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Q&A: South China Sea dispute

Rival countries have wrangled over territory in the South China Sea for
centuries, but tension has steadily increased in recent years.
China has backed its expansive claims with island-building and naval patrols, while
the US says it opposes restrictions on freedom of navigation and unlawful
sovereignty claims - by all sides, but seen by many as aimed at China.
The frictions have sparked concern that the area is becoming a flashpoint with global
consequences.

What is the argument about?


It is a dispute over territory and sovereignty over ocean areas, and the Paracels and
the Spratlys - two island chains claimed in whole or in part by a number of countries.
Alongside the fully fledged islands, there are dozens of rocky outcrops, atolls,
sandbanks and reefs, such as the Scarborough Shoal.

Why are they worth arguing over?


Although largely uninhabited, the Paracels and the Spratlys may have reserves of
natural resources around them. There has been little detailed exploration of the area,
so estimates are largely extrapolated from the mineral wealth of neighbouring areas.
The sea is also a major shipping route and home to fishing grounds that supply the
livelihoods of people across the region.

Who claims what?


China claims by far the largest portion of territory - an area defined by the "nine-dash
line" which stretches hundreds of miles south and east from its most southerly
province of Hainan.

Beijing says its right to the area goes back centuries to when the Paracel and Spratly
island chains were regarded as integral parts of the Chinese nation, and in 1947
it issued a map detailing its claims. It showed the two island groups falling entirely
within its territory. Those claims are mirrored by Taiwan.
Vietnam hotly disputes China's historical account, saying China had never claimed
sovereignty over the islands before the 1940s. Vietnam says it has actively ruled over
both the Paracels and the Spratlys since the 17th Century - and has the documents
to prove it.
The other major claimant in the area is the Philippines, which invokes its
geographical proximity to the Spratly Islands as the main basis of its claim 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.

Image copyrightAPImage captionThe Philippines accuses China of strengthening


its military presence in the South China Sea

Recent flashpoints
The most serious trouble in recent decades has flared between Vietnam and China,
and there have also been stand-offs between the Philippines and China:

In 1974 the Chinese seized the Paracels from Vietnam, killing more than 70
Vietnamese troops.

In 1988 the two sides clashed in the Spratlys, with Vietnam again coming off
worse, losing about 60 sailors.

In early 2012, China and the Philippines engaged in a lengthy maritime standoff, accusing each other of intrusions in the Scarborough Shoal.

In July 2012 China angered Vietnam and the Philippines when it formally
created Sansha city, an administrative body with its headquarters in the Paracels
which it says oversees Chinese territory in the South China Sea.
Unverified claims that the Chinese navy sabotaged two Vietnamese
exploration operations in late 2012 led to large anti-China protests on
Vietnam's streets.

In January 2013, Manila said it was taking China to a UN tribunal under the
auspices of the UN Convention on the Laws of the Sea, to challenge its claims.

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.

In April 2015, satellite images showed China building an airstrip on reclaimed


land in the Spratlys.

In October 2015, the US sailed a guided-missile destroyer within 12-nautical


miles of the artificial islands - the first in a series of actions planned to assert
freedom of navigation in the region. China warned that the US should "not act
blindly or make trouble out of nothing".

Image copyrightAFPImage captionThe Philippines has a rusting vessel beached on


the Second Thomas Shoal, which China also claims

What does the rest of the world say?


Although China has tended to favour bilateral negotiations behind closed doors,
other countries want international mediation. But even if the Philippines is successful
in its attempts to pursue China at a UN tribunal, China would not be obliged to abide
by the ruling.
Recent attempts by regional grouping Asean to discuss new ideas for resolving the
dispute appear to have left the bloc severely divided.
The US has warned China not to "elbow aside" the countries it is in conflict with over
the islands.
http://www.bbc.com/news/world-asia-pacific-13748349

Territorial Disputes in
the South China Sea
Recent Developments

Territorial and jurisdictional disputes in the South China Sea continue to strain
relationships between China and other countries in Southeast Asia, risking escalation
into a military clash. The United States has sought to uphold freedom of navigation
and support other nations in Southeast Asia that have been affected by Chinas
assertive territorial claims and land reclamation efforts. In the fall of 2015, the United
States signaled that it will challenge Chinas assertion of sovereignty over disputed
territory by flying military aircraft and deploying ships near some of the islands.
In recent years, satellite imagery has shown Chinas increased efforts to reclaim
land in the South China Sea by physically increasing the size of islands or creating
altogether new islands. In addition to piling sand onto existing reefs, China has
constructed ports, military installations, and airstripsparticularly in the Spratly
Islands.
Background

