Staking claims and making waves in the South China Sea: how troubled are the waters?

• Author: Ba, Alice D.
• Position: Report

After a period of relative calm in the first half of the 2000s, the South China Sea dispute is back in the headlines. A long-running dispute, the South China Sea is now challenging regional relations in ways that it has not before. While the zero-sum nature of competing legal claims and perceived nationalist affronts associated with territorial disputes make them as a general category more challenging for those involved, the South China Sea can also be characterized as especially complex and difficult. The cast of claimants is large and varied (six in all: China, Taiwan, Malaysia, the Philippines, Vietnam and Brunei--with Taiwan a non-state entity); (1) the legal bases for claims are mixed; the economic stakes are great. Home to some of the busiest sea lanes in the world, more than a quarter of the world's trade pass through the South China Sea each year. Upwards of 80 and 90 per cent of Chinese and Japanese oil imports also traverse through these waters. A rich fishing ground, the South China Sea is also an important resource for the local and national economies of the states involved. This is to say nothing of the potential hydrocarbon resources these waters are speculated to offer in an age of growing resource demand and scarcity.(2) All these factors have long complicated states' ability to resolve the dispute, but since 2008 the frequency of troubling confrontations between China and the other claimants has increased, as each tries to stake, defend and expand their physical claims via a range of activities. Of note have been efforts by China to detain and "expel" Vietnamese and Philippine fishermen from disputed waters. Most serious have been a number of high-profile exchanges (both diplomatic and naval) between China, the region's rising power, and the United States, the region's status quo power, over maritime rights. Such exchanges have elevated the dispute to a different level of geopolitical attention. While assessments about the likelihood of serious conflict vary, the historical characterization of these waters as being "dangerous ground" (3) may be truer today than it has ever been in the past.

The articles in this special issue on the South China Sea offer different perspectives on recent developments. Three of the articles (Goldstein, Thayer and Womack) were originally presented at the 2011 International Studies Association's annual conference in Montreal, where the panel was the subject of lively and engaged discussion. Originally, the panel also included Peter Dutton, whose paper was published elsewhere in the interim. (4) Though we were sorry to lose Peter, we were fortunate to bring Taylor Fravel onboard in his place. This introduction serves to draw out some common themes and challenges highlighted by the authors and their implications for future developments. In particular, it highlights the various conflicts and tensions that have come to be intertwined with the South China Sea, pushing it to the foreground: conflicts over not just territory but also maritime rights and jurisdiction, resources, and increasingly, the relative influence of China and the United States as the region's (and world's) rising and status quo powers. It is the conclusion of the authors that mismanagement for all concerned, including non-claimants like the United States, will carry high--even unacceptable--costs.

The China Challenge

Among all the actors, China poses the largest challenge in both efforts to resolve and manage maritime and territorial disputes in the South China Sea and the tensions associated with them. This is not to say that other actors do not present their own challenges, but China nevertheless stands out as one particular problem. Reasons for this include the mixed bases of China's claims (United Nations Law of the Sea or UNCLOS, historic rights and use, a U-shaped/ nine-dashed line map); the opaqueness and contradictions associated with China's decision-making process; and perhaps, most of all, China's growing power. While assessments vary in some notable ways, it is no coincidence that China factors large in each of the articles that follows.

Of Law and Claims

One factor that has complicated efforts to resolve the disputes regard the mixed bases on which states stake their claims. (5) UNCLOS has also had mixed effects on the dispute. On the one hand, it provides a common legal framework and referent as all states involved in the South China Sea disputes are now signatories and base their claims either partly or entirely on it. This includes China, whose recent submissions to the United Nations Commission on the Limits of the Continental Shelf (CLCS) also make clear reference to UNCLOS as the basis for its claims. (6) On the other hand, UNCLOS has also been a source of new claims, as well as a precipitating driver of disputes in recent years, as states seek to establish and consolidate their maritime holdings and jurisdictions under this relatively new maritime regime. (7)

China's claims are especially mixed, drawing on UNCLOS, but also historic rights and a 1947 map in which the South China Sea is delimited by nine dashes. Moreover, as authors in this issue detail, each of these bases is made more complicated by "ambiguities" contained within them. What constitutes "historic rights"? What exactly is included or claimed within those nine-dashes? Even China's exclusive economic zone (EEZ) and territorial sea claims under international law contain a question given that few of the Spratly land features constitute "islands" under UNCLOS. (8)

The challenges associated with the ambiguities of both international law and China's claims are evident in recent developments. At least in part, the recent intensification of disputes trace back to a UN deadline on the submission of continental shelf claims in May 2009, at which time Malaysia and Vietnam made submissions to extend their continental shelves from 200 nautical miles to 350 nautical miles into the South China Sea. That, in turn, prompted responses from both the Philippines and China, the latter of which responded with a note verbale. As Womack and Fravel note, neither the act of submitting the note nor even the wording contained in the note was that controversial in and of themselves. (9) As Fravel puts it, if China believes in its claim (which it does), "international law demands that states actively maintain their claims, especially when challenged by other states". (10) Not to do so would have been tacit acknowledgement or recognition of their claims. Similarly, it is also not surprising that as interest in hydrocarbon exploration has increased, so too have China's diplomatic objections. Womack further notes that the unresolved nature of disputes means that all sides are under some pressure to act as if their claims are legitimate--whether it is to fish, occupy, drill, survey or expel others for "trespassing". Not to do so would not only be an implicit admission of another's claim "and the abandonment of one's own", but also because such activities are themselves a basis to justify claims, states risk disadvantaging themselves in future negotiations and future efforts to resolve the issue.

The problem in the recent exchange of UN submissions, however, was that China also attached a map--specifically, a contested nine-dashed line map where China appears to claim the South China Sea in its entirety. (11) It also was apparently the first time that the map was officially submitted to the UN. (12) The actual wording of the note verbale may be a relatively straightforward effort to counter others' claims and submissions, but the attachment of the map, unexplained and without further elaboration, is not. In a sense, as Douglas Paal puts it, the map allows China to make a broader claim by implication, and that broader claim, at minimum, sits in tension with the relatively cautious approach (and more limited claims) of China's past UNCLOS filings. (13) The fact that (to quote Fravel in this issue) Beijing has been either "unwilling or unable" to clarify what exactly China includes or is referencing only aggravates the tension. One can draw one's own conclusions --as both analysts and other claimants have--but the point is that China has not officially done so. In both referencing the map and not clarifying it, Beijing has also created an opening for other Chinese-domestic actors to interpret for themselves and act based on those interpretations--actions and interpretations that may or may not be consistent with China's official position or, at least, preferred policy of its top leadership. As highlighted below and by authors in this issue, maritime issues provide particular examples of how different domestic actors are doing just that. The nine-dash line map had another effect as well--namely, it offered the opportunity, under the guise of international law, for the United States to engage in the dispute more actively. (14)

A Question of Strategy

A particular challenge concerning China is also the lack of good information (and at times, contrary information) about the decisionmaking processes. In this issue, two articles on China's South China Sea strategy offer different insights into the thinking and priorities of China's strategists. Taylor Fravel's piece addresses the larger political calculus behind China's recent actions and approach towards the South China Sea. Lyle Goldstein's article sheds light on a critical actor in these disputes--namely, the Chinese military (and specifically the Chinese navy), which past analyses have identified as the source behind China's hard line positions and push into the South China Sea. As Goldstein details, the Chinese military is an actor most assume a great deal about, but few in fact know very well. Filling in this important knowledge gap is critical for those seeking a better understanding of Chinese strategy. Goldstein's piece offers an important effort towards this goal.

In particular, their...