What It Takes to Resolve the South China Sea Dispute

Journal of Political Risk, Vol. 3, No. 6, June 2015.

By Priscilla A. Tacujan, Ph.D

Supplied photo taken April 12, 2015 shows Subi Reef in the South China Sea, where China has continued reclamation work to build an airstrip. China is asserting sovereignty over most of the South China Sea, which is also claimed in whole or in part by Taiwan, Vietnam, Brunei, Malaysia and the Philippines. (Photo by the Philippine military)(Kyodo)

This photo taken April 12, 2015 shows Subi Reef in the South China Sea, where China has continued reclamation work to build an airstrip. China is asserting sovereignty over most of the South China Sea, which is also claimed in whole or in part by Taiwan, Vietnam, Brunei, Malaysia and the Philippines. (Photo by the Philippine military)(Kyodo)

By now, it should be clear to everyone that China is not giving up its maritime claims in the South China Sea.  Despite pending international court decisions and worldwide condemnations, China has aggressively reclaimed about 2,000 acres of land in the South China Sea — proof of its intent to stay, defend, and protect 90% of the sea that it claims it owns.  Indeed, when State Secretary John Kerry asked China to halt its reclamation activities during his visit to Beijing last week, China’s Foreign Minister Wang Yi’s response was as revealing as it was firm: China’s determination “to safeguard its sovereignty and territorial integrity in the South China Sea is as firm as a rock, and it is unshakable.”[i]

According to the Pentagon’s Annual Report to Congress (2015) on China’s growing military presence on the high seas, China has started infrastructure projects on four reclamation sites that “could include harbors, communications and surveillance systems, logistics support, and at least one airfield,” prompting most analysts to believe that Beijing is attempting “to change facts on the ground.”  In his remarks during a US-Japan relations conference held in Washington DC last month, Admiral Dennis Blair, Chairman of the Sasakawa Peace Foundation (USA), described China’s current “gray zone strategy” as “an administrative, civilian and sub-military strategy” that is intended to create a new territorial jurisdiction, hence, de facto control, over the South China Sea.[ii]  With this strategy, China would be able to create “a defensive sea barrier extending hundreds of miles from China’s coast to what it calls ‘the first island chain.”[iii]

All this has not escaped the scrutiny of the global community.  Recently, the foreign ministers of G-7 (Canada, France, Germany, Italy, Japan, United Kingdom, and the US) issued a “Declaration on Maritime Security,” essentially expressing concerns over China’s “unilateral actions that are changing the status quo and increasing tensions in the region.”  Likewise, at the recently-concluded ASEAN summit, ASEAN ministers issued a statement urging self-restraint on activities that “may undermine peace, security and stability in the South China Sea.”[iv]

The United States has also weighed in, with President Obama warning China not to flex its muscle against smaller powers in the region.  US Pacific Fleet Commander Admiral Harry Harris, Jr., in an April gathering in Australia, also warned that China’s building of a “great wall of sand” on the sea is a provocative action that raises “serious questions about Chinese intentions.”[v] And during a congressional testimony before the House Armed Services Committee last month, US Pacific Commander Admiral Locklear had called on China “to clarify or adjust its maritime boundaries according to the requirements of international law.”[vi]

Yet, China remains undeterred, even as it bolsters its military spending by 10% this year. In the face of global denunciations, China launches a carefully-crafted psychological warfare, accusing claimant countries as trouble-makers and the United States as a Western imperialist meddling in Asian affairs.  It asserts with full convictions that its maritime claims are “beyond reproach.”  Responding to the Pentagon report mentioned above, China’s Foreign Ministry spokeswoman Hua Chunying admonished the US for defying the facts:

The U.S. report makes willful speculations and comments on China’s military growth in    defiance of the facts . . . It is hoped that the American side would abandon the cold-war     mentality, view China’s military development with objectiveness and reason instead of         prejudices and stop issuing reports that jeopardize bilateral relations.[vii]

But what are the facts?  China’s ownership claims of almost the entire South China Sea – the centerpiece in its strategic defense initiative — have been repudiated by both international legal experts and historians alike.  They have concluded long ago that China’s historic rights claims are invalid[viii] and its sovereignty claims based on the nine-dash line map illegal.[ix]  While Chinese officials and scholars are convinced that their country’s claims are supported by both historical facts and international law, legal analyses and historical findings show otherwise.

