The UN Convention on the Law of the Sea, or UNCLOS, designates boundaries for the seas, sorting out nation’s rights to fish and exploit other resources, including gas and oil. An offshore island, defined as a naturally formed feature with an economic function, is entitled to a 200-nautical-mile Exclusive Economic Zone; rocks are entitled to 12 nautical miles of territorial waters, but not an exclusive economic zone, explains Carlyle A. Thayer of the University of New South Wales at the Australian Defence Force Academy. In smaller seas surrounded by a multitude of nations, space is tight with overlapping borders. Such is the case with the South China Sea, with China embroiled in territorial disputes with neighbors for decades. The latest dispute is with the Philippine over Scarborough Shoal, called Huangyan Island by China or Panatag Shoal by the Philippines. Philippines President Benigno Aquino visited the White House seeking US support. Thayer explains that the conflict flared, allowing little time for diplomatic resolution and putting the United States in a difficult position as a treaty ally. The US Senate has yet to ratify the UNCLOS. – YaleGlobal
|Scarborough Shoal standoff: Philippines Navy keeps wary eye on Chinese ship (top); anger erupts in Philippines street|
CANBERRA: The term “rocky relations” took on new meaning after Chinese civilian maritime enforcement ships confronted a Philippines Navy frigate in a standoff over a disputed shoal in the South China Sea. The Scarborough Shoal is marked by five rocks, the tallest of which projects 3 meters above water at high tide. The surrounding fishing grounds and, more importantly, the legal principles determining ownership and right of exploitation are at issue.
How the dispute is resolved holds broader implications for the region wary of a rising China.
South China Sea islands and reefs have been a bone of contention between China and its neighbors for decades. Scarborough Shoal – a triangular-shaped chain of reefs and rocks, enclosing an area of 150 square kilometers – emerged as a new flashpoint in April. The shoal, approximately 200 kilometers west of Subic Bay, is north of the Spratly Islands, contested between China and Vietnam.
The standoff began 8 April when a Philippine reconnaissance aircraft spotted five Chinese fishing vessels in the lagoon. The Philippine Navy dispatched a frigate to investigate the Chinese vessels and two days later discovered giant clams, coral and sharks, species protected under Philippines law and the Convention on International Trade in Endangered Species of Wild Flora and Fauna.
Two China Marine Surveillance ships soon arrived, interposing themselves between the frigate and the fishing vessels. China and the Philippines formally protested the other’s actions.
Both China and the Philippines claim that Scarborough Shoal is an integral part of their national territory.
In an effort to lower tensions, the Philippines withdrew the navy frigate, replacing it with a Coast Guard cutter. The cutter was joined by a Bureau of Fisheries and Aquatic Resources vessel. China reinforced its presence by dispatching its newest Fishery Law Enforcement Command ship, Yuzheng 310. The standoff continues today.
Both China and the Philippines claim that Scarborough Shoal is an integral part of their national territory. China refers to Scarborough Shoal as Huangyan Island, claiming “indisputable sovereignty” over the island and adjacent waters on the basis of historical discovery.
Under the UN Convention on Law of the Sea, UNCLOS, an island is defined as a naturally formed feature that can support human habitation or has an economic function, and entitled to a 200-nautical-mile Exclusive Economic Zone, or EEZ. If a feature does not meet these criteria, it’s classified as a rock, entitled to 12 nautical-miles of territorial waters, but not an exclusive economic zone. China’s claim relates to sovereignty over territory and sovereign rights in waters generated from this territory. If Scarborough Shoal met the legal requirement for an island, it would generate the 200-nautical-mile zone. Failing to meet this requirement, each of the five rocks would be entitled to 12 nautical-miles of territorial waters
The Philippines refers to Scarborough Shoal as Panatag Shoal, arguing that if falls within its 200- nautical-mile EEZ. The claim rests on sovereign rights to the resources within the EEZ and continental shelf.
