The United Nations Convention on the Law of the Sea (UNCLOS), Article 122 defines a semi –enclosed sea meaning that it could be “a gulf, basin or sea surrounded by two or more states and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and Exclusive Economic Zones (EEZs) of two or more coastal states.”
Accordingly the South China Sea is defined as a semi enclosed sea and includes 15 islands of the Paracel archipelago, 45 islands and numerous reefs and rocks of the Spratly archipelago, the Macclesfield bank and the three islands of Pratas group. The southern reaches extend to the Sunda Shelf , which is shallow , less than 200 meters, but the Palawan Trough at the south eastern flank is deeper over 2000 meters.
The territorial dispute is of a maritime nature and concerns the sovereignty of the islands and the surrounding sea territory involving China, and the five ASEAN countries namely Viet Nam, Philippines, Malaysia, Brunei- Darussalam and Indonesia.
The dispute involves contentious issues relating to UNCLOS which unfortunately do not offer distinct guidelines in situations where claims to maritime boundaries of islands and EEZs overlap.
" China has continued its claim over the South China Sea on historical grounds and their ideology on sovereignty predates present international law"
Solution to the dispute through UNCLOS
Application of UNCLOS by member countries to the dispute may be a solution but at the same time it has contributed to competition for maritime territory and resources. UNCLOS promotes each littoral state to claim an EEZ of 320 Kms or a continental shelf, and specifies that islands can have their EEZs and Continentals Shelf.
However the claimants should also note that what they are entitled to be limited by UNCLOS as Article 121 (3) distinguishes between islands and rocks or reefs which are not entitled to EEZs or continental shelf, but are entitled to a 12 mile territorial sea. In certain instances islands may not be entitled to full maritime zones when close to continental land masses.
"Since China’s oil imports is about 54 percent of the total demand, its interests in oil and gas resources of the South China Sea has significantly increased"
Further coastline length may be applied to determine entitlement to the maritime zones of occupied islands in which case the Philippines and Viet Nam would benefit more than China.
Accordingly, although China is claiming the entire South China Sea as its maritime territory on historical grounds, UNCLOS does not benefit China which is now seeking alternative ways of justification for occupying this sea area as indicated by the recent incidents reported in the international and local press.
Historical background to the dispute in the South China Sea
In 1884-1885, during the Quing dynasty, China had protested to France on its intrusion into the area in and its concerns were the Paracels and not Spratly. However, China objected to the intrusion of France into Spratly in 1930 s with the intention of mining guano (phosphate) and trying to block Japanese intrusion for this mineral. France annexed Spratly in 1933 and China protested to this occupation.
In 1935 China drafted a map of the South China Sea which included a U-shaped line with 11 dashes. There is no record as to who authorized this map but it was published by the earlier KMT regime in 1948 and was inherited by China (PRC) and is the basis of China’s claim today. It is also reported that two dashes were removed in 1953 as a concession to Vietnam.
During World War II in December 1939 Japan moved into this area and declared the occupation of Pratas islands, Paracels and Spratlys.
After the World War II, The San Francisco Conference was convened in September 1951 to decide the disposition of territories conquered by Japan. According to Article 2 (f) “Japan renounces all right, title and claim to the Spratly islands and the Paracel islands “. Although the Conference stripped Japan of possession of the islands and in view of competing claims, did not designate a successor/s.
On 15 August 1951 Chinese Foreign Minister Zhou Elai declared sovereignty over the South China Sea including Spratlys, the Paracels, the Pratas islands and the Macclesfield bank. Subsequently on 7 September 1951, Vietnam asserted claims to the same islands.
Accordingly, other countries namely Philippines, Malaysia staked overlapping claims. Vietnam claimed its rights to Paracels as a” colonial successor state” and Philippine argued that as it was a successor state to Japan and in 1956 claimed eight islands of the Kalayaan Group .Malaysia also occupied three islands in its claim group in 1983 and another two on a subsequent occasion creating a dispute with Brunei Darussalam in allocation of oil exploration blocks.
China’s historical rights
China has continued its claim over the South China Sea on historical grounds and their ideology on sovereignty predates present international law and insisted that it should be recognized by all nations. Chinese experts argue that UNCLOS is not applicable to the South China Sea since China had “indisputable sovereignty” over the area .China ratified UNCLOS on 7 June 1996 and took advantage of Article 310 which provides states to make declarations relating to their application, provided they do not “exclude or modify” the legal effect to those claims.