Chinas sweeping claims to sovereignty over the seaand the seas alleged 11 billion
barrels of untapped oil and 190 trillion cubic feet of natural gashave antagonized
competing claimants Malaysia, Vietnam, Brunei, Taiwan, Indonesia, and the
Philippines. As early as the 1970s, countries began to claim islands and various zones
like as the Spratly islands, which may possess natural resources and rich fishing areas,
in the South China Sea as their own.
China maintains that under international law, foreign militaries are not able to conduct
intelligence gathering activities, such as reconnaissance flights, in its exclusive
economic zone (EEZ). According to the United States, countries should have freedom
of navigation through EEZs in the sea and are not required to notify claimants of

military activities. Chinas claims threaten sea lines of communication, which are
important maritime passages that facilitate trade and the movement of naval forces.
In recent years, China has built three airstrips on the Spratly Islands to extend its
presence in disputed waters. China has warned its Southeast Asian neighbors against
drilling for oil and gas in the contested region, disrupting other nations oil exploration
and seismic survey activities. To challenge Chinas claims in international waters, the
United States has deployed destroyer ships on missions in the South China Sea.
Currently, the Permanent Court of Arbitration in The Hague is hearing a claim brought
by the Philippines against China, although Beijing refuses to accept the courts
authority.
Concerns

The United States, which maintains important interests in ensuring freedom of


navigation and securing sea lines of communication, has expressed support for an
agreement on a binding code of conduct and other confidence-building measures. The
United States has a role in preventing military escalation resulting from the territorial
dispute. However, Washingtons defense treaty with Manila could draw the United
States into a China-Philippines conflict over the substantial natural gas deposits in the
disputed Reed Bank or the lucrative fishing grounds of theScarborough Shoal. A
dispute between China and Vietnam over territorial claims could also threaten the
military and commercial interests of the United States. The failure of Chinese and
Southeast Asian leaders to resolve the disputes by diplomatic means could undermine
international laws governing maritime disputes and encourage destabilizing arms
buildups.
http://www.cfr.org/global/global-conflict-tracker/p32137#!/conflict/territorialdisputes-in-the-south-china-sea

Chinas

Dis
putes

Maritime

A CFR InfoGuide Presentation


The East and South China Seas are the scene of escalating territorial disputes between China and its
neighbors, including Japan, Vietnam, and the Philippines. The tensions, shaped by China's growing
assertiveness, have fueled concerns over armed conflict and raised questions about Washington's
security commitments in its strategic rebalance toward the Asia-Pacific region.

Six countries lay overlapping claims to the East and South


China Seas, an area that is rich in hydrocarbons and natural gas
and through which trillions of dollars of global trade flow. As it
seeks to expand its maritime presence, China has been met by
growing assertiveness from regional claimants like Japan,
Vietnam, and the Philippines. The increasingly frequent
standoffs span from the Diaoyu/Senkaku Islands, on Chinas
eastern flank, to the long stretch of archipelagos in the South
China Sea that comprise hundreds of islets. The U.S. pivot to
Asia, involving renewed diplomatic activity and military

redeployment, could signal Washingtons heightened role in the


disputes, which, if not managed wisely, could turn part of Asias
maritime regions from thriving trade channels into arenas of
conflict.
Chinas maritime disputes span centuries. The tug-of-war over
sovereignty of the Diaoyu/Senkakus in the East China Sea can
be traced to the Sino-Japanese War of 1894, while Japans
defeat in World War II and Cold War geopolitics added
complexity to claims over the islands. The fight over
overlapping exclusive economic zones in the South China Sea
has an equally complex chronology of events steeped in the
turmoil of Southeast Asian history. Globalizationincluding
extensive free trade pacts between claimantsand recent
developments like the U.S. pivot to Asia have further
connected the two disputes. As Chinas economic ascent
facilitates growing military capabilities and assertiveness in
both seas, other regional players are also experiencing their
own rise in nationalism and military capability, and have
exhibited greater willingness to stake territorial claims.
In recent years, China has undertaken drastic efforts to dredge
and reclaim thousands of square feet in the South China Sea. Its
construction of artificial islands and infrastructure, such as
runways, support buildings, loading piers, and possible
satellite communication antennas, has prompted its neighbors
and the United States to question whether they are strictly for
civilian purposes, as claimed by the government. Chinas land
development has profound security implications. The potential
to deploy aircraft, missiles, and missile defense systems to any
of its constructed islands vastly boosts Chinas power
projection, extending its operational range south and east by as
much as 1,000 kilometers (620 miles). The map below

illustrates a hypothetical power projection if Chinese military


capabilities were established at Subi Reef.

