News this month that the Philippines had to halt research in the Reed Bank area just off its island of Palawan after two Chinese patrol ships threatened one of its seismic survey vessels, underscores the potential for conflict in the South China Sea.
While China’s growing assertiveness in pursuit of its claim over a major portion of the South China Sea is only to be expected, the fact that the smaller countries in the dispute—namely, the Philippines, Malaysia, Brunei, Indonesia and Vietnam—have neither a common voice nor collective strength, exacerbates the problem of finding a solution.
The Philippines, in particular, has made a number of strategic mistakes that all involved could learn from.
The first error came back in 2004, when the Philippines broke ranks with other countries involved and became the first to sign an agreement with China over joint seismic survey in the disputed Spratlys area. This agreement left Vietnam with no choice but to reluctantly join in, resulting in the tripartite Agreement Joint Marine Seismic Undertaking (JMSU) in 2005.
But the JMSU was widely criticised in the Philippines and in 2008—amid acrimonious domestic debates—the Philippines was the first country to announce that the JMSU agreement wouldn’t be renewed after its expiry. Still, in breaking ranks in 2004, the Philippines had already undermined the smaller countries’ united stance.
The second mistake came in 2009, when the Philippines failed to make a submission to the United Nations’ Commission on the Limits of the Continental Shelf (CLCS) regarding any continental shelf within the South China Sea. Vietnam made its own submission regarding an area southeast of the Paracels, and a joint one with Malaysia regarding an area southwest of the Spratlys. Vietnam and Malaysia had invited the Philippines to take part in a joint submission, but the Philippines declined.
Given China’s sweeping claim in the South China Sea with its U-shaped line, and given its overwhelming hard and soft power, smaller countries involved in the dispute need to make proper use of international law.
In the context of maritime disputes, two bodies of law are particularly important for claimant countries.
The first is the United Nations’ Convention on the Law of the Sea (UNCLOS), which stipulates that claims to exclusive economic zones (EEZs) and continental shelves must be derived solely from land features (i.e. not from arguments such as ‘historical sovereignty’). As a signatory to UNCLOS, China must respect this principle.
The second thing to consider is the collection of past rulings by the International Court of Justice. These have always given small islands such as the Paracels and the Spratlys EEZs and continental shelves that are insignificant compared with those given to land features with much longer coastlines. Certainly, no international court would ever give the Paracels and Spratlys EEZs and continental shelves that extend beyond the equidistant line between these islands and the South China Sea’s surrounding coastlines.
These two bodies of international law mean that the Paracel and Spratly claimants have to restrict maritime claims relating to the Spratlys and Paracels to no farther than the equidistant line between these islands and the South China Sea’s surrounding coastlines, and most likely not much farther than 12 miles from these islands. This in itself can be interpreted as meaning that China’s U-shaped line—a maritime claim that extends beyond the equidistance line—is illegitimate. In addition, the reality is that the Paracels and Spratlys are disputed territories and therefore anyway don’t necessarily belong to China. It would therefore be beneficial not only to the smaller countries in the disputes, but also to third parties with a stake in the South China Sea, for China’s U-shaped line to be ruled out.
If the Philippines had either taken part in a joint submission with Vietnam and Malaysia, or proceeded with one of its own regarding areas within the South China Sea, it would have helped to assert an UNCLOS regime for this body of water. This would in turn have helped to underscore the illegitimacy of China’s U-shaped line and, for example, would have reinforced the Philippines’ rights in the Reed Bank area. Unfortunately, the Philippines did neither.
The third mistake was the Philippines’ decision to submit protests to the CLCS against both Vietnam’s submission and Vietnam and Malaysia’s joint one. In its protests, the Philippines cited the disputes over land features, but ignored the fact that the maritime zones generated by the Spratlys, which constitute disputed maritime space, should be insignificant.
This is beneficial to China’s position in two ways.
First, China was no longer the only country that protested against Vietnam and Malaysia’s joint submission—China could have been isolated in protesting against a joint submission by Vietnam, Malaysia and the Philippines. Instead, it was China and the Philippines protesting against Vietnam and Malaysia.
Second, the Philippines’ action meant that China was no longer the only country that ignored the fact that the EEZs and continental shelves generated by the Spratlys don’t allow any country to claim maritime space to arbitrary limits.
Interestingly, Indonesia subsequently submitted to the CLCS a note verbale criticising China’s protest. This note stated that ‘those remote or very small features in the South China Sea do not deserve special economic zone or continental shelf of their own,’ and that therefore, China’s U-shaped line ‘clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982.’
Even more interesting is the fact that if the Spratlys don’t deserve EEZs and continental shelves of their own, or at least deserve little of these maritime zones, the Philippines will stand to gain the most in relation to the other countries because the overlap between the maritime zones generated by the Spratlys and those generated by the Philippines’ baselines would be reduced by the biggest amount. There would also be no legal basis for any of the Spratly claimants to dispute the Philippines’ rights in the Reed Bank area.
So what’s the best way forward for the small nations? First, the Philippines should join Vietnam, Malaysia and Indonesia in asserting that the Spratlys don’t deserve EEZs or continental shelves of their own, or at least deserve little of these maritime zones. Although that view wouldn’t settle the Spratlys dispute, it would mean that most of the maritime space in the South China Sea wouldn’t be subjected to that dispute, and would then belong to these countries as EEZs or continental shelves generated by the coastlines and archipelagic baselines around the South China Sea.
Second, the smaller countries in the disputes should start to exploit their numbers advantage. In particular, they should all support each other’s right to 200-mile EEZs and continental shelves generated by the coastlines and archipelagic baselines around the South China Sea.
One specific step they could take would be to all voice support for the Philippines’ rights in the Reed Bank area, for Malaysia’s rights in the James Shoal area, for Indonesia’s rights in the Natuna Sea area, and for Vietnam’s rights in the Vanguard Bank and Nam Con Son area. In each of these cases, the voice of five countries versus China’s lone voice would make it easier to convince international opinion of the merits of their case, and help prevent China from throwing its weight around.
The Philippines, Malaysia, Brunei, Indonesia and Vietnam must never forget that united they stand, divided they fall.
Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam's online publication VietNamNet.