UNCLOS, China, and Myanmar’s ASEAN chairmanship.

by RJ Barrete

The South China Sea dispute has been an international concern that is becoming a global flash-point. The tensions in the disputed areas continue to aggregate as claimant nations show no signs of finding an effective resolution to the overlapping claims.

China's actions in the South China Sea have raised alarms in the region (Photo from The Guardian)

China’s actions in the South China Sea have raised alarms in the region (Photo from The Guardian)

The issue of ownership and sovereignty over the maritime areas boils down to the vast natural reserves and resources around the island-chains. Beijing claims the largest portion of territory, with its so-called “nine-dash-line” that stretches hundreds of miles south and east from the southern province of Hainan. The Chinese government consistently claims its rights based on historical evidence, and has regarded the islands as integral part of China since it issued a map in 1947 to justify its claims. However, Vietnam ardently disputes China’s historical account and argued that the islands are entirely within its territory since the 17th century.

On the other hand, the Philippines invokes a mixture of history and geographical proximity to the Spratly Islands as the major basis of its claim. Other countries like Malaysia and Brunei also lay claim to territory in the South China Sea on the foundation of economic exclusion zones (EEZ) as defined by the United Nations Convention on the Laws of the Seas (UNCLOS). However, what sets Brunei different from other claimant is that it does not claim any of the land formations.

Relevance of UNCLOS. While the fundamental issue in the South China Sea is one of sovereignty, UNCLOS has no provision on how to determine sovereignty over offshore islands. Since there is no treaty that upholds a balanced and peaceful process regarding the sovereignty claims, concerned countries must look to the rules of customary international law on the acquisition and territorial loss for guidance .

The existence of UNCLOS is critical to the disputed area because it establishes a legal framework governing all maritime concerns, and that it binds all states involved to carry out its provisions in good faith. Now, what are the provisions enclosed in this legal framework that is critically significant to evaluate the actions of the claimants that should be in accordance with international law? First, the UNCLOS sets out what maritime zones can be claimed from the mainland of the states bordering the sea, and what rights and jurisdiction coastal states and other states enjoy in those maritime zones. Second, it sets out which off-shore geographic features can be subject to sovereignty claims. Third, it sets out what maritime zones can be claimed from offshore geographic features; and, lastly, it established rules on how to delimit maritime boundaries in situations where overlapping maritime claims begins to manifest.

China’s Reassurance and Resolve. China’s policy toward the South China Sea dispute remains fundamentally unchanged. It had consciously tried to reassure its neighbors that, amid its booming economy, it will take a peaceful process on the issue; however it has recently made itself clear that it is determined to uphold its claims in the maritime areas. Despite these reassurances, however, the international community is disappointed with the seeming disconnect between China’s words and actions. In 2013, China’s new leadership under President Xi Jinping sent out a clear and consistent two-pronged stance about the disputes: While China’s intentions are peaceful, it will respond assertively against any perceived challenges to its claims. Beijing maintains that it is committed to maintaining stability in the South China Sea– adhering to the 2002 ASEAN-China Declaration on the Conduct of Parties and resolving disputes on a bilateral basis– but would maintain vigilance on potential disturbances of some countries for their own interests.

China’s reassurance, however, was still coated with ambiguity as their words were obviously opposite of their actions – when they started series of aggressive measures. The most recent upsurge in tension has coincided with more posturing of military power, putting the Philippines and China in a maritime stand-off. In July 2012, China formally created Sansha City, an administrative body stationed in the Paracel which oversees Chinese territory in the disputed area.

The Next Flashpoint? Located 105 nautical miles from Palawan island in the Philippines, the Second Thomas Shoal could be the next flash point in the South China Sea. The Shoal, 15 kilometers long and 5 kilometers wide, is also known as Ayungin in the Philippines and Ren’ai Reef in China. It is considered a strategic gateway to vast deposits of oil and natural gas in the Reeds Bank and is claimed by the Philippines as part of its 200 mile EEZ.

Beijing asserts that it has indisputable sovereignty over the shoal and any attempts on the part of the Philippines to intensify its so-called illegal presence run counter to the Declaration on the Conduct of Parties. Beijing also insists that Chinese vessels to has the right to protect China’s sovereignty by sending patrols around the area, and that such right is beyond reproach.

The Philippine government had earlier filed a case with the United Nations to bring its territorial dispute with China to UNCLOS arbitration tribunal – an action that has drawn support from the United States, a treaty ally of the Philippines; the European Parliament; and other Asian countries like Japan and Vietnam. Manila’s move brought forth anger from China as it opposes any multilateral discussion on the dispute.

Philippine Defense. The Philippines has stated that it would approach the issue from three prongs – political, legal, and defense. Manila aims to transform the South China Sea, which it has unilaterally renamed the West Philippine Sea, into a zone of peace, freedom, friendship and cooperation. The Philippine government sees an alternative solution through multilateral channels.

For its part, the American government does not take an official position on competing territorial claims but firmly stands against coercive actions by China to alter the status quo. The Mutual Defense Treaty between Manila and Washington does not include an “automatic retaliation” clause, making security guarantees a little ambiguous. Still, Washington’s indirect support for Manila is perceived by China as an act of intimidation. This appears to have nurtured a sense of mistrust that could escalate if not managed properly.

Beijing’s Aggressive Foreign Policy and Its Implications. President Xi’s leadership appears to have embarked on an ambitious diplomatic offensive. We know that China is poised to overtake the US as the world’s largest economy, and is aiming for a new kind of great power relationship with the superpower. It is aggressively using its economic and military muscle to boost its say in the global order. It appears that China’s goal is to be a blue water maritime power.

As the world’s biggest trading nation and one of the largest sources of outward foreign direct investment, Beijing has been deploying its vast economic arsenal. At the Boao Conference in 2013, President Xi told world leaders that China would be importing goods and services worth $10 trillion in the coming five years, and that its FDI is tipped to amount to $500 billion in the same period. China has been projecting power through economic heft, improving its international status in terms of progress and development. According to recent reports, part of the reason why the European Union (EU) might have second thoughts about punishing the alleged dumping of Chinese products was the booming growth of Chinese FDI in Europe. China’s business activities are becoming the backbone of Beijing’s pivot to America’s backyard strategy.

A breakthrough to resolve the conflict in the South China Sea, however, remains unclear and that conflict management will be the focus to avoid military skirmishes and potential conflict in the coming years. China manifests lack of enthusiasm for any kind of code, making its actions unpredictable.

Myanmar's ASEAN chairmanship could be crucial. (Photo from France24)

Myanmar’s ASEAN chairmanship could be crucial. (Photo from France24)

Meanwhile, Myanmar’s chairmanship of the Association of Southeast Asian Nations (ASEAN) this year is something that the international community should watch for. Beijing has great economic and political leverage over Myanmar. As the dispute remains unsolved, the ASEAN’s objective to present a united front will continue to be put under strain. This poses a challenge to the organization’s objective to maintain centrality in the regional security building process. Its leaders will have to struggle with the growing number of barbed problems created by, as the ASEAN chair recently put it, an increasingly complex geopolitical environment.

Originally Posted: The Observers


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