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South China Sea Dispute

The South China Sea dispute is ostensibly over jurisdiction and sovereignty of islands, reefs and Exclusive Economic Zones (EEZs) in South China Sea. All the countries namely China, the Republic of China (Taiwan), the Philippines, Malaysia, Brunei, Indonesia, Singapore, and Vietnam are bordered with South China Sea have different claims. On the one hand, China has claimed more than eighty percent of the sea and on the other hand Vietnam has claimed sovereignty over Spratly Island.

The claims of Vietnam and Taiwan together cover almost the whole sea. China has asserted that it has historical claim over the jurisdiction of the disputed maritime territory but all the other countries are going with the provisions of UN Convention on the Law of the Sea. From December 2013 to October 2015, China built artificial islands on seven coral reefs of Spratly Islands in the southern part of the South China Sea. Therefore, the dispute has been emerged as a flashpoint in Asia.

On January 2013, Philippines have filed an arbitration suit against China in International Arbitration Tribunal. The Tribunal ruled in favour of Philippines but China rejected its decision. The matter has gained all the attention at international level.

Introduction
South China Sea is a marginal sea of west Pacific Ocean in Southeast Asia. It is one of the considerable flashpoint in Asia. It is bounded by shores of South China, the Republic of China (Taiwan), the Philippines, Malaysia, Brunei, Indonesia, Singapore, and Vietnam. The South China Sea is connected by Taiwan Strait with the East China Sea and by Luzon Strait with the Philippine Sea in marginal seas of the Pacific Ocean. It is one of the busiest waterways in the world. As it is overlapped by several boundaries, it is subjected to matter of territorial disputes. For decades, the dispute has remained unresolved.

Importance Of South China Sea

The South China Sea plays an extremely significant water body in geopolitical sense. It is incredibly rich in natural resources. It contains a large variety of shoals and reefs. According to the US Energy Information Administration, it is estimated that the region contains around 11 Billion barrels of oil and 190 trillion cubic feet of natural gas. It is one of the major sources of food as it accounts for ten percent of world's fisheries. According to Department of Environment and Natural Resources, Philippines, this sea contains about one-third of world's marine biodiversity. Also, the South China Sea is the most significant portion of world's merchant shipping as the thirty percent of global shipping trade goes from here.

Issues
  1. The Philippines, Vietnam, China, Brunei, Taiwan and Malaysia holds different claims over the territory of the Sea based on historical and geographical aspects.
     
  2. China claims more than eighty percent of the sea and Spratly Islands which is the heart of South China Sea as any country would get more territorial boundary and Exclusive economic zones (EEZ) after including it in its territory. Also, Vietnam claims sovereignty over the Paracel Islands and the Spratly Islands. While the Philippines affirms ownership of the Spratly archipelago and the Scarborough Shoal. The Brunei and Malaysia have asserted sovereignty over some southern parts of the sea and some of Spratly Islands.
     
  3. China's Nine Dash Line is a geographical marker that asserts a historical claim about its territory. It contravenes with the principles of Exclusive Economic Zones (EEZ).
     
  4. The claims of Vietnam and Taiwan together cover nearly the whole sea.

Analysis
This territorial dispute has emerged as flashpoint. Currently, five countries are claiming some parts of sea. Most of countries' claims are based on the United Nations Law of the Seas. The Convention on the Law of the Sea came into effect in 1994. According to the United Nations Law of the Seas, a country's territorial boundary is extended to 200 miles off its shores and this area is called as the exclusive economic zone, or EEZ.

Any trade or resources that fall in a country's EEZ belongs to that country and sovereign territory. Any area that is not covered under an EEZ is considered as international waters. It becomes a subject to UN maritime law that means this area can be shared by everyone. Except China all the other countries like Malaysia, the Philippines, Brunei, and Vietnam, has made their claim to the South China Sea on the basis of the UN's EEZ laws.

China asserts that it has historical claim to the South China Sea. After World War II, the Japanese empire lost their control over the South China Sea. At the end of World War II, no country claimed a single island in South China Sea. In 15th century, China took the advantage and started drawing dashed line on its official maps that included most of the South China Sea including Xisha, Nansha, Dongsha, Zhongsha islands.. In 1973, when UN established EEZs, China reaffirmed its Nine Dash Line denying the concept of UN's EEZs laws and claims of other countries. By the early 1970s, issues relating to claims were raised again after oil was discovered beneath the South China Sea waters.

