The South China Sea ( SCS ) Disputes
Code of Conduct’ in the South China Sea ( The Indian Express, 26/11/2022 ).
Key Facts:
The SCS is one of the world’s most heavily trafficked waterways. An estimated $3.4 trillion in ship-borne commerce transits the sea each year, including energy supplies to U.S. treaty allies Japan and South Korea. According to the U.S. Energy Information Administration, the SCS contains about 11 billion barrels of oil rated as proved or probable reserves—a level similar to the amount of proved oil reserves in Mexico—and 190 trillion cubic feet of natural gas. The SCS also contains significant fish stocks, coral, and other undersea resources.
The Sovereignty Disputes:
China asserts “indisputable sovereignty over the islands in the South China Sea and the adjacent waters” without defining the scope of its “adjacent waters” claim. On maps, China depicts its claims with a “nine-dash line” that, if connected, would enclose an area covering approximately 62% of the sea, according to the U.S. Department of State. (The estimate is based on a definition of the SCS’s geographic limits that includes the Taiwan Strait, the Gulf of Tonkin, and the Natuna Sea.) China has never explained definitively what the dashed line signifies. In the northern part of the sea, China, Taiwan, and Vietnam contest sovereignty of the Paracel Islands; China has occupied them since 1974. In the southern part of the sea, China, Taiwan, and Vietnam claim all of the approximately 200 Spratly Islands, while Brunei, Malaysia, and the Philippines, a U.S. treaty ally, claim some of them. Vietnam controls the greatest number. China occupies seven sites in the Spratly Islands. It has engaged in island-building and facilitiesconstruction activities at most or all of these sites, and particularly at three of them—Fiery Cross Reef, Subi Reef, and Mischief Reef, all of which now feature lengthy airfields as well as substantial numbers of buildings and other structures.
In the eastern part of the sea, China, Taiwan, and the Philippines all claim Scarborough Shoal; China has controlled it since 2012. China’s “nine-dash line” and Taiwan’s similar “eleven-dash line” overlap with the theoretical 200-nautical-mile (nm) EEZs that five Southeast Asian nations—Brunei, Indonesia, Malaysia, the Philippines, and Vietnam—could claim from their mainland coasts under the 1994 United Nations Convention on the Law of the Sea (UNCLOS). Indonesia also disputes China’s assertions of maritime rights near its coast.
Dispute over Freedom of the Seas:
A dispute over how to interpret UNCLOS lies at the heart of tensions between China and the United States over the activities of U.S. military vessels and planes in and over the South China Sea and other waters off China’s coast. The United States and most other countries interpret UNCLOS as giving coastal states the right to regulate economic activities within their EEZs, but not the right to regulate navigation and overflight through the EEZ, including by military ships and aircraft. China and some fellow SCS claimants hold that UNCLOS allows them to regulate both economic activity and foreign militaries’ navigation and overflight through their EEZs.
In recent years, the U.S. Navy and Air Force have stepped up the pace and public profile of their activities in the South China Sea. The U.S. Navy conducts Freedom of Navigation Operations (FONOPs), challenging maritime claims that the United States considers to be excessive. It also seeks to maintain an ongoing presence in the SCS “to uphold a free and open international order,” while the U.S. Air Force flies bomber missions over the SCS. China regularly conducts military patrols and training in the SCS, and objects strenuously to U.S. military activities there. In response to U.S. FONOPs in 2020, China twice accused the United States of “trespassing” in its territorial waters and demanded that the United States “strictly control” its SCS military activities in order to avoid “unexpected incidents.”
China and the other SCS claimants (except Taiwan, which is not a member of the United Nations) are parties to UNCLOS. The United States is not a party, but has long had a policy of abiding by UNCLOS provisions relating to maritime disputes and rights. UNCLOS allows state parties to claim 12-nm territorial seas and 200-nm EEZs around their coastlines and “naturally formed” land features that can “sustain human habitation.” Rocks that are above water at high tide but not habitable generate only territorial seas.
China’s Artificial Island Building:
Between 2013 and 2015, China undertook extensive land reclamation in the SCS’ Spratly Island chain. According to the U.S. Department of Defense (DOD), the reclamation created over 3,200 acres (five square miles) of artificial landmasses on the seven disputed sites that China controls. China built military infrastructure on the outposts, and beginning in early 2018, deployed advanced anti-ship and anti-aircraft missile systems and military jamming equipment. China portrays its actions as part of an effort to play catch-up to other claimants, several of which control more Spratlys features and carried out earlier reclamation and construction work on them, although the scale of China’s reclamation work and militarization has exceeded that of other claimants.
UNCLOS and the SCS:
In 2013, the Philippines sought arbitration under UNCLOS over Chinese behavior in the SCS. In July 2016, an UNCLOS arbitral tribunal ruled that China’s nine-dash line claim had “no legal basis.” It also ruled that none of the land features in the Spratlys is entitled to any more than a 12-nm territorial sea; three of the Spratlys features that China occupies generate no entitlement to maritime zones; and China violated the Philippines’ sovereign rights by interfering with Philippine vessels, damaging the maritime environment, and engaging in reclamation work on a feature in the Philippines’ EEZ. The United States has urged China and the Philippines to abide by the ruling, which under UNCLOS is binding on both parties. China, however, declared the ruling “null and void.” Philippine President Rodrigo Duterte, who took office just before the tribunal’s ruling, has not sought to enforce it.
ASEAN, China, and the South China Sea:
China is the largest trade partner and a major source of investment for many Southeast Asian nations. However, concerns about China’s growing power in the region, including worries that China may use its economic leverage to achieve political goals and anger over China’s efforts to exert control over much of the South China Sea, have strained relations among some ASEAN members. Most ASEAN members rely on the U.S. security presence and strong trade and investment ties with the United States to ensure stability and enhance their economic development.
Four members—Brunei, Malaysia, the Philippines, and Vietnam—have maritime territorial disputes with China (as well as with each other), and others have interests in the South China Sea’s natural resources and shipping lanes. In 2002, ASEAN and China agreed to a nonbinding Declaration on the Conduct of Parties in the South China Sea, in which they agreed to “resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force,” to “exercise selfrestraint in the conduct of activities that would complicate or escalate disputes,” and to work toward the creation of a formal Code of Conduct to govern activities in the region. However, the group’s members have deep disagreements over how to approach the negotiations with China. Some ASEAN members, particularly Cambodia and Laos, have been hesitant to join a unified ASEAN response. The United States has generally supported ASEAN members’ efforts to push back against Chinese assertions.
On 6 August 2017 in Manila, the foreign ministers of China and ASEAN endorsed the framework on the Code of Conduct for the South China Sea (COC). The framework had earlier been approved by the ASEAN-China Senior Officials Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea (SOMDOC) in Guiyang, China on 19 May 2017. However many observers believe that a mutually acceptable Code will be difficult to conclude.
https://crsreports.congress.gov/product/pdf/IF/IF10607
https://crsreports.congress.gov/product/pdf/IF/IF10348
https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2017_62.pdf
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