China's Island Building


Chinas highest rate of island development activity is taking
place on the Paracel and Spratly Island chains. Beijing has
reclaimed more than 2,900 acres (PDF) since December 2013,
more land than all other claimants combined in the past forty
years, according to a U.S. Defense Department report. Satellite
imagery has shown unprecedented activity from China on Subi
Reef and Fiery Cross Reef in the Spratlys, including the possible
construction of helipads, airstrips, piers, and radar and
surveillance structures. In addition to China, the Spratlys are
claimed by Malaysia, the Philippines, Vietnam, and Taiwan.
Experts say that Chinas artificial island building and
infrastructure construction are increasing its potential power
projection capabilities in the region.
Thousands of vessels, from fishing boats to coastal patrols and
naval ships, ply the East and South China Sea waters. Increased
use of the contested waters by China and its neighbors heighten
the risk that miscalculations by sea captains or political leaders
could trigger an armed conflict, which the United States could
be drawn into through its military commitments to allies Japan
and the Philippines. Policy experts believe that a crisis
management system for the region is crucial.

Resource Sharing
Claimants in both the South China Sea and East China Sea could cooperate on
the development of resources (PDF), including fisheries, petroleum, and gas. A

resource-sharing agreement could include bilateral patrolling mechanisms, which


would deter potential sources of conflict like illegal fishing and skirmishes arising
from oil and gas exploration. More collaborations in the mold of joint fishery deals
like those between China and Vietnam and Japan and Taiwan could mitigate risk by
sharing economic benefits.

Military-to-Military Communication
Increased dialogue between military forces has the potential to reduce the risk
of conflict escalation. Communication mechanisms like military hotlines to manage
maritime emergencies, similar to the ones set up by China and Japan, China and
Vietnam, and China and ASEAN, could be established among all claimants. These
hotline systems would connect leaders in the event of a crisis that could arise from
mishaps, such as naval maneuvers misinterpreted by captains of merchant vessels or
fishermen. Lastly, joint naval exercises, such as those proposed by Beijing in October
2015, could support greater military transparency and help develop shared rules of
the road.

Building a Multilateral Framework


The development of a multilateral, binding code of conduct between China and
ASEAN countries is often cited as a way of easing territorial disputes in the South
China Sea. The parties have already agreed upon multilateral risk reduction and
confidence-building measures in the 2002 Declaration on the Conduct of Parties in
the South China Sea, but none have adhered to its provisions or implemented its
trust-building proposals. While China has historically preferred to handle all
disputes bilaterally, ongoing consultations between Beijing and ASEAN still hold
some promise for reinvigorating a multilateral framework toward greater
cooperation and conflict resolution. However, given differences among ASEAN
members vis--vis China and China's preference to settle matters bilaterally, it is
uncertain whether progress can be made.

International Arbitration
Bringing territorial disputes to an international legal body presents another means of
conflict mitigation. The International Court of Justice and the International Tribunal
for the Law of the Sea are two forums where claimants can file submissions for
settlement. In July 2013, a UN tribunal was convened in The Hague to discuss
anarbitration case filed by the Philippine government contesting the legality of
Chinas territorial claims in the South China Sea. The court ruled in October 2015
that it has jurisdiction to hear some of the claims filed against China, and a ruling is
pending. An outside organization or mediator could also be called upon to resolve the

disagreement, although the prospect for success in these cases is slim given Chinas
likely opposition.

Diplomatic
Escalatory actions would likely trigger ramped up diplomacy. The United States
could initially serve in a mediation role in the event of crisis erupting in either sea. In
the South China Sea, mediation could also come from ASEAN or a trusted, neutral
actor within the region like Singapore. Parties could also call for an emergency
session of the UN Security Council to negotiate a cease-fire, although Chinas
permanent seat on the Council could limit the effectiveness of this option. In the East
China Sea, bilateral management of the dispute is the likely first option, with Beijing
and Tokyo sitting down to negotiate a common guideline for handling the conflict
and preventing its escalation. Chinese and Japanese officials made a breakthrough to
ease tension in November 2014, issuing a joint four-point outline to improve BeijingTokyo relations.

