International Policy Digest

Zack Baddorf/U.S. Navy
World News /07 May 2014
05.07.14

Dismounting China from the South China Sea

China’s economy requires increased access to resources, especially when managing the needs of approximately 20% of the world’s population. China’s growing energy needs and overlapping territorial claims in the resource-rich South China Sea place its energy security on a collision course with its smaller, weaker neighbors. The most recent issue is China’s increasingly hard-line approach to the Scarborough Reef, approximately 4 times farther away from China than it is to the Philippines.

Historic lens

China backs its South China Sea claims through a Chinese map produced in 1947, Chinese Foreign Minister Zhou Enlai’s 1951 statement, and the discovery of the Belitung Wreck in 1998. Please make your own opinions regarding the legitimacy of a map created in 1947 citing a historical claim. Minister Zhou’s statement denounced the San Francisco Peace Treaty – as China was not invited – and further declared Chinese ownership of the Spratly, Paracel, and Pratas Islands. Furthermore, Beijing portrayed the Belitung Wreck as “[Tang Dynasty] artifacts at the bottom of [Indonesian coastal waters],” however failed to mention that the dhow (a lateen-rigged ship with one or two masts) was not a “Chinese vessel that had a seafaring purpose in the region,” but is instead debated to have been an Arabian or Indian ship. Even if it was a Chinese trade ship, a sunken vessel possibly lost at sea doesn’t really pass the legitimacy test for a territorial claim.

Legal lens

In addition to questionable historical interpretations, China tries to strengthen its claims with outdated legal decisions. In 2010 and again in 2013, China attempted to gain ownership of up to two-thirds of Okinawa’s continental shelf by arguing Okinawa was a former Chinese vassal state and cited the 1969 North Sea Continental Shelf Case ruling to strengthen its cause.

However, this form of coastal delineation was superseded by the 1973 to 1982 drafting of the United Nations Convention on the Law of the Sea (UNCLOS), which replaced the natural prolongation argument with the 200 nautical mile exclusive economic zone (EEZ) – as demonstrated in 1982 (Libya v. Tunisia) and again upheld in 1985 (Malta v. Libya).

Additionally, Article 12 of UNCLOS defines islets as land masses incapable of sustaining life and therefore ineligible for EEZ status. Without this EEZ status, they cannot be used by Beijing (or any other country) to create a maritime boundary, such as Beijing’s Nine-Dash Line.

However, when we look at the Philippines’ and other countries’ disputes with China, we start to see some legitimacy of ownership. For example – the obvious distance factor aside – some countries have had prior habitation on the islets, whereas China has not. Additionally, several of the claimant countries either have developed or are exploring ways to develop tourism (beaches, diving, fishing, etc), which assert possession over the area.

Other avenues have included deploying military contingents or setting up civilian communities on these islets to demonstrate physical occupation. These countermeasures are in addition to the 1994 decision, determined by UNCLOS Article 121, which created international maritime boundaries – that China chooses to ignore. Combined, these cursory examples prove Beijing lacks solid historical, occupational, and legal claims in the region.

Ways forward

Beijing’s branding of the South China Sea as one of its “core interests” will only compound matters. Previous “core interests” include Taiwan, Tibet, and former East Turkmenistan and generally means China will refuse to negotiate where they would need to concede territory; use force to protect their interests; and impose a regional order – an obviously bleak picture. Moreover, China’s modus operandi for dealing with territorial claims is a 3-pronged approach; which includes delays in dispute resolution, consolidation of claims, and preventing the opposing country from strengthening their claims.

To many Asia-Pacific observers, Beijing’s heavy-handed approach is reminiscent of the “middle kingdom,” a time in China’s imperialistic past when rulers, emboldened by the “mandate of heaven,” threatened and subdued all non-Chinese nations if they failed to pay tribute or showed deference. Which is why China was angered when the Philippines didn’t back down and instead filed their territorial dispute in the Permanent Court of Arbitration on March 30, 2014.

To maintain regional stability, everyone’s motivation needs to be understood. For example, China’s hard-line approach may be rooted in the fact that it is 80 to 90% dependent on foreign oil; has a massive, growing population; and the Communist Chinese Party leadership must deliver continued high-growth to maintain its position. On the other hand, as Dana Dillon suggests, China is viewed as the neighbor on the street who tries to own your yard, your driveway, and your mailbox, but allows you to keep your house. Mainland China should be more like Taiwan – in April 2013 Japan and Taiwan concluded a fishing agreement surrounding the disputed Senkaku islands.

Following Taiwan’s lead, Mainland China can prove that is dedicated to the Rule of Law and is not simply a reincarnation of the Middle Kingdom. Instead of increasing tensions with the possibility of a mistaken calculation leading to conflict, Taiwan and Japan sat down, discussed their fishing requirements, and signed an agreement. Their territorial dispute remains unsolved; however, both sides enjoy the new status quo and prove that even when a dispute exists, so too does an amiable solution for both sides.

Thus, we have a golden opportunity for China and the Philippines to work together, demonstrate that they support the Rule of Law and are capable of solving problems in a legal and friendly fashion.