Challenging China’s historic rights and sovereignty claims

Chinese scholars contend that China’s historical claims have been established “by ways of discovery, naming, mapping, patrol and control, public and private use, administrative allocation of jurisdiction, and other manifestations of authority throughout history.”[x]  Li Guoqiang, a research scholar at the Chinese Academy of Social Sciences, argues that the islands in the South China Sea had been discovered during the Qin and Han dynasties (circa 221 BC – 220 AD), and that maritime boundary had been established during the Qing dynasty (circa 1644-1911).[xi]  In two notes verbales submitted to the UN Secretary-General in May, 2009, China declared that it “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.”[xii]  According to these scholars, China as a titleholder has the right to decide “whether, when and how to utilize these island chains and natural resources therein, to make and maintain physical presence there, and to install military and non-military facilities for the purpose of self-defense and/or protection of Chinese fishing and other economic and non-economic activities.”[xiii]

However, other claimant countries could also present historical evidence to support their own historic claims.  For instance, Vietnam could produce maps claiming historical sovereignty going back to the 17th century.  Likewise, the Philippines could produce old maps showing the Scarborough Shoal, which China took two years ago, to belong to the Philippines: the Carte Hydrographica y Chorographica de las Islas Filipinas, dating back to 1734; a subsequent map published in Madrid in 1808, which includes Scarborough Shoal (known as Bajo de Masinloc) as part of the Philippine territory; and another topographic map drawn in 1820 showing Bajo Scarburo as part of the province of Zambales.”[xiv]

The truth of the matter is the South China Sea has provided transoceanic sea routes to everyone for a very long time. Navigation on the high seas was a global common as international waterways were unrestricted to traders, seafarers, and fishermen alike.  South China Sea’s busy maritime traffic made possible the comings and goings of imperial powers, from the Chinese to the Mongols who dominated the seas during the early centuries and to the Europeans who actively engaged in trading during the medieval times.  As Hye Jin Lee, who studied the pre-19th century maritime history of the South China Sea, puts it: “The South China Sea has been an important maritime region for trade and interaction among different peoples ever since, while displaying a frequent shift of the leading maritime power to different peoples and to different ports or states in different time periods. . .”[xv]

Professor Mohan Malik of the Asia-Pacific Center for Security (Honolulu) argues that China’s historic assertions are based on standards of pre-modern Asia when empires were characterized by undefined and ever-changing frontiers, and did not exercise sovereignty.[xvi] However, the Treaty of Westphalia of 1648 introduced the notion of land-based sovereignty for nation-states, while the United Nations Law of the Sea (UNCLOS) and the United States (through customary international law and its Freedom of Navigation Rights) introduced the notion of maritime sovereignty in the mid-twentieth century, thereby laying down rules-based land and maritime arrangements with which modern nation-states are expected to operate. With the modern period ushering in a world order of nation-states with clearly-delineated national boundaries, China seems stuck in ancient maritime traditions of undemarcated jurisdictions.[xvii]

Moreover, in their legal analysis of China’s historic rights claims, Professors Florian Dupuy and Pierre-Marie Dupuy indicate that for historical factors to be considered in determining maritime claims, they must be limited to “establishing whether a given state has exercised and still exercises authority, a titre souverain, over a defined area in an effective and continuing manner, and whether such exercise of authority has been accompanied by acquiescence by the third states concerned.”[xviii]  Since China has failed to establish any of these elements, it has remained ambiguous in providing legal justifications for its claims.[xix]

The State Department, in its study, “Limits in the Seas,” also indicates that China’s historic rights claims are not compatible with historic claims that are recognized in Articles 10 and 15 of the Law of the Sea Convention, especially in areas where littoral states have entitlements to exclusive economic zone and continental shelf.[xx]  It adds that the primary purpose of the Convention is precisely “to bring clarity and uniformity to the maritime zones to which coastal States are entitled.”[xxi]  But China insists that its historical interpretation of maritime history should supersede these laws and guidelines.

