In recent years, the sovereignty over the South China Sea has been a fundamental problem among countries surrounding the vast body of water. The sovereignty over the water, its exclusive economic zone and its continental shelf are part of the problems faced by the countries: China, Philippines, Brunei, Vietnam and Indonesia (Beckman, 27-28 August 2011).
The claimant member countries of the ASEAN have taken measures to clarify their claims based on the UNCLOS. Their claims are based on the provisions under the UNCLOS that the natural resources in and under the waters of the South China Sea can only be derived from claims to land features (Beckman, 27-28 August 2011). China has clarified its claim to some extent, but it is still not clear to the ASEAN claimants whether China is making claims to the resources in the South China Sea based on its claim to sovereignty over the land features or whether it is claiming rights in all of the maritime areas located in the South China Sea (Beckman, 27-28 August 2011). BACKGROUND ON THE SOUTH CHINA SEA The South China Sea consists of four groups of islands: The Pratas Islands, the Paracel Islands, the Scarborough Reef, and Macclesfield Bank. The Pratas Islands are claimed by China and Taiwan. The Paracel Islands are being claimed by China, Vietnam and Taiwan. The Paracels are a continual source of tension between China and Viet Nam. Both the Scarborough Reef and the Macclesfield Bank are being claimed by the Philippines, Taiwan and China (Smith, 2010). The source of the most tension and even potential conflict is the Spratly Islands. It is located in the central part of the South China Sea, north of the island of Borneo (which comprises Brunei Darussalam and the east Malaysian States of Sarawak and Sabah), east of Vietnam, and west of the Philippines and south of China. The Spratly Islands are claimed in their entirety by China, Taiwan, and Vietnam, while some islands and other features are claimed by Malaysia and the Philippines. Brunei has established a maritime zone that overlaps a southern reef, but it has not made any formal claim (Clive Schofield and Ian Storey, November 2009). The territorial disputes over the islands in the South China Sea invoke string feelings of nationalism. There is great tension over the sovereignty of the different islands because they are located near vitally important routes used for international navigation. They are also seen as a potential source of wealth because of the fishing resources and the potential hydrocarbon resources in and under the waters surrounding the disputed islands (David Rosenberg). UNCLOS (UNITED NATIONS CONVENTION ON THE LAW OF THE SEA) The 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes a legal framework to govern all uses of the oceans. UNCLOS was formally adopted in 1982 after nine years of negotiations. It entered into force in 1994 and has been almost universally accepted. China, Vietnam, Malaysia, Philippines and Brunei are all parties of the UNCLOS (Beckman, 27-28 August 2011). The UNCLOS has no provisions on how to determine what country possesses sovereignty over offshore islands. Thus, UNCLOS is not directly relevant in resolving the dispute over which State has the better claim to sovereignty over the islands. However, the provisions of UNCLOS on baselines, the regime of islands, low-tide elevations, the exclusive economic zone, the continental shelf, maritime boundary delimitation and dispute settlement are all applicable to the South China Sea (Beckman, 27-28 August 2011). It is stated that once a State becomes a party to UNCLOS, the countries has the obligation to bring its maritime claims and national laws into conformity with its rights and obligations under the Convention. Once UNCLOS enters into force for a State, its rights and obligations vis--vis other States Parties are governed by the provisions of the Convention. It is a fundamental principle of international law that a State cannot use its domestic law as an excuse not to conform to its obligations under an international treaty. Therefore, in its relations with other States Parties, the provisions of UNCLOS prevail over any contrary provisions in the national laws of the State (Beckman, 27-28 August 2011). CHINAS CLAIM OF HISTORICAL CLAIMS China claims sovereignty over all of the islands, reefs and banks in the South China Sea, which is grouped into four major archipelagic groups - Dongsha (Pratas), Xisa (Paracels), Zongsha (Macclesfield Bank) and Nansha (Spratlys) - as well as the Huangyan Island (Scarborough Reef), through a historic claim. That prior to the adaptation of the UNCLOS these islands belongs to them, since ancient times (Beckman, 27-28 August 2011). In recent years controversy has risen as to whether Chinas claims are not just to the features, but also to the waters inside the lines of its maps. This controversy has raised questions and debate about the significance of the infamous nine-dashed line map of China and Taiwan and the nature of its claim. The Chinese nine-dashed lines first appeared in a Chinese map in 1914 by Chinese cartographer Hu Jin Jie. In 1947, Taiwan published an official map of the archipelago of the South China Sea using eleven interrupted lines drawn in a u- shape around most of the features of the Spratly Islands. Two of these lines in the Tonkin Gulf area were later