The South China Sea disputes are complex and confusing. Here are the key questions answered.
1 Who claims what and how valid are the claims?
China and Taiwan claim sovereignty over all of the Spratly features (rocks sometimes called ‘islands’) based on history, discovery, usage, administration and – for some – effective control. Vietnam, the Philippines and Malaysia also claim and occupy some of them. All these claims have serious weaknesses in modern international law, which requires continuous, effective administration and control, and acquiescence by other claimants. China’s sovereignty claims are just as valid or invalid as those of the other claimants.
China also claims unspecified rights within a nine-dash-line ‘historic claim’ encompassing much of the South China Sea (see map right). But an international arbitration panel set up under the auspices of the UN Convention on the Law of the Sea (UNCLOS) to hear a Philippines complaint ruled in 2016 that any such claim is ‘contrary to the Convention and without lawful effect’. Moreover, it ruled that none of the features in the Spratlys are legal islands and thus are not entitled to claims of 200-nautical-mile Exclusive Economic Zones (EEZs) or continental shelves. #
Regarding China’s claims to construction on and occupation of several rocks which were underwater at high tide, the panel ruled that the latter are not entitled to a territorial sea (the surrounding 12 nautical miles). China rejected the entire arbitration process and its decision. All parties plus Brunei and Indonesia claim EEZs from their mainland and some of these claims overlap. All also claim, or are entitled to claim, extended continental shelves and these claims are likely to overlap as well.
The Paracels are a separate island group to the northwest of the Spratlys claimed by China, Taiwan and Vietnam. But they have been occupied by China since 1974 when it took them by force from then South Vietnam.
2 What are the conflicts between the claimants?
Perhaps the most dangerous disputes are those over sovereignty of the features and their 12-nautical-mile territorial seas. Governments are obligated and domestically pressured to defend the sovereignty of their national territory.
The overlap of EEZs and China’s historic claim results in disputes over fishing. On 9 June, there was a collision between two fishing boats in the Philippines’ EEZ – one a People’s Republic of China-flagged vessel and one a Philippines-flagged fishing boat, provoking much popular fury in the Philippines.
The main dispute over petroleum resources is due to the overlap of China’s historic claim with the EEZ claims of Malaysia, the Philippines and Vietnam. China has ‘persuaded’ foreign oil companies not to explore in disputed waters and Vietnam has tried to prevent Chinese exploration in its EEZ.
3 So where does the US come in?
The US and China are engaged in a struggle for dominance in the South China Sea. The other Southeast Asian claimants are caught in the middle and trying to hedge between the two. According to Admiral Harry Harris, who was the US navy’s Pacific Commander: ‘Beijing is using its military and economic power to coerce its neighbours and erode the free and open international order.’
Moreover, the US and its supporters assert that China is destabilizing the region by its island building and ‘militarization’ of its occupied features, and its illegal maritime claims and increasingly assertive actions to enforce them.
But from China’s perspective, it is the US that is destabilizing the region with its forward deployed military, its shows of force – including its ‘freedom of navigation operations’ (FONOPs) – and its intelligence, surveillance and reconnaissance probes against China in its ‘near shore’ waters.
The US has apparently made it its mission to prevent China from intimidating its fellow claimants and to interpret and enforce UNCLOS there. However, that US position is weakened by the fact that it alone among the major maritime powers has refused to ratify UNCLOS.
4 Who is militarizing the area?
China and the US often exchange accusations that the other is militarizing the South China Sea. ‘Militarization’ means ‘to give a military character to or to adapt for military use’. Under this definition, all the claimants to and occupiers of the Spratly features ‘militarized them’ years ago. Indeed, all have stationed military personnel there and have built airstrips and harbours that can accommodate military aircraft and vessels.
But China points out that the US – unlike China – already has military ‘places’ if not bases bordering the Sea in the Philippines and Thailand – and more recently in Malaysia and Singapore for its intelligence flights targeting China’s submarines. The US has also increased its military presence in the region as well as its FONOPs challenging China’s claims. China sees these as ‘gunboat diplomacy’ and argues that it is only preparing to defend itself.
5 What is the likely way forward?
There is hope that China and its rival regional claimants can come up with a formal Code of Conduct that would prevent conflicts and contain incidents. To do so, they will have to overcome significant disagreements on the definition of the area to be covered by the Code, its legal status and the method of enforcement – if any.
But the China-US struggle for dominance in the South China Sea is part of a more fundamental contest that is unlikely to fade away and may well expand and even explode.
The risk of dangerous incidents is growing. The recent near-collision between the US warship Decatur and a Chinese warship is only the most recent in a series of near misses.
A series of similar dangerous military incidents between the US and the Soviet Union was a stimulus for their 1972 ground-breaking Agreement on the Prevention of Incidents on and over the High Seas. Perhaps the time has come for a similar US-China agreement.
The most likely scenario is continued struggle by China and the US for dominance in the South China Sea and to win over the hearts and minds of Southeast Asian claimants.