The announcement by China on the listing of Paracel and Spratly islands as “territorial sea “ on 25 February 1992 was in conflict with Article 2 of UNCLOS which clearly defines “Legal status of the territorial sea “ and the limits of the territorial sea clearly defined in Article 3 and 4 of UNCLOS on the “ breadth of the territorial sea “ and the “outer limit of the territorial sea” respectively.
It must be clearly stated that China has no legal right to make declarations related to the application of UNCLOS and attempts to uphold historical rights by making declarations.
To this end, I shall quote an article from National Security College of the Australian National University by Leszek Buszynski which states that “China’s attempts to cite ancient records as a basis for sovereignty conflicts with international law.
Justice Max Huber’s tests on the Island of Palmas case (1928) noted that any rights obtained from history may be lost “if not maintained in accordance with the changes brought about by the development of modern international law”. Further Buszynski states that “The difficulty with the Chinese historical claim is that although Chinese records mention the Paracels, there are no ancient records for the Spratlys.
China had little contact with the area as Chinese trade routes in the South China Sea were circum –oceanic, not Trans –oceanic: vessels would follow the Indo China coast from port to port. There was a galleon trade with Spain, which went from Acapulco in Mexico to Manila and then to Guangdong but that also avoided the Spratlys. Nevertheless, the Chinese authorities insist on a claim to which there is little historical support and are manufacturing the public conviction that the South China Sea has always been Chinese.
Starting from April 2012, the U-shaped or nine-dash line appeared on new Chinese passports as a part of a map of China to buttress the conviction among Chinese citizens .In January 2013, the Chinese media published a map of China which depicted a ten- dash line that embraced the South China Sea and incorporated Taiwan with the mainland, making them indistinguishable to the Chinese public.”
Competition for South China Sea resources
In the 1970s, surveys carried out by littoral states of the South China Sea indicated reserves of oil and gas. However, since off shore drilling technologies to penetrate depths of over 600 meters were nonexistent it dissuaded these states to follow up on theses finds.
With the development of off shore technology after 1975, the first commercial field began operation off the Philippine Island of Palawan at Reed Bank.
Malaysia’s Petronas is the major oil producer in the area and in 2011 produced 500, 000 barrels a day (bd) and 600 billion m3 of natural gas. The Viet Nam state oil company Petro Vietnam in 2011 produced 300,000 bd of oil and 100 billion m3 of natural gas. China off shore fields are located in the Pearl River basin and is not yet a producer in the disputed area. However since 2011 as the reserves of hydrocarbons were depleting, and with the increased demand for oil and gas, both Petronas and Petro Vietnam were compelled to exploit new reserves which resulted in armed conflicts with China .
Since China’s oil imports is about 54 percent of the total demand, its interests in oil and gas resources of the South China Sea has significantly increased. Chinese sources claim that the area holds nearly 80 percent of Saudi Arabia’s oil reserves and it is known that this figure is highly inflated. The US Energy Information Administration (EIA) says that “there is little evidence outside of Chinese claims to support the view that the region contains substantial oil resources.” It also claims that the area around Spratly Islands has virtually no proven oil reserves, and estimates that about “60 to 70 per cent of the region’s hydrocarbon resources are natural gas”.
The South China Sea is known to be one of the world’s leading fishing grounds and regarded as traditional fishing zones by Chinese and Vietnamese fishermen. It is also reported by the University of British Colombia Fisheries Center fish catch in the South China Sea has increased from 4.7 million tons in 1994 to 5.6 million tons in 2003 .The UN has warned that over-fishing in most of the waters in the south and south east Asia has significantly reduced fish stocks. Accordingly, competition to access areas of declining fish stocks have resulted in clashes where host countries have mobilized support for their fishermen by deploying naval or coastguard vessels.
Since the sovereignty over Spratly archipelago had been debated extensively since the early 1980s by the ASEAN countries , it is pertinent to mention that China’s Premier Li Peng announced on 8 August 1990 in Singapore and declared that his government was ready to collaborate with neighbouring states to jointly develop the marine resources around Spratly Islands while postponing the question of asserting the ownership of the littoral states. However since this announcement China followed a more aggressive policy over the entire South China Sea catalyzed by United States declaration for protection of traditional sea lanes.
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