deleted and the line has come to be known as the interrupted lines or nine- dashed lines. The map was subsequently adopted by the Peoples Republic of China (Beckman, 27-28 August 2011). In the 1990s question arose regarding the status of Chinas nine-dashed line. Some commentators took the view that China was using the nine-dashed line to claim all the waters as historic waters in which China would have historic rights. Other commentators, however, are of the view that China only claims the islands and their adjacent waters inside the nine-dashed line. Interestingly, this view was also expressed by Zhiguo Gao, Chinas judge on the International Tribunal for the Law of the Sea (ITLOS). In a 1994 article, Judge Gao stated that the boundary line on the Chinese map is merely a line that delineates ownership of islands rather than a maritime boundary in the conventional sense (Beckman, 27-28 August 2011). However, when China ratified UNCLOS in 1996, it in effect agreed that access to fishing resources in the oceans would be determined by the provisions of UNCLOS. Under UNCLOS, coastal nations have the right to claim an Exclusive Economic Zone (EEZ) of 200 nautical miles from their baselines, as well as the sovereign right to explore and exploit the living resources in that EEZ. The UNCLOS provisions on the EEZ do not require the coastal nation to allow foreign fisherman to continue to fish in their traditional fishing grounds within its EEZ. The only obligation of the coastal nation with respect to economic dislocation is set out in Article 62 granting access to surplus when a States capacity to harvest the fishing resources in its EEZ is less than the allowable catch determined in order to promote optimal utilization of the fishing resources in its EEZ. Article 62(3) provides that when giving access to any surplus, one of the factors which the coastal State shall take into account is the need to minimize economic dislocation in States whose nationals have habitually fished in the zone. However, this is only one of several factors the coastal State must consider when granting access to any surplus, and the coastal State has discretion to decide whose nationals shall be given access to the surplus (Beckman, 27-28 August 2011). Chinas statement dated 14 April 2011 suggests that its claim consists only of a claim to the islands, and that the islands are entitled not only to a territorial sea, but also to an EEZ and continental shelf of their own. There is no suggestion in the statement that China is claiming the waters inside the nine-dashed lines as historic waters, or that it is claiming any historic rights in the waters inside the nine-dashed lines. Like the Southeast Asian claimants, it seems to be bringing its claim to the Spratly Islands into conformity with the UNCLOS. At the same time, however, China seems to be continuing its policy of deliberate ambiguity with respect to the significance of the nine-dashed line map. Also, incidents in May and June of 2011, where Chinese vessels interfered in seismic surveys being carried out in the EEZ of Vietnam and undertook seismic survey activities in the EEZ of the Philippines, indicate that some Chinese agencies appear to have a policy of enforcing Chinas sovereign rights and jurisdiction in all ocean areas within the nine-dashed line, notwithstanding the language in its official notes to the United Nations. This has been a cause for serious concern in Southeast Asia and beyond (Beckman, 27-28 August 2011). OIL EXPLORATION The South China Sea, dubbed the "second Persian Gulf," is rich in natural resources of oil and gas. It is estimated that the area contains over 50 billion tons of crude oil and more than 20 trillion cubic meters of natural gas. The region has abundant resources of oil and natural gas, and some surrounding countries have been exploring resources there for years. India and Vietnam inked an agreement for joint oil exploration in the South China Sea on October 12, 2011. The Philippines is set to pursue oil exploration in the waters of the South China Sea, over which China has always asserted sovereignty (Global Times, 2009). DEEP WATER RESOURCES The importance of deep-water resources is acknowledged in the government's 12th Five-Year Plan (2011-15), which called for "enhancing the ability of marine development and utilizing and actively developing offshore oil and gas." China's deep-water resources exploration is led by the State-owned China National Offshore Oil Corp (CNOOC), which is expected to begin deep-water operations on oil and gas fields at 2,000 meters under the sea in the next five years, generating an annual production capacity of 25 million tons of oil and natural gas (Global Times, 2009). TECHNOLOGICAL DISADVANTAGES "Compared with the world's top oil companies, CNOOC's technology is still outdated when it comes to deep-water gas and oil exploration. The stakes are very high in offshore oil exploration, as it requires huge investment and the operational environment is much more complicated," (Global Times, 2009) INTERNATIONAL CONCERNS CHINA The Chinese side has also made all preparations to respond to any escalation of the situation by the Philippine side." - China's Vice Foreign Minister Fu Ying Asking other countries to take sides on questions of sovereignty will only escalate and complicate the issue and not in the