Regional Disorder

The South China Sea Disputes

Sarah Raine

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781351224048
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

China's rise casts a vast and uncertain shadow over the regional balance of power in the Asia Pacific, and nowhere is this clearer than in the South China Sea. The significance of the fraught territorial disputes in this potentially resource-rich sea extends far beyond the small groupings of islands that are at their heart, and into the world of great-power politics. As the struggle for hegemony between the US and China intersects with the overlapping aspirations of emerging, smaller nations, the risk of escalation to regional conflict is real.
Christian Le Mi and Sarah Raine cut through the complexities of these disputes with a clear-sighted, and much-needed, analysis of the assorted strategies deployed in support of the multiple and competing claims in the SCS. They make a compelling case that the course of these disputes will determine whether the regional order in Southeast Asia is one of cooperation, or one of competition and even conflict.

Chapter One
Mapping the history

No territorial dispute is as confusing, as confounding and as complex as that of the South China Sea. The disagreements within the 3.7 million square kilometres of water involve multiple states drawing on contested historical records with occasionally ambiguous claims and questionable legal interpretations. The situation is further complicated by the presence in the region in the eighteenth and nineteenth century of European colonial powers, who exercised suzerainty or outright sovereignty over large swathes of this territory, and hence bequeathed claims in the South China Sea to their postcolonial successor states.

Despite this complex background, mapping the disputes and their historical basis is vital in any analysis of the reasons for the current tensions in the region. A detailed assessment of the claims and counter-claims, and their respective histories, helps provide the context in which current tensions are unfolding.

The convolution of the South China Sea disputes is reflected in the range of nomenclature deployed to describe the assorted features contained therein. One state’s Amboyna Cay is another state’s Lagos, Anbo Shazhou, Dao An Bang or Pulau Amboyna Kecil.¹ Similarly, defining exactly which features lie within each island group is not without its dangers, while one of the most contentious issues in delimiting sovereignty in the sea is pinpointing exactly which features remain above the sea at high tide and can sustain human habitation (thereby qualifying as islands with an international legal right to EEZs) and those which do not.²

The law and the sea

As has already been set out in the introduction, the South China Sea is a strategic node, not only for its busy shipping lanes, but also because of its substantial fish stocks and potential hydrocarbon and mineral wealth. Securing this wealth provides a considerable incentive for all littoral states to stake claims within the region. But it is not the sea itself that is really in dispute, but rather the islands scattered throughout it. According to international treaties and customary law, all claims to sovereignty and rights at sea must ultimately start on land.

The primary instrument for delimiting and regulating claims of sovereignty and rights at sea is UNCLOS. This convention was an attempt to formalise the centuries-old customary maritime law, which drew heavily on Hugo Grotius’s concepts of mare liberum and the idea of another Dutch jurist, Cornelius van Bijnkershoek, that a territorial sea extended out to the maximum range of the most effective weaponry, so as to allow nations to exercise effective control over their waters.³

The current iteration of UNCLOS hails from the third meeting of the UN Conference on the Law of the Sea, which involved discussions that lasted nearly a decade, from 1973 until 1982. This conference, and the resulting convention, stated that all coastal states had the right to a territorial water zone extending out 12 nautical miles from agreed baselines (the low-water line along the coast and around islands) and an EEZ extending 200 nautical miles from these baselines. The territorial sea is essentially sovereign territory: the coastal state can set laws regulating maritime traffic and exploit all resources within or underneath the seas. In addition, foreign naval vessels may only be in these waters by agreement or if undergoing ‘innocent passage’, while submarines must transit territorial waters surfaced and with their flag showing. In the EEZ, the coastal state has the sovereign right to exploit all sea and undersea resources, but does not exercise sovereignty over the territory: there are no restrictions on maritime traffic, even for warships.⁴

The relevance of all this legalese to the South China Sea is that territorial seas and EEZs can extend not just from a coastline, but also from islands, however remote. So, for example, the Falkland Islands provides the UK with an EEZ of over 550,872km 2 in the South Atlantic, including some potentially lucrative oil deposits within those waters. In the South China Sea, those features deemed to be habitable islands could theoretically provide hundreds of thousands of square kilometres of sea and seabed resources for exploitation (China and Taiwan, for instance, have variously been interpreted as claiming anywhere between two million km2 and 80% of the sea, or 2.95 million km 2). For the energy- and fish-hungry nations of East Asia, this is a sizeable catch.

