South China Sea Dispute – Analysis of Conflict

Thesis

by

Stela Šmahlíková

Submitted in Partial Fulfillment

Of the Requirements for the Degree of

Bachelor of Arts

In

International Economic Relations

State University of New York

Empire State College

2016

Reader: Max Hilaire

 Acknowledgments

I would like to express my sincere thanks to Professor.Max Hilaire, my advisor, for his help

whilst choosing my topic and later his support of my Bachelor thesis project and related

research. For his valuable advice, positiveness, and motivation provided during our meetings.

His instructions helped me while doing research in information and in the writing of this

thesis. I am very grateful to him for providing me the possibility to write about this issue,

which I initially had very limited knowledge about.

I am also thankful to my parents and my friends for their support while I was working on this

thesis. Without them, it would be impossible to attain what I achieved till today.

Last but not least, I would like to say thanks to all my friends at the University who were

continuously helping me to manage all the challenges during my studies and made these

years of study unforgettable.

2
 Table of Contents

Abstract 4
1. Introduction 6
2. Description of The South China Sea 7
2.1. The Origin of the Name 7
2.2. Geographical Extent 7
2.2.1. The South China Sea 7
2.2.2. The Spratly Islands 9
2.2.3. The Paracel Islands 9
2.3. Natural Resources in the South China Sea 10
2.3.1. Raw Materials 10
2.3.2. Maritime Biodiversity 11
2.4. Strategical Importance of the South China Sea 12
2.4.1.The importance for the International Trade 12
2.4.2 Potential for Military Base 13
3. The United Nations Convention on the Law of the Sea (UNCLOS) 13
3.1. Definition of Geographical Formations 14
3.1.1. Island 14
3.1.2. Rock 15
3.1.3. Low Tide Elevation 15
3.2. Definition of Baselines 15
3.2.1. Normal Baseline 15
3.2.2. Archipelagic Baseline 16
3.3. Definitions of Maritime 17
3.3.1. Territorial Waters 17
3.3.2. Contagious Zone 17
3.3.3. Exclusive Economic Zone 18
3.3.4. Continental Shelf 18
3.3.5. International Waters 19
3
3.4. Overlapping Maritime Zones 20
4. Territorial Claims of Particular Countries 21
4.1. Territorial Claim of China 21
4.2. Territorial Claim of Taiwan 25
4.3. Territorial Claim of Vietnam 26
4.4. Territorial Claim of the Philippines 27
4.5. Territorial Claim of Malaysia 28
4.6. Territorial Claims of Brunei 30
4.7. Territorial Claim of Indonesia 32
5. Violent Conflicts in the South China Sea 36
5.1. 1970's 36
5.2. 1980's 37
5.3. 1990's 38
5.4. The Development since 2000 39
5.4.1. China 39
5.4.2. The Philippines 41
5.4.3. Vietnam 42
5.4.4. Malaysia 43
6. Role Of the Non-Claimant Nations 44
6.1. ASEAN 44
6.2. Japan 46
6. 3. The United States of America 48
7.Conclusion 51
Works Cited 54
Bibliography 63

4
 Abstract

This work looks into the complex issue of territorial dispute in the South China Sea and

explains the causes and consequences of increased tensions in the region. The disputes over

territory are not an uncommon phenomenon; however, the South China Sea case is unusual

because it has six claimant countries advancing their interests. The South China Sea is

abundant in natural resources and control over them is the main reason why the states

surrounding the South China Sea are fighting for this territory. For the global community, this

area is crucial due to the sea-lines crossing through there. The dispute has a capacity to erupt

in major violent conflict and consequently cause human casualties and negatively impact the

global trade. Several violent clashes have already occurred, but the situation was calmed by

diplomatic talks and efforts to increase economic ties. The international community pays

particular attention to China, which has the most extensive territorial claims. However, the

little focus is given to the United States that provokes the Chinese reaction when supporting

in the conflict its allies and keeping its military bases in or around the disputed territory, close

to the Chinese borders. Up to now, the problem of overlapping maritime borders has been

resolved marginally. Only a few states have agreed on delimiting their borders. current

developments indicate that the conflicts will last unless the states agree on a definitive

multilateral resolution about how to share the territory and natural resources found there. The

ideal scenario would be if the states agreed on how to share all the resources fairly and

respected it. Nonetheless, after evaluating all information, China will remain to have the

biggest influence over the disputed territory because of its economical ability to undermine

the other claimants.