China’s sovereignty claims based on the nine-dash line map

The nine-dash line map, upon which China is staking its sovereignty claims, was first published in 1948 by the Republic of China’s Interior Ministry in Taiwan.  It encompasses 2,000,000 square kilometers of maritime space equivalent to about 22 percent of China’s land area.[xxii]  Legal experts say, however, that this map has no legal value since cartographic materials do not constitute titles in international law: “The principle that emerges from international jurisprudence and doctrinal discussions is that cartographic materials do not by themselves have any legal value.”[xxiii]

According to Professors Florian and Pierre-Marie Dupuy, China’s 2009 and 2011 Declarations to the UN did not meet at least two central requirements applied by international courts in deciding whether maps can have a probative value: (1) geographical accuracy and reliability, and (2) neutrality in relation to the dispute and the parties involved.[xxiv]  That is, an international court can only consider whether a map is of legal value if it “constitutes the true and accurate manifestation of the will of a competent national authority or if it reflects an agreement between the states potentially concerned (in this case, China and its neighbors). . . ”[xxv]  Therefore, the authors conclude that China’s nine-dash line map was not a product of a consensual agreement between two parties, nor was it created and established by an unbiased, neutral party.  As Charles Cheney Hyde pointed out in his 1933 article, “Maps as Evidence in International Boundary Disputes,” when a cartographer makes a map based on requisite geographical data, “his trustworthiness as a witness must depend upon the impartiality with which he paints his picture.”[xxvi]

Moreover, the nine-dash line map is unreliable because it does not clearly provide the limits of China’s maritime sovereignty.  As pointed out by Professors Florian and Pierre-Marie Dupuy, “not only is the meaning of the line indeterminate, but the line is drawn in the most inaccurate possible way: the thickness of the line, its lack of precision (due, in particular, to the empty spaces between the nine dashes), and the absence of geographical coordinates make it impossible to determine the precise area enclosed by it.”[xxvii]

The US State Department study also concludes that China’s nine-dash line map is inconsistent with international law:

            . . . if the dashes on Chinese maps are intended to indicate national boundary lines, then those lines would not have a proper legal basis under the law of the sea. Under international law, maritime boundaries are created by agreement between neighboring States; one country may not unilaterally establish a maritime boundary with another country. Further, such a boundary would not be consistent with State practice and international jurisprudence, which have not accorded very small isolated islands like          those in the South China Sea more weight in determining the position of a maritime boundary than opposing coastlines that are long and continuous. Moreover, dashes 2, 3, and 8 that appear on China’s 2009 map are not only relatively close to the mainland shores of other States, but all or part of them are also beyond 200 nm from any Chinese-claimed land feature.[xxviii]

            Yet, China refuses to comply with the requirements of international law. It has announced many times before that it would not abide by arbitration decisions arrived at by international courts.  It seems also that the United Nations does not possess the authoritative force by which to implement its laws. The Philippines has yet to successfully contest its sovereignty claims over disputed islands filed in the International Tribunal on the Law of the Sea against China because China refuses to give its consent and warns that it will not comply with the decisions of the court.

Resolving the South China Sea dispute: what needs to be done

Given China’s willful intransigence that is destabilizing to the peace and security of the region, it is imperative that claimant countries and the rest of the international community come together and confront China’s aggressive actions and assertive posturing.  At stake are the territorial integrity and ownership claims of claimant countries and freedom of navigation for non-claimant countries as well as safe passage of about $5 trillion worth of goods that ply through the sea routes annually through the South China Sea.

