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on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Anna Schwartz
Anna Schwartz is a sophomore at the University of Pennsylvania studying Political Science, French, and Economic Policy.
Countries surrounding the South China Sea have been competing for ownership of the ocean area for decades. Yet as of late, the tensions are beginning to peak. China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei have all recently staked claims. The disagreements have far-reaching political implications, including increasing naval hostility from China in order to establish dominance in the region. As states place increasingly greater economic and military value on the region, deciding proprietary rights becomes more pressing.
Disputes center around rights to the Paracel and Spratly islands, along with nearby rock and reef formations. Many states hope to take advantage of the region’s abundant natural resources. The body of water contains valuable fisheries and over 30% of the world’s coral reefs . In 2013, for example, the South China Sea hosted around 11 billion barrels of untapped oil and 190 trillion cubic feet of natural gas . Finally, newer data adds that approximately 40% of global natural gas trade and 30% of maritime oil trade passes through the South China Sea due to routes between Africa, the Persian Gulf, and Asia [3, 4]. Motivated by the potential benefits from resource deposits and sea lanes, neighboring countries are presenting their custody cases to the United Nations.
Each state’s argument rests on its ability to establish the South China sea as part of its Exclusive Economic Zone (EEZ). The UN originally defined EEZs in Articles 55-75 of the 1982 Convention of the Law of the Sea. In a country’s EEZ, the UN recognizes the sole jurisdiction of the country to explore, exploit, conserve, and manage natural resources, and regulate the establishment and use of the marine environment for up to 200 nautical miles . By defining EEZs, the Convention of the Law of the Sea aimed to standardize resolutions for disagreements about ownership and utilisation. In other words, whichever state proves this status in the South China Sea gains dominion over vast material reserves and future revenue.
China claims the area outlined by the “nine-dash line,” which reaches hundreds of miles south and east past the mainland. As proof of their rights to the area, Chinese officials point to a 1947 map that includes the Paracel and Spratly chains. However, critics doubt the map because it does not include coordinates. Other Asian powers such as Taiwan assert similar stakes in the territory. Vietnam defends its authority by explaining that it has ruled the region since the seventeenth century. The Philippines argues that it should have control due to geographical proximity. Finally, Malaysia and Brunei demand a small amount of land in the Spratly islands and undisputed territory respectively . These irreconcilable legal demands have lasting political implications.
The Convention of the Law of the Sea hoped to minimize maritime conflict. In reality, the guidelines intensified competition. Article 121 requires land in EEZs to sustain human or economic activity. Meant in part to clarify China’s property rights, the provision only fueled China’s aggression. To comply with Article 121, China built large military bases on disputed land and artificial islands . Military incidents occurred both before and after the treaty passed. Particularly, China led campaigns to discourage Vietnam and the Philippines from occupying the territory. Tensions manifested in 2016, when the Philippines brought a case against China. An international tribunal decided that China had no legal basis to claim sovereignty in the South China Sea. The court in the Hague explained that China violated international law by harming the marine environment and jeopardizing Philippine ships, fishing spots, and oil routes . Still, the decision had no means for enforcement. China continues to construct new military bases.
Despite Philippine, Vietnamese, and American attempts to abate tensions with gentlemen's agreements to share the area, China insists that the South China Sea is in its EEZ. The United States cites the Convention of the Law of the Sea in response, emphasizing that all states have freedom of navigation in the area and no responsibilities to report military activities . To further challenge China, Presidents Obama and Trump have conducted Freedom of Navigation Operations (FONOPs). US ships embark on these voyages in the South China Sea to contest China’s illegal military buildup and underscore that the area is shared by all.
On November 8th, not for the first time, a Chinese warship almost collided with an American destroyer. The American crew felt that China was attempting to intimidate them by coming within forty-five yards of the US ship . Altercations following FONOPs are a symptom of the Cold War style rivalry between the US and China that may escalate into a larger crisis. As Chinese naval presence grows and the American navy budget shrinks, President Trump nonetheless calls for more action in the South China Sea while urging China to adhere to international law. If past trends hold true, China is increasingly likely to provoke large-scale military operations to defend its rights to the South China Sea against the United States and other relevant countries.
Photo Credit: Unsplash: Asael Pena https://unsplash.com/photos/SCgE-uLumj4
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.