The South China Sea Disputes: A clash of international law and historical claims

The United Nations Convention on the Law of the Sea (UNCLOS), whose most recent charter came into force in November of 1994, constitutes the current basis of international law in the South China Sea disputes (UNCLOS, 2016). Long before the inception of recognized international maritime law, and throughout much of pre-modern history the South China Sea played a pivotal role as an “intersection of history” as the primary route for the vital trade connection between China and India, Europe, and the Middle East (Swanson, 1982). Many of the claims to the South China Sea are derived from this pre-modern era on the basis that traders and admirals settled on or stopped at the Spratly and Paracel islands while traversing the South China Sea on trading trips.

All claimants in the South China Sea disputes, including China, are signatories to UNCLOS, which sets forth clear laws for the waters surrounding the territories of nation-states (Poling, 2013). All regulations are established from the baseline of sovereign and inhabited islands, making the law’s application to the South China Sea particularly challenging. Legal maritime rights in terms of UNCLOS are derived from the status of land features, which are the focal point of claims made to islands in the South China Sea by Taiwan, the Philippines, Malaysia, Vietnam, and other ASEAN claimants.

Table 1: UNCLOS Provisions and Regulation Areas (UNCLOS, 2013)

Regulation Area Description
Territorial Waters 12 Nautical Miles from low-water line – can use all resources and set all regulations
Contiguous Waters 12 Nautical Miles beyond Territorial Water Boundary – can enforce only taxation, immigration, customs, and pollution regulations
Exclusive Economic Zone (EEZ) 200 nautical miles from low-water line – has exploitative rights to all natural resources. Can regulate but must maintain freedom of maritime navigation and overflight

 

In contrast, the Chinese government’s claim – which is often referred to as the nine-dashed line claim because of the number of lines on the original map that were used to mark the boundaries of China’s maritime claims to the region – is not based on a claim to land features and therefore does not fall within the legal maritime framework of UNCLOS (Beckman, 2011). Rather, China’s nine-dashed line claim (see figure 1) is derived from a 1947 map drawn by Yang Huairen, a geographer for the Nationalist Government that fell in 1949 (see figure 2) (Beech, 2013). Yang’s work consisted of 11 dashes that were located in slightly altered locations. One notable exclusion from the renewed 2009 claim is the Gulf of Tonkin, which Mao Zedong ceded to Vietnam in 1952 (CSIS, 2012).

In comparing the two maps, scholars (see Fravel, Gao, and Dutton) – in addition to the U.S. State Department (2014) – have noted that the 2009 dashes come far closer to the shores of nations in the region than did the 1947 map.  Figure 1 depicts the nine-dashed line in relation to China’s 200 nm EEZ (as defined by UNCLOS) with the artificial islands that were constructed inside the EEZs of the Philippines and Malaysia. In this map, the aggressiveness of the Chinese claim and the seriousness of the conflict becomes obvious. To make matters worse, the current legal structure for governing maritime disputes is not equipped to resolve such varying definitions and claims to the sovereignty of what are, in most cases, uninhabitable atolls and reefs.

Figure 1: China’s South China Sea Claims (2009)

 

Figure 2: China’s South China Sea Claim: 1949

 

Chinese Historical Claims

The South China Sea’s delineation as “international water” dates back to the late Ming period (1403 – 1644) and the introduction of European trade companies in East Asia. With an increased European presence in Asia, European ideals of free passage and trade policies clashed with the tributary system of the Chinese Empire. The understanding of the South China Sea as “international water” is derived from the European understanding of the freedom of navigation rather than from the Chinese understanding of the South Sea (南海). For China, the South Sea was a part of the Chinese Empire and a critical economic thruway for trade and exploration.

China’s legal claim rests in an assertion of first discovery in the second century CE (Tang, 1991). China also asserts that the South China Sea was mapped by Chinese scholars in the third century CE and that archeological evidence from several islands match Han Dynasty era artifacts (placing them in the early second century CE) (Kompas, 1991). If true, these assertions would be the earliest historical basis of any claimants, as the claims of the Philippines, Vietnam, and Malaysia are derived from later events, including European colonization. Incorporated into China’s claim is the assertion that many of those subsequent events, including the French colonization of the habitable South China Sea in the Spratly and Paracel Islands, were illegitimate and do not negate China’s historical claims (Catley, 1997).

