Vietnam and Brunei all raise overlapping and competing claims to territorial sovereignty and/or maritime borders, many of which have been enforced in recent years. Taking all these (mostly bilateral) disputes together, the SCS showcases a multidimensional and multifaceted conflict over ‘islands98 and waters’ (cf. Samuels, 2013). To be sure, apart from water, the SCS also comprises more than 200 small or very small features (rocks, coral reefs, islets, islands) of which less than 25 percent actually constantly remain above the sea level at high tide99. The ownership of roughly each of these features is heavily contested and simultaneously claimed by at least two parties. To illustrate, the Philippines claims eight features (Spratly Archipelago) and exclusive economic zones (EEZ) around what it regards as islands, Malaysia three (Spratly Archipelago), while Vietnam, Taiwan and the PRC demand ownership over the entire Spratly and Paracel archipelagos. However, while Taiwan and the PRC also claim the waters around the archipelagoes (and roughly 80 percent of the entire SCS waters), Vietnam does not raise any claim to waters beyond the Spratlys or Paracels.
To further complicate the issue, several non-claimant parties, particularly the United States of America (U.S.), Japan and ASEAN Member States such as Indonesia have also expressed strong interests in the SCS and its disputes. As a result, the SCS dispute is by no means limited to adjacent states. The fragile and complex security context in East and Southeast Asia, characterized by a lack of structures of cooperative security, prevailing strategic alliances and partnerships – for instance between the U.S. and the Philippines – and the SCS’s strategic importance serve as grounds of the SCS’s global outreach. Globalization processes, structural changes and the wider context in which the SCS is embedded in further contribute to the SCS’s international significance, in particular, shifts in both regional and international balance of power and global order, considerably in favor of rising China.
[68] Against this backdrop, the SCS conflict, no matter how long-standing some of its subordinated disputes are, has recently attracted a considerable amount of attention. While a majority of territorial and maritime border claims of the claimant parties date back to the 1940s and 1950s (or even before), the dispute had not become a pressing issue prior to the early 1970s. This process can be attributed to a number of developments. Crucial events certainly were the San Francisco Peace Conference in 1951 and the San Francisco Peace Treaty, which entered into force in 1952 and put an end to the Second World War in Asia. Neither the People’s Republic of China (PRC) nor the Republic of China (ROC) was invited to the conference. This was the result of the ongoing second part of the Chinese Civil War (1946–1950) and the still unresolved governmental legitimacy question as to whether the PRC or the ROC officially represented China. In the wake of this peace conference, Japan – in line with the Potsdam Declaration and Cairo Declaration – was prompted to renounce its entire claims over the Spratly and Paracel archipelagoes. However, these features were not officially reassigned to any other country and the question of ownership was left unresolved100. In addition, on August 15, 1951, Zhou Enlai, former Chinese Minister of Foreign Affairs, officially opposed the peace treaty’s provisions, rejected its legally binding character for the PRC and declared the PRC’s sovereignty over the Paracels, Spratlys and Pratas.
A second and arguably even more decisive event that explains the renewed interest in the SCS was a report by the UN Economic Commission for Asia and the Far East published in 1969. Therein, the committee reported that it is highly likely that vast oil reserves are located in the Yellow Sea and the South China Sea. This finding caught the attention of several SCS resident states, which consequentially began to exert claims regarding their continental shelf boundaries and started to publicly emphasize their maritime and territorial claims on a much more regular and specific basis. Naturally, this resulted in heated debate and a number of incidents in areas of competing claims.
A third and subsequent event responsible for placing the SCS dispute higher on the political agenda was a deadline (May 13, 2009) set by the Commission on the Limits of the Continental Shelf (CLCS), by which claimant states to the SCS had to submit information to the CLCS on whether they intended to make a claim for an extended continental shelf beyond 200 nautical miles under Art. 76 (8) UNCLOS. As a consequence, the Philippines passed its Archipelagic Baseline Law in February 2009, Malaysia and Vietnam (and [69] Vietnam alone) made joint submissions to the CLCS, and China submitted a much-noted note verbale in response (cf. chapter 4.3).
A fourth event that accounted for recent turmoil was the Philippines’ decision in January 2013 to invoke the compulsory settlement of dispute clause under the United Nations Law of the Sea Convention (UNCLOS) by submitting a case against China over competing South China Sea claims to the Permanent Court of Arbitration (PRC) in The Hague. This action was met with particularly harsh critique from the Chinese side that since has been entirely rejecting the Arbitral Tribunal’s jurisdiction on that matter as well as all claims raised by the Philippines (cf. chapter 4.3).
In a nutshell, absent of a cooperative security framework and triggered by a growing vested interest in the SCS as a whole, tensions have been looming large ever since. Accordingly, the number of diplomatic, economic and military incidents greatly increased in scale, reaching from PRC artificial island creation efforts, the launch of U.S. freedom of navigation operations (FONOPS) in the SCS, Indonesia declaring its intention to file a case against China’s claims over Natuna Islands (November 14, 2015), multiple military encounters (e.g. Scarborough Shoal standoff between the PRC and the Philippines (2012)) and diplomatic standoffs (e.g. the so-called Hai Yang Shi You 981 (oilrig) incident between the PRC and Vietnam (2014)), and numerous diplomatic undertakings and discussions in the framework of regional institutions (APEC, ASEAN and East Asia summit) on related subjects. Ultimately, in times of shifting regional and global order and growing nationalist sentiment, territorial sovereignty and border delimitation, the SCS has become an issue of international prestige, domestic legitimacy, national reputation and status.
Table 2: Legal Background at a Glance
International Law generally distinguishes between islands and other maritime features. Pursuant to Art. 121 (1) UNCLOS, an island “is a naturally formed area of land, surrounded by water, which is above the high tide”. In contrast, rocks that “cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf” (Art. 121 (3) UNCLOS). Therefore, islands, unlike rocks and other features, provide the coastal state with certain maritime rights (Art. 121 (2) UNCLOS), including a territorial sea of 12 nautical miles (nm), a contiguous zone of another 12 nm, an exclusive economic zone (EEZ) of 200 nm and a continental shelf. In each of these zones, coastal states enjoy specific rights. An EEZ confers upon coastal states the right of resource exploitation and exploration inside the respective waters, at the seabed and the subsoil thereof. However, an EEZ does not grant any territorial rights. Hence, coastal states cannot regulate maritime traffic inside their EEZ, contrary to maritime traffic inside their territorial sea. EEZs and territorial sea are not necessarily measured from the coastline but may be measured from a coastal state’s islands as well. Unlike islands, any other type of feature such as rocks does not provide [70] the coastal state with an EEZ or continental shelf, but only with a territorial sea of 12 nm. Furthermore, coastal states may seek an extension of their continental shelf (in the case of islands and mainland only) if they can prove that the seabed in that area is still part of their continental shelf. A continental shelf provides coastal states with the rights to explore and exploit resources at the seabed and the subsoil thereof, yet not in the water itself. Hence, the core legal challenge underlying the SCS dispute is that both the general status101 and sovereignty of most of its features remain unclear and disputed. In addition, all claimant states but Brunei actively occupy SCS features. Several claimant parties have submitted extended continental shelf claims and have engaged in island construction/land reclamation activities102, thereby seeking to turn rocks into islands by establishing outposts, runways and other military and civilian infrastructure. As a result, the political and legal situation remains extremely complex, despite the final verdict of the Arbitral Tribunal in the case Philippines v. China (chapter 4.3).
Source: Own representation
Table
