The peril of confrontation in the South China Sea is noteworthy. China, Taiwan, Vietnam, Malaysia, Brunei, and the Philippines have antithetical territorial and jurisdictional claims, especially over rights to utilize the region's potentially substantial reserves of oil and gas. Non-claimants yearn for a situation where the South China Sea remains as international waters, with the United States of America carrying out "freedom of navigation" operations.
The intricacy of maritime and territorial disputes in the South China Sea is nothing short of mind numbing. There are hundreds of midget land forms and a body of international law that is both disputed and perplexing to comprehend. The outcome has been decennary of standstill.
There are contentions regarding both the Spratly and the Paracel islands, as well as littoral, areas near to sea, boundaries in the Gulf of Tonkin and elsewhere. There is an additional contention in the waters near the Indonesian Natuna Islands.
The concerns of disparate nations include attaining fishing areas around the two archipelagos; the prospective utilization of crude oil and natural gas under the waters of different parts of the South China Sea, and the tactical command of crucial shipping lanes. The coinciding assertions to the islands and smaller land forms in the sea are irresolvable in the short to medium term.
There is nothing in the UN convention on the law of the sea (UNCLOS) to settle sovereignty contentions over land and there is poor prospect that the pretenders will posit their assertions to the International court of Justice or some other adjudication body.
The robust credence and readiness to yield towards concessions that would be required to hammer out an agreement on the claims to the land forms that are not existent. UNCLOS has nothing to vocalize on the territorial contentions, but it has enough to utter about the littoral demurrals.
Maritime claims under international law are moulded by sovereignty over land, so as long as there are contentions over the land forms of the South China Sea, there will be contentions over the waters. But that doesn’t mean that the sphere of contention cannot be elucidated. That elucidation is crucial for coping with hostilities in the region.
The dispute has been wishy-washy since decades, most often between China on the one hand and one or more of the other pretenders on the other. This is because China’s claims are by far the most immense.
The recent series of hostilities in the South China Sea can be traced to the 2009 joint submission to the United Nations by Vietnam and Malaysia of a section of their extended continental shelves in the area. China riposted by submitting an objection to the UN commission on the Limits of the Continental Shelf (CLCS) deploring Vietnamese and Malaysian transgression of its assertions ,which it explicated through a nebulous map that comprised virtually the entire sea. This claim was illustrated in the now ill-famed nine dash line map.
The nine-dotted line was initially an "eleven-dotted-line," first divulged by the then Kuomintang government of the Republic of China in 1947, for its claims to the South China Sea. After, the Communist Party of China conquered mainland China and established the People's Republic of China in 1949. The line was adopted and reappraised to nine as espoused by Zhou Enlai. The South China Sea is dubbed by China as the "second Persian Sea."
The state-owned China Offshore Exploration Corp. contemplated to spend 200 billion RMB (United States dollar 30 billion) in the next 20 years to exploit oil in the region, with the estimated production of 25 million metric tons of crude oil and natural gas per annum, at a depth of 2,000 meters within the next five years.
The area may be teeming with oil and natural gas reserves; however, the estimations are wide-ranging. The Ministry of Geological Resources and Mining of the People's Republic of China estimate that the South China Sea may contain 17.7 billion tons of crude oil (compared to Kuwait with 13 billion tons). In the years following the announcement by the ministry, the claims concerning the South China Sea islands augmented. However, other sources claim that the irrefutable oil reserves in the South China Sea may only be 7.5 billion barrels, or about 1.1 billion tons.
According to the US Energy Information Administration (EIA)'s profile of the South China Sea region, a US Geological Survey estimate puts the region's discovered and undiscovered oil reserves at 11 billion barrels, as opposed to a Chinese figure of 125 billion barrels. The same EIA report also points to the wide variety of natural gas resource estimations, ranging from 190 trillion cubic feet to 500 trillion cubic feet, likely located in the contested Reed Bank”.
All the pretenders are culpable of not triumphing to utterly explicate their assertions according to international law, but the most delphic by far are Beijing’s standpoints. Chinese stratagem is tantamount to avoiding taking a position at all costs. Without a delineated Chinese position, ascertaining areas for prospective synergy and finally settling claims is unfeasible.
China’s policy of strategic ambiguity, as it has been euphemistically called, serves its motives well. It grants China the suppleness to present its position to serve the audience at hand.
This is why the Ministry of Foreign Affairs was able to issue its well publicized statement in February 2012 stating that no nation claims sovereignty over the entire South China Sea and that the dispute is only about the “islands and the adjacent waters”.
This inflated hopes in the United States and among the other Asian pretenders that China was moving away from asserting its rights over all the waters within the nine dash line and moving to bring its position in line with international law.
Relentless Chinese remonstrances to the activities of other pretenders that transpire far outside the possible “adjacent waters” of any islands or other features in the South China Sea demonstrate that the government is not confining itself to the position of Ministry of Foreign Affairs.
