The Paradox of the South China Sea Disputes

The Paradox of the South China Sea Disputes

David Rosenberg is Professor Emeritus of Political Science, Middlebury College, Vermont, and edits South China Sea. He is currently a Visiting Fellow at The Australian National University.—The Editors

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As the maritime commons of Asia’s rapidly-growing, export-oriented countries, the South China Sea is traversed by some of the busiest shipping lanes in the world. In recent years, it has also become a site of increased disputes over sovereign rights.

The paradox of these South China Sea disputes is that the escalation of maritime confrontations, resource conflicts and competing territorial claims has occurred among Asian countries that otherwise reflect an extraordinarily high degree of cooperation on matters of trade and commerce. Hence regional, and global, economic integration has had the unintended effect of intensifying resource competition and territorial nationalism around the South China Sea. Will these discords and tensions lead to a regional arms race? That depends on the intricate interplay of three factors: resource competition, resource nationalism and military modernisation programs.

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Resource competition is the result of deeply-rooted, long-term trends of coastal urbanisation, rising consumption, export-oriented industrialisation and the resulting competition for vital resources, especially fisheries and hydrocarbons. A recent example began on 8 April 2012 when a Filipino Navy vessel attempted to detain eight Chinese fishing boats, which had entered waters around Scarborough Shoal, an area that both China and the Philippines claim. An armed boarding party from the Philippines’ frigate BRP Gregoria del Pilar discovered that the fishing boats were in possession of a large illegal catch of coral, giant clams and live sharks. Before the fishing boats could be detained, two Chinese surveillance vessels blocked the frigate from pursuing any further action. Filipino and Chinese Foreign Ministry officials quickly moved to negotiate a diplomatic pause to the confrontation. But why did the Chinese fishermen venture so far into contested waters for illegal fishing in the first place? The simple and obvious answer is that it is profitable. The demand for fish has increased markedly in recent years, surpassing the fish catch supply in coastal waters, and encouraging fishermen to venture further abroad.

Resource nationalism is strong in East Asia where most states actively manage their economies to pursue their national agendas. Coastal states want to assert and extend their Exclusive Economic Zone (EEZ) claims under the 1994 UN Convention on the Law of the Sea (UNCLOS). This is further encouraged by governments seeking to enhance their legitimacy by making a show of protecting national sovereignty and defending the homeland. Displays of patriotism have been a feature of the recent major leadership transitions in North Korea, South Korea, Japan and China, among other countries. In several littoral countries, state patriotism has been further complicated by xenophobic street demonstrations.

Many countries in the region have been pursuing military modernisation programs. Most notable among them is China’s program for upgrading the PLA-Navy’s South Sea Fleet, the development of the Ya Long Naval Base on Hainan Island, and the expansion of China’s paramilitary fleets; e.g., coast guards and fisheries inspection patrols [1]. The threat of a regional arms race has been exacerbated by the seemingly intractable disputes over conflicting claims to several features in the South China Sea. For example, after the confrontation at Scarborough Shoal mentioned above, both China and the Philippines announced plans to expand their maritime patrol capabilities in the contested waters. China now no longer hesitates to send armed maritime patrol ships to prevent their fishermen from being arrested by foreign nations. The China Marine Surveillance (CMS) and the Fishery Law Enforcement Command (FLEC) can both deploy paramilitary vessels to exert Chinese jurisdiction. The CMS appears to be an independent agency that can take action without authorization from the Foreign Affairs Ministry. This approach – when states or their navies support their fishermen, even when they are fishing illegally or poaching – unfortunately blurs the distinction between traditional and non-traditional security concerns. Arming marine police boats, however, increases the risk that a similar incident might escalate into a violent conflict.

These developments have aroused the concern of commercial and naval stakeholders such as Japan and the US who want to preserve the ‘freedom of the seas’, or unrestricted access to the seas and the straits of the South China Sea and its archipelagic waterways for their mercantile and naval vessels.