The international community cannot afford to be neutral in this dispute. The current narrative on neutrality by some non-claimant countries, including the US, only contributes to policy uncertainty and confusion.  Fortunately, this is not the case with ASEAN’s Secretary-General Le Luong Minh whom China criticized for saying that China’s maritime claims are unacceptable and its nine-dash line map incompatible with international law.  When China demanded that ASEAN maintain a position of neutrality in this conflict, Mr. Minh replied: “’What kind of neutrality [are they] talking about? Can I be neutral to [Asean] interests?’ he said. ‘How can I be neutral to truth?’”[xxix]  Such moral clarity and political courage are what international leaders should exhibit towards China.

For an effective, speedy, and successful resolution of this conflict, claimant countries and the rest of the international community should consider the following courses of action:

  • Each claimant country in the South China Sea dispute should issue an official declaration of its claims ownership based on the requirements of international law, to be endorsed by the global community, international organizations, including the UN and ASEAN, and international military alliances.

An official declaration of ownership spelling out maritime boundary lines for each of the claimant countries based on the provisions of the UN Convention on the Laws of the Sea should not be difficult to do.  For international laws that can legitimize and justify such action are already in existence.  The laws of the sea so state that countries have the right to exercise maritime sovereignty over waters within 12 nautical miles from their coastlines and an exclusive economic zone of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.  Since the US is not a signatory to the UNCLOS, it can cite its navigational rights to international waters based on customary international law and its Freedom of Navigation Program which contests excessive maritime claims made by other countries in contravention of customary international law.  For claimant countries with overlapping claims, common ownership and joint development efforts should be explored.

With this official declaration of ownership, claimant countries should come up with an official map, vetted by independent parties, spelling out which maritime territory belongs to what country.  With this official map, claimant countries can start staking out their claims.  They should invest in laser-powered virtual fences or other infrastructure installations that can mark the scope and limits of their maritime claims.  Outposts or watchtowers, such as the ones being built for Philippine coast guards can also help determine and protect boundary lines.

The importance of a rules-based approach is it levels the playing field.  The laws of the sea aim to bring about clarity and uniformity to the maritime zones to which littoral states are entitled.  Without these rules-based boundaries, nations can do what they want to do against other nations, and, in the case of the South China Sea dispute, even “manufacture sovereignty.”

  • Effective enforcement capabilities and concrete courses of action should be immediately put in place to counter China’s aggression.

To have teeth, the above must be accompanied by effective enforcement capabilities. This is nothing new.  But China’s increasingly aggressive actions should pressure policy-makers and stakeholders to take the South China Sea dispute more seriously, and come up with concrete plans of action in countering China’s aggression. The Pentagon’s recent effort in looking into the possibility of flying Navy surveillance aircraft over the islands and even deploying US naval ships to within 12 nautical miles of reefs on islands built by China near the Spratlys is a big step towards making real the possibility of confronting China through concrete and effective courses of actions.[xxx]

As has been suggested by a number of experts before, enforcement capabilities should include sharing of military resources, training, and operations among claimant countries in the region and with the United States, Japan, India, and Australia.  These joint efforts should include joint patrols, sharing of surveillance and intelligence resources among claimant countries and other stakeholders in the region, with the US, Japan, and Australia acting as security guarantors.

Professor Richard Javad Heydarian of the De La Salle University (Manila) proposed a “maritime coalition of the willing,” which can lead to peacekeeping patrols in the South China Sea, an idea that was proposed by Vice Admiral Robert Thomas, commander of the US 7th Fleet who also indicated that the US Navy is willing to provide support for such efforts.[xxxi]

On the part of the Philippines, which is a treaty ally of the US, it can invoke provisions of the 1951 Mutual Defense Treaty entered into by the Philippines and the US, which provide military support and assistance in the event that one of the two parties comes under attack.  Under the current military agreement, both countries are engaged in joint military exercises, some of them even taking place in Zambales province near the Scarborough Shoal, which China seized in 2012.

