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Mainstream, VOL LI, No 13, March 16, 2013

The South China Sea — Dynamics of A Multinational Conflict

Wednesday 20 March 2013, by Latika Nath

The South China Sea is a topic of discussion at many international fora. In recent times, it is an area of intense disputes and rival claims which have contributed in making it a flashpoint of South-East Asia.

The Sea covers over 1,400,000 sq.m and is dotted with hundreds (about 250) minute islands cays, atolls, sand bars etc. It also includes the Spratley and Paracel Islands together with the Macclesfield Bank and Scarborough Shoal. It is abundant in oil and gas together with fisheries. In a geopolitical context it is a significant body of water. It has been referred to as a marginal sea, part of the Pacific Ocean. It is one of the busiest sea routes after the Suez. Competing claims have been made on it by the People’s Republic of China, Republic of China, the Philippines, Malaysia, Thailand and Vietnam, coupled with those of Brunei and Indonesia. The abundant resources of the seabed have made these littoral states take diverse stands over the 200 nautical-mile exclusive economic zone and more importantly, the Continental Shelf.

Territorial claims have given rise to disputes and actions in these troubled waters. Although there were ongoing differences between these countries over the past decades, the Chinese “Nine Dash Line” declaring sovereign territorial rights over most of the South China Sea is a major cause for concern. This has contributed to disputes and distrust with these Chinese manoeuvres. The use of force could turn the region into a battleground with other countries being drawn into the fight. This would not only destabilise the region, but also disturb the sea route for merchant vessels.

Beijing’s plan for regional supremacy is apparent in the assertive stands it takes on the resource ownership rights. The policy of accelerated economic growth requires energy and the South China Sea is abundant with large deposits of oil and natural gas estimated at over a billion dollars. The Zangmu dam, constructed recently, will provide China with power resources for her industries. Further, Pakistan, a close ally, has promised a port in the Indian Ocean. This poses serious consequences for the US and other nations. China proposes to redraw the water map of the world. Beijing’s aggressive attitude over the South China Sea behoves an expansionist policy of supremacy over its waters. She has objected to fishing vessels and other ships in this part of the world. She further objected to the presence of an Indian ship and the presence of ONGC Videsh in Vietnam. Russia has also been warned to stay away from exploration of oil in the allotted blocks.

China’s unilateral claim over the Spratley and Paracel Islands has led to serious disputes among neighbouring states who have also claimed parts of these. This situation was so serious that even the US offered its services which were turned down by China stating that they should settle matters bilaterally. The Chinese view and its recent stand are in complete disregard for the UN Law of the Sea Convention bringing in a new legal regime covering the Seas. Under these provisions, states have complete control over their exclusive economic zone and the Continental Shelf up to 200 nautical-miles, there is freedom of navigation and the high seas are open to all.

In the recent past Japan too has contested these claims, including the Chinese naval presence in the region. Tensions ran high with the purchase of the Senkabu Islands from a private Japanese family. There were protests in China. Chinese maps show this region as belonging to it leading to maps being redrawn in South-East Asia. In order to retain their territorial rights, access to fishing and exploration of the resources of the Continental Shelf, the littoral states may be forced to take sides making it a flashpoint. It has come to be known as “Asia’s Palestine”. Where Japanese interests are concerned the US would feel bound to intervene.

In this context it is important to note that the US objected when Russia demarcated her EEZ in the Arctic together with Japan, Canada and Norway. Incidentally the US has demarcated her EEZ together with Mexico and Canada. Presently the US controls the waterways for the Pacific Ocean through these troubled waters up to the Indian Ocean — Diego Garcia. This adds another factor to the complex issue, that of control over the sea routes.

Many countries have in the past taken a stand on the South China Sea islands, passing a presidential decree or administrative orders. After World War II many differences arose, with the PRC evicting/occupying some forcefully and the ROC making claims on the largest island of the Spratleys—Itu Aba where, with the cons-truction of the airport and extended runaway, military aircraft could land. This has far-reaching implications for the region.

Most of the territorial claims of these states are over the Paracel and Spratley Islands. Aware of the rich resources of the region and its future development has made them take a strong position when asserting their claims. Many are signatories to the Law of the Sea Convention. Some are yet to ratify. With the parameters of these provisions they have clearly put forth their claims before the Commissions on the Limits of the Continental Shelf (CLCS) set up pursuant to Article 76 (8). So has the PRC. The ROC is yet to be considered a state. These claims related to the extended Continental Shelf, that is, over 200 nautical-miles. Some years ago the ASEAN brought about a Code of Conduct, yet these efforts were not fruitful.

China has stated its preference for bilateral talks. Many states prefer the ASEAN to intervene. According to the principles of customary International Law, territorial disputes only be settled bilaterally. Settlement of claims over the extended Continental Shelf is within the purview of the CLCS. This, however, poses a problem for without legal recognition of claims and legal control over the territory MNCs, interested in exploring for oil and natural gas, would be unable to secure finances and insurance. The overlapping areas of claims between adjacent states need a final solution before any action is contemplated. UNCLOS (and CLCS) are not competent to deal with territorial sovereignty. The ASEAN member nations’ claims are within the ambit of the United Nations. Some view the Chinese claims as being inconsis-tent and vague. Beijing is unable to explain the “Nine Dash Line” in the absence of any concrete proof. Mere reliance on historical factors or effective occupation cannot justify its claim over the territory. Incidentally there are conflic-ting claims and disputes regarding the East China Sea as well.

Beijing’s announcement that the provincial authorities at Hainan could search vessels passing through the South China Sea further escalated tensions, disregarding freedom of navigation. Hostile acts can lead to more unto-ward incidents with far-reaching consequences. In such a situation, convergence of interests have brought about new alliances such as India, Indonesia and Australia in the Indian Ocean. The states of the South China Sea can explore such possibilities.

The dynamics of these multinational conflicts lies in superpower rivalry, regional supremacy and global control. The US’ policy and interests are bound to clash with those of China. These troubled waters cannot provide support to superpowers. According to the Washington Centre for Strategic International Studies, the next decades would witness the rise of sea power with over a hundred new warships, destroyers and nuclear submarine in transit over the seas. According to the International Crisis Group (report of 2012), about eleven government entities are also involved, as they play an important role, for example, Navy, administration etc. This is another factor to escalate tensions.

In order to deal with the volatile situation, dispute claims and differences will necessarily have to be put aside and a new strategy to deal with the problem will have to be developed. The ASEAN will have to play a dynamic role; however, it has its own limitations.

The smaller states will need to function as a group that can negotiate with China in all aspects. Indonesia may be called upon to play a cons-tructive role in the near future. Also, in order to make this region economically viable for investment, it is necessary to take strong action against piracy, transnational crimes, slave trade, trafficking in drugs and arms, and armed robbery. As the South China Sea is abundant in resources, and the oil and natural gas reserves here are estimated to be over billions of dollars, cooperation is important. However, there is an urgent need to conserve the marine environment and its resources. Concerns of depleting fish stocks must be looked into. It is imperative at this juncture to ease tensions so that a peaceful solution can be aimed at. Concerted international actions can solve the disputes of this region and calm the troubled waters of the South China Sea.

Dr Lathika Nath is a Reader, Department of Law, University Law College, Bangalore University.

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