least help settle the current situation properly." - China's foreign ministry spokesman Liu Weimin The withdrawal of the two ships proves once again China is not escalating the situation as some people said, but de-escalating the situation," - Zhang Hua, spokesman of Chinese Embassy in the Philippines (Global Times, 2009) PHILIPPINES What we are saying is that maybe they (the US) should be apprised of what is happening in the Scarborough (Philippines' name for Huangyan Island) issue." -Philippines' foreign affairs department spokesman Raul Hernandez Of course, if we ordered our Navy to pursue, they would have done so, but it would have been costly. Clearly, we would have to rely on our security partners, such as the US. If they are of no use to us, we might as well junk them." - Philippine Senator Gregorio Honasan (Global Times, 2009) US MILITARY EXERCISE Duane Thyssen claimed that the US-Philippines joint military drill was not directly connected with the stand-off between China and the Philippines. The US and the Philippines began an 11-day joint naval exercise on June 28, 2011, shortly before China accused the US Senate of intervening in the South China Sea issue. Dubbed as the 17th "Cooperation Afloat Readiness and Training" (CARAT), the exercise was held in the Sulu Sea east of Palawan and will last through July 8. The PHIBLEX (Philippine-US Amphibious Landing Exercise) started October 17 and will last until Friday. During Sunday's drills, more than 200 US and Filipino marines staged an amphibious assault on a beach in the coastal town of San Antonio in Zambales Province, northwest of Manila (Global Times, 2009). TIMELINE OF DISPUTES IN THE REGION 200-300BC: China first discovers the Nansha Islands and other islands in the South China Sea, and begins to occupy and govern them. 1885: China officially claims all the Nansha Islands. 1939: The Nansha Islands are invaded and occupied by Japan during the Second World War. 1946: China declares the Nansha Islands as part of Guangdong province. 1947: The Philippines claims some of the eastern Nansha Islands and the Scarborough Reef. 1951: Japan renounces all rights to the Nansha Islands. No resolution is made on who owns them. Jan. 1974: Chinese military units seize islands in the Paracels, occupied by South Vietnamese armed forces, and China claims sovereignty over the Nansha Islands. 1975: South Vietnam occupies part of the Nansha Islands. 1976: North and South Vietnam unify. 1978: Philippine President Ferdinand Marcos claims the entire territory as part of the Philippines, redrawing the country's map. 1988: China and Vietnam fight a naval battle just off the Nansha Islands in March. 1991: China passes the Law on Territorial Waters and Their Contiguous Areas. 1992: China lands forces on Da Ba Dau reef near Vietnam's claims in Sin Cowe East, triggering a small military skirmish between the two powers. Amid mounting criticism, China offers to negotiate disputes and reiterates its pledge not to use force. 1994: China distributes a map claiming the entire South China Sea, including all the Nansha Islands. 1995: China and the Philippines have a conflict in Mischief Reef. 2000: In May, Chinese and Philippine foreign ministers agree to "contribute positively toward the formulation and adoption of the regional Code of Conduct in the South China Sea." In December, Vietnam and China sign two agreements to resolve long- standing territorial disputes over the Gulf of Tonkin. Nov. 2002: China and ASEAN adopt the Declaration on the Conduct of Parties on the South China Sea, setting the stage for possible commercial cooperation and long-term stability. May 2003: Vietnam issues a "sovereignty" declaration on the Chinese ban on fishing in the South China Sea, claiming that Vietnam has rights to the Paracel and Nansha Islands. June 13, 2011: Vietnam holds live-fire drills in the South China Sea June 26, 2011: China and Vietnam agree to hold talks and resolve the territorial dispute. June 28, 2011: The US and the Philippines begin routine naval drills near the South China Sea. July 6, 2011: The Philippines' Foreign Secretary Alberto del Rosario visits China to seek a diplomatic solution July 9, 2011: The US, Japanese and Australian navies hold a joint drill in the South China Sea July 15, 2011: Vietnam and US launch a series of naval exchanges July 19, 2011: The South China Sea dispute is a key topic of discussion at the ASEAN Regional Forum in Bali. 25 July, 2011: Progress is deemed to have been made during the ASEAN Regional Forum. China and ASEAN established a deal to create a set of guidelines for future negotiations to establish a "code of conduct" as a "first step" towards a more sweeping, binding code of conduct. Chinese Foreign minister Yang Jiechi has said that "freedom of navigation in the region is guaranteed," as China has sought to keep the US out of direct negotiations on the region Oct. 11, 2011: China and Vietnam held talks about control of disputed islands in potentially oil-rich waters claimed by both nations. Both sides signed an agreement that seeks a peaceful resolution for the dispute by maintaining direct communications between the leaders of both countries. Oct. 18, 2011: Japanese Foreign Minister Koichiro Gemba proposed a multilateral framework to settle maritime disputes in the South China Sea during a tour of Indonesia and