Читать книгу How Sentiment Matters in International Relations: China and the South China Sea Dispute - David Groten - Страница 36

The South China Sea refers to a vast marginal sea area of around 3,500,000 square kilometers (Figure 2). It is located south of the People’s Republic of China (China) and the Republic of China (Taiwan), east of Vietnam, west of the Philippines and north of Malaysia and Brunei. To be clear, the term South China Sea (hereafter SCS) is by no means used in any uniform manner. Whereas in China, Nanhai Zhudao is the most prominent term, which in its literal translation means south sea, Biển Đông, which translates as the east sea, is more common in Vietnam. Malaysia, Indonesia and the Philippines had adopted the term ‘South China Sea’ until the Philippines, in the wake of its dispute with the PRC regarding the Spratly Archipelagos in 2011, began to prefer the term ‘West Philippine Sea’⁹⁷. Even though the SCS and in particular the area surrounding its two most important archipelagos Spratly and Paracel, have largely been frequented for many centuries by fishermen of nearby countries, they have received profound attention in recent years and are at the center of a significant proliferation of tensions. This general development raises several crucial questions as to the roots and origins of the dispute. Similarly, it begs questions regarding the significance of the SCS at large. First and foremost, the SCS – connecting the Indian Ocean with the Pacific – is one of the world’s most strategic waters. Its bordering chokepoints such as the Strait of Malacca witness roughly one-third of global maritime traffic passing through per annum. It is said that almost 60 percent of the energy supplies of both Taiwan and Japan, 80 percent of China’s imports of crude oil and 66 percent of South Korean energy supplies are transported through SCS waters (CSIS, 2017; IMF, 2016).

The SCS also serves as a source of natural resources itself: oil reserves of 7 billion barrels have been verified, contested estimates even suggest quantities of up to 130 billion barrels of oil and 900 trillion cubic feet of natural gas (International Crisis Group (ICG), 2015; Reed, 2014).

[66] Figure 2: Map of the South China Sea Cambridge University Press, n.d.

[67] To be sure, energy sources represent just one out of several categories of goods that are regularly shipped through the SCS. Its unique strategic location in Eurasia at the heart of international trading routes and its rich amount of natural resources that provide the SCS with geo-economic and geostrategic importance further render the settlement of multiple legal and political disputes that already prevail among bordering SCS claimant states difficult. That said, the SCS claimant parties Malaysia, China, Taiwan, the Philippines, Vietnam and Brunei all raise overlapping and competing claims to territorial sovereignty and/or maritime borders, many of which have been enforced in recent years. Taking all these (mostly bilateral) disputes together, the SCS showcases a multidimensional and multifaceted conflict over ‘islands⁹⁸ and waters’ (cf. Samuels, 2013). To be sure, apart from water, the SCS also comprises more than 200 small or very small features (rocks, coral reefs, islets, islands) of which less than 25 percent actually constantly remain above the sea level at high tide⁹⁹. The ownership of roughly each of these features is heavily contested and simultaneously claimed by at least two parties. To illustrate, the Philippines claims eight features (Spratly Archipelago) and exclusive economic zones (EEZ) around what it regards as islands, Malaysia three (Spratly Archipelago), while Vietnam, Taiwan and the PRC demand ownership over the entire Spratly and Paracel archipelagos. However, while Taiwan and the PRC also claim the waters around the archipelagoes (and roughly 80 percent of the entire SCS waters), Vietnam does not raise any claim to waters beyond the Spratlys or Paracels.

To further complicate the issue, several non-claimant parties, particularly the United States of America (U.S.), Japan and ASEAN Member States such as Indonesia have also expressed strong interests in the SCS and its disputes. As a result, the SCS dispute is by no means limited to adjacent states. The fragile and complex security context in East and Southeast Asia, characterized by a lack of structures of cooperative security, prevailing strategic alliances and partnerships – for instance between the U.S. and the Philippines – and the SCS’s strategic importance serve as grounds of the SCS’s global outreach. Globalization processes, structural changes and the wider context in which the SCS is embedded in further contribute to the SCS’s international significance, in particular, shifts in both regional and international balance of power and global order, considerably in favor of rising China.