It is easily verifiable that China had continuous trade contact with what was called the South Sea Region (南洋), which referred to the nations in South and Southeast Asia from a China-centric perspective. The known trade routes with this region were predominant during the Kingdom of Wu (222 CE – 279 CE) and continued to expand during the subsequent Liang Dynasty (502-587 CE), with Funan (present-day part of Thailand, Cambodia, and Vietnam) acting as a major entrepot for South Sea Region trade in the Mekong River Basin by the sixth century CE (Leonard, 1984). By the thirteenth century, continued trade with the South Sea Region relied on the shipping capacities of Malay city-states in the absence of Chinese naval power (Rockhill, 1911).

While the International Court of Arbitration governing maritime disputes has made it clear that (in legal terms) historical claims are wholly irrelevant to territorial and maritime disputes in the case of the South China Sea, the People’s Republic of China continues to assert the relevance of its historical claims. Despite the clear legal discourse on the subject of historical claims, the narrative of China – the largest actor in the region – must be considered and understood when analyzing the disputes. So long as actors are operating within different frameworks – with China continuing to call attention to historical claims and the international community continuing to focus on unenforceable international law, meaningful discussion and eventual resolution of the South China Sea disputes will be out of reach.

The existing debate over Chinese historical claims is whether they are relevant to the present-day territorial and international waters in the South China Sea. The International Court of Arbitration and ASEAN have said no, but the Chinese government continues to argue that they are indeed relevant and constitute a valid present-day claim. It is not the validity of China’s presence in the South China Sea that is in question. Rather, it is whether a trading presence (in which shipping lanes circumvented the open ocean and dangerous rocks of the South China Sea islands) can be considered a legitimate present-day claim of sovereignty to the various islands in the South China Sea.

It is possible that historical claims are not about attachment to a specific piece of land, as evidenced by the sweeping nature of the nine-dashed line. Rather, China’s concern may be in recalling the traditional hierarchical Asian paradigm in which the “middle kingdom” acted as the center of a tributary system of various levy-paying states. In exchange, the Chinese Emperor would offer protection to a series of states whose relative power was starkly inferior to China’s (Percival, 2007). This system, which was in use throughout most of China’s history, ended with European colonialism in Asia, particularly with the French colonization of Vietnam in 1885, during which China failed to protect its tributary client state (Brocheux, 2009). While the nature of this tributary arrangement changed throughout China’s history, such as the privatization of trade and establishment of a customs system by the Kangxi Emperor in the late 17th century, the Sino-centric nature of such a system heralds many of the underlying assumptions to the present-day Chinese historical claims in the South China Sea (Zhao, 2013). Alongside claims to the South China Sea, Xi Jinping’s Belt and Road Initiative is seen to be a resurrection of these tributary ideals.

Regardless of the motivations or rationale behind the resurgent employment of historical claims in the South China Sea, those histories have become increasingly relevant to the debate over sovereignty and the occupation of uninhabitable islands in the region. The lack of legally legitimate historical claims to South China Sea islands (beyond the trade routes argument) leaves the Chinese perspective with no legal standing under international law. With each state using its own narrative to support their claims, there is little chance for historical and factual reconciliation – making the historical realities and claims of China crucial to the understanding of the current status of the region. As China continues to advance its activities in the South China Sea, it is crucial to reach a better understanding of why Beijing is in pursuit of a larger military and diplomatic presence in southeast Asia.

 

About the Author: Benjamin Black is an School of International Affairs student at the Pennsylvania State University.


 

References

“Anatomy of a Strategy.” 2015. Asia Maritime Transparency Initiative. https://amti.csis.org/anatomy-of-a-strategy/

“Convention and Related Agreements.” 2013. United Nations Convention on the Law of the Sea. http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm (December 1, 2016).

Maps That Explain Maritime Security in Asia.” Asia Maritime Transparency Initiative. https://amti.csis.org/atlas/ (January 18, 2017).

“Maritime Traffic Safety Law of The People’s Republic Of China.” AsianLII. http://www.asianlii.org/cn/legis/cen/laws/mtslotproc496/ (April 24, 2017).

“PHL PRC Press Release No 1.” 2013. Permanent Court of Arbitration. https://www.documentcloud.org/documents/2165479-phl-prc-press-release.html (January 14, 2017).

“United Nations Convention on the Law of the Sea.” UNCLOS | PCA-CPA. https://pca-cpa.org/en/services/arbitration-services/unclos/ (January 14, 2017).

Anderson, Benedict R. OG. 1983. Imagined communities: reflections on the origin and spread of nationalism. London: Verso.

