This article has been written by Amit Sharma.
The most glaring, contending and disturbing issues which are affecting the relations between the USA, China, the Philippines are having an inverse impact on the international community as a whole. The conflict in the jurisdictional claim over groups and chains of islands in the south china sea whereby leading the dispute between the nations. Further, the Philippines claims its jurisdiction on some of the littoral islands sitting on the south china sea, at the same time China is also claiming jurisdiction over all the island on the sea. The overlapping effects of the claim pertaining to jurisdiction lead to the conflict between both nations. Thus creating friction and controversy between the nations thereby affecting their foreign relations.
The aim of this article is mainly focussed on the dispute of South China Sea which is at present creating tensions between the U.S and China.
The Strategic location of south china sea
The international hydrographic bureau defines the disputed South China Sea as a water body which stretches from southwest to northeast direction, further its southern border is 3 degrees south latitude between South Sumatra and Kalimantan. Its northern border is the strait of Taiwan from the northern tip of Taiwan to the Fukien Coast of China.1
To be the most specific geographical location of the islands on the South China Sea lies between 109 degrees and 117 degrees east longitude and 4 degrees and 11 degrees north latitude.2
The disputed sea is composed of approximately 100 to 230 islands wherein small islands called islets are usually included in it. Submerged in water, shoals, banks, atolls, reefs and cays, which covers an area of approx. 180,000 sq. km.3
These islands comprised of 4 main archipelagos namely4:
- Macclesfield bank
- The Spratlys
Because of the strategic, political, and economic significance in the Asia pacific region of the South China Sea, most of the claimant states wants to have jurisdiction on it.
Significance of the South China Sea
There are three most arresting reasons which explain why the South China Sea is labelled as economically significant by the claimant countries.
- The countries which are claiming their jurisdiction on some parcels of islands or islets have credence that the location has revelatory deposits of natural gas, oil, and minerals under the ocean floor.
- near the locations of the islands in the south china sea is plenteously supplied with marine species. Moreover, more than half of the total world’s fishing vessels are found in this zone.
- the south china sea is considered the second busiest international sea route in the world.
South China Sea is a water body which is extremely strategic, on the geographical point of view. Annually about 50% of the merchant fleet all over the world passes through the Sunda Strait, the Strait of Malacca and the Lombok Strait.
Initially, there existed a conflict between China and the Philippines and no other nation of the world was involved in it.
At the time of world war II
The Japanese navy made the optimum use of South China Sea back then. It used the water body for various operations and did not allow any other nation to enter into it and utilize that path for military purposes.5
Creation of nine-dash line by China
In 1947 Kuomintang government of the Republic of China popped up with the creation of 11 dashed line which is a very significant turn in the way of this conflict. Later on, 11 dash line evolved as nine-dash line for the reason that there was a flip in the government from the Kuomintang government to the communist government thereby changing the name of the mainland from the Republic of China to the People’s Republic of China. Further, this drastic change led to the change in the policy and the 11 dash line was converted to 9-dash line in 1949. This line provides for a significant reason that it is the strategic location of the territory of China6.
Chinese reaction to the Philippines action
In 2012 when the Philippines navy restricted the fishing practice of the Chineese boats, in the furtherance of the People’s Republic of China retaliated this action of the Philippines through Scarborough shoals.7
Declaration of conduct of parties in the south china sea 2011
The parties of this declaration included various nations namely the PRC, Brunei, Malaysia, the Philippines, Taiwan and Vietnam. These nations agreed upon the primary guidelines of the declaration pertaining to the dispute. Further, this declaration proves to be the milestone to resolve the tensions between China and ASEAN countries.8
Relevance of UNCLOS
UNCLOS is the modern law of the ocean which is based on the doctrine of mare liberum which means open sea. With the changing time and rising of marine activities demanded to adapt the UNCLOS. The process of adopting the UNCLOS started in 1958 and it finally came into force in 1994. Further, China and all the other nations involved in the dispute pertaining to the South China Sea were the signatories to this convention. The USA was the non-party to this convention, however, has reservations with its seabed convention. The basic highlight of this convention are:
- It is based on the doctrine of “la terre domine la mer” which means land dominates the sea.
- Water landwards of the baseline are internal waters on which sovereign rights are exercised.
- UNCLOS accounted for historic claims during its formulation. However such rights were extinguished with the provisions pertaining to EEZ (Exclusive Economic Zone).
