The verdict delivered in July by an international tribunal on the South China Sea case in The Hague is a stunning defeat for China. The Tribunal has upended the maritime claims of a number of nations in the South China Sea, but China is most affected, as its claims were also most extensive. As China had already rejected the verdict even before it was pronounced, the world sits at a juncture of two possible paths — China could become more assertive in its claims; or all sides could take a step back and permit diplomacy to take charge. The South China Sea issue has become a complex amalgam: There are the overlapping claims of various countries in the region, home to some of the world’s most important sea lanes and air routes. There is also China’s over-the-top claim to most of the sea through its ‘Nine-Dash Line’, China’s desire to push the US Navy out of what it considers its historic backyard, and the US’ decision to reaffirm its Asia-Pacific identity, after the distractions of its wars in Iraq and Afghanistan.
Introduction
A verdict issued on 12 July 2016 by a Tribunal set up under the United Nations Convention on the Law of the Seas (UNCLOS) has ruled that there was no evidence that China had exercised exclusive control over the waters and resources of the South China Sea (SCS), and therefore had no legal basis to claim historic rights to sea areas within the so-called ‘Nine-Dash Line’. Second, it noted that while small groups of fishermen had used the rocky outcrops of the sea, collectively called the Spratly Islands, none of them were capable of sustaining a stable community and thus could not claim an exclusive economic zone (EEZ). Third, that some of the areas were in fact within the Philippines EEZ and China had violated their rights by interfering with Filipino fishermen and oil exploration teams. Fourth, that Beijing’s artificial island programme had violated UNCLOS obligations on protecting the environment. [i]
Given China’s emphatic rejection of the arbitration process initiated by the Philippines in 2013, it was not surprising that Beijing trashed the Tribunal verdict as “null and void”.
It is important to know at the outset what the arbitral award is about and what it is not. [v]Most important, the award has not addressed the underlying issue — the competing claims to sovereignty of the islands. Likewise, though it has said that entitlements under UNCLOS extinguish the claims of the Nine-Dash Line, it has not declared the line invalid, nor questioned China’s claims to the islands within that line. However, in deciding that none of the Spratly Islands were true islands under Article 121 of UNCLOS, with an EEZ and continental shelf, the verdict has sharply limited the maritime entitlements of those who control the islands anyway. What the Tribunal did say was that China’s artificial island programme violated its obligations to protect the marine environment by altering the natural conditions of the features that were disputed. It did not, however, question the principle of the construction activities, nor the building of military installations, except in the case of the Mischief Reef, which it held was part of the Philippines EEZ.
While the Tribunal has no means to enforce its judgement, its impact will be seen hereafter in the behaviour of the countries of the region. No one expects China to abandon the artificial islands that it has created, and the verdict, too, has not called for any roll-back on that score. What remains to be seen is whether China steps up its island building programme and aggressive fishing, or it backs off, albeit discretely. At the same time, in limiting the maritime entitlements of all the claimants, the ruling potentially opens up the region for oil and gas exploration.
This paper looks into the legal issues arising from the conflicting maritime claims of various countries to the South China Sea, China’s confusing and expansive claims, as well as the geopolitical tussle around the disputes between China and the US. The premise in this paper is to accept the reasoning and ruling of the arbitral Tribunal when it comes to the legal issues involved.
The South China Sea dispute: A history [vi]
According to a historical account by former US diplomat Chas W. Freeman, Jr., the South China Sea was a regional commons before the emergence of nation states, with fisherfolk and seafarers using the sea for thousands of years without going into the issue of the ownership of the largely uninhabited islands. Only two of these islands—Woody (Yongxing) and Taiping (Itu Aba)—were considered habitable. Imperial China began asserting its claims from roughly late 19th century when it clashed with France, which was seeking to consolidate itself in Indo-China. In 1932 France seized both the Paracels and Spratlys, and built some weather stations in the area though without disrupting the traditional fishing being carried out by the Chinese and other nationals.
In World War II, the Japanese occupied the region and made a base on Itu Aba (Taiping) island, putting the two island groups under the administrative fold of Taiwan, which they had also occupied. When Japan surrendered to the Republic of China, it also gave up these islands, which were then declared part of Guangdong province. Over French protests, garrisons were set up in Woody and Itu Aba; in retaliation, France set up a base in Shanhu island in the south-western part of the Spratlys island group. After the turmoil arising from the defeat of the Nationalists in China and the French in Indo-China, the People’s Republic of China occupied Woody and the ROC established itself in Itu Aba, and the South Vietnamese in Shanhu. In 1974, in the closing months of the Vietnamese civil war, the Chinese occupied the entire Paracels group and have been in control of them since. Subsequently, the new government of united Vietnam declared its claim for both the island groups even while other countries like China, Malaysia, the Philippines and Taiwan protested and extended their own claims. (Indeed, not all maritime boundary disputes involve China.)
While Woody and Itu Aba had historically been used by the Chinese seafarers, the more recent development has been the occupation by the various states of the region of every conceivable feature on which a structure can be built—island, rock, or reefs visible only in low tide or the so-called “low tide elevations” (LTEs). The Paracels are now completely occupied by China. In the Spratlys, 25 features are controlled by Vietnam, eight by the Philippines, seven by China, three by Malaysia, and one by Taiwan.
Much of this occupation and settlement has been done between the Chinese seizure of the Paracels in the mid-1970s and now— or a period of some 40 years. Of this, roughly 30 years were those in which the government in China, obeying Deng Xiaoping’s dictum, kept its head down and did not assert its claims. There have been two key incidents, though — the Chinese attack followed by the occupation of the Fiery Cross Reef (Spratlys) in 1988, in which more than 70 Vietnamese soldiers died, and the 1995 eviction of the Philippines from the Mischief Reef, also in the Spratlys.
Yet China’s economic rise has led to close economic ties between China and many of the states of South-east Asia, including Vietnam and the Philippines. China has been ASEAN’s largest trading partner since 2009, while the ASEAN has been the third largest trading partner of China since 2011, in great degree because of the free trade agreement (FTA) between the two since 2010. The relationship is more sophisticated than that presented by statistics. A significant portion of China’s economic ties—especially with the bigger economies like Vietnam, Indonesia, Thailand, Malaysia, and the Philippines—are through global production chains which are often controlled by Japanese, South Korean, EU and US firms. However, poorer economies like Myanmar, Cambodia and Laos are more dependent on Chinese largesse. [vii]
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