Bateman, Samuel and Ralf Emmers, Ed. 2012. Security and International Politics in the South China Sea: Towards a co-operative management regime. Routledge Security in Asia Pacific Series.

Beckman, Robert. 2011. China, UNCLOS, and the South China Sea. Asian Society of International ˇLaw: Third Biennial Conference. In Beijing, China.

Beech, Hannah, and Yang Siqi. “Just Where Exactly Did China Get Its Nine-Dash Line From?” July 19, 2016. Accessed January 16, 2017. http://time.com/4412191/nine-dash-line-9-south-china-sea/

Brocheux, Pierre, and Daniel Hémery. 2009. Indochina: an ambiguous colonization, 1858-1954. Berkeley, CA: University of California Press.

Catley, Robert, and Makmur Keliat. 1997. Spratlys: Dispute in the South China Sea. Aldershot: Ashgate

Center for Strategic and International Studies via Document Cloud

Daniels, Christopher L. 2013. South China Sea: Energy and Security Conflicts. Lanham, MD: The Scarecrow Press, Inc.

Garver, John. 1992. “China’s Push through the South China Sea: the Interaction of Bureaucratic and National Interests.” The China Quarterly. 132. Pg 999-1028.

Hayton, Bill. 2014. South China Sea: the Struggle for Power in Asia. New Haven: Yale University Press.

Kaplan, Robert. 2014. Asia’s Cauldron: The South China Sea and the End of a Stable Pacific. Random House.

Lee, Lai To. 1999. China and the South China Sea dialogues. Westport, CT: Praeger.

Leonard, Jane Kate. 1984. Wei Yuan and China’s Rediscovery of the Maritime World. Cambridge: Harvard Council of East Asian Studies.

Li, Yu-ning. 1975. The First Emperor of China. White Plains, NY: International Arts and Sciences Press.

Ocean and Polar Affairs. 2014. U.S. Department of State. https://www.state.gov/documents/organization/234936.pdf

Office of Ocean and Polar Affairs. 2014. U.S. Department of State. https://www.state.gov/documents/organization/234936.pdf.

Percival, Bronson. 2007. The Dragon Looks South: China and Southeast Asia in the New Century. Westport, CT: Praeger Security International.

Perlez, Jane. 2016. “Tribunal Rejects Beijing’s Claims in the South China Sea.” The New York Times https://www.nytimes.com/2016/07/13/world/asia/south-china-sea-hague-ruling-philippines.html?_r=0

Permanent Court of Arbitration. 2016. Press Release: South China Sea Arbitration Award. https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Press-Release-No-11-English.pdf.

Poling, Gregory B. 2013. The South China Sea in Focus: Clarifying the Limits of Maritime Dispute. Center for Strategic and International Studies (CSIS). New York: Rowman & Littlefield.

Rockhill, W., translator. 1911. Chau Ju-kua: His Work on the Chinese and Arab Trade in the Twelfth and Thirteenth Centuries “Chu-fan-chi”. St. Petersburg.

Stashwick, Steven. 2016. “New Weapons on China’s Artificial Islands Don’t Violate ‘Non-Militarization’ of South China Sea.” The Diplomat. http://thediplomat.com/2016/12/new-weapons-on-chinas-artificial-islands-dont-violate-non-militarization-of-south-china-sea/ (April 24, 2017).

Swanson, Bruce. 1982. Eighth Voyage of the Dragon: A History of China’s Quest for Seapower. Annapolis, MD: Naval Institute Press. Pg. 17-43

Tang Cheng Yuan. 1991. “The Legal Basis of Chinese Sovereignty Over the Xisha and Nansha Islands” presented at The Second Workshop on Managing Potential Conflicts in the

Townsend, James. 1992. “Chinese Nationalism.” The Australian Journal of Chinese Affairs 27: 97–130.

Zhao, Gang. 2013. The Qing opening to the ocean: Chinese maritime policies, 1684-1757. Honolulu: University of Hawaiʻi Press.

 

A United Korea

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

As the Winter Olympics began in early February in PyeongChang, North and South Korea put out a united front. From the opening ceremony, to the Women’s Ice Hockey team, to the infamous cheerleaders, North Korea has made a presence in PyeongChang so far. Although this may seem like a symbol of peace, a value that the Olympic Games have always stood for, it begs the question of what is actually going on between North and South Korea.

