South China Sea is not China's Sea

By Huy Duong

It would be rather absurd if England were to try to claim sovereignty over most of the English Channel, Iran the Persian Gulf, Thailand the Gulf of Thailand, Vietnam the Gulf of Tonkin, Japan the Sea of Japan, or Mexico the Gulf of Mexico.

But that is exactly what China is trying to do by claiming most of the South China Sea, a body of water about the size of the Mediterranean Sea bordered by nine nations plus Taiwan, and the main gateway between the Pacific and the Indian Ocean.

Although there are long-standing territorial disputes over the Paracel Islands and Spratly Islands, the biggest security risk for the South China Sea is not the conflicting claims over these tiny islands and rocks but China's outright claim to this strategically important body of water.

Most international experts on maritime disputes, including even some Chinese ones, regard China's claim to be inconsistent with international law, including the United Nations Convention on the Law of the Sea (UNCLOS). China's claim is represented by the so-called "U-shaped line" or "nine-dashed line" map that depicts a line encircling most of the South China Sea.

This map was first published by the Republic of China in 1948 under the heading "Map of the locations of the South China Sea Islands". The name indicates that it was a map of the islands within the U-shaped line, not a claim to the entire maritime space. At that time international law only allowed a claim of territorial sea up to three nautical miles, beyond which was considered international waters.

For decades, this map has remained obscure. Until now Chinese scholars have disagreed on what the map means and its legal basis. China's own territorial sea declaration in 1958 only claimed 12 nautical miles and declared that international waters separated its mainland and the islands which it claimed. In other words, China's own declaration then affirmed that most of the maritime space within the U-shaped line map was international waters.

With newfound wealth after successful economic reforms launched in the 1980s and more recent rising naval strength, China's territorial ambitions have grown to encompass not just the disputed Paracels and Spratlys but also most of the South China Sea. Consequently, China resurrected the U-shaped line map as if it were a claim to maritime space dating back to 1948, whereas in fact it was a map about the position of islands and by law it could never have been a legitimate claim to maritime space.

In the 1990s, China started to make claims to some oil blocks within the U-shaped line in and near the Nam Con Son Basin between Vietnam and Indonesia. In 2009, China included the U-shaped line map in notes verbales to the United Nations' Commission on the Limit of the Continental Shelf (CLCS) to assert its maritime claim. This was the first time China sent the U-shaped line map to an intergovernmental body.

Vietnam, Indonesia and the Philippines responded with their own notes verbales to the CLCS to reject China's claim and the U-shaped line map. Vietnam's notes maintained that China's claim as represented by the U-shaped line "has no legal, historical or factual basis, therefore is null and void." Indonesia's note said that the U-shaped line map "clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982." The Philippines' note said that China's claim to most of the South China Sea "would have no basis under international law, specifically UNCLOS".

Instead of being deterred, China is becoming more assertive. In March 2011, two Chinese patrol ships threatened to ram a vessel that was carrying out seismic survey at the Reed Bank on behalf of the Philippines. According to the Philippines, the Reed Bank is not part of the exclusive economic zone (EEZ) belonging to the Spratlys.

In May 2011, a Chinese maritime survey ship cut the seismic sensor cable of a Vietnamese survey ship operating in an area closer to Vietnam's continental coast than to the disputed Paracels and Spratlys. In June 2011, Chinese fishing boats deliberately ran across the seismic sensor cable of another Vietnamese survey ship which was also operating in an area closer to Vietnam's continental coast than to the disputed Paracels and Spratlys.

Regarding these incidents, on June 27, the US Senate unanimously passed a resolution in which it "deplores the use of force by naval and maritime security vessels from China in the South China Sea." The resolution also noted that one of the incidents "occurred within 200 nautical miles of Vietnam, an area recognized as its Exclusive Economic Zone".

In August 2011, the Philippines challenged China to take the dispute to the International Tribunal on the Law of the Sea. China did not accept the challenge, which the Philippines took to underline the fact that China's claim is weak in law.

In the latest episode in September, China warned India that joint exploration with Vietnam in the latter's Blocks 127 and 128 amounted to a violation of China's sovereignty - despite the fact that these blocks were much closer to Vietnam's continental coasts than to the disputed Paracels and Spratlys.

China justified its position by saying that, "The UN Convention on the Law of the Sea does not entitle any country to extend its exclusive economic zone or continental shelf to the territory of another country." In effect, China is trying to use the "historical claims and rights" argument to negate the United Nations Convention on the Law of the Sea.

According to international law, no nation can claim Blocks 127 and 128 as its sovereign territory. Legally speaking, as an area submerged under the sea, these blocks are not "susceptible to sovereignty", i.e., they cannot be claimed as the territory of any country. Therefore, Blocks 127 and 128 can only be maritime space governed by international law. According to international law, in 1947 that area was international waters, and today it is part of Vietnam's EEZ.

Regarding the "historical claims and rights" argument, at the Third Biennial Conference of the Asian Society of International Law in August 2011, the Indonesian Ambassador to Belgium, Luxembourg and the European Union obliquely dismissed it as being "at best ridiculous" as follows, ... the "historic claims of historic waters" is problematic for Asia because Asia is a region rich with ancient kingdoms which were both land and maritime powers. Srivijaya Kingdom which has its capital in Sumatra island in seventh century ruled many parts of Southeast Asia and spanned its control all the way to Madagascar. For Indonesia to claim waters corresponding to its history would be at best ridiculous.

Clearly, if nations were allowed to use the "historical claims and rights" argument to claim vast swathes of the world's oceans and seas at the expense of the United Nations Convention on the Law of the Sea - which stipulates that coastal nations have an EEZ of up to 200 nautical miles - it would make a mockery of the Convention. For example, the "historical claims and rights" argument would allow Britain, which "waved the rules and ruled the waves" far more than China ever did, to claim rights over most of the world's oceans and seas.

Without having the courage of conviction to go to an international court, China relies on using its superior hard and soft powers to press its claim against smaller Southeast Asian countries in the area. Against this pressure, Southeast Asian parties to the dispute need to improve their individual and collective strength but they also need support from major powers, such as the US, India, Japan, Russia and European Union.

For their own sake, the major powers must not abandon the South China Sea to be turned into a Chinese lake and Southeast Asian nations to fall into China's orbit. That would be disastrous not only to the Southeast Asian countries but ultimately also to the major powers themselves and for the legal order over the ocean that the international community has tried so hard to establish since the 1980s.

Huy Duong is a freelance writer. His articles on the South China Sea disputes have appeared on Asia Sentinel, the BBC's website, The Diplomat, Manila Times and VietNam Net. He would like to thank Duat Le, Truong Tran, Dang Vu, Nghia Tran and other friends for valuable comments on this article.

(Copyright 2011 Huy Duong.)