South China Sea conflict generates uncertainty and insecurity

Posted on August 24, 2012

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PARIS, France — A recent article, China’s South China Sea jurisdictional claims: when politics and law collide,” published in the East Asia Forum, remarked that the uncertainty and insecurity generated by China’s claims in the South China Sea are reflected in headlines throughout Southeast Asia, even though the claims have no solid legal basis in international law.

The insecurity is a consequence of tension in the region and in international relations rising from China’s newly aggressive posture in the South China Sea. The claims are based on a so-called “9-dashed line” map, adapted by the Zhou Enlai government when it took control of China in 1949. It is taken from the original map, known as the “11-dashed line” that was drawn by Chiang Kai-shek’s nationalist government in 1947, a time when the islands of the South China Sea, once said to be a Japanese lake, were being returned to the countries that had possessed them before World War II.

The fundamental difference in the maps is that the Nationalist China map includes the Gulf of Tonkin, the Communist China map does not. The dashes on the maps refer to the demarcation lines used by China for its claim of the South China Sea area that includes the Paracels Island and the Spratly Islands. China occupies the Paracels, which are closest to China and Vietnam, but Vietnam and Taiwan are claiming them. Claims on some or all of the Spratly Islands, which are nearest Indonesia and the Philippines, are being made by the Philippines, China, Brunei, Malaysia, Taiwan and Vietnam. The Spratlys are believed to contain important mineral resources, including oil.

The confusion over the legality of claims to the territories begins with the San Francisco Peace Treaty, signed in 1951, that officially ended World War II and Japan’s position as an imperial power. Neither China nor Taiwan were present because countries attending the peace conference could not agree which was the legitimate government of China. The treaty, as signed by the parties, did not specify which countries could legally possess the former Japanese territories in the South China Sea.

Taiwan and China each wanted Japan to return the islands of Paracels and Spratlys to them. This resulted in Taiwan’s version, the “11-dashed line” map, and Communist China’s adaptation that became the “9-dashed line.” The 1952 Treaty of Taipei between Japan and the Republic of China, newly established on the island now known as Taiwan, did not assign possession of Paracels and Spratlys. Communist China unilaterally claimed the right to have the islands.

Thus, the current claims of both China and Taiwan have no basis in international accords and, in effect, are illegal. China is inconsistent in attempting to de-recognize Japan’s World War II territorial claims in the South China Sea while using those claims to assert its sovereignty on former Japanese territories.

Internationally, the political and legal status of Taiwan remains a contentious issue. Consequently, China’s claims to the territories, based on Taiwan’s sovereignty, are among many unresolved issues between the two countries.

Disputes on the sovereignty over the Paracels and Spratlys in the South China Sea existed before the World War II. All unilateral or bilateral agreements or claims on multilateral disputes are invalid.

The United Nations Law of the Sea Convention that concluded in 1982 defines the rights and responsibilities of nations in their use of the world’s oceans. Among its provisions are rules for establishing territorial limits and providing means for settling disputes over coastal claims. All of the countries boarding the South China Sea, except North Korea, are among the 162 nations to ratify the treaty. The U.S. Senate has not ratified the treaty.

Under international law, the current crisis should be presented to the Law of the Sea Convention to settle the Chinese challenge to Vietnam, the Philippines and others over claims to more than 40 islands in the South China Sea.

Among the territorial disputes the Law of the Sea Convention might address is to clarify which areas are disputed and which ones are not. In May 2009, for example, Malaysia and Vietnam submitted jointly to the UN Commission on the Limits of the Continental Shelf, which was established to implement the Law of the Sea Convention.

Also in May 2009, China submitted for the first time its “9-dashed line” map attached to a Note Verbale to Secretary-General of the United Nation seeking to refute the claims of Vietnam and Malaysia and to clarify its claims. Although the claim in China’s map was unclear, its submission was considered a major milestone in the South China Sea disputes.

Because that was the first time the international community knew officially of the Chinese claims designated on the map, Vietnam immediately sent a diplomatic note to the Secretary-General to refute China’s claims. These submissions did not identify clearly the disputed areas, but they are legal and valuable documents for the settlement procedure.

Philippines, a leading voice in the resolution of South China Sea issues, has recently proposed a solution based on a Zone of Peace, Freedom, Friendship and Cooperation. It requires a clear delimitation of disputed and undisputed areas in accordance with the UN Convention on the Law of the Sea before peacefully pursuing joint development as outlined in China’s proposal.

The Philippine proposal segregates the undisputed areas from disputed ones. Vietnam supports the Zone of Peace, Freedom, Friendship and Cooperation while China has rejected it and pressed others Association of South East Asian Nations not to participate in discussions about it.

