South China Sea | Asia’s disputed waters

On September 25, the Philippine Coast Guard said it removed obstacles placed by Chinese vessels at the entrance to a lagoon in Scarborough Shoal in the South China Sea, following an order by President Ferdinand Marcos Jr. It imposed a 300-meter-long barrier to prevent boats from entering the Philippines, the latest in long-running tensions in the South China Sea.

The events of recent days have once again shined the spotlight on the wide spread of tensions and disputes in the South China Sea, not only for the islands and claimants of the sea, but also for all countries in the Indo-Pacific. region including India.

The South China Sea is a strategic body of water bordering the Western Pacific. To its north are China and Taiwan. To the west lies the long Vietnamese coast, the Indo-Chinese peninsula, including Thailand, Malaysia and Singapore; Indonesia and Brunei open to the southern parts of the sea; Finally to the east is the Philippines, which refers to the waters off its coast as the West Philippine Sea. A report by the Center for Strategic and International Studies (CSIS) estimated that $3.37 trillion worth of trade passed through the South China Sea in 2016. Citing the UN Convention on Trade and Development (UNCTAD), the report said that 80% of world trade is carried by sea in volume and 70% in value. Of the total, 60% goes through Asia, with the South China Sea „carrying a third of global shipping”. While the disruption in trade will certainly affect the world, China, the world’s second-largest economy, will be hit the hardest. A CSIS report estimates that 64% of Chinese trade goes by sea – the most of any country. By contrast, 14% of US trade passes through it.

The South China Sea dispute essentially revolves around multiple claims to land features – islands and reefs – and associated territorial waters. Under the UN Convention on the Law of the Sea (UNCLOS), each state „has the right to establish the width of its territorial sea not exceeding 12 nautical miles” and an exclusive economic zone (EEZ) of up to 200 nautical miles from the territorial sea floor.

According to the Asian Maritime Transparency Initiative (AMTI), 70 contested reefs and islands are contested. China, Vietnam, the Philippines, Malaysia and Taiwan have built more than 90 outposts on these disputed features, according to AMTI. Vietnam occupies „49 and 51 outposts spread over 27 features”, including „21 facilities built on reefs and reefs in the Spratly Islands”. Vietnam and other countries have also reclaimed new land to build outposts on — China’s recovery efforts in recent years have changed the dynamics of the dispute, especially given Beijing’s resources and the speed and scale of recovery efforts.

China, AMTI says, maintains 20 outposts in the Paracel Islands and seven in the Spratlys, and has exercised control over Scarborough Shoal through a „continuous coast guard presence” since 2012. „Since 2013, China has engaged in unprecedented dredging and artificial island-building in the Spratlys, creating 3,200 acres of new land, and significantly expanding its presence in the Paracels,” AMTI estimates. Meanwhile, the Philippines occupies nine features and Malaysia five in the Spratlys. Taiwan maintains an outpost in the Spratlys on Aba Island, „the largest natural feature of the Spratlys”. Taiwan has reclaimed „eight acres of land for the construction of a new wharf that will be completed in late 2015.”

Diplomacy and Arbitration

Given the complexity of the disputes and the multiple claimants – most of them members of ASEAN – talks between China and ASEAN on the governance of the South China Sea have focused on coming up with a Code of Conduct (CoC), which has proven elusive. ASEAN, given its contradictions, has been unable to come up with any common front to negotiate with China, its biggest claim in terms of both its military might and the scale of its claims.

In 2002, the foreign ministers of ASEAN and China adopted a Declaration on the Conduct of Parties (DoC), which reaffirmed their „commitment to the peaceful settlement of disputes in accordance with international law, including UNCLOS.” The DoC also aims to pave the way for the CoC, which is not yet operational. Instead, disputes have intensified. In 2013, Manila initiated arbitration proceedings against China under UNCLOS, claiming its actions violated the convention. The Beijing Permanent Court of Arbitration (PCA) refused to participate, deeming it illegal.

The PCA’s 2016 ruling rejected China’s „nine-dash line.” Marked on all of China’s official maps, including the most recent map published in August, which drew protests from many countries, the line claims all islands and features of the South China Sea. It is somewhat unclear whether China also claims the entire waters within these boundaries or only the corresponding territorial waters of the land. Although Chinese officials have asserted „historical rights” to the „waters and islands,” they have never spelled out the exact claims.

The PCA ruled that China’s claims were inconsistent with UNCLOS. While stating that it did not take a position on matters of sovereignty over land features, the PCA tribunal „concluded that China had historical rights to resources in the waters of the South China Sea, and such rights were extinguished to their extent. It is inconsistent with the EEZ provided for in the Convention”. It also concluded that there is no legal basis for China to claim historical rights to resources within the maritime areas that fall within the „nine-dash line”. It also noted that under UNCLOS, „islands constitute an exclusive economic zone of 200 nautical miles and a continental shelf” but „reefs incapable of sustaining human life or economic life shall have no exclusive economic zone or continental shelf.”

A game of cat and mouse

Beijing rejected the arbitration, issuing a white statement in response that said „China’s sovereignty and related rights and interests in the South China Sea have been established over a long course of history and are firmly established in history and law.” As claimants continue to work towards the CoC, the cat and mouse game of claims enforcement will continue, as evidenced by the recent dispute at Scarborough Shoal.

Given the extraordinary maritime, strategic and commercial importance of these waters, direct claimants are not the only ones to have a stake in the future of the South China Sea. According to the Indian Ministry of External Affairs, at least 55% of India’s trade passes through the South China Sea. Any future moves to control its routes would disrupt global trade and the global economy to a greater degree than the impact of Russia’s war on Ukraine, let alone the possibility of a continued snowball into a conflict.