Then there is the problem of defining exactly which features qualify as islands under UNCLOS, and which of those islands are, in turn, habitable. An island – defined by UNCLOS as naturally formed, surrounded by water and above water at high tide – is entitled to a territorial sea, contiguous zone, EEZ and continental shelf. However, if an island is merely a formation of rocks that is unable to sustain human habitation or economic life in its own right, it is only entitled to a territorial sea, and not to an EEZ or continental shelf. At a conservative estimate, of the hundreds of features in the Spratly Islands, perhaps 33 of them lie above the sea, and only seven of them have an area exceeding 0.5km².⁵

One further final complication is that states can claim exclusive rights over the seabed and subsoil and its resources beyond the 200nm EEZ limit if it can be proven that the seabed forms part of the state’s continental shelf. Vietnam and Malaysia have made an official claim to an extended continental shelf in the South China Sea, while Brunei has also stated that its continental shelf extends beyond the standard 200 nautical miles, but has yet officially to delineate its proposed extent.

Clarifying the claims today

Although there are six disputants to the South China Sea, there are in essence only five different claims. China and Taiwan share an all but identical claim. Whilst they claim all of the islands in the South China Sea, Vietnam claims the entirety of the Paracel and Spratly archipelagos – although it has not specified precisely which islands it includes in these groupings. The Philippines claims Scarborough Reef and the Kalayaan Island group, both of which are in the eastern reaches of the South China Sea and the latter of which consists of 53 features that form most of the Spratly archipelago. Malaysia claims 11 features in the Spratly Islands – all in the southern section, where it currently occupies eight (the other three are occupied by the Philippines and Vietnam).⁶ Malaysia also claims the numerous Luconia Shoals and James Shoal, which sit within the Sino-Taiwanese nine-dashed line, but there is little diplomatic weight given to these features. Lastly, Brunei claims two features, the partially submerged Louisa Reef (occupied by Malaysia) and the entirely submerged Rifleman Bank (which has a raised platform constructed and occupied by Vietnam on its northernmost extremity, Bombay Castle).⁷

When it comes to occupations, as opposed to the simple registration of claims, Vietnam is the most active of the six disputants, currently occupying 27 features in the Spratly Islands.⁸ China has occupied seven features in the Spratly Islands, but has also some form of physical occupation on nine of the Paracels and controls them in their entirety. The Philippines has occupied nine features (although one is essentially a rusting tanker ran aground at Second Thomas Shoal)⁹ and Malaysia has control of eight Spratly features (although it is unclear whether there is any permanent occupation beyond markers at Louisa and Royal Charlotte Reefs and whether the historically reported presence on Dallas Reef is permanent). Taiwan has taken one of the Spratly Islands (Itu Aba), although it nominally controls Ban Than Reef and sent its first Environmental Protection Administration sample collection team there in 2010.¹⁰ It also controls the Pratas Island – the only significant island in the Pratas Island grouping. Brunei is the only claimant with no record of occupations.

Yet the precise nature of the claims made by these disputants is not always clear, neither in their extent nor in their legal or historical underpinnings. Perhaps the most infamous example of this ambiguity is the Sino-Taiwanese claim, which is based on the same nine-dashed line and which extends in an approximation of a cow’s tongue down into much of the sea, appearing to encompass all the islands therein as well as around 80% of the water. The precise significance of this nine-dashed line remains unclear. Does it indicate a claim to all of the waters inside the line – which would be in clear contravention of the articles and principles of UNCLOS – or only the habitable islands within this area, and the UNCLOS-designated territorial and EEZs extending from these landmasses? Chinese officialdom has shown a distinct distaste for clarification since inheriting the map from the Kuomintang (KMT) in 1949 (although it was first published in 1947, and then as an 11-dashed line). The closest they have come to clarification was in a rare official submission of the map attached to a Note Verbale submitted by China to the UN secretary-general on 7 May 2009, which stated that China ‘has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof’.¹¹ Whilst the phraseology is somewhat strange (what, for instance, are ‘adjacent waters’?), this note would appear to indicate that China’s claim now emanates from the land features contained within the nine-dashed line, rather than being a claim to all its water.