                        With enforcement capabilities in place, this maritime coalition of the willing can be in a position to demand that China abandon its maritime claims.  It will also have the power to pressure China to stop reclamation activities and vacate reclaimed areas under an agreed-upon deadline.

China can call the whole thing off and be the indispensable superpower in the Asia-Pacific:  cost-benefit incentives

For its part, China must examine its maritime claims against its larger interests and role on the global stage.  As a rising power, China’s clout has expanded worldwide.  But in Asia, in particular, it plays a crucial role in the economies of its neighbors. It is the biggest and most important player in the region

As an Asian superpower, China should weigh the costs against the benefits of its aggression in the region.  It will do itself a favor by establishing a reputation as a legitimate player on the world stage.  Instead of saber-rattling, China can rechannel its military resources on the high seas towards productive and profitable activities and help eliminate tensions in the region.  It will win the goodwill and cooperative support of its neighbors.  In the absence of good neighborliness, China leaves everyone no choice but to counter its aggression  As Gregory Poling, a Southeast Asia specialist at the Center for Strategic and International Studies, puts it, “If the goal is to convince Beijing that the costs — in lost soft power and growing hesitance of others to trust its commitments and follow its lead — outweigh the benefits of this aggression, then building such international consensus is the only way to do so.”[xxxii]

As to contested marine and oil resources in the disputed territories, China is wealthy enough to invest in joint exploration and development projects, perhaps buy stocks from the rightful owners, and make things profitable for both principal owners and stockholders.  Stock-holdings or stock-ownerships are positive economic incentives that motivate all stakeholders to work hard towards making the enterprise grow – certainly an attractive alternative to the present status quo.  China – economic savvy that it is – understands this. The more profitable an enterprise is, the better it is for those who have a stake in it. China also understands that economic prosperity thrives in an environment of peace and security.

By resolving the South China Sea dispute, stability and prosperity can start taking place in the region that is otherwise fraught with insecurity and economic tensions.  It is China’s call whether to start a war over its maritime claims or contribute towards security, stability, and economic development in the region.  The conduct of nations is measured in terms of the choices they make between prosperity or stagnation, civilization or ignorance, peace or war.

http://globalnation.inquirer.net/124228/a-maritime-coalition-of-the-willing-must-confront-china-urges-us-analyst

Dr. Priscilla Tacujan is an independent consultant and holds a PhD in Political Science from Claremont Graduate University. She spent almost a year in Afghanistan working as a social scientist. Dr. Anders Corr provided editorial oversight for this article. JPR Status: Opinion piece. Archived 6/2/2015.

Endnotes:

[i] Matthew Lee, “Neither China nor US giving ground over projects dispute,” Associated Press, May 17, 2015, http://news.yahoo.com/kerry-urges-china-reduce-tensions-south-china-sea-071331994.html.

[ii] Sasakawa USA US-Japan Security Forum 2015, “Remarks by Admiral Dennis Blair, US Navy (retired) Chairman and CEO, Sasakawa Peace Foundation, USA,” April 29, 2015, http://spfusa.org/wp-content/uploads/2015/04/Blair-Security-Forum-Speech.pdf.

[iii] Ibid.

[iv]M. Jegathesan, “ASEAN warns Chinese actions may ‘undermine peace’ in S. China Sea,” Business Insider, April 27, 2015,  http://www.businessinsider.com/afp-asean-warns-chinese-actions-may-undermine-peace-in-s.-china-sea-2015-4.

[v]Rob Taylor, “China’s ‘Great Wall of Sand’ Raises U.S. Concerns,” Wall Street Journal, March 31, 2015 http://www.wsj.com/articles/u-s-to-move-stealth-destroyers-to-pacific-region-1427784315

[vi] Jose Katigbak, “US to China: Clarify Your Boundary,” Philippine Star, April 17, 2015, http://www.philstar.com/headlines/2015/04/17/1444755/us-china-clarify-your-boundary.