Not surprisingly, since China has never made clear its claims by using the so-called “9-dashed line” covering virtually more than 90 percent of the South China Sea, this rule-based concept breaks through the imprecision of China’s approach. China’s assertive posture has raised concerns among the international community about the potential for conflict in the South China Sea area. Beijing’s steps in the South China Sea are more determined and aggressive than ever, creating the worrisome prospect of escalating tension in the area. The first step toward settling these disputes through peaceful negotiations based on international law would be for all to claimants to state their claims with clarity.

Tuong Nguyen

Storm in China’s Seas

Beijing has designs on the South China Sea. The U.S.-patrolled Western Pacific is another matter.

The proprietary manner in which Beijing treats the South China Sea is based on strategic and economic considerations. The Chinese want to control this large waterway as a first line of defense, and enjoy exclusive access to minerals, oil and gas reserves, and fishing rights. This is in addition to the leverage it seeks over the immense shipping traffic that flows through to Japan, Korea, Vietnam, Philippines, Malaysia, and Taiwan. Obviously none of those countries supports the Chinese ambitions. Recently, however, Beijing has sought to use a bit of American history as precedent for its claims and actions.

The thesis has been put forth by Chinese academics attending international security conferences that the PRC’s official attitude toward the South China Sea is really no different than America’s past perceptions of the Caribbean Sea and Gulf of Mexico. Apparently they are referring to the Monroe Doctrine and the 1904 Roosevelt Corollary. The former of course was aimed at ending European intervention in both North and South America, with particular attention to the large body of water separating the two continents. Teddy Roosevelt extended this policy, however, to allow the U.S. to intervene in countries south of its borders in order to protect its strategic interests.

The Chinese academics suggesting the relevance of this history do so with a straight face even though the precedent they cite is clearly a non sequitur in today’s post-colonial world. From the Chinese point of view, though, the strategic justification is just as strong for Beijing today as it was for President Theodore Roosevelt’s Washington in the beginning of the 20th century.

Recent Pentagon reports have emphasized China’s investment in increasing the size of its navy. This theme has been repeated in most defense publications along with warnings concerning China’s ambition to eventually — if not sooner — dominate the Western Pacific. This hyperbole has played right into the hands of the PLA’s political offensive that desires to inflate the Asian and American perception of Beijing’s naval growth.

The fact is that Beijing has not invested in a massive naval buildup appropriate at least to nearing equality with the U.S. Pacific Fleet, which has been the post-WW2 “protector” of that part of the world. The prowess of Communist China’s military might is always a prime subject of Chinese propaganda, but the reality is that PLAN (People’s Liberation Army’s Navy) is held back by a lack of money and talent. Naval design and engineering has played a subordinate role to ground and air force development while China’s space program has gobbled up the “best and the brightest” of the country’s scientific and technological brains.

The availability of skilled and experienced maritime workers has been limited, which has had an impact on quality control more than production numbers. At international conferences foreign analysts have noted they agree with their American counterparts that China has launched about 40 new submarines (attack and SSBN) in the last 20 years. They add, though, that it does not mean these boats are equipped with the advanced technology appropriate to modern undersea warfare.

According to reports emanating from Russian naval sources, there has been considerable debate/argument within Chinese naval commands over the priorities given to the creation of the new aircraft carrier from the old Soviet-era ship that was towed from the Black Sea. The emphasis placed on giving the PLAN one carrier relatively quickly has been a source of serious conflict within professional ranks. No one can afford to argue over the highly publicized and expensive Chinese space program.

Perhaps of even more importance is the development of a highly protected submarine repair and docking facility on Hainan capable of providing berths for 20 subs. It all sounds very impressive until one realizes that today’s missile capability is such that in wartime these pens present an interesting target rather than a safe harbor.

As large as the South China Sea is, it’s not the Pacific Ocean, and that’s where the vastly superior U.S. fleet holds sway. Nothing in the development plans of the Chinese navy indicates an ability to seriously challenge the American control of the blue water of the Pacific in the foreseeable future. The same can not be said for control of the South China Sea. The Chinese have what they think is an ace up their sleeve in that regard. China’s naval mine technology is quite advanced and a vast store of mines is available to blockade the principal channels of the waters off southeast China. The Chinese have also made public their increased number of coastal-based anti-ship missiles.

Beijing’s military aim is eventually to control the trade routes through the South China Sea as well as use that large body of water for forward defense purposes protecting the coastline of the PRC from Fuzhou to the Gulf of Tonkin. This is very old-fashioned thinking that envisions a sea borne invasion that will never occur. Still stuck in a mentality that justifies a massive land force to prevent attacks along its borders from India to Siberia, China pursues a strategy that now includes a defensive posture protecting their southeast maritime provinces.

All this would suggest a fanciful defense plan were it not based on the political need to justify the maintenance of a vastly over-indulged military. In the end, the PRC’s leadership depends on the PLA to maintain the political power of the Politburo. Turning to archaic American historical precedent may have an academic appeal, but that’s all.

George H. Wittman

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