China’s Note Verbale was submitted in response to a joint submission by Vietnam and Malaysia to the UN’s Commission on the Limits of the Continental Shelf (CLCS), and was part of a flurry of official diplomatic documents that made for a particularly enlightening period in terms of clarifying many of the respective claims. The catalyst for this burst of diplomatic activity was a deadline of 13 May 2009 for the states in Southeast Asia to submit to the CLCS if they intended to make a claim for a continental shelf beyond the standard 200 nautical miles provided for under UNCLOS. Shortly before this deadline, in February 2009, the Philippines, for example, passed the Archipelagic Baselines Law, defining its baselines (and hence its 200nm EEZ) and also laying claim to a large proportion of the Spratly Islands (known as the Kalayaan Island Group in the Philippines) and Scarborough Reef.¹² This law was followed by the government’s deposit of a list of coordinates of its baselines with the UN secretary-general, clearly outlining Philippine claims.

Understanding where these claims come from

The question remains, how did we arrive at this complicated mosaic of overlapping claims and intermingled occupations, which has involved rival disputants militarily occupying tiny islets as close as three kilometres apart?¹³ The answer is fascinatingly complex, involving regional powers, colonial states, private individuals and corporate interests.

From ancient to modern

For centuries, fishermen, salvagers and small trade vessels from the littoral countries comprised the vast majority of traffic in the South China Sea, whilst leaving the islands themselves largely uninhabited. This backdrop has allowed China, Taiwan and Vietnam, in particular, all to seek to bolster their island claims with allusions to the principles of discovery, ‘historic rights’ and occupation, suggesting that their populations were the first to find the islands, regularly used them as waypoints or shelter and as such had de facto occupied them. These countries also use their long imperial histories to suggest that military patrols, surveys and geographical markers were made or left by their political ancestors, thereby demonstrating continued sovereignty over these islands.¹⁴ However, given the paucity of the official records over this issue, the difficulty of communications and the lack of evidence of continuous occupation and sovereignty, it is problematic for any disputant to prove their superior entitlement clearly. While there are official records of Nguyen Emperor Minh Mang ordering the construction of a temple and stele on the Paracel Islands in 1835, for example, information on previous imperial interactions with the islands derives from maps and testimony from foreign missionaries and counsellors. This is perhaps unsurprising: the tenets of contemporary international law could not have been foreseen by previous administrations in the Asian states, and hence the idea of prioritising physical occupation of an island over simply restating one’s sovereignty infrequently would have seemed unnecessary. Furthermore, the constantly shifting boundaries of the states in Asia, which were buffeted by neighbours as empires rose and fell, further obscures historical records, and helps explain why there may have been a lack of consistency to assertions by claimant states over time. Finally, the intervention of European imperial powers from the sixteenth century, in particular the influence of France in Vietnam and Japan from the nineteenth century, further confused the situation with the issue of succession from colonial power to former colony.¹⁵

Extra-regional powers compete (1925-1945)

The modern story of the South China Sea disputes begins in the twentieth century. Prior to this, governments tended to be too weak, fragmented or colonised to follow through on their respective claims of sovereignty. Yet, by the twentieth century, assertions of sovereignty were beginning to mount. For example, in 1902 and again in 1908, the then-fading Qing empire sent missions under Rear Admiral Li Zhun to claim the Paracels. Although no occupation was established, Li recommended in his 1909 report that the islands should be a...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Maps
• Introduction
• Chapter One Mapping the history
• Chapter Two Beijing's multifaceted approaches
• Chapter Three Southeast Asia - between emerging great-power rivalry
• Chapter Four The US in the South China Sea
• Conclusions
• Appendix The legal environment in the South China Sea