other South-east Asian countries, with China reiterating that it wants to resolve territorial disputes in the South China Sea through talks between nations that are directly involved, rather than involving other countries Oct. 20, 2011: Annual joint US-Philippines marine drills begin, which include a hostile beach assault exercise near the Nansha Islands. At the same time, a Philippine warship struck a Chinese fishing boat in the South China Sea, leading to an apology by the Philippine Navy. Oct. 25, 2011: Global Times commentary warns of "sounds of cannons" if nations involved in territorial disputes in the South China Sea "don't want to change their ways with China." Nov. 21, 2011: During the East Asia conference, the US and ASEAN countries aligned to effectively pressure China on their claims to hold "indisputable sovereignty" over the South China Seas (Global Times, 2009). CHINAS ACTION: Police in the southern Chinese island province of Hainan will board and search ships which illegally enter what China considers its territory in the disputed South China Sea, state media said on Thursday, a move likely to add to tensions. The South China Sea is Asia's biggest potential military trouble spot with several Asian countries claiming sovereignty over waters believed to be rich in oil and gas. New rules, which come into effect on Jan. 1, will allow Hainan police to board and seize control of foreign ships which "illegally enter" Chinese waters and order them to change course or stop sailing, the official China Daily reported. "Activities such as entering the island province's waters without permission, damaging coastal defense facilities and engaging in publicity that threatens national security are illegal," "If foreign ships or crew members violate regulations, Hainan police have the right to take over the ships or their communication systems, under the revised regulations," The Philippines, which also has claims to parts of the South China Sea, said the move could violate international maritime laws allowing the rite of passage and accused Beijing of trying to escalate tension in the area. Hainan's policy was unlikely to affect the behavior of U.S. vessels operating in international waters, said the officials. China has said in the past it will respect freedom of navigation in the South China Sea and that it has no intention of trying to restrict access to the area's vital shipping lanes for legitimate vessels. China's assertion of sovereignty over the stretch of water off its south coast and to the east of mainland Southeast Asia has set it directly against Vietnam and the Philippines, while Brunei, Taiwan and Malaysia also lay claim to parts China occasionally detains fishermen, mostly from Vietnam, whom it accuses of operating illegally in Chinese waters, though generally frees them quite quickly. The China Daily said that the government will also send new maritime surveillance ships to join the fleet responsible for patrolling the South China Sea. The stakes have risen in the area as the U.S. military shifts its attention and resources back to Asia, emboldening its long-time ally the Philippines and former foe Vietnam to take a tougher stance against Beijing (Blanchard & Mogato, 2012) ASEAN: CONFLICT MANAGEMENT Most of these claims are historical, but they are also based upon internationally accepted principles extending territorial claims offshore onto a country's continental shelf, as well as the 1982 United Nations Convention on the Law of the Sea. The 1982 convention created a number of guidelines concerning the status of islands, the continental shelf, enclosed seas, and territorial limits. Three of the most relevant to the South China Sea are: 1. Article 3, which establishes that "every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles"; 2. Articles 55 - 75 define the concept of an Exclusive Economic Zone (EEZ), which is an area up to 200 nautical miles beyond and adjacent to the territorial sea. The EEZ gives coastal states "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to" (above) "the seabed and of the seabed and its subsoil..." 3. Article 121, which states that rocks that cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf (GlobalSecurity.org, 2000). The establishment of the EEZ created the potential for overlapping claims in semi- enclosed seas such as the South China Sea. These claims could be extended by any nation which could establish a settlement on the islands in the region. South China Sea claimants have clashed as they tried to establish outposts on the islands (mostly military) in order to be in conformity with Article 121 in pressing their claims (GlobalSecurity.org, 2000). In mid-1991, fresh from diplomatic success in helping to end the Cambodian civil war, Indonesia took the initiative in seeking to open multilateral negotiations on competitive South China Sea claims, especially those claims involving jurisdictional disputes over the Spratly Islands. Indonesia has taken a leading role in diplomatic initiatives and cooperative agreements to resolve South China Sea issues, particularly through the ASEAN (Association of Southeast Asian Nations) forum, which has called for the peaceful arbitration of territorial claims. ASEAN includes all South China Sea nations except for China and Taiwan, and has held a number of working groups with China and