Legal Global Issue: South China Sea Dispute

Abstract

The South China Sea dispute is one of the most renowned issues that deal with international law and, more specifically, maritime law. An estimated amount of $5 trillion of international trade flows through the South China Sea, with some of the key economic resources of the region being oil, natural gas, hydrocarbon and fish stocks. Formally beginning in 1945, but with a history spanning since the 3rd century BCE, the divergent claims over the region have made certain countries resort to novel solutions to have a stronger claim. We’ll take a look at the history of the issue, its legal implications, and we will go through the key takeaways of the dispute.

Introduction to the Issue

According to a general consensus among countries, the modern dispute began in 1945, when the Republic of China’s military, along with American help, claimed the Parcel and Spratly Islands, invoking the Cairo and Potsdam Declarations as the legal basis. Historically, however, China traces the roots of the dispute to the 3rd century BCE, when Chinese fishermen are claimed to have started using the Spratly islands (since 200 BCE). (Dictionary of Contemporary Chinese Military History, by Wortzel, L., 1999).

The Southeast Asian dispute is deeply rooted in the region’s colonial history; while most neighbouring nations cite a decade-old grudge, Beijing argues that its claims stretch back centuries. China outlined its claim, the “nine-dash line”, in 1947, which extends as far as 1,800 kilometers into the South China Sea, crossing the boundaries of the EEZs of Malaysia, Vietnam, Brunei, the Philippines and Indonesia.

“China aims to coerce its maritime neighbors to abandon their claims and territorial rights under international law and irrevocably alter the status quo.” (Foreign Policy)

More than 5 trillion dollars’ worth of international trade flows through the South China Sea, with key resources being oil, natural gas, hydrocarbon and fish stocks. A Forbes analysis of the dispute comes to the conclusion that “Whoever controls these shipping lanes rules this Asian Century.” This, along with the international security aspect and political importance of the region, make the scramble for control over the South China Sea one of the persisting legal, political and economic issues of this century.

International Policy Aspects of the Conflict

The South China Sea provided for the China National Offshore Oil Corp. (CNOOC) the equivalent 406,000 barrels a day in 2019. (WorldOil.com) Moreover, in recent months, the United States of America has blacklisted the CNOOC for “bullying” in the region, as the company has drilled in waters far from its borders for years, within 200 miles of countries including Vietnam and the Philippines.

There is an undeniable parallel between China’s actions in the South China Sea and Russia’s in Crimea; the tactics employed by both nations revolve around creating evidence for their claim over the land they have de facto control over - in China’s case, Beijing has resorted to creating artificial islands and militarising the Spratly Islands archipelago, tactic which, albeit not formally recognised by the government, has brought significant criticism on the PRC. The United States is one of the most vocal opponents of the Chinese “nine-dash line”, fearing that China’s monopoly in the region could dramatically shift the odds in the PRC’s favour.

What are the stakes for the United States?

Some might wonder why the United States, a global superpower whose capital city, Washington DC, is more than 13 842 km (8 600 miles) away, takes interest in the dispute? Why do China and the US, two wildly different countries in terms of political systems but that share common development models and are economically interdependent, play on the verge of confrontation?

The United States has wide-ranging security interests and commitments in Southeast Asia, being an ally of several nations neighbouring the disputed area, such as the Philippines. Moreover, the South China Sea is a crucial worldwide supply chain, used by American companies to transport the goods they produce in the region. Although the United States does not officially support any of the claimants, it has conducted operations to determine the excessive claims and ensure the free passage of commercial ships.

Legal Implications

The main legal issue that surrounds the South China Sea dispute is represented by the claims of each country, which are as follows:

China: The PRC claims close to the entirety of the resource-rich South China Sea territory; the claim is widely known as the “nine-dash line”, which stretches from the Hainan Island (China) to the coast of Borneo, covering some of the busiest worldwide shipping trade lines.

Taiwan: Its claims are largely similar to the PRC’s, being based upon the same principles that China invokes, specifically the historic claim. According to both Beijing and Taipei, the Paracel and Spratly island chains were regarded as integral parts of the Chinese nation.

