Negotiating the South China Sea
Image Credit: Ha Petit

Negotiating the South China Sea

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Although the Spratly Islands have received most international focus, the issue of sovereignty in the South China Sea is actually made up of a number of separate disputes, with the Paracels Islands being claimed by Vietnam and China, Scarborough Shoal contested by China and the Philippines, and the Spratly Islands claimed in whole or in part by Brunei, China, Malaysia, the Philippines, and Vietnam. In addition, there are also clashes over maritime areas, such as exclusive economic zones and extended continental shelves.

The dispute over the Paracels and the waters belonging to them is a bilateral matter between China and Vietnam, and so bilateral negotiations should be appropriate. Similarly, the dispute over Scarborough Shoal and its waters is a bilateral matter between China and the Philippines, and so could be resolved in a similar way. The Spratlys and the waters belonging to them, however, are claimed wholly or partly by Brunei, Malaysia, the Philippines, Vietnam, and China, and this dispute is therefore multilateral by definition. As such, resolution of the Spratlys dispute requires a multilateral mechanism involving all the claimants.

China’s officially stated approach for resolving the South China Sea disputes is through bilateral negotiations, and so it’s interesting to examine how this approach is being applied in practice.

First, there’s the Paracels dispute. Despite insisting on the approach of bilateral negotiations, China has refused to apply it. On the Spratlys dispute, clearly bilateral negotiations couldn’t be expected to bring about a settlement of this multilateral dispute. Supposing the Philippines and Vietnam were to negotiate and settle bilaterally the dispute over the Spratlys and the waters belonging to these islands, would China accept that as a solution?

Third, let’s consider what China means by ‘negotiation.’ The fact is that China’s policy isn’t to negotiate on the issue of sovereignty, but rather to maintain its stance that (a) sovereignty belongs to China, (b) the claimants should shelve the sovereignty disputes and, (c) the claimants should jointly develop the resources with China. Therefore, by ‘negotiation,’ China only means negotiation on temporary arrangements, not negotiation on the issue of sovereignty.

These three considerations show that China’s approach of ‘bilateral negotiations’ isn’t aimed at actually resolving the sovereignty disputes. From the point of view of strategy, the absence of a settlement gives China, as the claimant with overwhelming hard and soft power, increasing opportunities to strengthen its controls and weaken those of the others. Another reason for the bilateral approach is that if the Southeast Asian claimants deal with China individually, they’ll be more likely to succumb one by one to China’s superior strength.

Another component of China’s approach, one that is unstated but still practised, is an effort to maximise the contested area. China’s mysterious U-shaped line covers most of the South China Sea. Its actions, e.g. those against the Philippines at the Reed Bank in March 2011 and those against Vietnam’s  survey ships Binh Minh 2 and Viking 2 in May and June 2011, were within the area claimed by China, though not far off the Philippine and Vietnam coasts. In a dispute, the party that has overwhelming strength is likely to achieve more aims than the others. Therefore, the larger the contested area, the more China is likely to gain.

While the approach for China has three components, namely maximising the contested area, temporarily maintaining the condition of a sovereignty dispute while consolidating effective control, and drawing on ‘divide and conquer,’ the Southeast Asian claimants, being the weaker parties to the disputes, seem to be adopting the opposite approach: minimising the contested area.

In the attempt to minimise the contested area, the Southeast Asia claimants can appeal to international law regarding maritime delimitation, including the principles codified in the United Nations Convention on the Law of the Sea to minimise the extent of the waters belonging to the contested islands.

According to Article 121.3 of UNCLOS, ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’ If this is applicable to the Paracels, Spratlys, and Scarborough Shoal, then they will have at most a 12-nautical-mile territorial sea.

Even if Article 121.3 of UNCLOS isn’t considered applicable, the Paracels, Spratlys, and Scarborough Shoal are tiny. Therefore, according to international law, they ‘generate’ far fewer EEZs and continental shelves than the uncontested territories around the South China Sea. This means that even if the Paracels, Spratlys, and Scarborough Shoal are considered to merit EEZs, their EEZs wouldn’t extend far beyond 12 nautical miles.

The Philippines has called on China to take the dispute to the International Tribunal on the Law of the Sea (ITLOS), most likely in an attempt to limit the contested area according to the above principle. After China rejected adjudication, the Philippines declared that it would still take the case to the ITLOS. Subsequently, Vietnam’s ambassador to the Philippines, Nguyen Vu Tu, said: ‘Vietnam joins the Philippines’ initiative…in calling for a rules-based approach in resolving the maritime disputes.’ Tu also stressed that a multilateral approach in discussing the disputes is ‘the only way to go.’

Despite the fact that the Southeast Asia claimants can’t yet be united regarding the sovereignty issue, they can indeed be united in the common approach of minimising the contested area utilising multilateral mechanisms, and so they can achieve strength in numbers.

However, while this common approach gives the Southeast Asian claimants a legal and diplomatic advantage over China, these claimants still don’t have enough resources to resist China’s attempt to achieve effective control. This is why the United States’ interest in the disputes is important to them. Equally, this is why that same interest is objectionable to China.

While the United States may have no rights or interest in the issue of sovereignty over the contested islands, the issue of sovereign rights over maritime space is a different matter.

First, the middle of the South China Sea is an area that potentially doesn’t belong to any state as an EEZ, and all states may share equal rights over the water column in this area. If a country tries to claim excessive maritime space in the South China Sea, that threatens to take away the rights of the international community, including those of the United States, in this central area.

Second, while China states that it respects the freedom of navigation in the South China Sea, China’s interpretation of the freedom of navigation in an EEZ is far more restrictive than that of the United States. The clashes between China and the US regarding military surveillance in the South China Sea stem from this difference in interpretation.

Third, China has never stated officially what the U-shaped line means, the extent of its claims in the South China Sea, or what rights it claims within those claimed areas. China’s lack of transparency poses a risk to all states that use the South China Sea, including to the United States and its allies. For example, Singapore, which isn’t a party to the disputes, has urged China to clarify its claims, ‘as the current ambiguity as to their extent has caused serious concerns in the international maritime community.’

Fourth, maximising the contested area, as China seeks to do, increases the risk of conflict and the risk of adverse effects on user states of the South China Sea, including on the United States and its allies.

Given these considerations, it’s in the interests of the United States that the area of the waters belonging to the contested islands is minimised. This aligns with what would benefit the Southeast Asian claimants, and is contrary to China’s aims, all without the US necessarily taking sides on the question of sovereignty over the contested islands and over the waters belonging to them.

From a geopolitical point of view, if the South China Sea were to become dominated by China, or if Southeast Asia were to fall into China’s orbit, there would be significant effects on the balance of power in the Western Pacific and Eastern Indian Ocean. It’s also in the interests of the United States to prevent these possibilities from transpiring.

With this in mind, it seems likely that the Southeast Asian claimants and the United States will try to act on their common interests, without the necessity of the US taking a position on the question of sovereignty over the contested islands and over the waters belonging to them. In the meantime, expect China to try to keep opposing US involvement and working to prevent Southeast Asian claimants from acting together.

 

Huy Duong is a freelance writer who contributes articles on the South China Sea disputes to the BBC and VietnamNet. He would like to thank David Brown, Ha Nguyen, Dang Vu, Thuy Tran, and Truong Le for their valuable comments and discussions.

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