 

While recent Olympic Games have sought to set politics aside, the strategic subtext of the Korean unity has been unavoidable.[1] The media has been incessant ever since North Korea agreed to send 22 athletes, along with a slew of artistic performers and dignitaries to PyeongChang.[2] The controversies over whether North Korea’s participation in the Games would violate international sanctions punishing North Korea for its nuclear weapon development could not be abetted, even by the arrival or North Korean cheerleaders donning matching red uniforms.

 

There is still a divide between the North and the South, as the troupe from the North remains separated from the rest of the athletes participating in the Games. While the other world athletes get to stay in the Olympic Village, those from North Korea are designated to remain on board the ferry Mangyongbong-92.[3] This is the first time since 2010 that South Korea has allowed a ship from the North to enter into its waters.[4] Although some might see it as a step towards unity, it seems to be a step in the wrong direction.

 

North Korea has spent the last year test-firing ballistic missiles and nuclear weapons in violation of United Nations resolutions and international law.[5]  Yet, during the opening ceremony, the North Korean Olympic team was soaking up the spotlight. This is not the first time that the North and South have put on a united front at during international athletic competitions.[6] It is actually the ninth time that North Korea and South Korea have marched in unison since the first time during the 2000 Olympics.[7] However, it makes you wonder if North Korea’s latest olive branch is a more of a Trojan horse.

 

It is skeptical that North Korea’s actions in attending the Games are any indication of the country’s future good will. It seems almost too good to be true that North Korea’s participation in the Olympics would lead to any type of long-term improvements in the behavior or the cooperation between the North and the South.  North Korea’s ultimate goal may actually be to poke holes in the United States’ alliance with South Korea or to weaken international support for severe sanctions over its use of nuclear weapons.[8] Still, whether it was intended or not, North Korea has shifted the focus from the success of the athletes to its political stunt.

 

Opinions on the unified front are split amongst South Koreans. While some believe that it is a step towards peace, other feel that it has unfairly shifted the emphasis away from the success of the South Korean athletes, as well as the other athletes from around the world.[9]  The South Korean women’s ice hockey team has been forced to accept players from North Korea without ample notice or the ability to bond as a team.[10] While some might see the joint ice hockey team as a symbol of unity and peace, it seems inherently unfair that some of the women who have worked so hard to get to the Olympics now have to sit and watch players from the North usurp their spots.[11]

 

Regardless of the goals that North Korea had in mind when it agreed to participate in the Winter Olympic Games, it surely has gained lots of publicity. North Korea’s participation also has potentially opened the doors of communication between South Korean president, Moon Jae-in, and North Korean leader, Kim Jong Un. Moon Jae-in has received a formal invitation from Kim Jong Un to travel across the border for a meeting, which, if it occurs, will be the first meeting between Korean leaders since 2007. [12]

 

About the Author: Olivia Levine is a 2L at Penn State Law.


 

[1] Rich, Motoko. “Olympics Open With Koreas Marching Together, Offering Hope for Peace.” The New York Times, The New York Times, 9 Feb. 2018, www.nytimes.com/2018/02/09/world/asia/olympics-opening-ceremony-north-korea.html

[2] Id.

[3] Sang-hun, Choe. “North Korean Troupe Is Cleared to Enter South’s Waters Before Games.” The New York Times, The New York Times, 5 Feb. 2018, www.nytimes.com/2018/02/05/world/asia/north-korea-ferry-troupe-olympics.html.

[4] Id.

[5] Friedman, Uri. “North Korea’s Undeserved Olympic Glory.” The Atlantic, Atlantic Media Company, 9 Feb. 2018, www.theatlantic.com/international/archive/2018/02/olympics-opening-ceremony/552722/.

[6] Id.

[7] Id.

[8] Id.

[9] Rich, Motoko. “Olympics Open With Koreas Marching Together, Offering Hope for Peace.” The New York Times, The New York Times, 9 Feb. 2018, www.nytimes.com/2018/02/09/world/asia/olympics-opening-ceremony-north-korea.html.

[10] Haas, Benjamin. “Korea’s United Olympic Squad: Symbol of Hope or Mere Political Stunt?” The Guardian, Guardian News and Media, 10 Feb. 2018, www.theguardian.com/sport/2018/feb/10/korea-united-olympic-squad-hockey-game-highlights-deep-divisions

[11] Lewis, Aimee. “Unified Korean Ice Hockey Team Proves That ‘Winning Isn’t Everything’.” CNN, Cable News Network, 12 Feb. 2018, www.cnn.com/2018/02/10/sport/south-and-north-korea-ice-hockey-intl/index.html.

[12] Id.