[68] Against this backdrop, the SCS conflict, no matter how long-standing some of its subordinated disputes are, has recently attracted a considerable amount of attention. While a majority of territorial and maritime border claims of the claimant parties date back to the 1940s and 1950s (or even before), the dispute had not become a pressing issue prior to the early 1970s. This process can be attributed to a number of developments. Crucial events certainly were the San Francisco Peace Conference in 1951 and the San Francisco Peace Treaty, which entered into force in 1952 and put an end to the Second World War in Asia. Neither the People’s Republic of China (PRC) nor the Republic of China (ROC) was invited to the conference. This was the result of the ongoing second part of the Chinese Civil War (1946–1950) and the still unresolved governmental legitimacy question as to whether the PRC or the ROC officially represented China. In the wake of this peace conference, Japan – in line with the Potsdam Declaration and Cairo Declaration – was prompted to renounce its entire claims over the Spratly and Paracel archipelagoes. However, these features were not officially reassigned to any other country and the question of ownership was left unresolved¹⁰⁰. In addition, on August 15, 1951, Zhou Enlai, former Chinese Minister of Foreign Affairs, officially opposed the peace treaty’s provisions, rejected its legally binding character for the PRC and declared the PRC’s sovereignty over the Paracels, Spratlys and Pratas.

A second and arguably even more decisive event that explains the renewed interest in the SCS was a report by the UN Economic Commission for Asia and the Far East published in 1969. Therein, the committee reported that it is highly likely that vast oil reserves are located in the Yellow Sea and the South China Sea. This finding caught the attention of several SCS resident states, which consequentially began to exert claims regarding their continental shelf boundaries and started to publicly emphasize their maritime and territorial claims on a much more regular and specific basis. Naturally, this resulted in heated debate and a number of incidents in areas of competing claims.

A third and subsequent event responsible for placing the SCS dispute higher on the political agenda was a deadline (May 13, 2009) set by the Commission on the Limits of the Continental Shelf (CLCS), by which claimant states to the SCS had to submit information to the CLCS on whether they intended to make a claim for an extended continental shelf beyond 200 nautical miles under Art. 76 (8) UNCLOS. As a consequence, the Philippines passed its Archipelagic Baseline Law in February 2009, Malaysia and Vietnam (and [69] Vietnam alone) made joint submissions to the CLCS, and China submitted a much-noted note verbale in response (cf. chapter 4.3).

A fourth event that accounted for recent turmoil was the Philippines’ decision in January 2013 to invoke the compulsory settlement of dispute clause under the United Nations Law of the Sea Convention (UNCLOS) by submitting a case against China over competing South China Sea claims to the Permanent Court of Arbitration (PRC) in The Hague. This action was met with particularly harsh critique from the Chinese side that since has been entirely rejecting the Arbitral Tribunal’s jurisdiction on that matter as well as all claims raised by the Philippines (cf. chapter 4.3).

In a nutshell, absent of a cooperative security framework and triggered by a growing vested interest in the SCS as a whole, tensions have been looming large ever since. Accordingly, the number of diplomatic, economic and military incidents greatly increased in scale, reaching from PRC artificial island creation efforts, the launch of U.S. freedom of navigation operations (FONOPS) in the SCS, Indonesia declaring its intention to file a case against China’s claims over Natuna Islands (November 14, 2015), multiple military encounters (e.g. Scarborough Shoal standoff between the PRC and the Philippines (2012)) and diplomatic standoffs (e.g. the so-called Hai Yang Shi You 981 (oilrig) incident between the PRC and Vietnam (2014)), and numerous diplomatic undertakings and discussions in the framework of regional institutions (APEC, ASEAN and East Asia summit) on related subjects. Ultimately, in times of shifting regional and global order and growing nationalist sentiment, territorial sovereignty and border delimitation, the SCS has become an issue of international prestige, domestic legitimacy, national reputation and status.

