Focus on Territorial Disputes: South China Sea

By Francesca Regalado
Managing Editor

Foreign Policy asserts that China’s maritime expansion will define the 21st century, as Germany’s land expansion defined the 20th century. But China’s neighbors refuse to recognize China’s encroachment—Philippine government agencies, for example, are mandated by presidential order to refer to the world’s most hotly contested waters not as the South China Sea, but as the “West Philippine Sea.”

While China also faces opposing claims from Vietnam, Malaysia, Taiwan, and Brunei, the Philippines took the lead in January 2013 when it served China with a summons through the Permanent Court of Arbitration (PCA) on the grounds of violating the United Nations Convention on the Law of the Sea (UNCLOS).

The contested areas named in the case include Scarborough Shoal and the Spratly Islands, known as the Nansha Islands in China and the Kalayaan (meaning “freedom”) Islands in the Philippines.

While out of the Philippines’ archipelagic and territorial waters, said areas belong in the Philippine exclusive economic zone (EEZ), defined by UNCLOS as waters up to 200 nautical miles from a country’s land borders, where a state can exercise full sovereignty over its natural resources and jurisdiction over activities within the area.

China insists on its nine-dash line, which claims virtually all of the South China Sea, its islands, and reefs, regardless of neighboring EEZs.

According to The Economist, China’s gradual takeover of contested areas enlists fishing boats, the Chinese Coast Guard, and the Chinese Navy in encircling small islands, creating what U.S. Congressional Research Service analyst Ronald O’Rourke calls a “cabbage strategy.” Fishing vessels are outfitted with “fisherman-soldier crews” provided by local government officials, according to Foreign Affairs. Without actual fighting, this protective stance intimidates other claimant states who are unwilling or ill-equipped to undertake a military response.

With such a strategy at its disposal, Beijing could afford to dismiss the Philippines’ claim with a diplomatic note, rejecting arbitration in favor of “bilateral negotiations.”

According to the note from the Chinese Foreign Ministry, the Philippines neither notified nor sought China’s consent before initiating arbitration. Beijing asserts that in 1988, Chinese Premier Deng Xiaoping and Philippine President Corazon Aquino agreed to “joint development” and a consultation mechanism for confidence-building measures.

China insists that its attempts to restart the consultation mechanism have been repeatedly rebuffed by the Philippines. Additionally, China claims it was the Philippines in 1970 that began “illegal” military expeditions and occupation of a few islands.

In the 2015 ASEAN Regional Forum, Chinese Foreign Minister Wang Yi posed that the Philippines “illegal” exploration was due to reports of oil under the disputed areas. According to Wang, “China is a victim on the South China Sea issue.”

Satellite images of the South China Sea published by Medium beg to differ, showing China’s progress on land reclamation and infrastructure projects, including the construction of harbors, airstrips, and administrative buildings. In 2012, the China National Offshore Oil Corporation acquired its first deep-water drilling rig, technology that remains unaffordable to other claimant states.

The growing economies of East Asia are heavily dependent on energy imports – China imports 58 percent and Japan nearly 100 percent of its oil consumption per year, according to Foreign Affairs. Professor Michael Klare of Hampshire College writes that the South China Sea contains underwater “geological features that suggest the presence of…oil and natural gas.”

China claims areas beyond its EEZ based on historic occupation of disputed islands, and an UNCLOS provision allowing a state to develop “the outer limits of its continental shelf,” including the seabed and subsoil.

Andrew Erickson and Conor Kennedy, professors at the U.S. Naval War College, assert that despite the Obama administration’s pivot to Asia and reopening military bases in the Philippines, Beijing believes that President Barack Obama is “weak and disinterested,” but that his successor would be less acquiescent to China’s ambitions.

According to the Brookings Institution, the United States has priorities in the South China Sea aside from protecting its historical ally, the Philippines. As 50 percent of the world’s oil is shipped through the South China Sea, which is also a major operating field for the U.S. military, the U.S. has a stake in protecting freedom of navigation.

The Department of State in 2014 testified to the House Committee on Foreign Affairs that China’s nine-dash line is “inconsistent with international law,” signifying that the U.S. has a principled stake in the dispute aside from curtailing China’s growth. Discouraging a precedent of using force or coercion to resolve territorial disputes and promoting respect for international law such as UNCLOS is in the United States’ interest.

Brookings Senior Fellow Jeffrey Bader suggests that the U.S. should support multilateral actions undertaken by other claimant states, have bilateral talks with China to discourage an Air Defense Identification Zone, and encourage claimants to undertake joint development of disputed areas and resources. Most importantly, the U.S. can solidify its position on the dispute by ratifying UNCLOS.

The PCA Tribunal found that regardless of China’s rejection of arbitration, both China and the Philippines are bound by UNCLOS to settle their disputes according to the convention’s provisions.

China failed to comment on the proceedings by the Tribunal’s January 1 deadline. In November, the Tribunal stated that it will announce a decision in 2016.