The Philippines was the first to move. China followed shortly after that with a carefully coordinated seaborne invasion of several islands.[1] In 1988, China moved into Spratly Islands and killed a dozen of Vietnamese sailors. This brought a massive tension between the countries. For the first time in 1997, Beijing shared its “Nine-dash Line” extending 1,118 miles from Hainan Island to waters off equatorial Brunei.

In 2002, China and the members of the Association of Southeast Asian Nations (ASEAN) managed to discuss about the maritime territorial disputes. Finally, they settled for a non-binding Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002. Through DOC, China and ASEAN agreed to promote friendly, peaceful and harmonious environment in South China Sea. In 2005, the first draft to implement DOC came up but it was not adopted until 2011. In 2013, the Philippines challenged the historical claims of China under UNCLOS.

Vietnam reclaimed the islands occupied by China since 1970 in 2008. As a result, in 2016 these reclamations resulted in three military grade ocean airfields that sent shockwaves in the world by China as it broke its own pledge of not militarising islands.

Since 2014, China has been building artificial islands in the middle of South China Sea in order to increase its territorial boundary. Activities like building artificial islands, doing scientific researches come under the purview of EEZs law. The dispute has centred on Spratly Islands because whichever country can successfully include them can extend their EEZs. That's why China is building artificial islands. Other countries have also started building artificial islands to assert their claims.

The US is associated with many countries bordering South China Sea including Philippines, Singapore, and Vietnam through security commitments. The US conducted several Freedom from Navigation operations as the South China Sea plays a crucial role US' trade and commerce. It has made the situation more critical.

Philippines challenged China's territorial claim in International Tribunal under United Nations Law of the Seas in 2013.

On 25 October 2016, the International Tribunal gave the decision in the favour of Philippines. But China refused to accept the tribunal's decision and claimed it as non-binding in nature. Also, the tribunal has found that no island in Spratly Island would be able to sustain human habitation which is not in accordance to the International Law.

In 2018, US and French forces both conducted navigation operations in disputed waters. US sent American destroyer in the claimed territory by China to gain attention of deployed forces.

At Indian Ocean Conference in Maldives in 2019, North Korea attacked China for building artificial islands illegally. To which China answered that it has indisputable sovereignty over the territory and hence it's not illegal.

Recently, US and Australia have discarded the China's historical and maritime territorial claims. Australia has significant interests in the South China Sea, both economically, in terms of freedom of trade and navigation, and geopolitically, as the United States is invested in upholding the rules-based order in the region. Australia has been conducting its own airborne surveillance operations in the South China Sea and Indian Ocean, called Operation Gateway, since 1980.

These patrols are conducted by P-3 Orion maritime aircraft and some of them have been verbally challenged by China. While Australia has not conducted a surface FONOP operation similar to those of the US Navy, it regularly conducts naval presence patrols, exercises and port calls throughout the region. As Washington's closest ally in the region, Australia may come under growing pressure from the United States to make its presence felt in the South China Sea beyond statements of diplomatic support for freedom of navigation. [2]

Since China has started building artificial island and deploying forces in the so called claimed territory, the situation has become more complex. This lead to nervousness among other claimants and therefore they also started building artificial islands. This situation has gained international attention as it is very intricate.

Case Law

The Republic of the Philippines V. The People's Republic of China

The dispute between Philippines and China arose over ‘maritime entitlements' disagreements. As China's historical claim is inconsistent with UNCLOS.

Facts
On 22 January 2013, the Philippines invoked arbitration against China under Part XV of UNCLOS. The Philippines asked the Tribunal about the following concerns:(
  1. Rule that UNCLOS governs the parties' rights and obligations with respect to waters, seabed, and maritime features of the South China Sea and that China's claims to historic rights encompassed in what China terms the "nine-dash line" are inconsistent with UNCLOS.
  2. determine whether certain maritime features claimed by both parties are islands, low tide elevations, or submerged banks under UNCLOS, as well as whether those features are capable of substantiating claims to an entitlement to maritime zones greater than twelve miles, and
  3. recognize the Philippines' rights within and beyond its economic zone and continental shelf as established under UNCLOS. [3]

China didn't appear in the arbitration proceedings by denying the legitimacy of the proceedings. Nonetheless the tribunal considered that it had a duty under Article 9 of Annex VII of UNCLOS to reassure itself that it had jurisdiction over the dispute.