Table 2: Legal Background at a Glance

International Law generally distinguishes between islands and other maritime features. Pursuant to Art. 121 (1) UNCLOS, an island “is a naturally formed area of land, surrounded by water, which is above the high tide”. In contrast, rocks that “cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf” (Art. 121 (3) UNCLOS). Therefore, islands, unlike rocks and other features, provide the coastal state with certain maritime rights (Art. 121 (2) UNCLOS), including a territorial sea of 12 nautical miles (nm), a contiguous zone of another 12 nm, an exclusive economic zone (EEZ) of 200 nm and a continental shelf. In each of these zones, coastal states enjoy specific rights. An EEZ confers upon coastal states the right of resource exploitation and exploration inside the respective waters, at the seabed and the subsoil thereof. However, an EEZ does not grant any territorial rights. Hence, coastal states cannot regulate maritime traffic inside their EEZ, contrary to maritime traffic inside their territorial sea. EEZs and territorial sea are not necessarily measured from the coastline but may be measured from a coastal state’s islands as well. Unlike islands, any other type of feature such as rocks does not provide [70] the coastal state with an EEZ or continental shelf, but only with a territorial sea of 12 nm. Furthermore, coastal states may seek an extension of their continental shelf (in the case of islands and mainland only) if they can prove that the seabed in that area is still part of their continental shelf. A continental shelf provides coastal states with the rights to explore and exploit resources at the seabed and the subsoil thereof, yet not in the water itself. Hence, the core legal challenge underlying the SCS dispute is that both the general status¹⁰¹ and sovereignty of most of its features remain unclear and disputed. In addition, all claimant states but Brunei actively occupy SCS features. Several claimant parties have submitted extended continental shelf claims and have engaged in island construction/land reclamation activities¹⁰², thereby seeking to turn rocks into islands by establishing outposts, runways and other military and civilian infrastructure. As a result, the political and legal situation remains extremely complex, despite the final verdict of the Arbitral Tribunal in the case Philippines v. China (chapter 4.3).