Economic
Despite extensive trade ties, the parties to the dispute could respond to a rise in
tensions by imposing economic sanctions. In response to a Chinese action, for
instance, the United States could sanction financial transactions, the movement of
some goods and services, and even travel between the two countries. In retaliation,
Beijing could bar U.S. exports and cut back on its extensive holdings of U.S.
Treasuries. Claimants could also manipulate exports and relaunch boycotts of goods.
Signals of such a response have already been seen: in 2012 Chinese protesters
launched a wave of boycotts of Japanese-made products. Japan also accused China
of halting exports of rare earth minerals after a territorial spat in 2010a charge
Beijing deniedcausing a commodities crisis for resource-dependent Japan.

Military
If confrontation were to involve Japan in the East China Sea or the Philippines in the
South China Sea, the United States would be obligated to consider military action
under defense treaties. Experts note that Washington's defense commitments to
Tokyo are stronger than those to Manila. Under its treaty obligations, the United
States would have to defend Japan in the case of an armed attack; the U.S.Philippine treaty holds both nations accountable for mutual support in the event of
an armed attack in the Pacific Area on either of the Parties. Military action would
represent a last resort, and would depend on the scale and circumstances of the
escalation. In the event of armed conflict breaking out between China and Japan, the
United States could also use crisis communication mechanisms outlined in the U.S.China Military Maritime Consultative Agreement (PDF) to encourage a stand-down

of forces and facilitate communication between Tokyo and Beijing. Verbal


declarations that communicate the seriousness of the dispute and convey support for
an ally, as well as offers of military assistance, can also serve as essential coercive
de-escalation measures during a crisis.
In the South China Sea, Washington has protested against Beijings extensive land
reclamation efforts, warning that island development and a military buildup could
lead to regional conflict. The U.S. military deployed surveillance aircraft over the
Chinese-built artificial islands in 2015 and sent warships to sail within 12 nautical
miles of disputed features in the Paracel and Spratly island chains to emphasize the
importance of freedom of navigation in the contested waters. These operations,
intended to challenge Chinas maritime claims, are expected to expand in scope and
have received support from U.S. regional allies.
http://www.cfr.org/asia-and-pacific/chinas-maritime-disputes/p31345#!/p31345

Showdown in the South China Sea: How did we get here?


What's China's stance?
China says both the Paracels and the Spratlys are an "integral part" of its territory, offering up
maps that date back to the early 20th century.
It defends its right to build both civil and defensive facilities on the islands it controls.

Beijing also says it upholds the right of freedom of navigation in the South China Sea but
Foreign Minister Wang Yi warned in March 2016 that this didn't equal the "freedom to run
amok."
China says its control over the disputed waters is justified because it was the first to discover
them.
"China was the earliest to explore, name, develop and administer various South China Sea
islands. Our ancestors worked diligently here for generations," Wang said.
"History will prove who is the visitor and who is the genuine host."

What does international law say?


International maritime law doesn't accord 12 nautical miles of "territorial waters" to
artificial islands -- only natural features visible at high tide.

Nor does reclaimed land qualify for a 200 nautical mile "exclusive economic zone
(EEZ)," which gives a country special rights such as over exploration of the sea bed
and fishing.
Before China's frenzy of land reclamation, both Subi and Mischief reefs were
submerged at high tide, while a sandbar was visible at high tide at Fiery Cross Reef.
In 2013, the Philippines filed a case with the Permanent Court of Arbitration in The
Hague, seeking a ruling on its right to exploit the South China Sea waters within the
exclusive economic zone of the islands and reefs it occupies in the South China Sea.
A ruling is expected in May. Beijing has refused to participate.

A New Way to Resolve South China Sea Disputes?


A retired U.S. admiral suggests an out-of-the-box solution.

By Prashanth Parameswaran
April 10, 2015
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As disturbing trends in the South China Sea continueinto 2015, some interesting
proposals have been floated in various circles about how to resolve or at least
manage the contentious territorial and maritime disputes there. We have explored
some of these direct and indirect approaches at The Diplomat, which range
from imposing greater costs on Chinese coercion in the South China Sea to leaving
the issue to the next generation altogether.
At a recent conference at the Carnegie Endowment for International Peace, a
Washington, D.C.-based think tank, former director of national intelligence and
commander-in-chief of the U.S. Pacific Command Admiral Dennis Blair suggested
one such idea. In essence, Blair proposed that an International Conference on the
South China Sea be convened to work out an international solution to conflicting
claims in the South China Sea, and that the results of that conference then be used by
these actors as the new reality on the ground.
The logic of such an approach, Blair said, would be to establish clarity on how these
disputes are handled, something that is absent today. He argued that similar disputes
in East Asia have tended to be handled in one of three ways: treaty agreements of
some sort (eg. the 1979 agreement between Malaysia and Thailand); tacit agreements
to work toward a diplomatic resolution (eg. the Kurils, Dokdo/Takeshima); and

