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In July 2010, Hillary Clinton during the ASEAN Regional Forum (ARF) in Hanoi declared, “The United States has a national interest in freedom of navigation, open access to Asia’s maritime commons and respect for international law in the South China Sea” and America seeks “a collaborative diplomatic process by all claimants for resolving various territorial disputes without coercion.”

The main issue related to this conflict is that China considers a mix economic and strategic value of the whole sea with its fisheries and oil and gas and has asserted its rights not legitimately as explained above of the whole area with its Nine Dash Line concept.

Sydney Morning Herald of June 5, 2015 has described eight major incidents in the South China Sea:

•     “Chinese oil rig HD 981 – May 2014 – China dragged an oil rig into the waters of Viet Nam’s EEZ sparking an international incident.”
•     “US Navy ship the USS Cowpens is harassed – December 2013” – A Chinese Navy ship blocked US Navy guided missile cruiser the USS Cowpens in international waters forcing it to take action to avoid collision.
•     “Scarborough Shoal is ours” – April 2012 – the Philippines protested against China’s arrival on and occupation of Scarborough Shoal...After a tense stand - off both sides agreed to deescalate the situation, but only the Philippines withdrew its ship.
•    “Chinese ships converge on, try to block US Navy ship, the USNS Impeccable-March 2009” –  A group of Chinese ships, some naval and civilian, came within 15 meters of non-commissioned US Navy surveillance ship in international waters in the South China Sea.
•    “EP 3 Hinan plane drowning – April 2001” – A Chinese F-8 fighter collided with US Navy EP3 reconnaissance plane over the South China Sea. The Chinese pilot was trying to execute “a close pass in an apparent attempt to intimidate the EP-3 crew and made a final error in Judgment.”
•    “Mischief Reef and Second Thomas Shoal – 1994 to date” – Chinese-built structures to protect fishermen on Mischief reef  in 1994-1995 sparking furious response from the Philippines  and in 1999 China built more on the island giving rise to more protests.
•   “China and Viet Nam fight over Spratlys in 1988” – Nearly a decade after Viet Nam and China went to war with each other, China and Viet Nam engaged in naval battle over the Johnson South Reef in the Spratlys. Viet Nam lost more than 70 sailors and three ships in the action and underscores the tussle over islets and reefs where it is difficult to know what is happening in these remote parts.
•     “The Battle of the Paracel Islands in January 1994” – An incident where South Vietnamese ships discovered Chinese troops on the Crescent group of islands in the Paracels. Vietnamese lost 50 troops and China lost about 15 sailors.

Recent developments in South China Sea
On April 17, 2015, The Associated Press reported that China is building an airstrip on an artificially created island in a disputed section of the South China Sea which “US has warned will raise tensions in the area”. Defence Group HIS Jane’s said. “Satellite images of Fiery Cross Reef taken on March 23 show a runway more than 1640 feet long as well as paved sections of the apron. The US has stated that China is carrying out eight such land reclamation projects in the area. China also operates a   runway on Woody Island to the west of Fiery Cross claimed by the Philippines, Viet Nam and Taiwan.” However, Chinese Foreign Ministry spokesman defended the island reclamation work which China says “is largely to improve weather forecasting to improve living conditions of the people in the area and rescue work.”

From the above statement by the Chinese Foreign Ministry it is imperative that people are living in this island and this would be a major challenge to the UNCLOS Part VIII  Regime of Islands Article 121 (1) which  defines “an island as a natural formed area of land, surrounded by water, which is above water at high tide. “It is now questionable whether an “artificial island “could fit into this definition and whether it could claim maritime jurisdiction for an EEZ and a continental shelf as well as a territorial sea.

An article published on May 7, 2015 in the National Interest (http:nationalinterest.org) by Leszek Buszynski titled ‘41 Years in the Making: Why China’s South China Sea will Fail’ has highlighted that the ASEAN countries that are subject to prolonged Chinese harassment over the sovereignty in the South China Sea namely Viet Nam and the Philippines have reached out for US support against China. The threat to the strategic sea lanes in the area has drawn external powers to the area. It is expected that “China will now draw back its assertion to the South China Sea but may again be active under another nationalistic regime in the future.”

However, United States should fear that China is now actively developing the so-called fifth generation fighters and the PLA has been extensively modernized. It is also reported that the most dangerous weapon to the US Forces in the Asia Pacific region is the Dong Feng -21 D anti-ship ballistic missile (ASBM). The Jamestown Foundation has published a monograph titled “Chinese Anti-Ship Ballistic Missile (ASBM) Development and Strategic implications” and this development meets the multiple priorities of Chinese defence modernization as well as its implications to the US.


Recommendations
It is quite evident that the South China Sea is a major security flashpoint in the Southeast Asian region and in 2002 China and ASEAN countries staking claims in the South China Sea concluded the declaration of the Conduct of Parties in the South China Sea (DOC). It is also questionable as to why the US has focused on the disputes by littoral states in the area with China by citing “international law” when it has not signed or ratified UNCLOS.

Since the countries involved have overlapping claims over their EEZs under UNCLOS and China’s claim is not legally sound as it contravenes UNCLOS, the effective adjudicator will be the International Court of Justice (ICJ) in The Hague. However, China will probably be most reluctant to submit to third party proceedings according to its past experience.


Conclusions
The writer’s interest in the South China Sea maritime disputes goes back to the 1990s when working as an Economic Affairs Officer at United Nations ESCAP in the Natural Resources Division. As the Officer-in-Charge of Marine Affairs in this division, the writer has had extensive discussions with the Chinese officials and those from Viet Nam, Malaysia, Indonesia and the Philippines on these conflicting claims. Further, the author was also involved with the East China Sea disputes with China, Japan and South Korea.

Since the writer’s retirement in 2003, he has kept abreast with the developments in the South China Sea as well as Chinese influence in the Indian Ocean, especially in Sri Lanka, related to the Port City and the creation of an artificial island in offshore Hambantota, which has presumably now been abandoned.
The creation of artificial islands by reclaiming the sea leads to many complicated issues with the application of UNCLOS. In fact, the United States has now warned China that no more land should be reclaimed from the sea as it constitutes to a security threat to international waters’ freedom of over flight and strategic sea lanes, etc.

The ownership of a part of the Colombo Port City by China could create a conflict with our closest neighbour India as this landmass however small could be used for landing armed helicopters as well as docking of submarines, which will constitute a threat to India.

In hindsight with the writer’s experience in conflict zones in the South and East China Seas, the writer would recommend to the Government of Sri Lanka to reconsider its stand on the Colombo Port City and not give any part of the reclaimed land for the complete ownership, which will eventually be under Chinese sovereignty.

Acknowledgements: The writer wished to thank Leszek Buszynski Visiting Fellow, National Security College Australian National University for his article titled ‘The Development of the South China Sea Maritime Dispute’ from which I have extensively extracted the historical facts.

(Dulip Jayawardena, a retired Economic Affairs Officer United Nations ESCAP, can be contacted at [email protected])