Source: Own representation

Table 3: Important Events in the South China Sea: 1950–2016

Date	Event
2016, July 12	The PRC rejects the Arbitral Tribunal ruling and considers it void
2016, July 12	The final award of the South China Sea arbitration case (Republic of the Philippines vs. People’s Republic of China – PCA Case No 2013–19) is published. Therein, the Arbitral Tribunal concludes that China has no legal basis to claim historic rights to resources in SCS waters and rejects China’s claims to historically exercised exclusive control over SCS waters, maritime features and resources therein.
2016, July 8	Perfecto Yasay Jr., Philippine Foreign Secretary, announces that the Philippines is willing to share the natural resources of West Philippine Sea with China (even if it is going to ‘win’ the legal challenge against China) and to start ‘direct talks’ with China.
2016, March 14	Beijing announces that it will set up an International Maritime Judicial Center similar to the United Nations Convention on the [71] Law of the Sea (UNCLOS) in order to help protect every country’s sea rights.
2016, May 9	Rodrigo Duterte wins the 16th Philippine presidential elections.
2015, November 14	Indonesia declares its intention to file a case against China’s claims over Natuna Islands.
2015, November	Three significant regional summits discussing SCS issues: Asia-Pacific Economic Cooperation (APEC) summit in Manila, Philippines; ASEAN summit in Kuala Lumpur, Malaysia; and East Asia summit, also in Kuala Lumpur. Further steps toward a binding code of conduct are taken.
2015, October 27	First U.S. freedom of navigation operation (FONOP) in SCS waters.
2015, July 7	Hearings of the pending Philippines v. China case. They are attended by observers from Japan, Malaysia, Thailand, Vietnam and Indonesia. In the hearings, Albert del Rosario, Philippine Secretary of Foreign Affairs, outlines the general case against China, highlights that the Philippines recognizes that the Tribunal cannot rule on issues of sovereignty, and argues that his country is instead demanding an outcome that rejects China’s nine-dash-line claim and the historic rights reasoning. Likewise, Rosario states that past attempts of bilateral negotiations between China and the Philippines have failed, forcing the Philippines to initiate arbitration procedures. (Philippine Gvt., 2015a).
Since 2015	The Philippines launches a series of civilian and military infrastructure projects on SCS features.
2014,December 7	PRC Foreign Ministry publishes the ‘Position Paper of the Government of the PRC on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines’. This paper argues that the Tribunal lacks the jurisdiction to rule on this case. Hence, China adheres to a position of neither accepting nor participating in these proceedings.
2014,May	Oil rig HD-981 incident. Following China’s set-up of an oil rig in disputed waters, Vietnamese naval ships and Chinese vessels collide in the South China Sea (at least one Vietnamese ship sinks). The ASEAN express ‘serious concern’ and call for ‘self-restraint’. In mid-July, China evacuates the rig.
2014, March 30	The Philippines submits its memorial (legal analysis and evidence) against China over competing SCS claims to the Arbitral Tribunal in The Hague.
2014,March 9–29	Ren’ai Reef (Second Thomas Shoal/Spratlys) standoff between PRC military and paramilitary vessels and the Philippine navy.
2014	Vietnam starts to conduct (moderate) island construction activities in the SCS.
2014	China launches a series of island construction and land reclamation activities in the SCS. It begins with the transformation of Mischief Reef (Spratlys) into an artificial island. In 2016, island building measures extend to the North Island and [72] Tree Island (Paracels) as well as Fiery Cross Reef (Spratlys) and Duncan Island (Paracels).
2013, August 1	The PRC files a note verbale clarifying that rejects the arbitration initiated by the Philippines and, thus, will not participate in the proceedings.
2013, February 19	The PRC files a note verbale rejecting the Philippine claims set out in the Notification and Statement of Claim. In addition, it requests the Philippines to resolve the dispute through bilateral negotiations instead. The Arbitral Tribunal, the PRC clarifies, lacks jurisdiction in the given case.
2013, January 22	The Philippines institutes arbitral proceedings against China under Annex VII to UNCLOS and, in its ‘Notification and Statement of Claim’ summarizes its grievances and calls for a ruling.
2012, April–June	The U.S. and the Philippines jointly conduct military exercises in the SCS.
2012, April 8	Scarborough Shoal incident: The Philippine navy spots eight Chinese fishing vessels at Scarborough Shoal and seeks to apprehend Chinese fishermen accused of illegal fishing. While this attempt is forestalled by the Chinese PLA, the situation quickly turns into a military standoff between military vessels and surveillance ships from both countries. On June 5, 2012, both governments agree to withdraw their vessels from Scarborough Shoal respectively.
2011, November 17	U.S. President Obama proclaims the ‘U.S. pivot to Asia’.
2011, June	The Vietnamese navy conducts two maritime exercises in the SCS.
2011, March 2	Standoff between a Philippine seismic survey boat and a Chinese maritime surveillance vessel at Reed Bank.
2009, June	A Chinese submarine collides with a U.S. military vessels’ sonar sensor off the Philippine coast.
2009, May 7	The PRC submits a note verbale to the U.N. in which it proclaims indisputable sovereignty over the islands in the South China Sea and its adjacent waters. In addition, it attaches a nine-dash-line map.
2009, May 3	The official deadline for states to file seabed hydrocarbon claims (extended continental shelf) under the United Nations Convention on the Law of the Sea.
2005, March	National oil companies of China, the Philippines, and Vietnam sign a joint accord to conduct marine seismic activities in the Spratly Islands.
2005, January 8	Hainan Island incident: Chinese ships attack two Vietnamese fishing boats (China insists that they are pirates who have attacked first).
2002, November 4	China and ASEAN agree on a Declaration on the Conduct of Parties in the South China Sea in which all parties pledge to seek peaceful solutions to disputes in the South China Sea. Since 2011, negotiations on a legally binding Code of Conduct for all [73] parties have been ongoing.
1999	The Sierra Madre, a Philippine vessel, strands at Ren’ai Reef. The PRC argues that the vessel is deliberatively drawn to the area by the Philippines.
1995	China occupies the Mischief Reef (Eastern parts of Spratlys) (previously claimed by the Philippines, Vietnam and Taiwan).
1987–88	Conflict between China and Vietnam over Spratlys (real clash in March 1988).
1982	The United Nations Convention on the Law of the Sea (UNCLOS) is concluded (entering into force in 1994). EEZ regime officially set up for the first time.
Since the mid-1980s	For the first time, China starts to match its long-standing historical claims to SCS features and elevations with a physical presence (occupation). Other nations have already occupied maritime SCS features in the past.
1974, January	Battle of the Paracel Islands (Prelude to the Sino-Vietnamese War in 1979).
1973	Third U.N. Conference On the Law of the Sea is convened. Among others, several proposals by 56 states on the legal status of EEZs are debated on.
1971	Oil Crisis.
1972, September, 29	The PRC declares that “in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan” in Art. 5 of the Joint Communique of the Government of Japan and the Government of the PRC (PRC Gvt., 1972).
1969	The UN Economic Commission for Asia and the Far East publishes a report mentioning the high probability that vast oil reserves may be found in the Yellow Sea and the South China Sea.
1951 (entered into force in 1952)	The San Francisco Peace Treaty is signed. At the peace conference, the disposition of those territories conquered by Japan is decided upon. Japan loses all rights and claims to the SCS. Zhou Enlai (former Chinese Foreign Minister) is not invited to attend this conference (due to the ongoing Chinese Civil war and unclear Chinese governmental legitimacy), denounces the treaty and instead declares Chinese sovereignty over the Paracel Islands, the Spratly Islands, and Pratas Islands. (August 15). Vietnam, at the conference, claims that both the Spratlys and Paracels are territories of Vietnam. This claim is left unchallenged by any other party (China is not present, neither is Taiwan).

Source: Own representation