Perhaps the most controversial maritime territorial claim is China and Taiwan’s nine-dash line claim to the South China Sea. This has also been called the ‘nine-dotted line’, the ‘nine interrupted-lines’, the ‘U-shaped line’, the ‘cow’s tongue’, as well as the official Chinese name: ‘traditional maritime boundary line’ (chuantong haijiang xian 传 统海疆线). The modern history of this line goes back to December 1914 when Hu Jinjie, a Chinese cartographer, published a map with a line around only the Pratas and Paracels, entitled ‘The Chinese Territorial Map Before the Qianglong-Jiaqing Period of the Qing Dynasty (AD 1736–1820)’. In 1935, the Land and Water Maps Inspection Committee of the Republic of China (ROC) published a ‘Map of Chinese Islands in the South China Sea’ with an eleven-dotted line drawn around 132 islets and reefs of the four South China Sea archipelagos. In 1947, the ROC Ministry of Interior prepared a location map for internal use, renaming the islands in the South China Sea and formally allocating their administration to the Hainan Special Region. One year later the Atlas of Administrative Areas of the Republic of China was officially published, including the first official map with the line for the South China Sea. An eleven-segment line was drawn instead of the previous continuous line. In 1949, the newly-established People’s Republic of China (PRC) published a ‘Map of China’ with the eleven-dotted line. In 1953, following Premier Zhou Enlai’s approval, the two-dotted line portion in the Gulf of Tonkin was deleted. Chinese maps published since 1953 have shown the nine-dotted line in the South China Sea [2].

Contested Waters of the South China Sea

In sum, the PRC inherited and maintained the claims first developed by the ROC, the predecessor of the current government on Taiwan. Further, the current claims of the Beijing government and the Taiwan government are essentially the same. Indeed, the Taiwan government occupies the largest of the Spratly Islands, Itu Aba (Taiping Dao).

China’s policy on settling maritime territorial disputes has gone through shifting patterns of cooperation and confrontation over the past decade. However, it became consistently more assertive in 2009 after Malaysia, Vietnam, and the Philippines submitted their claims to the UN Commission on the Limits to the Continental Shelf. In response to these perceived intrusions on its historic claims, China submitted its counter-claim, including its nine-dash line map. This appears to be the first time China has attached this map to an official communication to the UN. The claim is manifestly ambiguous, but has led some to conclude that China is officially claiming all the waters within the U-shaped line as its territorial or historic waters, a position which is contrary to UNCLOS.

What can ASEAN do about China’s claims in the South China Sea? There are major differences among ASEAN members in terms of their history, culture, natural resource endowments, and strategic priorities and capabilities. They disagree on basic economic and security issues, including how to deal with the US and with China. Several littoral states (Brunei, Singapore and Malaysia) support the US-initiated Trans-Pacific Partnership, which excludes China. The mainland ASEAN states (Cambodia, Laos, Myanmar and Thailand) support the China-initiated Regional Comprehensive Economic Partnership, which excludes the US.

With regard to territorial disputes in the South China Sea, Cambodia actively supports China’s policy against internationalising the issue; i.e., not involving the US or any international agencies in dispute settlement. The other mainland states – Laos, Myanmar, and Thailand – maintain a low-profile role but generally defer to China’s preferences.

The four states who have conflicting claims with China – The Philippines, Vietnam, Malaysia and Brunei – are themselves internally divided. The Vietnamese and Philippine governments have both sought some outside support from UNCLOS, from the US, and from Japan to resist the continued pressure from China and Taiwan to assert their claims in the South China Sea. The Philippine government is attempting to stop China’s effective occupation of Scarborough Shoal by appealing to the UNCLOS Arbitration Tribunal for a ruling on the status of the shoal. Malaysia and Brunei avoid public criticism of China’s claims but do support finding a unified ASEAN position on the disputes. Indonesia and Singapore have no conflicting claims with China. They are both strong advocates of maritime security and freedom of navigation, a position shared by the US.