military standoffs (eg. Taiwan, Senkaku/Diaoyu, the two Koreas). In the South China
Sea, however, Blair said the actors have yet to all work out exactly which method to
use, with the declaration of conduct on the South China Sea virtually ignored and
China using non-military, gray-zone actions to advance its controversial nine-dash
line claim.
For Blair, convening an International Conference on the South China Sea would
help establish clarity on how to resolve conflicting claims in a two-step process. First,
a conference would be held involving claimants Brunei, Malaysia, the Philippines,
Taiwan, Vietnam and yes, China too, if it agrees and supported by other seafaring
nations such as the United States, Japan and Australia. The objective would be to
work out a rough international solution to claims in the South China Sea. While Blair
acknowledged that China may not participate, he believed other claimants could use
general precedents and standards to come up with a specific solution down to
territorial seas, economic zones and joint development areas that would be roughly
fair to all.
Second, following the conference, Blair said the claimant nations who were at the
conference should then act as if the results of that conference were the new ground
reality in the South China Sea. The rest of the international community, meanwhile,
should recognize the legitimacy of that conference and support actions that are in
line with it and opposing those that are not.
While it is not uncommon to hear versions of such an idea floated as potential
options publicly and privately, it is certainly not one of the more orthodox
approaches usually featured in the headlines. It would also seem at first glance to
make some sense, if achieving some clarity as soon as possible is the overriding
objective. But the proposal would also likely face several formidable challenges if
actually attempted. First, even leaving China aside given its allergic reaction to
internationalizing the issue it is unclear how much support there would be among
the remaining South China Sea claimants for such a public way to resolve differing
claims. A few may not even wish to attend the conference, as they may prefer more
low-profile or quieter ways of handling disputes. Much of this will also depend on
form rather than substance. Heavy involvement by outside actors including the
United States might appeal to bolder claimants like the Philippines or Vietnam but
be less appealing to Malaysia, for example particularly if it is read as external
interference by China and places these states in a rather awkward position between
Washington and Beijing. And lets not even mention the diplomatic minefield of
inviting both Taiwan and mainland China to participate in an international dialogue
on sovereignty issues.
Second, assuming the conference is convened and most of the claimants do attend,
resolving claims between parties is likely to be notoriously difficult in practice. For all
the attention paid to Chinas nine-dash line and its challenge to other claimants,
several Southeast Asian states have unresolved disputes amongst themselves as well.
Blair suggested that some of these issues might be more negotiable than other,
fiercer disputes because they do not involve lost homelands, large populations, or

even significant economic resources (depending on how one estimates potential


hydrocarbon resources). Instead, the South China Sea disputes are largely about
national pride and politics. To be fair, incremental efforts have been made to at least
resolve some of these disputes over the years, including Malaysias quiet resolution
with Brunei in 2009. But as the recent controversy between Malaysia and the
Philippines over issues related to the South China Sea and Sabah during the past few
weeks has illustrated, some of these disagreements are tough nuts to crack.
Third and lastly, even if the conference did leave with some resolution of the disputes
between claimants, it is unclear how exactly these claimants, along with other outside
actors, would implement this new reality on the ground, as Blair proposed, and
whether they have both the capabilities and the willingness to do so. This is
particularly the case if China is not part of how that reality is shaped; Beijing has so
far aggressively demonstrated that it is serious about altering the status quo in its
favor including through coercion if necessary. Would the Philippines or Malaysia,
or even ASEAN countries collectively, be expected to challenge Beijing over areas
that lie within the nine-dash line following the conference, and, if so, how much
would they be willing to risk? I have noted more specifically some of the challenges
inherent in even slightly more forward-leaning individual and regional approaches in
the maritime realm and the South China Sea, let alone overt challenges to China
there (see, for instance, here, here and here).
As for outside actors, taking the example of the United States, how much would
Washington be willing to commit to operationalize this new reality given its nuanced
policy of not taking a position on the disputes themselves but being concerned about
how they are resolved and their broader consequences for the region? Blair, for his
part, believes that U.S. policy in the South China Sea thus far has been tentative and
quite weak and does not adequately recognize key American interests. But that still
leaves the more difficult question of how far America is willing to go including
committing assets and risking a downturn in the U.S.-China relationship to see a
proper resolution to conflicting claims in the South China Sea.
http://thediplomat.com/2015/04/one-new-way-to-resolve-the-south-china-sea-disputes/
How to resolve conflicts in the South China Sea