Taiwan on related issues that have the potential to foster the cooperation and friendship needed to resolve the more contentious issues in the region. Indonesia hosted the first of these workshops in 1990. The ASEAN foreign ministers have reiterated the invitations to all parties directly concerned to subscribe to the principles of the ASEAN Declaration on the South China Sea (GlobalSecurity.org, 2000) In late November 1999 officials of ASEAN agreed to draft a regional code of conduct to prevent conflicts over the Spratly Islands in advance of the ASEAN summit in Manila. The Philippines, which drafted much of the proposed code, sought to align ASEAN's members in a common stance against what it saw as Chinese expansionism in the Spratlys. China agreed to hold talks with ASEAN member nations on the newly formulated draft code of conduct. But China, which claims the entire South China Sea, signaled it was not ready to agree to the ASEAN draft. Vietnam wanted the code to cover the Paracels while Malaysia did not want the code to refer to all of the South China Sea (GlobalSecurity.org, 2000) In January 2000 photographs of Mischief Reef in the Spratly Islands were shown to the foreign ministers of the other eight ASEAN countries by Philippine foreign minister, Domingo Siazon. The photographic evidence showed that China had expanded installations on the reef since 1995, when it first started building what it said were shelters for fishermen. There are now four sites on the reef with installations that could be connected to form a fortress, like Gibraltar, or a five-star hotel for fishermen (GlobalSecurity.org, 2000). On 04 November 2002 the Governments of the Member States of ASEAN and the Government of the People's Republic of China signed the "Declaration on the Conduct of Parties in the South China Sea." The Parties undertook to exercise self-restraint in the conduct of activities in the South China Sea that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner (GlobalSecurity.org, 2000). China and the Philippines have discussed possible joint exploration for petroleum in the disputed Spratly Islands in the South China Sea. The speaker of the Philippine House of Representatives, Jose de Venecia, said the chairman of China's parliament, Wu Bannguo, made the proposal 31 August 2003 during talks in Manila. China also pledged to increase investment in the Philippines. Chinese Foreign Minister Li Zhaoxing vowed to increase investments in the Philippines to match the growing Philippine investment in China (GlobalSecurity.org, 2000) In March 2005, the national oil companies of China, the Philippines, and Vietnam signed a joint accord to conduct marine seismic experiments in the Spratly Islands for economic purposes. Suggested confidence-building measures among claimant countries include joint research and development in the Spratlys. Among the suggestions to enhance the development of the Spratly Islands include the creation of a marine park; establishment of a South China Sea Institute for Marine Resources Management, conducting a joint survey and assessment of the mineral and hydrocarbon potential and implementation of maritime safety and surveillance measures (GlobalSecurity.org, 2000). POSSIBLE CONCLUSIONS TO THE DISPUTE Eventually the Spratly Island dispute and the dispute over the sovereignty of the South China Sea would come up with five possible outcomes o conclusions. The first possible outcome is that one of the claimant countries will take all of the territory through a tribunal dispute resolution, or military force. Secondly, the most powerful nations will share the wealth of the Spratly Islands and the less powerful will become disenfranchised. Third, all the disputants share the wealth equally. Fourth is that all the states share in proportion to an articulated distribution scheme. And lastly, none of the states have access to the wealth (Saleem, 2000).
Bibliogaphy Beckman, R. (27-28 August 2011). China, UNCLOS and the South China Sea. Asian Society of International Law Third Biennial Conference (pp. 1-32). Beijing, China: Asian Society of International Law Third Biennial Conference. Clive Schofield and Ian Storey. (November 2009). Increasing Stakes and Rising Tensions. In The South China Sea Dispute (p. 41). The Jamestown Foundation. David Rosenberg, e. (n.d.). South China Sea. Retrieved from WWW Virtual Library: www.southchinasea.org/index.html Saleem, O. (2000). The Spratly Islands Dispute : China Defines the New Millenium. American University of International Law Review , 15 (13), 527-582. Smith, R. W. (2010). Maritime Delimitation in the South China Sea: Potentiality and Challenges. In R. W. Smith, Ocean Development & International Law (pp. 214-236). Blanchard, B., & Mogato, M. (2012, November 29). Reuters. Retrieved February 3, 2013, from Chinese police plan to board vessels in disputed seas: http://www.reuters.com/article/2012/11/30/china-seas-idUSL4N0991Z020121130 Global Times. (2009, April). Global Times. Retrieved February 3, 2013, from South China Sea Conflict: http://www.globaltimes.cn/SPECIALCOVERAGE/SouthChinaSeaConflict.aspx GlobalSecurity.org. (2000). GlobalSecurity.org. Retrieved February 3, 2013, from Spratly Islands Conflict Management: http://www.globalsecurity.org/military/world/war/spratly- diplomacy.htm
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