Vietnam: It challenges China's historical account on the basis of the continuous active rule it had over the islands since the 17th century, invoking the necessary documents to prove this.

The Philippines: It adduces its geographical proximity to the Spratly Islands as the principal basis of the claim. Both the Philippines and the PRC claim the Scarborough Shoal (commonly referred to as the Huangyan Island), about 160km away from the Philippines and 800 km from China.

Malaysia: It claims the territory in the South China Sea that falls within its exclusive economic zone (EEZ), as defined by the United Nations Convention on the Law of the Sea (UNCLOS) - up to 200 nautical miles from the territorial sea baseline.

Brunei: It does not claim any of the islands, but it claims part of the South China Sea in close proximity to it, saying that it falls within its EEZ.

*Indonesia: The country is not a claimant to any of the Spratly Islands, but both the Chinese and the Taiwanese claims extend into its EEZ and continental shelf, including Indonesia's Natuna gas field.

Along with those claiming different parts (or all) of the territory being disputed, the United States’ economic, political and security concerns and interests play a key role in the legal conflict. The main issue is that, with the PRC potentially gaining de facto control of the territory, it will be able to control all transit of goods, and could block all military ships from passing, thus endangering the US’ ability to defend itself and its influence in the standoff with China.

What some miss in how the conflict is playing out is what it would mean if this were to come to an abrupt end - not only would the countries taking part in the dispute have to call in all of their political allies, but worldwide economic interests would have to intervene. Currently, the South China Sea is crossed by some major international shipping lanes, which would fall into the Chinese EEZ, be it if China’s “nine-dash line” would be recognised.

Main Takeaways

While many fear that the South China Sea dispute might escalate into a full-blown proxy war, others hope that all nations will come to their senses and that China will let go of its aspirations to an empire. The economic advantages of having the monopoly over the region are undeniable, yet the gamble of upsetting the United States and destroying the precarious equilibrium in the South East may not make it worthwhile for China to pursue. Regardless of its outcome, the South China Sea dispute is an extremely sensitive legal issue, and some argue China’s outrageous claim, embodied by the “nine-dash line”, should not be granted, citing the potential tendency of China to want more territory and political sway if the United Nations gives into its wishes.

Until the resolution of the dispute, however, all we can do is sit tight and watch as the political conflict unfolds. With the People’s Republic of China creating artificial islands and claiming most of the oil-rich waters of the South China Sea, the dispute may be here to stay for the next few decades.

Bibliography

Manning, R., Cronin, P.. “Under Cover of Pandemic, China Steps Up Brinkmanship in South China Sea”. Foreign Policy. May 14, 2020. https://foreignpolicy.com/2020/05/14/south-china-sea-dispute-accelerated-by-coronavirus/.

Pesek, W.. “Making Sense Of The South China Sea Dispute”. Forbes. August 22, 2017. https://www.forbes.com/sites/outofasia/2017/08/22/making-sense-of-the-south-china-sea-dispute/?sh=2dea4c431c3b.

Zaka, K.. “Khalid Zaka: A summary of the South China Sea conflict”. Straight. September 10, 2020. https://www.straight.com/news/khalid-zaka-a-summary-of-south-china-sea-conflict.

BBC News. “South China Sea dispute: China's pursuit of resources 'unlawful', says US”. July 14, 2020. https://www.bbc.com/news/world-us-canada-53397673.

The Straits Times. “What you need to know about South China Sea disputes”. Updated March 9, 2016. https://www.straitstimes.com/asia/east-asia/what-you-need-to-know-about-south-china-sea-disputes.

Ocean Service. “What is the EEZ?”. https://oceanservice.noaa.gov/facts/eez.html.

World Oil. “U.S. blacklists CNOOC for “bullying” in the South China Sea”. January 15, 2021. https://www.worldoil.com/news/2021/1/15/us-blacklists-cnooc-for-bullying-in-the-south-china-sea.