Southeast Asian states should collectively negotiate with powerful China to resolve
territory disputes.
04 Jul 2012 14:04 GMT | Politics, US & Canada, Brunei, China, Malaysia
China's claim to a disputed island in the South China Sea has angered many in
the Philippines [Reuters]
ABOUT THE AUTHOR

Chandra Muzaffar

Dr. Chandra Muzaffar is the President of the International Movement for a Just World (JUST)

STORY HIGHLIGHTS
No one will believe that the stand-off between the Philippines and China over a
disputed island in the South China Sea is a straightforward bilateral issue. It has serious
implications not only for regional politics but also for the changing pattern of global power.
This is why it is imperative that a clear basis be established for the resolution of the dispute
without any further delay.
Both the Philippines and China have adopted what appear to be rigid positions on
the ownership of the uninhabitable rock and the waters around it which the former
calls Scarborough Shoal and the latter calls Huangyan Island. The Philippines claims
that Scarborough Shoal which is 135 nautical miles from Luzon comes within its 200
mile Exclusive Economic Zone. China, on the other hand, argues that historically Huangyan
has been

No one will believe that the stand-off between the Philippines and China over a
disputed island in the South China Sea is a straightforward bilateral issue. It has
serious implications not only for regional politics but also for the changing pattern of
global power. This is why it is imperative that a clear basis be established for the
resolution of the dispute without any further delay.
Both the Philippines and China have adopted what appear to be rigid positions on
the ownership of the uninhabitable rock and the waters around it, which the former
calls Scarborough Shoal and the latter calls Huangyan Island. The Philippines claims
that Scarborough Shoal, which is 135 nautical miles (250 kilometres) from Luzon,
comes within its 200 mile (321.86 kilometre) Exclusive Economic Zone. China, on
the other hand, argues that historically Huangyan has been part of its territory and is
mentioned in a 13th-century Chinese map.
There are counter-arguments against both positions. If the shoal is part of the
Philippines, Chinese commentators point out, why didn't the Treaty of Paris of 1898,
which gave the United States sovereignty over the Philippines, recognise it as such?
On the other side, there are Filipino analysts who have reminded China that for
hundreds of years before the 13th century, the ancestors of present-day Filipinos,
Indonesians, and Malaysians, known for their superb maritime skills, were in fact the
masters of the seas in the entire region, including what is now known as the South
China Sea.
The Philippines wants the stand-off resolved through international law, on the basis
of the Law of the Seas. China is totally opposed to this and insists that it be settled

through bilateral talks. Though both sides will not budge, they are determined to
avoid a military confrontation. This gives us some hope. What sort of peaceful
resolution will satisfy both parties?
This is where the Association of Southeast Asian Nations (ASEAN) - an organisation,
including Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines,
Singapore, Thailand and Vietnam - may have a role to play.
ASEAN could propose the establishment of an ASEAN-China forum to serve as a
platform for continuous discussions and negotiations on the dispute and other
related conflicts pertaining to the South China Sea. After all, three other ASEAN
states, apart from the Philippines - Brunei, Vietnam and Malaysia - have also staked
claims to parts of the Spratly Islands in the South China Sea. The opposing claimant
in all these cases is China, which maintains that it has sovereign rights over most of
the South China Sea and the islands in it. One of those islands - the Paracels - is
also claimed by Vietnam.
Since four ASEAN states are involved, it makes sense for the regional entity to
approach the various disputes over sovereignty vis-a-vis China on a collective basis.
The proposed ASEAN-China forum should not involve any other state or institution
outside the contending parties. In the past, China has not been keen on this
collective approach. It must be persuaded to accept it.
A collective approach may serve the larger interests of both ASEAN and China for
two other reasons.
First, the South China Sea is believed to contain huge deposits of oil and
gas. Though estimates vary, the area is regarded as one of the major sources of
mineral wealth of the future. It is undoubtedly one of the factors behind the intense
interest in the South China Sea, not only among the claimants but also other powers
outside the region. Why shouldn't ASEAN and China jointly harness the wealth of the
South China Sea for the well-being of their people?
Malaysia has set a good example in this. In February 1979, it came to an agreement
with Thailand to set aside a boundary dispute in the Gulf of Thailand. Instead, it
joined hands with Thailand to explore oil and gas in a 7,250 square kilometre area in
the disputed gulf. The agreement has been working well. The Joint Development
Authority that manages the exploration had by the end of 2007 discovered
approximately 8.5 trillion standard cubic feet of gas reserves from 22 fields in the
area. With such a track record, Malaysia should perhaps take the lead and push for
an ASEAN-China forum on the South China Sea.