5
1. Introduction

More than half of the world's cargo is being shipped through the waters of the South China

Sea (SCS), which makes it a crucial sea-lane for trade among all continents. However, the

current political development in the area is a potential area for armed conflict. This would

endanger global trade and economically impact the world's population. Until the first half of

the 20th century, there was no much attention given to the South China Sea, particularly not

to the Paracel or Spratly Islands. Nevertheless, since the 1970's, this territory has become the

epicenter of a diplomatic war among Brunei, China, Malaysia, the Philippines, Taiwan, and

Vietnam, who have been fighting for the rich natural oil and gas reserves around the Paracel

and Spratly Islands.

Numerous violent conflicts have occurred, and the debate over the Paracel and Spratly

Islands has become a source of major tension among these countries. Both hard power and

soft power have been applied alternatively, to resolve the dispute with little effect. The

clashes have been escalating and becoming more frequent. To maintain its interests in the

area, non-claimant nations are also becoming involved. China's expansionist policies in the

South China Sea are prompted by the other's powers. However, China's economic strength

limits their response. Despite the tense situation in the SCS and the potential economic

impact if any armed conflict would erupt, there is little awareness about the problem among

an ill-informed audience. This work will try to describe the geographical importance of the

SCS, the legal aspects will be explained, and the core of the problem and development of the

conflict will be discussed.

6
2. Description of The South China Sea

The purpose of this chapter is to make the reader familiar with the basic geographical aspects

of the territory. The real value of the South China Sea will be explained to make clear what

the states are fighting for.

2.1. The Origin of the Name

In English and most European languages, the sea is called the South China Sea, because the

European trade routes had to cross this sea on the way to China since the early ages.

Nowadays the name evokes that it belongs to China because it carries its name. But in Asia,

especially in the China's neighboring countries, the South China sea has got many other

names. Since September 2012, on the initiative of the Philippine president, the sea heading to

the west of the Philippines has been called West Philippine Sea (Shicun, 2013).

2.2. Geographical Extent

2.2.1. The South China Sea

The South China Sea is a semi-enclosed marginal sea that is part of the Pacific Ocean.

Overall the sea covers the area around 1,4 million square miles. In length, it stretches more

than 1200 nautical miles and its breadth it varies from 550 to 650 nautical miles (Fels, 2016).

To the south, the sea is quite shallow; the majority of its depth reaches only 1,000 feet.

However, in the direction of Luzon, in the Philippines, the sea depth is more than 13,000 feet

(Li, 2015). It is bordered by mainland China on the north; by Singapore and Vietnam on the

west; by Indonesia, Malaysia and Brunei on the south; and touches shores of the Philippines

7
on the east. In width, it extends from the Gulf of Tonkin in the west to the Philippine islands

in the east and from the Taiwan Strait in the northeast, it goes to the Malacca Strait in the

southwest.

In total, there are around 250 islands, sandbars, reefs, and shoals in the South China Sea.

Some of them form a group of islands. However, the Spratly Islands and Paracel Islands play

a crucial role because control over them equals to dominance over EEZ (explain EEZ here)

and continental shelf surrounding them (Li, 2015). The other geological formations in the

South China Sea, which are also in a conflict of interests, are Pratas Islands, the Scarborough

Shoal, that is almost submerged for the whole year and Macclesfield Bank, which is year-

round sunk in the water (Fels, 2016).

Over the last decades, the geography of the South China Sea has been changing due to the

massive construction of artificial islands. China has so far generated over eight million meters

square of the human-built land in the SCS what makes it from this point of view the most

productive nation in the SCS. Nevertheless, while building the artificial land, china has not

considered the opinion of independent environmental experts.

The construction comprised of digging up hundreds of millions of tons of corals and sand

from the bottom of the sea which was then scattered over brittle coral reefs. Despite the

proven irretrievable harm the construction activity has caused, it does not seem that the China

would plan to ease their efforts. (Duong, 2015).

