The Territorial Dispute of the South China Sea

China's sovereignty over the island groups in the South China Sea was not challenged until the arrivals of invading powers. The Chinese government in different eras has always treated these islands as their own. Basically speaking, China enjoyed peaceful and uninterrupted control over the South China Sea Islands and the surrounding water until the 1930s when France seized the opportunity to occupy and "annex" several islands in the South China Sea. This took place at a time when the Chinese government was preoccupied with internal conflicts and threatened by the full-scale Japanese aggression, and was therefore unable to effectively defend herself except for lodging the strongest possible protests to the French government time and again. After Pacific War broke out, Japan replaced the French and took over the entire South China Sea chain of islands (as well as Hainan Island) in 1939, placing them under the jurisdiction of Taiwan, which was then administered by Japan. Following Japan's surrender in 1945, the Chinese Government formally regained physical possession of the Nanshas and other islands in the South China Sea in 1946. France, and later Vietnam, subsequently re-asserted claims to the Xisha and Nansha Islands, but their claims were specifically rejected by the Chinese Government. It is worth noting that at the San Francisco Peace Conference held in 1951, Japan formally renounced all of its claims to the South China Sea Islands.

China did not participate in the Conference, but Premier Zhou Enlai issued a statement reiterating China's unquestionable sovereignty over these islands and warning against any arrangement at the Conference that might be aimed at challenging or affecting China's sovereignty Both France and Vietnam were represented at the Peace Conference and made claims to the South China Sea Islands, but such claims were ignored at the conference in particular and by the international community in general. Along with the gradual realization and recognition of the geographical, economic, and strategic importance of the South China Sea, particularly the Nansha Islands, the potential for a confrontation around this area emerged, ultimately leading to a complex web of rivalries for and assertions of sovereignty over the Nanshas, the surrounding waters and the living and non - living resources in the area. In the mid-1950s, the Philippines claimed to have discovered the so-called Kalayan islands and declared them to be Philippine territory. In the meantime, Vietnam began to occupy some islands in both the Xisha group and the Nansha group in the 1950 s and 1960s. Competing claims and occupations accelerated in the late 1960s, 1970s, and 1980s, with Malaysia and Brunei also joining the race. These newly emerged claims, challenges, and occupations have led to a few isolated conflicts.

However, the Chinese claims are highly intrusive and have violated the sovereignty of the various smaller countries in the South China Sea. From the violation of UNCLOS by claiming the area inside the ‘9-dash line’ or occupying territories which are neither historically not logically theirs, China has done it all in order to acquire much greater significance than it rightly deserves in the South China Sea. Regardless of all of this, China’s claims to the South China Sea Islands and the adjacent waters are totally dependent on both historical facts and rules of international law pertaining to the acquisition of territorial sovereignty.

The 9 Dash Line

In the first half of the 20th century, the Sea remained almost quiet. In fact, at the end of World War II, no claimant occupied a single island in the entire South China Sea. China laid claim to the South China Sea in 1947. It demarcated its claims with a U-shaped line made up of eleven dashes on a map, covering most of the area. But two ‘dashes’ were removed in the early 1950s to bypass the Gulf of Tonkin as a gesture to communist comrades in North Vietnam. The remaining ‘nine-dash line’ stretches hundreds of kilometers south and east of its southerly Hainan Island, covering almost 90% of the South China Sea. While the concept of the nine-dash line has been around since 1947, for the longest time even the Chinese maps hardly gave it any prominence. After the 1960’s when the huge reserve of oil and natural gas were discovered in the region, the territorial claims started growing in an unprecedented manner. Today, Chinese passports are “emblazoned with a map with nine dashes through the South China Sea”, as well as a tenth one that ensures Taiwan is counted as Chinese territory, noted the feature in Time. However, there still exists great ambiguity over what China’s nine-dash line implies. According to Wang, “The dash lines mean the ocean, islands, and reefs all belong to China and that China has sovereign rights. But it’s discontinuous, meaning that other countries can pass through the lines freely.” Other scholars, however, believe it represents a lot more. Marina Tsirbas from the Australian National University fears that the nine-dash line is a “maximalist claim to sovereignty and control over all of the features, land, water, and seabed within the area bounded by the nine-dash line. This is indeed what many states fear. But the facts remain that using the Nine-Dash line map is the most outright violation of the Law of the Sea as China is entitled to only 200 nautical miles of Exclusive Economic Zone, It is a shame that the same map is one of the most used documents by the government.