Second, both ASEAN and China are acutely aware that if the Shoal/Huangyan
dispute drags on, and similar disputes erupt in the near future, a military superpower
that has already declared its interest in the South China Sea will not hesitate to enter
the fray as a direct player. Its involvement will almost certainly aggravate the
situation, since the ASEAN claimant that is being backed by the United States may
be emboldened to adopt an even more belligerent posture than it would otherwise.
China is bound to retaliate since it regards the South China Sea as "its core interest".
A military conflict between China and the US could have devastating consequences
for ASEAN as a whole.
This is why China and ASEAN, whose economic ties with one another have
deepened and broadened as never before in the last decade, should now elevate
their relationship through a forum to address the most contentious issue that could
tear them asunder.
Dr Chandra Muzaffar is the President of the International Movement for a Just
World (JUST).
http://www.aljazeera.com/indepth/opinion/2012/07/201273124725247147.html

Philippines v. China Won't End South China Sea


Disputes
Despite high hopes for the ruling, Manilas arbitration case against China
wont solve the South China Sea issue.
By John Ford
March 17, 2016
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Observers of Asian geopolitics are by now familiar with the legal challenge brought
by the Philippines challenging Chinas maritime claims in the South China Sea. Last
year, the Permanent Court of Arbitration ruled that it had jurisdiction over the main
claims brought by the Philippines, rejecting Chinas argument that the case
presented a territorial dispute beyond the purview of the Court. A ruling on the
merits of the case, including a ruling of the legality of Chinas nine-dash line is
expected in May or June of this year.
The case is a landmark for international law as a force in geopolitics. The case is also
a landmark for the Court, as it is arguably the highest profile case in its 117 year
history. The case also will have a real impact on the regions geopolitics if the ninedash line is formally ruled illegal. But no one should be under the impression that

this case will end the dispute over control of the South China Sea far from it. In
fact, the Courts ruling on jurisdiction was written in such a way that protects some of
Chinas most controversial claims from the scrutiny of legal arbitration and ensures
that maritime disputes in the South China Sea will continue. To understand why
requires a precise understanding of exactly what the Court said in its ruling on
jurisdiction and how Chinas arguments in the case effectively narrowed any
potential ruling to shield some of Chinas most important claims from the Courts
reach.
China did not formally participate in the case, though it did publish a position
paper that the Court treated as a brief. In its position paper, China argued that the
Court had no jurisdiction over the nine-dash line because it is based on underlying
claims to territory (namely, Chinas claims to the island chains of the South China
Sea) and the Court is expressly prohibited from deciding territorial disputes.
Essentially, China argued that the Court could not rule on the legality of the ninedash line because it did not have the power to decide the underlying dispute over
control of the Spratly Islands.
Chinas paper was right insofar as the Court cant rule on a territorial dispute. Chinas
position paper forced the Philippines to find a legal argument that would allow the
Court to rule on the nine-dash line without having to rule on the question of which
party had the stronger claim to the Spratly Islands. The Philippines chose to argue
that even if all of Chinas claims to the islands of the South China Sea were accepted
as legitimate, the nine-dash line would still exceed what China would be entitled to
under the UN Convention on the Law of the Sea.
The Philippines argued that even if Chinas claims to the Spratlys were accepted, they
would still only have either 12 miles of territorial waters (the Philippine position) or a
200 mile exclusive economic zone (the Chinese position). In either case, Chinas
rights would not come anywhere near the claims made under the nine-dash line. The
Court ruled that it had jurisdiction to decide on the legality of the nine-dash line
because deciding this question did not require a ruling on who owned the Spratlys.
The line would exceed Chinas possible claims regardless of how the underlying
territorial question was ultimately resolved.
The Philippines argument was a clever solution to a difficult problem, but it also
reveals the limits of the Philippines lawfare strategy. Because the question of who
owns the Spratly Islands had to be removed from the Courts consideration, none of
Chinas claims to these islands will be dented at all by the outcome of the case. This
means that even if, as is expected, the Court rules the nine-dash line exceeds any
plausible Chinese claims under international maritime law, this wont end the
dispute in the South China Sea. China would still be claiming to own the Spratly
Islands.
Chinas arguments in its position paper didnt stop the Court from hearing the case
but they did get Chinas position heard without having to acknowledge the legitimacy
of the courts proceedings. It was also effective in shaping the terms of the debate