Sino-Vietnamese Tonkin Gulf Joint Resource Management Zone

Additional efforts by all interested parties will be necessary to get China and Taiwan to clarify the delineation of the nine-dash line, and bring it under the jurisdiction of dispute settlement mechanisms under UNCLOS and other courts. In the meantime, and in the absence of any widely-agreed-upon and well-tested way to determine how to govern the resources of the South China Sea, countries have occupied features and based their claims on different standards of justification. For example, China and Taiwan invoke the standard of historical usage and occupation. Malaysia and Vietnam base some of their claims on the continental shelf extension of their national territory. Indonesia, the Philippines and others appeal to the provisions of UNCLOS.

Resolving the Disputes

There are three ways that coastal countries might resolve their disputes in the South China Sea:

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  First, they could continue to arm their marine patrol vessels and intimidate or coerce each other into compliance. As noted above, this increases the risk that a local confrontation might escalate into a violent conflict;
  
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  Second, they could refer the territorial sovereignty dispute to an international court or tribunal and ask them to decide which State has the better claim to sovereignty. This was done by Malaysia and Indonesia over a maritime border dispute in the Celebes Sea and by Singapore and Malaysia over several small islands near the entrance to the Singapore Strait. These cases where the states agreed to refer their sovereignty disputes to the International Court of Justice are rare. Current nationalist concerns over preserving national sovereignty make it difficult to turn any territorial disputes over to international courts; and,
  
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  Third, countries could agree to set aside their sovereignty disputes and jointly manage resources in the disputed area. The most successful example of this is the standardisation, automation and regulation of shipping traffic and container movements in the world’s busiest ports of Shanghai, Singapore, Hong Kong, Shenzhen, Busan, Ningbo-Zhoushan, GuangzhouHarbor, Qingdao, Tianjin, Kaohsiung, Taiwan and Port Kelang. Clearly, co-operation pays, especially when it provides prompt and tangible mutual benefits. This is also the case among former adversaries, China and Vietnam, in their Tonkin Gulf Joint Resource Management Zone. China and the Philippines could do something similar in the Scarborough Shoal region [3].
  

The international legal framework for resource use in the South China Sea is provided by UNCLOS. It calls for establishing joint resource management areas and provides guidelines for doing so, even where conflicting territorial claims are unresolved. For example, Article 61 of UNCLOS requires countries to monitor their fish catch in relation to both economically – and environmentally -sustainable yields. Articles 116-119 provide for provisional agreements for joint resource management in disputed areas.

The major solution recommended here is for South China Sea stakeholders to begin or expand functional cooperation for joint resource management for marine safety, search and rescue operations, scientific research, disaster relief, protection of the marine environment and other politically feasible areas, even while their sovereignty disputes remain unsettled.

Given the increasing economic growth and inter-dependence within East Asia, it is inevitable that there will be confrontations and conflicts at sea. The South China Sea needs a way to regulate and resolve these conflicts through administrative, legal and police enforcement means. For example, it would be useful to establish an ‘incidents at sea’ agreement to provide a hotline or emergency response system to report confrontations and conflicts involving vessel seizures and crew detentions. The IMB Anti-Piracy Reporting Center and ReCAAP, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, would be useful precedents. In addition, military modernisation programs need to be complemented by confidence-building measures among coastal countries and other international user states to reduce the risk of arousing suspicion and distrust among neighbours, thereby fuelling a regional arms race. As Deng Xiaoping said many years ago, the only viable way to deal with intractable sovereignty disputes in the South China Sea is to set them aside and jointly develop the resources.

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Notes:

[2] Michael Sheng-Ti Gau, ‘The U-Shaped Line and a Categorization of the Ocean Disputes in the South China Sea‘, Ocean Development & International Law, vol.43, no.1 (2012): 57-69.

[3] David Rosenberg, ‘Beyond the Scarborough Scare: Joint Resource Management in the South China Sea‘, e-International Relations, 1 May 2012.

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