8
2.2.2. The Spratly Islands

The Spratly Islands, the largest disputed archipelago in the South China Sea, lies on the east

from southern Vietnam, west from the Philippines and on the north of Borneo. The

archipelago is made of more than 140 tiny islands, reefs, and rocks. Some parts of the

archipelago are permanently under the water's surface. The largest isle, Taiping Island/Itu

Aba, is the only island of the archipelago that has its own water resource, small airbase, and

garrisons (Fels, 2016). Until the 1960's, the ships tried to avoid this area because vessels

floating there had problems with navigation and frequently shipwrecked. For this reason, the

surrounding of the Spratly Islands were not well explored (Katchen, 1977). The sovereignty

claims over the Spratly Islands is a very complex issue because six nations are struggling for

dominance over them: Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam. The

Spratly Islands have no indigenous population. However, there is a presence of military

personnel of several claiming countries (The World Factbook: Spratly Islands, 2016).

2.2.3. The Paracel Islands

The second biggest group of islands to be found in the South China Sea waters are the

Paracel Islands that total around 45 isles, reefs, rocks and other natural structures and are

claimed by China, Taiwan, and Vietnam. The islands lie on the north of the Spratly Islands,

on the east from Vietnam coast and the west from the Philippines. Woody Island, the greatest

and the most civilized of the Paracel Islands, has had since 2012 its city named Sasha City

which was founded by the Chinese. Infrastructure, sea port, small military airport, clinic, and

the post office can be found there (Fels, 2016). As well as in the case of the Spratly Islands,

the Paracel Islands do not have a permanent population, but they are currently settled by

scattered Chinese garrisons (The World Factbook: Paracel Islands, 2016).

9
In the course of history, the states fought for domination over territories that were fertile,

abundant in natural resources, strategic military targets, or important transport hubs. The

South China Sea has all those features in large extent.

2.3. Natural Resources in the South China Sea

2.3.1. Raw Materials

As the price of energy increases globally and natural reserves and raw materials decrease,

countries are seeking new deposits. Since the economy and living standard in China and the

Asian Tigers States has been rising, it is estimated that until 2025, oil demand in Asia will

yearly grow by 4%. Half of this is expected to be needed by China. If the prognosis comes

true, Asia would daily use 25 million barrels of oil. It is more than twice of the current

consumption (Rowan, 2005). The SCS has been called the new Persian Gulf. In 2013, the

exploration led in the area estimated crude oil reserves of 7.7 billion barrels under the seabed.

But the experts guess that there might be 28 billion barrels of oil to be found in total. Except

for oil, the calculations say that 266 trillion cubic feet of natural gas reserves are also to be

lying under the sea bottom. With every discovery of new deposits in the South China Sea

region, the countries have more motivation for competing for the territory, so the tensions

among claimants are mounting (Li, 2015).

10
2.3.2. Maritime Biodiversity

If the Amazon is the lungs of the world, the South China Sea is undoubtedly the breastfeeder

of the planet. One-third of the whole world's marine biodiversity occurs in the South China

Sea, the place which plays an essential role in the world`s ecosystem (Li, 2015). 76% of the

coral species on the Earth and 37% of reef-fish classes have its home in the SCS (Singh,

2016). In mid-1990 the annual value of fishing in the area was calculated to almost three

billion U.S. dollars (Saleem, 2000). Nevertheless, in the last 20 years, there have been

reported illicit cases of fishing with the help of detonating cords, cyanide, and dynamite.

Among the species affected by illegal hunting have been endangered giant clams, giant

oysters, sharks, eels, sea turtles and rare corals (Singh, 2016).

Except being one of the world's most diverse flora and fauna museums, the South China Sea

has had an existentialist meaning for local fishers and almost 300 million people living on its

coastline. Half of their protein, comes from eating fish caught in the South China Sea. As the

population on the sea border is growing, it is expected that demand for seafood will increase

(Bateman, 2008). From a global point of view, in total, 55% of world`s angling vessels are

fishing in the SCS to meet 12% of the global fish supplies (Whitebrook, 2016).

Vast areas of the SCS stay unregulated. As a consequence, there is immense unreported

fishing in the area. The trend is disturbing because the fish population has been decreasing by

70 – 95% since the 1950's and probably will continue declining by 59% by 2035 if the states

depleting the South China Sea do not start to cooperate instead of fighting (Whitebrook,

2016).