Violation of international treaties by the Chinese Government

China has constantly sought an expansionist policy in the South China sea and laid claim to several zones and islands that lie in the territorial waters of its neighboring countries or in international waters leading to several territorial disputes in the region such as the nine-dash line dispute and the dispute over the maritime boundary of Borneo. The Chinese claims are highly intrusive and have violated the sovereignty of the various smaller countries in the South China Sea. China’s 1958 declaration describes the Chinese claim in the South China Sea islands which is based on the 9 ‘dashes’ map viewed by the Chinese government officials as providing the historical supports for the claims on the South China sea. The Nine-Dash line map is the most used document by China to lay its territorial claims but as China is entitled to only 200 nautical miles of Exclusive Economic Zone, the Nine-Dash line claim is a violation of the Law of the Sea. China over the years has exercised its influence in the region covered in the nine-dash line and built military bases and structures on artificial islands in the Spratly and Paracel islands. It has also maintained an Area Access Area Denial (A2/AD) Strategy and hampered the freedom of navigation of international vessels to establish its hegemonic interest in the region. In its pursuit to establish hegemony in the region, China continues to grossly violate the United Nations Convention on the Law of the Seas 1982 (UNCLOS), the highest legal document laying down the rights and powers of countries in international waters like the South China sea. China’s actions also violate its joint commitment with ASEAN countries under the Declaration on the Conduct of Parties in the East Sea which China signed at the 8th ASEAN Summit in Cambodia in 2002.

The relentless expansionist policy of China was also met by considerable resistance when the Philippines approached the International Tribunal for the Law of the Seas to register arbitral proceeding against China in the Permanent Court of Arbitration in Hague under Annex VII of the UNCLOS 1982 after China captured the Scarborough Shoal located close to the Philippines but hundreds of miles from the Chinese coast. According to their statement, the Philippines pleaded that China has violated its sovereign right of freedom of navigation and jeopardizing its access to maritime entitlements in the South China Sea by extending its territorial claim in the South China Sea region, creating artificial islands, and maintaining the excessive presence of surveillance vessels, naval assets and fishing boats in the region. The Permanent Court of Arbitration in Hague over a period of four procedural hearing issued the final award to the case. According to the award, China had no legal basis for claiming the historic rights to maritime boundaries and resources in the areas falling in the Nine-Dash line. The UNCLOS does not recognize the group of continental shoals, reefs in the Spratly Islands collectively to generate maritime zones. The PCA further ruled that China violated the obligations of maritime safety under Article 94 of UNCLOS. The tribunal stated that the Chinese claim originating from various Reefs in the Spratly Islands hold no legitimacy. While various shoals such as Scarborough Shoal, Johnson Reef and Fiery Rock although under Article 121(1) of UNCLOS are high-tide areas of land surrounded by water. But they are categorized as rocks that are uninhabitable and do not generate any maritime zone claim under Article 121(3) of UNCLOS of 1982.

The PCA also ruled that China was unable to protect and preserve the maritime environment in the region and its naval and commercial activities in the region have violated the International Regulations for the Prevention of Collisions at Sea. The tribunal further said in its award that China has violated the Articles 123, 192, 194(1), 194(5), 197, and 206 of UNCLOS by building artificial islands on the Cuarteron, Fiery Cross, and Johnson, Hughes, Subi, Mischief, Gaven Reefs. Thus, the tribunal gave the verdict in the favour of the Philippines, which China refused to accept and released a White Paper stating that China would solve the issues bilaterally and pressed on its historical claims on the South China Sea region. Chinese rejection of the verdict given by the Permanent Court of Arbitration actions was strongly condemned in the 75th meeting of the United Nations General Assembly in 2020 when in a speech, the Philippine President, Rodrigo Duterte reaffirmed the Hague ruling rejecting most of China's claims to disputed waters and said “The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish, or abandon.