- There is a difference in the degree of freedom, depending upon the nature of waters for example straits, internal, territorial and high seas.
- The extent and rights of entitlement from 12 nm territorial rights to 350 nm economic rights for a continental shelf claim.
- UNCLOS defines and archipelago regime exclusively for states that exist as a group of islands which entitles an archipelagic baseline and internal waters inside them.
Following the dispute, the Philippines filed a case to the Permanent court of arbitration. The tribunal was constituted on 21 June 2013 in pursuant to the procedure set out in annex VII of the UNCLOS to decide the dispute presented by the Philippines.
The tribunal considered the lawfulness of Chinese actions in the South China Sea. After finding that certain areas are within the exclusive economic zone of philippines, the tribunal ruled that China had violated the sovereign rights of the Philippines in its EEZ by:
- Unduly intervening in Philippine petroleum exploration and fishing.
- Building artificial islands.
- Failure in the prevention of Chinese fishermen from fishing in the zone.
The tribunal further considered that China severely harmed the marine environment by large scale land reclamation and construction of large scale artificial islands at seven features in spratly islands.9
The ruling of the tribunal was totally against China and also a major victory for the Philippines. This is also described as a “heavy blow” for China.10
The principle of territoriality
The disputed South China Sea is protected under 1982 UNCLOS, which provides a pathway from the status of the islands, the continental shelf, enclosed seas and territorial limits. UNCLOS provides the most relevant provisions for the dispute of South China Sea:
- Art. 3 of the convention gives the right to every state to establish the territory on the sea upto the limit of 12 nautical miles.11
- Art. 55 – 75 gives the concept of exclusive economic zone which is an area upto 200 nautical miles beyond and adjacent to the territorial sea.12
The EEZ confers on the coastal states “sovereign rights for the purpose of conserving and managing, exploring and exploiting natural resources, whether living or non-living off the water superjacent to…”13
The Philippines is claiming the parts of the islands on the basis of the provisions of UNCLOS on EEZ. Geological studies found that acc.to UNCLOS on EEZ, the Spratly islands in the South China Sea are part of the Philippine territory and jurisdiction.
Therefore by enforcing UNCLOS, the arbitral tribunal gave the ruling in favor of the Philippines.
Award By Arbitration
Award on Nine-Dash Line
The arbitration award stated that the scope of entitlement is elaborated by UNCLOS. Further, China’s claim is excessive pertaining to the nine-dash line. Therefore, the historical aspect of the claim became relevant.
UNCLOS and History
The award stated that though Chinese mariners made used the Islands back then there is a lack of evidence that Chinese mariners exclusively had access to the sea. Thus this contention of China was also rejected.
Reactions to the ruling
Seven countries from all over the world formally supported the award and called it to be respected. The countries which supported the ruling are:
Australia, Canada, Japan, New Zealand, the Philippines, the U.S., and Vietnam.14
Through this U.S. interfered in the dispute and released a statement of serious concerns over the dispute.15 Further, U.S. along with japan has pressed the countries in the region to make strong support about the ruling.16
A Policy of China on the South China Sea
In 2011 the PRC’s global times newspaper editorialised on South China Sea dispute under the heading “Don’t take peaceful approach for granted.” This article highlighted the incidents that occurred earlier that year involving South Korea and the Philippines arresting the PRC’s fishing boats in the region.17
Regarding these incidents the article used the words “prepare for the sounds of canon.” when asked about this by the Chinese foreign ministry, they responded positively and stated that the country’s commitment to resolving the maritime dispute through peaceful means.18
In 2014 it was reported by prof. Alan Dupont that China is directing its fishing fleets in the disputed waters as a matter of policy.19
In August 2019 China’s President Xi Jinping told the Philippines that China would not recognise or abide by the arbitration decision.20
Why is south china sea, a matter of concern for the USA?
After the final arbitration ruling from the Hague, issued in July 2016 on the South China Sea dispute between China and the Philippines, the U.S. considered it the impact on the region of its responses to the ruling and also analyzes the interests of Washington in the south china sea:
- To support friends and allies.
- To preserve rules-based order.
- To preserve freedom of navigation.
On the outside, these principles look like altruistic and honorable objectives but on the other side, all of these are the basic self-interests of a superpower questing to maintain its domination in this part of the world.