Tribunal's Award On Jurisdiction And Admissibility

The Tribunal contemplated two preliminary issues before evaluating its jurisdiction. Firstly, the Tribunal found that China and the Philippines both are the party to UNCLOS and therefore both are bound by the jurisdiction of the Tribunal under Part XV of UNCLOS which talks about issues related to the applicability of UNCLOS. Also, it was found that neither party had made written declaration regarding choosing any other form of dispute resolution under Section 1 of Part XV of UNCLOS. So, the Tribunal held that both the parties had agreed to arbitration.

Secondly, the Tribunal held that China's refusal to accept the proceedings of the tribunal didn't bar the proceedings from considering the claims of Philippines because Article 9 of Annex VII of UNCLOS provides that “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings” [4]. Also, the tribunal ensured that china's non-appearance doesn't amount to any prejudice in the proceedings.

Decision: On October 25, 2016, The Arbitration Tribunal ruled in favour of Philippines.

But China refused to accept the tribunal's decision and claimed it as non-binding in nature.

Challenges
  • China's negligent and stubborn approach is making situation more critical. Also, it is overlooking international law, maritime law and regulations like UNCLOS.
  • Evidences presented by China in order to assert territorial claims are highly disputed.
  • Taiwan and China are in dispute over sovereignty issues since 1949. As Taiwan is a party in this maritime issue, it can create more tensions. Though Taiwan is not a signatory to UNCLOS as it is not recognised as a state.
  • The intervention of US in this dispute is making it more complex as china and US both don't have friendly relations. The intervention of other countries like Australia, North Korea can make situation more intense.
  • In 2016, the International Arbitration Tribunal found that the land should be capable to sustain human habitat according to International Law. And no islands in Spratly Islands met this criterion.
  • Further, building of artificial islands by china and other countries has made the matter multifaceted.

India's Stand
During a Joint Strategic Vision for the Asia-Pacific and the Indian Ocean Region, India and US discussed about Freedom from Navigation and ensured to resolve the territorial dispute of the South China Sea in accordance with UNCLOS. But after the Philippines won the arbitration award in 2016, India stepped out and separated itself from the dispute. Because India is not a party to maritime territorial disputes. Further, India does not want to interfere as it wants to preserve Wuhan Consensus with China.

Measures Taken So Far
  • Despite having differences with China, Philippines President Rodrigo Duterte took initiative to resolve the dispute with China through bilateral talks.
  • Similarly, Vietnam, the biggest critic of china, has shown its interest to resolve the dispute with China “in accordance with International Laws”.
  • ASEAN is also working with China on an official agreement in order to avoid clashes and maintain peace.

Suggestions
  • Nations should follow new alternative dispute resolutions like mediation and negotiation to reach out an outcome that would help in harmonising the environment.
  • International disputes should be resolved in peaceful manner in accordance with International law.
  • A binding authority should be form like NATO that will help to settle the dispute by formalizing the rules and regulations.

Conclusion
The South China Sea is one of the most significant commercial gateways. Since China has started taking violent actions, the situation is getting worse day by day. The territorial disputes should get resolve in accordance with International Law in order to ensure harmony and peace.

References:
  1. https://www.straight.com/news/khalid-zaka-a-summary-of-south-china-sea-conflict
  2. https://www.lowyinstitute.org/issues/southchinasea#:~:text=Geographically%2C%20the%20South%20China%20Sea,%2C%20Taiwan%2C%20Thailand%20and%20Vietnam.
  3. https://www.cambridge.org/core/journals/international-legal-materials/article/republic-of-the-philippines-v-the-peoples-republic-of-china-award-on-jurisdiction-and-admissibility-perm-ct-arb/B1B8E793B94B4FC58614BFCF8235DC27
  4. https://www.cambridge.org/core/journals/international-legal-materials/article/republic-of-the-philippines-v-the-peoples-republic-of-china-award-on-jurisdiction-and-admissibility-perm-ct-arb/B1B8E793B94B4FC58614BFCF8235DC27

    Award Winning Article Is Written By: Ms.Divyanshi Sharma

    Awarded certificate of Excellence
    Authentication No: OT31582253280-20-1020

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