before the Court. China has managed to ensure that even if the Court strikes down
the nine-dash line, many of Chinas other claims will survive. Further, China has
essentially gotten the Court to admit it has no jurisdiction to ever decide Chinas
claims to the Spratly Islands. This ensures that Chinas ambitious efforts to militarize
the islands will continue and the dispute in the South China Sea wont ultimately be
settled in a courtroom.
John Ford is a Captain in the US Army JAG Corps and now serves as a reservist.
He holds a J.D. and LL.M. and practices with the California law firm Collins Collins
Muir + Stewart LLP.
http://thediplomat.com/2016/03/philippines-v-china-wont-end-south-china-sea-disputes/

Breaking: UNCLOS Tribunal Rules Against China, Unanimously Finds It


Has Jurisdiction Over Philippines South China Sea Claims
by Julian Ku
Its been a rough week for Chinas South China Seas policy. In addition to facing a US Freedom of
Navigation operation near one of its artificial islands, the arbitration tribunal formed under the United
Nations Convention on the Law of the Sea has decided that it has jurisdiction to proceed to the merits
on the Philippines legal challenge to certain Chinese activities in the South China Sea.
I will blog more about this later, but for now it is worth noting that the tribunal unanimously ruled that it
can proceed to the merits on seven out of 15 of the Philippines claims, and that it reserves the
question of jurisdiction on seven other claims as being so interwoven with the merits that it cannot be
resolved without first considering the merits.
I will note that the tribunal reserved the question of jurisdiction over the Philippines biggest and most
flashy claim: the argument that Chinas Nine Dash Line historic rights claim is inconsistent with
UNCLOS. It held that:
The Philippines Submission No. 1 does, however, require the Tribunal to consider the effect of any
historic rights claimed by China to maritime entitlements in the South China Sea and the interaction
of such rights with the provisions of the Convention. This is a dispute concerning the interpretation
and application of the Convention. The Tribunals jurisdiction to consider this question, however,
would be dependent on the nature of any such historic rights and whether they are covered by
the exclusion from jurisdiction over historic bays or titles in Article 298. The nature and validity of
any historic rights claimed by China is a merits determination. The possible jurisdictional objections
with respect to the dispute underlying Submission No. 1 therefore do not possess an exclusively
preliminary character. Accordingly, the Tribunal reserves a decision on its jurisdiction with respect
to the Philippines Submission No. 1 for consideration in conjunction with the merits of the
Philippines claims.
On the other hand, the Tribunal did find that the question of whether the Scarborough Shoal is a rock
or an island is clearly within the jurisdiction of the Tribunal, irrespective of the merits. It did so

because it held that there are no overlapping sovereignty or sea boundary claims that might impact
the determination.
Overall, it should never be surprising when an arbitral tribunal finds that it has jurisdiction to hear a
case. The Tribunal did throw China a bone by noting that it is still possible that seven of the
Philippines claims (including the Nine Dash Line challenge) could be dismissed for lack of jurisdiction
at the merits stage.
But by reserving the question of jurisdiction, and guaranteeing it will rule on the merits for several
other claims, the Tribunal shoves the ball back onto Chinas court. Will China continue to claim it is
not bound by the Tribunal for lack of jurisdiction, when the Tribunal has now found it has jurisdiction?
China would more clearly be in violation of UNCLOS now than it was before, because UNCLOS
Article 288(4) makes it clear that [i]n the event of a dispute as to whether a court or tribunal has
jurisdiction, the matter shall be settled by decision of that court or tribunal. My guess is China will
pretend that Article 288 doesnt exist and continue to refuse to participate. The interesting question is
whether China will pay any serious price (in reputational terms) if it does so.

http://opiniojuris.org/2015/10/29/breaking-unclos-tribunal-rules-against-china-unanimouslyfinds-it-has-jurisdiction-over-philippines-south-china-sea-claims/

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