Recent Standoffs in the South China Sea

April 2019 - Philippine President Rodrigo Duterte warns he will send troops on a suicide mission if China continues to send ships near the Philippines-occupied Thitu Island in the Spratly chain. His threat comes after more than two hundred Chinese ships were seen near the island from January to March. The Philippines had been constructing a beaching ramp on the island, which is also claimed by China, to ease the delivery of construction equipment and supplies.

July 2019 - A Chinese survey ship, Haiyang Dizhi, and escort ships enter Vietnam’s EEZ near an offshore oil block. In the years leading up to it, China tries to prevent Vietnam from drilling in the region through ship patrols and aggressive maritime maneuvers. Vietnamese officials demand that China remove the ships, and in August people protest outside the Chinese embassy in Hanoi, but Haiyang Dizhi doesn’t leave until October.

February 2020 - China more aggressively asserts its claims in the South China Sea as countries in the region battle the coronavirus pandemic. In February, a Chinese naval ship reportedly aimed its weapon control system at a Philippine naval ship in the Spratly Islands. The next month, China opens new research stations, which include defense silos and military-grade runways, on the Fiery Cross and Subi Reefs. In April, Vietnam lodges a formal complaint about China’s actions after a Chinese vessel rams and sinks a Vietnamese fishing boat near the Paracels. Soon after, Beijing established 2 administrative districts that cover the Paracel and Spratly Islands; the Philippines and Vietnam denounced the move.

July 2020 - U.S. Secretary of State Mike Pompeo issues a statement that most of China’s claims in the South China Sea are unlawful. Specifically, Washington rejects all of Beijing’s claims that extend beyond twelve nautical miles from Chinese shores, including in waters off Indonesia, Malaysia, and Vietnam. The announcement aligns U.S. policy with the 2016 international tribunal ruling that the Chinese claims have no legal basis. China’s foreign ministry says its claims are valid and accuses the United States of stirring up trouble. Earlier in the month, 2 US aircraft carriers sailed through the disputed waters.

China - Malaysia Standoff of April 2020

The discussions related to the South China Sea conflicts were revived in the midst of the most recent confrontation which emerged during the China-Malaysia standoff initiated in mid-April 2020. These latest turn of events started when Chinese survey vessel Dizhi-8 along with an escort of Chinese coast guard ships drifted closer to a Malaysian drillship West Capella which was contracted by state-owned Petronas oil firm in EEZ claimed by China, Malaysia, and Vietnam in the South China sea. This standoff was also significant as during the unfolding of the events the US and China both maintained a constant military presence near the disputed area. The US maintained its claims of Freedom of Navigation while challenging China’s assertiveness in the South China sea. Thus, the rise in tensions in the South China Sea came at a time when the major powers were engaged in a volley of tariff war, uncertain health, and economic system amid the Covid-19 pandemic. The issuance of flexing military muscles and assertion of dominance while defying international norms by China and reassertion of the status quo by the US has become a norm in the region, posing threat to the international system.

India’s position in the conflict

India currently remains a non-claimant bystander in these rising tensions in the South China sea and maintains a foreign policy sharply against the expansionist trend adopted by China. India has constantly emphasised the importance of international law and the law of the seas which is being clearly violated by the People’s Republic of China and maintained strong advocacy for the Freedom of Navigation for Indian and international vessels in the South China Sea. Considering the situation in the Galwan Valley and Ladakh, it becomes highly likely that India shall become more polarised against China in relation to the situation in the South China sea and form closer relationships with the countries in the South China sea that are against the Chinese expansionist policies.

Conclusion

China has been in constant violation of International Law and the Law of the Seas in the South China Sea in its pursuit to establish hegemony and control over the resource-rich South China Sea. China has also remained ignorant of repetitive calls by the international community to restrain its expansionist policy which has led to rising tensions amidst the global coronavirus pandemic. Such policies and actions by the People’s Republic of China are leading to an inevitable rise in tensions between China and its neighboring countries and destabilisation in the South Asian region. Now, the questions remain that will China continue to assert its right over the land, defying all international treaties and facing backlash from the world, or will the very unlikely happen and the Chinese will finally listen to what the world has to say, giving up the occupied land due to the building pressure. Such questions can only be answered with time.