Amicable solutions As a stepping stone to resolving the dispute
An urgent need of the Code of Conduct
There is an urgent need for the 10 ASEAN member nations and China to speed up the negotiations for the code of conduct. So that it can regulate the behaviour of the nations in the busy and resource-rich waterways. Hence, soon bilateral and multilateral treaties must come in force.
Urge for united efforts to maintain peace
The nation must not indulge in the double standard behaviour, rather China along with other Southeast Asian nations like the Philippines, Brunei, Malaysia, etc. can make combined efforts to maintain law, order, peace and security. Hence this issue must be addressed collectively and cooperatively.
Support U.S.A.’s three halts to de-escalate tensions
In order to de-escalate the tension in the region, all the nations involved in the dispute must proactively and fully support the United States of America on ‘three halts’ which includes:
- A halt in reclamation
- A halt in construction
- A halt in aggressive actions.
Avoiding these three halts may raise the chances of heightening the tensions amongst the nations.
Therefore, the pursuit of these interests is not only having an adverse impact on the relations between the U.S. and China but also affecting the ability of these major superpowers to deal with bigger issues like Taiwan and North Korea. Moreover, this dispute is adversely affecting the unity and integrity of Asian nations like China, Philippines, Brunei, etc.and hence South China Sea is regarded as Asia’s most dangerous point of conflict.
- Global Security.(n.d.). Spratly Islands. Retrieved athttp://www.globalsecurity.org/military/world/war/spratly.htm. Retrieved online on 11 February 2009
- Joyner 1999, CIA factbook 2004
- Energy information admin, 2002
- Chung, Chris (2016). “Drawing the U-Shaped Line: China’s Claim in the South China Sea, 1946-1974”. Modern China. 42 (1): 38–72. doi:10.1177/0097700415598538.
- Granados, Ulises (2006). “Chinese Ocean Policies Towards the South China Sea in a Transitional Period, 1946—1952”. China Review. 6 (1): 153–181. JSTOR 23462012
- Fravel, M. Taylor (2016). “Threading the Needle: The South China Sea Disputes and U.S.-China Relations”. Massachusetts Institute of Technology Political Science Department
- Martina, Michael (20 July 2011). “RPT-China, ASEAN set ‘guidelines’ on sea row, but no deal expected”. Reuters. Retrieved 20 July 2011
- Permanent Court of Arbitration (PCA). 2016. The South China Sea arbitration (The Republic of the Philippines V. the People’s Republic of China), Press Release, The Hague. https://pca-cpa.org/wpcontentuploads/sites/175/2016/07/PH-CN-20160712-Press-Release-No-11-English.pdf. Accessed 12 July.
- Bonnie, Glaser S. 2016. Shaping China’s response to the PCA ruling, The Interpreter. http://www.lowyinterpreter.org/post/2016/07/18/Shaping-Chinas-Response-to-the-Tribunal-Ruling.aspx. Accessed 18 July.
- UNCLOS Art. 3
- UNCLOS Art. 55 – 75
- UNCLOS Art 76 and 77
- Center for Strategic and International Studies (CSIS). 2016. Who is taking sides after the South China Sea ruling? Asia Maritime Transparency Initiative. https://amti.csis.org/sides-in-south-china-sea/. Accessed 15 August.
- The Minister for Foreign Affairs of Japan, Kishida, Fumio, the Secretary of State of the United States, Kerry, John, the Minister for Foreign Affairs of Australia, and Bishop, Julie. 2016. Japan-United States-Australia trilateral strategic dialogue, Joint Statement. Vientiane, Accessed 25 July.
- Japan Bullet. 2016. U.S., Japan prod China to comply with S. China Sea ruling. Japan Bullet, http://www.japanbullet.com/news/u-s-japan-prod-china-to-comply-with-s-china-sea-ruling.
- “Don’t take peaceful approach for granted”. Global Times. China. 25 October 2011.
- “China May Resort to Force in Sea Disputes, Global Times Says”. uyghuramerican.org. 25 October 2011. Retrieved 4 September 2019. Foreign Ministry spokeswoman Jiang Yu told reporters today in Beijing that China ‘adheres to the strategy of peaceful development. […] Sowing discord and hostility will only complicate.
- Pasick, Adam (29 July 2014). “How China’s Enormous Fishing Fleet Is Being Used As a Surrogate Navy”. www.defenseone.com. Quartz.
- Beijing tells Duterte it won’t honor South China Sea ruling, Associated Press/Navy Times, 2019-09-01
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