[vii]David Tweed, “China Says U.S. ‘Hyping Up’ Its Military Threat, Damaging Trust,” Bloomberg, May 11, 2015, http://www.bloomberg.com/news/articles/2015-05-11/china-says-u-s-hyping-up-its-military-threat-damaging-trust.

[viii]  Erik FRANCKX and Marco BENATAR (2012), “Dots and Lines in the South China Sea: Insights from the Law of Map Evidence,” Asian Journal of International Law, 2, pp 89-118, http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8467148&fileId=S2044251311000117.

[ix] Dupuy Florian and Pierre-Marie Dupuy. “A Legal Analysis of China’s Historic Rights Claim in the South China Se.” The American Journal of International Law, vol. 107, no. 1 (January 2013). http://www.jstor.org/stable/10.5305/amerjintelaw.107.1.0124.

[x] Jianmin Sheng, “China’s Sovereignty over the South China Sea Islands: A Historical Perspective,” Chinese Journal of International Law, 2002, p. 157, http://chinesejil.oxfordjournals.org/content/1/1/94.full.pdf.

[xi] Li Goqiang, “Claims over islands legitimate,” China Daily, July 22, 2011, http://www.china.org.cn/opinion/2011-07/22/content_23044991.htm.

[xii] Dupuy and Dupuy, p. 124.

[xiii] Ibid.

[xiv] Jarius Bondoc, “China needs to undo its pseudo-history,” Philippine Star, June 19, 2013, http://www.philstar.com/opinion/2013/06/19/955583/china-needs-undo-its-pseudo-history

[xv] Hye Jin Lee, “Maritime History: The South China Sea until the later 19th Century,” Korean Minjok Leadership Academy, International Program, June 2012, http://www.zum.de/whkmla/sp/1314/hyejin/lhj1.html.

[xvi] Mohan Malik, “History the Weak Link in Beijing’s Maritime Claims, The Diplomat, August 30, 2013, http://thediplomat.com/2013/08/history-the-weak-link-in-beijings-maritime-claims/4/.

[xvii] Ibid.

[xviii] Dupuy and Dupuy, p. 141.

[xix] Ibid.

[xx] Office of Ocean and Polar Affairs Bureau of Oceans and International Environmental and Scientific Affairs, “Limits in the Seas,” State Department, No. 143, December 5, 2014, p.23, http://www.state.gov/documents/organization/234936.pdf.

[xxi] Ibid.

[xxii]“Limits in the Seas,” p. 4.

[xxiii] Dupuy and Dupuy, p. 133.

[xxiv] Ibid., p. 134.

[xxv] Ibid.

[xxvi] Ibid.

[xxvii] Ibid.

[xxviii] “Limits in the Seas, p. 23.

[xxix]Ben Otto and Jason Ng, “Southeast Asia Divided on Response to Chinese Reclamation in South China Sea,” Wall Street Journal, April 26, 2015, http://www.wsj.com/articles/asean-chief-says-cant-accept-beijings-south-china-sea-claims-1430022922.

[xxx]Adam Entous, Gordon Lubold, and Julian Barnes, “U.S. Military Proposes Challenge to China Sea Claims,” Wall Street Journal, May 12, 2015, http://www.wsj.com/articles/u-s-military-proposes-challenge-to-china-sea-claims-1431463920.

[xxxi] Richard Javad Heydarian, “South China Sea: Forging a Maritime Coalition of the Willing,” Asia Maritime Transparency Initiative, CSIS, May 7, 2015, http://amti.csis.org/south-china-sea-forging-a-maritime-coalition-of-the-willing/.

[xxxii] David Tweed and Chris Blake, “China Reserves Right to Air Zone Over South China Sea,” Bloomberg, May 8, 2015, http://www.bloomberg.com/news/articles/2015-05-08/china-reserves-right-to-declare-air-zone-over-south-china-sea.