The Platform

Nathan Burke

The South China Sea continues to be an area of concern.

The South China Sea has been contentious for as long as anyone can remember but tensions have risen in recent years due to the involvement of the United States and the rest of the international community. The main dispute is over the territory as well as sovereignty over islands in the region. Paracel and Spratly are the two island chains that are most contentious.

The Philippines filed suit with the Permanent Court of Arbitration after China’s actions went against a 2011 agreement. The Hague Tribunal was created in 2013 under the procedure laid down in the Law of the Sea Convention.

The commission ruled on the lawfulness of Chinese conduct in the region. The Tribunal’s decision was completely against China and a clear victory for the Philippines. After determining that some areas were within the Philippines’ exclusive economic zone, the Hague Tribunal ruled that China was in breach of the Philippines’ sovereign rights in its exclusive economic zone.

Countries like Australia, the U.S., and Japan have supported this decision. However, China found loopholes in this ruling and started militarisation of the South China Sea through reclamations in 2016. This has led to three military-grade Chinese ocean airfields. This marked the violation of the pledge of China to prevent the militarization of the South China Sea and has been heavily criticized by the international community.

The contentious South China Sea is protected by the Law of the Sea Convention. China has used a three-pronged approach to justify its claim on the controversial sea. It has been offering one argument after another when the international community has disagreed with these claims. These claims are not aligned with the Law of the Sea Convention and have no backing in law.

Historical rights

China claims that until the 1930s, the South China Sea was completely under its jurisdiction. It also claims that it has owned most of the islands in the sea because of historic rights since ancient times. It has shown proof of occupation in more recent times; 1902-39. Even after the war ended in 1945, the Republic of China (now Taiwan) took control of these islands, specifically Spratly and Paracel, from Japan in 1952 through a peace treaty. China argues that since there was no objection to their claim over these islands by the international community then, there can be none now. This argument has little merit in customary international law, mere possession cannot be the law itself.

Spratly island.

Secondly, even if China’s argument is accepted, it would go against its claim over maritime space. Vietnam too has shown proof of having historical control over certain islands within the South China Sea. Hence, if this methodology for the determination of a majority claim over the ocean is taken, China would have to share the maritime space with Vietnam and would not have an economic monopoly over the trade and mineral resources there. This is an extremely tenuous argument and is not respected by the international community.

The nine-dash line rule

The nine-dash line rule is the weakest argument given by China. It is a dotted U-shaped line drawn by China to demarcate the maritime space under its possession and overlaps the territory of the Philippines, Malaysia, Indonesia, Brunei, and Vietnam. This line is solely based on an unofficial map drawn by a Chinese cartographer in 1947. This is an extremely ambiguous claim because there are large gaps in this dotted line and it hasn’t been clear whether China is claiming control on the islands in the sea or the controversial sea itself.

China uses this argument as the nine-dash line is about 1,200 miles further from the line established by the current Law of the Sea Convention. This is an extremely tenuous argument and is not respected by the international community as it has no basis in international law. The nine-dash line argument also finds some of its roots in China’s historic rights claim. China has defended its position by saying that if nations and the UN did speak against this rule in the past then they had no right to do so in the present. This reasoning seems feeble as international law is an evolving process and past consent cannot be used as a defense.

Reclamation project

China’s reclamation project seems to be an afterthought and a revisionist argument after the rejection of the other two arguments. Before 2016, the common belief in the international community was that asserting sovereignty over the Paracel and Spratly Islands would give rise to the exclusive economic zone that would cover most of the South China Sea. This is the reason the previous efforts mentioned were an attempt to assert sovereignty over the two islands due to their strategic geopolitical significance. This was completely obliterated by the Hague Tribunal ruling of 2016.

Firstly, the ruling declared that there was no basis at all for China’s historical right argument. Secondly, the Hague Tribunal’s ruling stated that the Paracel and Spratly Islands do not qualify as islands. They were declared rocks and unfit for human habitation. This status as rocks only warrants a territorial sea and contiguous zone and not an exclusive economic zone of 200 miles. China rejected this ruling entirely. Post-ruling, China started the reclamation project of 3,200 acres which entailed reclaiming submerged land and starting human habitation there. The reclamation project has also led to the militarization of these reclaimed features. China stopped the reclamation in 2018 after massive outrage in the international community.

Although the reclaimed pieces of land are surrounded by water during a high tide and are fit for human habitation, they still do not qualify as islands. According to Article 121 of the Law of the Sea Convention, the third criterion for qualifying as an island is that the land must be a natural formation. China’s claim fails here. If the reclaimed land does not qualify as an island, it cannot give rise to an exclusive economic zone. Hence, the reclamation project has not yielded favorable results for the Chinese government.

Despite her claims having no backing of international law, China has used militarisation of small reclaimed islands in the South China Sea so that it may maintain control over 80 to 90 percent of the maritime space. After intense international pressure, China stopped the reclamation project and talks for a South China Sea code of conduct started. Foreseeably, China stopped participating in the discussion. Tensions have risen as China has gradually expanded its claim over the region. It recently named 80 islands near the Paracel and Spratly islands in its map which have been under the control of Vietnam. Such actions have led to massive outrage in the international community.

The most recent development has been the entry of the U.S. into the conflict under the garb of protecting the sovereignty of these islands and helping the cause of China’s rivals. The U.S. started its “freedom of navigation exercises” which entailed sailing through the territorial miles of the islands that are claimed by China. This act essentially violates China’s maritime claim, at the same time asserting the validity of the laws of the Law of the Sea Convention. These exercises of the U.S. have also been criticized by scholars for being hypocritical. The U.S. never ratified the Law of the Sea Convention in the U.S. Senate. Hence, its actions seem to be fuelled by ulterior motives of economic advancement. This was followed by military exercises in July of last year. These exercises are an effort to maintain control over the massive shipping routes in the disputed sea.

The fear is that constant militarization and military exercises by China along with the U.S. in the South China Sea might spiral out of control. It would be prudent to assume that the entry of the U.S. into the conflict is for their gain and does more harm than good for the maritime dispute. It would be tenable to argue that the countries actually involved should settle the dispute with the help of ASEAN and delimit their boundaries in the controversial South China Sea. This might help add more weight to their side while negotiating with China. Compromise on both sides may be the only solution to fizzle out the high tensions of this dispute.

Aahna Rajan is an under-graduate student, studying law at NALSAR University of Law, Hyderabad in India.