SPEAKING FREELY The South China Sea is not China's Sea
By Huy Duong
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It would be rather absurd if England were to try to claim sovereignty over most
of the English Channel, Iran the Persian Gulf, Thailand the Gulf of Thailand,
Vietnam the Gulf of Tonkin, Japan the Sea of Japan, or Mexico the Gulf of
Mexico.
But that is exactly what China is trying to do by claiming most of the South
China Sea, a body of water about the size of the Mediterranean Sea bordered by
nine nations plus Taiwan, and the main gateway between the Pacific and the
Indian Ocean.
Although there are long-standing territorial disputes over the
Paracel Islands and Spratly Islands, the biggest security risk for the South
China Sea is not the conflicting claims over these tiny islands and rocks but
China's outright claim to this strategically important body of water.
Most international experts on maritime disputes, including even some Chinese
ones, regard China's claim to be inconsistent with international law, including
the United Nations Convention on the Law of the Sea (UNCLOS). China's claim is
represented by the so-called "U-shaped line" or "nine-dashed line" map that
depicts a line encircling most of the South China Sea.
This map was first published by the Republic of China in 1948 under the heading
"Map of the locations of the South China Sea Islands". The name indicates that
it was a map of the islands within the U-shaped line, not a claim to the entire
maritime space. At that time international law only allowed a claim of
territorial sea up to three nautical miles, beyond which was considered
international waters.
For decades, this map has remained obscure. Until now Chinese scholars have
disagreed on what the map means and its legal basis. China's own territorial
sea declaration in 1958 only claimed 12 nautical miles and declared that
international waters separated its mainland and the islands which it claimed.
In other words, China's own declaration then affirmed that most of the maritime
space within the U-shaped line map was international waters.
With newfound wealth after successful economic reforms launched in the 1980s
and more recent rising naval strength, China's territorial ambitions have grown
to encompass not just the disputed Paracels and Spratlys but also most of the
South China Sea. Consequently, China resurrected the U-shaped line map as if it
were a claim to maritime space dating back to 1948, whereas in fact it was a
map about the position of islands and by law it could never have been a
legitimate claim to maritime space.
In the 1990s, China started to make claims to some oil blocks within the
U-shaped line in and near the Nam Con Son Basin between Vietnam and Indonesia.
In 2009, China included the U-shaped line map in notes verbales to the United
Nations' Commission on the Limit of the Continental Shelf (CLCS) to assert its
maritime claim. This was the first time China sent the U-shaped line map to an
intergovernmental body.
Vietnam, Indonesia and the Philippines responded with their own notes verbales
to the CLCS to reject China's claim and the U-shaped line map. Vietnam's notes
maintained that China's claim as represented by the U-shaped line "has no
legal, historical or factual basis, therefore is null and void." Indonesia's
note said that the U-shaped line map "clearly lacks international legal basis
and is tantamount to upset the UNCLOS 1982." The Philippines' note said that
China's claim to most of the South China Sea "would have no basis under
international law, specifically UNCLOS".
Instead of being deterred, China is becoming more assertive. In March 2011, two
Chinese patrol ships threatened to ram a vessel that was carrying out seismic
survey at the Reed Bank on behalf of the Philippines. According to the
Philippines, the Reed Bank is not part of the exclusive economic zone (EEZ)
belonging to the Spratlys.
In May 2011, a Chinese maritime survey ship cut the seismic sensor cable of a
Vietnamese survey ship operating in an area closer to Vietnam's continental
coast than to the disputed Paracels and Spratlys. In June 2011, Chinese fishing
boats deliberately ran across the seismic sensor cable of another Vietnamese
survey ship which was also operating in an area closer to Vietnam's continental
coast than to the disputed Paracels and Spratlys.
Regarding these incidents, on June 27, the US Senate unanimously passed a
resolution in which it "deplores the use of force by naval and maritime
security vessels from China in the South China Sea." The resolution also noted
that one of the incidents "occurred within 200 nautical miles of Vietnam, an
area recognized as its Exclusive Economic Zone".
In August 2011, the Philippines challenged China to take the dispute to the
International Tribunal on the Law of the Sea. China did not accept the
challenge, which the Philippines took to underline the fact that China's claim
is weak in law.
In the latest episode in September, China warned India that joint exploration
with Vietnam in the latter's Blocks 127 and 128 amounted to a violation of
China's sovereignty - despite the fact that these blocks were much closer to
Vietnam's continental coasts than to the disputed Paracels and Spratlys.
China justified its position by saying that, "The UN Convention on the Law of
the Sea does not entitle any country to extend its exclusive economic zone or
continental shelf to the territory of another country." In effect, China is
trying to use the "historical claims and rights" argument to negate the United
Nations Convention on the Law of the Sea.
According to international law, no nation can claim Blocks 127 and 128 as its
sovereign territory. Legally speaking, as an area submerged under the sea,
these blocks are not "susceptible to sovereignty", i.e., they cannot be claimed
as the territory of any country. Therefore, Blocks 127 and 128 can only be
maritime space governed by international law. According to international law,
in 1947 that area was international waters, and today it is part of Vietnam's
EEZ.
Regarding the "historical claims and rights" argument, at the Third Biennial
Conference of the Asian Society of International Law in August 2011, the
Indonesian Ambassador to Belgium, Luxembourg and the European Union obliquely
dismissed it as being "at best ridiculous" as follows, ... the "historic claims
of historic waters" is problematic for Asia because Asia is a region rich with
ancient kingdoms which were both land and maritime powers. Srivijaya Kingdom
which has its capital in Sumatra island in seventh century ruled many parts of
Southeast Asia and spanned its control all the way to Madagascar. For Indonesia
to claim waters corresponding to its history would be at best ridiculous.
Clearly, if nations were allowed to use the "historical claims and rights"
argument to claim vast swathes of the world's oceans and seas at the expense of
the United Nations Convention on the Law of the Sea - which stipulates that
coastal nations have an EEZ of up to 200 nautical miles - it would make a
mockery of the Convention. For example, the "historical claims and rights"
argument would allow Britain, which "waved the rules and ruled the waves" far
more than China ever did, to claim rights over most of the world's oceans and
seas.
Without having the courage of conviction to go to an international court, China
relies on using its superior hard and soft powers to press its claim against
smaller Southeast Asian countries in the area. Against this pressure, Southeast
Asian parties to the dispute need to improve their individual and collective
strength but they also need support from major powers, such as the US, India,
Japan, Russia and European Union.
For their own sake, the major powers must not abandon the South China Sea to be
turned into a Chinese lake and Southeast Asian nations to fall into China's
orbit. That would be disastrous not only to the Southeast Asian countries but
ultimately also to the major powers themselves and for the legal order over the
ocean that the international community has tried so hard to establish since the
1980s.
Huy Duong is a freelance writer. His articles on the South China Sea
disputes have appeared on Asia Sentinel, the BBC's website, The Diplomat,
Manila Times and VietNam Net. He would like to thank Duat Le, Truong Tran, Dang
Vu, Nghia Tran and other friends for valuable comments on this article.
(Copyright 2011 Huy Duong.)
Speaking Freely is an Asia Times Online feature that allows guest writers to have
their say.
Please click hereif you are interested in contributing.
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