western 'cultural' concept is really laughable. The more you try to say, the more you expose yourself to the world your ignorance.
So my assessment remains true that you are totally and completely incapable of engaging in logical arguments. And sorry, I'm only interested in engaging with people who can argue better than I so I can learn something from. Unfortunately, that someone is not you.
FYI, I read, speak and write in the relevant languages that allow me to read archival materials directly and I am familiar with arguments from all sides in the current South China Sea dispute; directly from original documentations and not someone else's interpretations. I am apolitical and I make up my own mind based on my own research. You think I'm that stupid wanting to spend my precious time arguing with someone who doesn't even understand what constitutes an argument?
-Nguoi Phan Bien , New York
18 July 2011
Who is worth only 50 cents? Well, Ngoui Phan Bien should ask China's government because it is the only government on Earth that hires an "army" of "50-cent party" bloggers. It must know whom it pays for its propaganda, doesn't it?. It may be easier for Nguoi phan Bien to get paid by China's government for his extra propaganda job then trying to tutor others on Confucianism for a fee! As to "Ad hominem" reference, it resounds like another blatant misuse of an old western cultural concept here. Sounds like a child who discovers new word and tries to put it everywhere in the hope of looking "smart".
Back to the China's U-Shape claim, China claims that it had discovered the Paracel and Spratly archipelagos in the seventh century and put them on its map. Apparently China was not the only one because other countries have claimed to have mapped them too. China's claim equates to someone who claims to have discovered the moon. As many professors or specialists on the matter have put it, the 2 archipelagos have been in the middle of this busy maritime trade road in the ancient time and it would be hard for any ship to miss them. The fact is that there was no known evidence that China or any other country had established some kind of settlement on all them for a very long time, probably because they are tiny and can be frequently submerged. Taiwan is much closer to China than all other archipelagos and too big to be missed and yet it took China more than a thousand year after its claim to discover and invade it (in the seventeenth century). And about the same time, Vietnam has claimed the 2 archipelagos by establishing on them. That can be explained why the Qing dynasty had signed an international treaty to recognize France (as the colonial power of Indochina at that time) as the legal "owner" of the archipelagos and why Vietnam has controlled the largest number of islets on the Spratlys today. China has controlled now on the Paracel only because it has invaded it after the US had left South Vietnam in 1974. As many have already said, why does China keep refusing to bring the matter to the international court, if it is so sure about its claims? On the contrary it demands its neighbor to go for a bilateral approach instead of a multilateral one. China shows one more time that it is still addicted to the rule of force. It is always easier for a bully to go one on one with another weaker adversary, isn't it?.
-Antoine , San Francisco
16 July 2011
@Antoine, San Francisco
You are totally and completely incapable to render any logical rebuttal to my arguements, then the only option left for someone like you who is so incapable of logical reasoning is to resort to what's commonly known in logic called 'ad hominen'. Predictably, you did exactly that.
Now, who is worth only 50 cents?
-Nguoi Phan Bien , New York
16 July 2011
China's and Taiwan's claim for virtually the entire South China Sea on the ground of historical discovery cannot be founded.
Prof. Philip Bowring says in "Chinese History and Reality"(www.yaleglobal.yale.edu), "As for claims to the South China Sea and its islands based on visits by fishermen, they(the Chinese) ignore the fact that commerce in that sea, and into and across the Indian Ocean was run by Malay vessels and crews hundreds of years before Chinese mariners and merchants ventured far from the coast. Chinese Buddhist pilgirms to Sri Lanka went on Malay boats via Java or Sumatra. Nearly two thousand years ago Roman merchants brought spice islands products from southern India whence they had been brought by Malay and Indian sailors."
To borrow Prof. Jeffrey N. Wasserstrom's phrase ' a 2+2=5 style denial' from his 'China In the 21st Century,' all of Chinese claims are a "2+2=5" style rhetoric.
-Yoshimichi Moriyama , Shimane, Japan
16 July 2011
China did not invent the blog but it uses the blog for propaganda purpose with its well-known world's unique government paid "50-cent" bloggers. Nguoi Phan Bien looks like one of these. They voice out loud word to word the repeated nonsensical arguments or lies of China's official mouthpiece Hong-Lei and other officials before this one.
-Antoine , san Francisco
15 July 2011
@ Antoine, San Francisco
@ A Vietnamese, Vietnam
I think the best response I can give you two is what I already gave from my previous post which is:
"My suggestion is that, unless you want to be associated with the usually unruly masses who often utter emotional accusations and foul languages on the Internet instead of logical reasoning, we should show some respect to a seemingly respectable academic forum such as this one."
And all you can offer is an EMOTIONAL position USING SULFRIC ACID LANGUAGE, with NO logical reasoning.
-Nguoi Phan Bien , New York
15 July 2011
Wherever this big evil China go, it has been raising troubles, breaking the laws, causing bloody wars to feed its hungry needs.
By the way, @ Nguoi Phan Bien: Your tongue is truly and exactly the same as the tongue of communist Chinese government.
The communist Chinese government commit a new "nazy" crime when they do the propaganda and brain-washing normal Chinese people to go again Vietnamese in specific, and humankind in general.
-a Vietnamese , Vietnam