China has espoused its sweeping assertions with island-building and naval patrols. The US says it does not take sides in territorial contentions, but has sent military ships and planes near disputed islands, calling them "freedom of navigation" operations to clinch ingress to pivotal shipping and air routes.
Beijing says its right to the area goes back centuries to when the Paracel and Spratly island chains were seen as indispensable parts of the Chinese nation, and in 1947 it issued a map expounding its assertions. It exhibited the two island groups falling entirely within its territory. Those assertions are mirrored by Taiwan.
However, critics say China has not elucidated its assertions adequately – and that the nine-dash line that is apparent on Chinese maps covering almost the whole of the South China Sea includes no coordinates. It is also not lucid whether China claims only land territory within the nine-dash line, or all the territorial waters within the line as well.
These developments foreground the necessity for the Association of the Southeast Asian nations (ASEAN) pretenders – Vietnam, the Philippines, Malaysia, and Brunei-to take a stance on what is actually in dispute in the South China Sea and what is not.
As long as that primordial fact remains speculative,China will be persistent in practising equivocal and paradoxical claims to pursue its ambitions in the South China sea at the cost of its smaller neighbours.
Some demarches have been taken in this direction. Vietnam and Malaysia’s 2009 joint submission of their southern extended continental shelves to the CLCS was an important first step in this endeavour. The Philippine baseline law, passed the same year, establishing its coastal baselines in accordance with the UN convention on the Law of the Sea(UNCLOS), was another.
Despite these steps, too much remains enigmatic in the South China Sea. Vietnam’s National assembly in 2012 passed a Law of the Sea reiterating its claim to the Paracels and Spratly’s, but it remains unclear just what Vietnam is claiming in the maritime domain.
Beyond its Southern boundary with Malaysia, what extended continental shelf is it claiming? Does it consider the islands of the Spratlys and Paracels capable of generating a 200 nautical mile exclusive economic zone (EEZ) or not?
The same questions must be asked and answered by the other three South east Asian claimants –Brunei, Malaysia, and the Philippines.
Vietnam vehemently debates China's historical account, saying China had never claimed sovereignty over the islands before the 1940s. Vietnam says it has assiduously reigned over both the Paracels and the Spratlys since the 17th Century – and has the documents to validate it.
The other chief pretender in the area is the Philippines, which adduces its geographical propinquity to the Spratly Islands as the predominant foundation of its assertion for part of the grouping.
Both the Philippines and China lay claim to the Scarborough Shoal (known as Huangyan Island in China) – a little more than 100 miles (160km) from the Philippines and 500 miles from China.
Malaysia and Brunei also lay claim to territory in the South China Sea that they say falls within their economic exclusion zones, as defined by UNCLOS – the United Nations Convention on the Law of the Sea.
Brunei does not claim any of the disputed islands, but Malaysia claims a small number of islands in the Spratlys.
The most alarming trouble in recent decades has blazed between Vietnam and China, and there have also been impasses between the Philippines and China. Some of the incidents include the 1988 skirmishes between China and Vietnam in the Spratlys and Vietnam lost 60 sailors in those grisly skirmishes.
In January 2013, Manila said it was taking China to a UN tribunal under the aegis of the UN Convention on the Laws of the Sea, to dispute its assertions. In May 2014, the introduction by China of a drilling rig into waters near the Paracel Islands led to multiple collisions between Vietnamese and Chinese ships.
The unparalleled and plausible only existent hope of tamping down political strains in the lack of a veritable settlement of claims in the South China Sea is joint development of the disputed resources. This must include both fisheries and oil and gas resources.
Certainly, it is unfeasible to mutually develop disputed resources if the pretenders cannot concur on what is disputed. Owing to the resolute ambiguity of China’s assertions, Beijing actually claims that any expedient it requires lies in disputed waters.
Fellow pretenders are, normally, reluctant to propound the idea of joint development of resources just miles off their shores when China will not do the same. This is particularly true when the area ostensibly under dispute unequivocally falls under the sovereignty of one or another pretender under international law.
All four nations seem to operate under the supposition that the Spratlys and Paracels are not legally islands but simply rocks and therefore entitled only to a 12 nautical mile territorial sea. A sincere effort to resolve or even manage the disputes in the South China Sea requires that this and other assumptions be codified in law.
This does not mean that any of the pretenders have to give up anything concerning their claims to the land forms in the South China Sea. Instead, it would allow them to consolidate the legitimate foundation of their maritime assertions and separate the far more troublesome but geographically much smaller territorial contentions.
Most significant, it would permit them to present a joint front to China in debating one pivotal point: the only admissible basis for maritime claims in the South China Sea must be international law, especially UNCLOS.
If the Southeast Asian pretenders present a mutually agreed framework for demonstrating what is and is not disputed, the burden would lie with Beijing to elucidate the justification for its own assertions.
At that point, Beijing would have finite alternatives. Such inducement might give more non radical voices, like those in the Ministry of Foreign affairs, more cogency and eminence, permitting China to explicate its claims by retaining those to the Spratlys and Paracels but giving up its flagitious claims to the waters in between. This would mark an important step toward resolving the South China sea disputes.