Claims and current developments in the South China Sea – Julia Cirne Lima Weston

This article provides an overview of the conflicting claims to the South China Sea and analyses developments in the area in 2020. The region’s relevance for the maintenance of world trade and connectivity makes it an indispensable area to study and on which to remain informed.

Why is it so important to talk about the South China Sea? The region, although fairly small, is the connecting point between important world trade hubs – connecting Asia to the West – through which major trade tonnage traverses. The region therefore functions as a ‘connecting tissue’ within world maritime trade, through which more oil passes than through the Suez and Panama canals (for further reading, see Robert Kaplan, Asia’s Cauldron: The South China Sea and the end of a stable pacific).  

Territorial claims to the South China Sea and international law

Due to its undeniable relevance to most, if not all, States, the South China Sea issue is often debated both in world politics and international law settings. The territorial dispute involving China, Taiwan, Vietnam, the Philippines, Brunei and Malaysia has been at the centre of the international discussion since 2012. The dispute concerns the region’s maritime territory and its so-called archipelagoes of small land, rock, or reef formations, namely the Spratlys and the Paracels. It also raises important questions concerning international law of the Sea and public international law in general. 

China claims what is called the “Nine-Dash Line”, which comprises most of the territory of the South China Sea. The country claims that all of the islands of the South China Sea, as well as the relevant waters within the line, are Chinese territory, due to historical reasons, as the State was the first one to discover and exercise jurisdiction over the area. There is no specific mention of the international law of the sea framework in China’s claim, as a consequence. 

Taiwan’s claim takes a similar approach, but a recent change in the new government and consequent retreat from a policy of rapprochement towards the People’s Republic of China has seen an attempt to distinguish the Taiwanese claim from the Chinese one. However, in practice, the Taiwanese Ministry of Foreign Affairs still maintains on its website a position paper which places all the islands within the South China Sea under Taiwanese territory, due to historical claims. In this sense, the claim does not differ much from the Mainland Chinese version. One important difference, however, lies in the fact that Taiwan emphasises the need to solve the dispute in accordance with international law, including the United Nations Law of the Sea Convention (UNCLOS), as well as the need to ensure freedom of navigation and of overflight within the region. 

Regarding Vietnam, the basis of its territorial claims is similarly the assertion of historic rights over the South China Sea archipelagoes, by presenting papers based on the discovery of the islands by Vietnamese dynasties. One interesting thing to point out, however, is that, like Taiwan, Vietnam has demonstrated itself willing to solve disputes through fair and peaceful means. Nguyen suggests that Vietnam is the most willing to settle maritime delimitation conflicts in accordance with the UNCLOS, having finalised agreements on fishery cooperation and maritime delimitation of particular areas with Thailand, Indonesia and China. 

The Philippines claim the Spratly archipelago, both due to their discovery when they were terra nullius by a Filipino adventurer and to their location, them being within the Philippine Exclusive Economic Zone (EEZ). Each signatory of the UNCLOS which declares an EEZ has the sovereign rights to exploit resources in said zone, within 200 nautical miles from their demarcated territorial sea of 12 nautical miles.

Malaysia and Brunei’s claims are of a more restricted nature. Malaysia claims only 14 formations within the Spratly archipelago, which are either occupied by its own forces or by other disputing States. Brunei, on the other hand, claims only one reef in the disputed region, the Louisa Reef. Both States seek to base their claims on UNCLOS concepts, such as maritime zones, in search of increasing their strength according to international law. 

Finally, the Permanent Court of Arbitration (PCA) in 2016 issued a groundbreaking and controversial arbitral award, concluding that the Chinese claim’s basis on historic rights was incompatible with the UNCLOS regime because those historic rights were renounced upon signing the Convention. China’s reaction to the award demonstrated its unwillingness to accept and comply with it, and no action towards compliance with it has been taken to date. 

This brief analysis demonstrates that the South China Sea is subject to overlapping territorial claims which vary also in the degree to which they are based on international law.  The diverging claims lead to conflicts between neighbouring States, and compel other States to take a position on the dispute.  

Developments in 2020

A key development in the region this year has been the announcement of Australia’s position on the dispute. In a submission to the United Nations Commission on the Limits of the Continental Shelf (CLCS), Australia rejected the assertion that China’s claims are compatible with the UNCLOS. This demonstrates Australia’s alignment with the United States’ position, that Chinese occupation in the territory is illegal. Australia’s protest, if followed by those of other States, can present a difficulty for China in the long term, in terms of international law, for its sovereignty is not uncontested in the international plane.  

A number of coercive actions have also occurred on the South China Sea. Indian navy vessels were barred from sailing within the South China Sea by the Chinese navy, on the basis of China’s alleged sovereignty over the region. Also, as has been the case within recent years, the United States conducted military exercises of overflight in the region in August, in order to manifest the need to preserve both the freedom of overflight and the freedom of navigation within it. The United Kingdom has also been analysing whether it should send an aircraft carrier into the region. 

In a latest move, the Philippines has announced the end of the oil exploration moratorium within the Philippine EEZ, which had been introduced after the country lodged its arbitral case in the PCA. While the move has been received as a shocking one from China’s perspective, both States keep the possibility of a joint development of oil exploration open. It remains to be seen how such a joint development will be negotiated, which may hopefully pave the way for more amicable solutions within such a disturbed region. 

As relations between China and the United States and its allies, including Australia, continue to deteriorate, the South China Sea will remain be a focal point for tensions in international relations and, thus, a region requiring ongoing study and monitoring. New events should be monitored in order to try to seek improved solutions for cooperation in the region. Whether efforts of improved cooperation between the direct players in the South China Sea dispute can withstand the broader tensions involved will be an important development to watch.

Julia Cirne Lima Weston holds an LLM in International Law and is a columnist at the Brazilian Institute for the Law of the Sea (BILOS) and a qualified lawyer at the Brazilian Bar Association (OAB).