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

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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/

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Stateless Nations: The Failing Peaceful Route to Independence

The recent referendums for both Catalonian and Iraqi Kurdish independence seem to have failed after being rejected by the government or judicial system of their respective governments.[1] While this may not be surprising to most observers, it is the furthest either movement has gone towards full independence – and the continued unrest in Catalonia represents the worst relationship that Barcelona has had with Madrid in decades. In both cases, it seems that the supposed legal avenue to independence by means of referendums and negotiations with the central government is not be possible, and that the peaceful route to independence for stateless nations has been proven to be an impossibility.

The Iraqi section of Greater Kurdistan remains the only section of the Kurdish population to be recognized as autonomous (see figure 1). In 1970 the Iraqi government granted the province of Kurdistan autonomous status, and the Federal Iraqi Republic confirmed that autonomy in 2005.[2] In Syria, Kurdish fighters have seized control of much of northern Syria from government forces, established their own government, and plan for greater autonomy following the war.[3] The Iranian section of Greater Kurdistan, although bearing the provincial name of Kurdistan, is not recognized as autonomous and does not enjoy any sort of self-rule. At a trade meeting on October 4, Iranian President Rouhani and Turkish President Erdogan both criticized the Iraqi referendum, calling it illegitimate and announcing their intent for more “decisive action” in opposition to a Kurdish state.[4]

The aftermath of the Iraqi Kurdish referendum for independence has shown Baghdad’s strong opposition to independence, including a complete refusal to negotiate with Kurdish leaders on the subject. Although the referendum was reported to show over 90% in favor of independence, Kurdish parliamentarians boycotted sessions of the Iraqi Parliament and the Shiite-dominated legislature moved to respond to the referendum by securing assets such as airports and oil fields in Iraqi Kurdistan.[5] Greater Kurdistan has never enjoyed independence, and opposition by all three states that include the claimed territory of Greater Kurdistan make legal progress towards independence unlikely.

Figure 1: Map of Kurd Population[6]

 

In Catalonia, which has a varied history of independence and autonomy, a peaceful movement of protests and referendums has defined aspirations of independence. Between 2000 and 2010, the pro-Madrid socialist party controlled the Catalan Parliament, but in 2010 Artur Mas and his pro-independence party won control of the legislature and held a referendum on independence in 2014. The Spanish courts and parliament labeled the referendum as unconstitutional and arrested Mas, who was convicted in March 2017, fined, and barred from holding office for two years.[7] Other legal efforts have included a 1983 provincial law making Catalan and Castilian Spanish equal languages. The law was validated by the Spanish Supreme Court in 1994 after challenges by the central government failed to overturn it.[8]

The referendum on independence held in early October 2017 by Catalan leader Carles Puigdemont was met with a repeat of the 2014 ban by Spanish courts, but has not resulted in convictions because it is being done under the agreeable auspices of Catalonia’s provincial judicial system and police force. If Catalonia declares unilateral independence, Madrid will most likely institute control over Catalonia’s administration and police force, but the chances of the movement becoming violent are higher than they have been in recent decades.[9]

Failed referendums in Catalonia and Kurdistan, particularly from the perspective of a long legal battle over Catalan autonomy for the former, show the apparent ineffectiveness of legal tools to achieve independence. If violence is to be avoided in these struggles for recognition and autonomy, usage of the law and meaningful dialogues must be as legitimate to central governments as leaders of independence movement hope them to be. For Catalonia, the answer seems to be recognition by the international community – in particular, the European Union. For Greater Kurdistan, the solution for true recognition is unclear, particularly while violence against the central government has led to the existing levels of autonomy enjoyed in Kurdish-held enclaves such as the oil-rich city of Kirkuk.

 

About the Author: Ben Black is a student at the School of International Affairs. 


 

[1] Zucchino, David. 2017. “Iraq Orders Kurdistan to Surrender Its Airports.” The New York Times. https://www.nytimes.com/2017/09/26/world/middleeast/iraq-kurds-independence.html?_r=0 (October 6, 2017).

Minder, Raphael. 2017. “Catalonia Leaders Seek to Make Independence Referendum Binding.” The New York Times. https://www.nytimes.com/2017/10/02/world/europe/catalonia-spain-independence-referendum.html (October 6, 2017).

[2] Iraqi Constitution, Article 113

[3] “Kurds seek autonomy in a democratic Syria.” BBC News. http://www.bbc.com/news/av/world-middle-east-19291072/kurds-seek-autonomy-in-a-democratic-syria (October 6, 2017).

[4] Regencia, Ted. 2017. “Erdogan, Rouhani united in opposition to Kurdish state.” Al Jazeera. http://www.aljazeera.com/news/2017/10/erdogan-rouhani-united-opposition-kurdish-state-171004124507138.html (October 6, 2017).

[5] Press, The Associated. 2017. “Kurdish Lawmakers Boycott Iraq Parliament Session in Baghdad.” The New York Times. https://www.nytimes.com/aponline/2017/10/03/world/middleeast/ap-ml-iraq.html (October 6, 2017).

[6] Izady, Mehrdad. The Gulf Project. Columbia University. http://gulf2000.columbia.edu/maps.shtml

[7] Murphy, Carver. 2017. Penn State Schreyer Honors Thesis. “Stateless Nations and Their Endeavor for Independence.”

[8] Earl L. Rees. Spain’s Linguistic Normalization Laws. pg 314.

[9] Minder, Raphael. 2017. “Catalonia Government Declares Overwhelming Vote for Independence.” The New York Times. https://www.nytimes.com/2017/10/06/world/europe/catalonia-referendum-sedition.html (October 6, 2017).