UNCLOS lacks authority to decide on sovereignty disputes over land features such as islands and rocks. The law applies only in cases of disputes arising from maritime jurisdiction.
|Disputed Region in South China Sea. Enlarge Image |
China and the Philippines could resolve the dispute through bilateral negotiations or could agree to arbitration by an international tribunal such as the International Court of Justice. China argues that the dispute should be settled bilaterally; the Philippines wants the dispute to go before the International Tribunal on Law of the Sea, established by UNCLOS.
Both sides use political posturing to accompany bilateral diplomacy to advance their claims. The Philippines has adopted a three-pronged strategy – legal, political and diplomatic – threatening to take the dispute unilaterally to the international tribunal; seeking support from fellow members of the Association of Southeast Asian Nations and the international community; and continuing negotiations with China.
China resorts to a variety of measures to pressure the Philippines: Responding to minor anti-China protests in Manila and elsewhere around the world, China issued a travel advisory leading to cancellation of 80 scheduled Chinese tour groups and charter flights to the Philippines; temporarily halted imports of Filipino bananas on a pretext of infestation; and orchestrated a hostile press campaign. In 2011 the Philippines exported $60 million worth of bananas to China, its third largest banana export market. Losses of banana exports in May were estimated at around $34 million. China is the source of the fourth largest number of tourists to the Philippines. The average Chinese tourist stays for three days, spending $200 per day. In May, 1,500 Chinese tourists cancelled visits to the Philippines resulting in a loss of nearly $1 million to the tourist industry.
China also announced imposition of a unilateral fishing ban in the South China Sea covering the area that includes the shoal, warning that action would be taken against foreign fishing vessels that violate the ban, with the ostensible purpose of protecting fishing stocks during the spawning season.
The Philippines countered by refusing to recognize the validity of the Chinese ban, but issued its own fishing ban covering the shoal.
Many observers viewed the reciprocal fishing bans as a positive sign, offering a way to deescalate tensions. These expectations were short lived. In late May China dispatched three additional civilian enforcement vessels to Scarborough Shoal accompanied by 10 Chinese fishing boats according to Philippine sources. China admitted that 20 fishing boats were at the shoal. The Philippines claimed that, when dinghies operating from the fishing boats were added up, China had nearly 100 vessels at the shoal. Chinese civilian authorities took no steps to prevent these craft from fishing while China’s ban remained in force.
UNCLOS lacks authority to decide on sovereignty disputes over land features such as islands and rocks.
Security implications of the standoff could not be missed. In the midst of the standoff, the Philippines and the United States conducted their annual Balikatan military exercise. One phase involved Filipino and US forces conducting counterterrorism raids on an oilrig in waters off the west coast of Palawan Island facing the South China Sea. China charged that US support for the Philippines only emboldened Manila to act rashly and called on the US to rein in its ally.
To underscore its determination in pursuing area claims, China announced in May that its first locally produced deep water mega oil-drilling rig would commence operations in the South China Sea, leading to protests in the Philippines. In fact, the oil rig is off the mouth of the Pearl River, south of Hong Kong, well within China’s EEZ, where it will likely remain for years.
The Philippines may have overplayed its hand with misguided expectations of receiving support from fellow ASEAN members and its US alliance. Some ASEAN members and even Filipino activists have expressed misgivings about how Manila confronted Beijing. In the words of one Filipino senator, the Philippines found itself an orphan.
Both sides stumbled into this confrontation, taking immediate actions that precluded quick diplomatic resolution. Subsequent posturing only served to entrench antagonistic positions, fueling domestic nationalism on both sides.
The United States must calibrate its response and avoid getting dragged into a territorial dispute with China not of its own making. At the same time, the US must prevent its Mutual Defense Treaty with the Philippines from being devalued through lack of perceived support for an ally.
China’s actions – refusing to make diplomatic concessions, deploying civilian enforcement ships and using economic sanctions – serve as an object lesson to other regional states about potential costs of confronting China over territorial disputes in the South China Sea. The standoff also reminds Washington about the need for careful diplomacy that reassures allies without entangling itself in a distant conflict.