11
2.4. Strategical Importance of the South China Sea

2.4.1.The importance for the International Trade

The territory is crucial for the world community because without using the shipping lanes in

the SCS, today's global trade would collapse. The SCS makes a link between the Indian and

Pacific Oceans thus it is an essential sea-lane connecting Africa, Asia, and Europe. More than

90% of the global transnational trade is pursued through shipping while 45% of that cargo is

being transported via waters of the SCS making it the second globally most used international

shipping lane. Strait of Malacca is the world’s second most used transnational sea-lane, and

together with the Sunda Strait and the Lombok Strait, they yearly let more than half of the

global supertanker freight to pass through. These ships later supply stocks of crude oil,

liquefied natural gas, coal, and iron ore to large economies of Japan, South Korea, China and

Taiwan (Rowan, 2005). According to the appraisals, 80% of Japan's and 70% of Taiwan’s oil

and other raw material imports are transported via the SCS. In total 25% of the global oil

output is being sent from the Middle East to Japan and the United States through sea routes in

the SCS (Saleem, 2000). If the tankers stopped moving in the waters of SCS, no one argues

that in a short time the power would go down in the countries dependent on the oil imported

through the South China Sea (Hayton, 2014). For the reasons stated, it is clear that any severe

conflict in the area would negatively impact international trade. Mainly China, Japan and the

USA, the world's most trading countries, would be affected. Nevertheless, also European

commerce would be harmed since the SCS is an important trade lane for a very big economy

(Rowan, 2005).

12
2.4.2 Potential for Military Base

It is arguable whether the disputed islands are an important strategical point in the time of

armed conflict. The majority of scholars claim that the Spratly Islands are strategically

valuable. Japan, during World War II used the Spratly Islands as a military base from where

some of the blockades and invasions were conducted. At the end of the 20th century, the

Japanese army analysts claimed that the nation, which would in future possess sovereignty

over the Spratly Islands, will at the same time reach the regional supremacy in the 21st

century (Saleem, 2000). On the other hand, Bill Hayton, the author of several publications on

the Southeast Asia, says that the disputed islands are not a strategic military point as the

majority of them could be annihilated by a single missile strike (2014).

3. The United Nations Convention on the Law of the Sea (UNCLOS)

The purpose of this chapter is to familiarize the reader with basic concepts of the United

Nations Convention on the Law of the Sea (UNCLOS), which addresses to maritime law thus

applies to the SCS. After reading the chapter, it should be well understood to what extent the

state can claim its sovereignty; how this sovereignty does prolong; under what circumstances

the island can be claimed; how strong and extensive sovereign rights the island can produce if

even any; and how to solve overlapping maritime disputes. This is critical to know when

considering what the nations are fighting for and how the overlaying claims should be

resolved. Later, the paper will explain what kind of steps the states adopt to generate more

sovereign rights.

13
The sovereignty and jurisdiction over a piece of land have always been upon state's entity

living on the particular territory. However, 70% of the Earth's surface comprises of the seas

and oceans. In the case of the seas and oceans, there always has been a lack of clarity to

whom the territory belongs and how or what law to enforce there. To clarify the legal status

of shared areas of the Earth, so the seas and the oceans, the states needed to agree on general

principles that would define the rights and the obligations of each state. The first document

discussing the issue was called Freedom of the Seas and dates back to the 17th century. The

document claimed that the coastal states were allowed to prolong its sovereignty further in

the sea but only to the distance to which they would be able to regulate it effectively. In

practice, it meant that the coastal states controlled the sea so far as the canon-ball could

range. The most usually, it was no longer than three miles seaward (McCorquodale, 2007).

However, with the technological progress in the 20th century, it was evident that the states

could effectively manage control of the surrounding seas in the distance that was longer than

three miles.

3.1. Definition of Geographical Formations

3.1.1. Island

It is a non-human made piece of land that remains above sea-level during high tide. The

island is eligible to generate all maritime zones, including extended continental shelf (Roach,

2014).

14
3.1.2. Rock

Rock differs from the island by size and structure, but with island, it has in common that it is

not submerged during high tide. In the case the rock is not able to preserve human habitation,

it is subtitled only 12 miles of territorial sea. In the case it generates economic activity, it can

also enjoy Exclusive Economic Zone (EEZ) and continental shelf (Roach, 2014).

3.1.3. Low Tide Elevation

A naturally created piece of land that is surrounded by and above water at low tide but

remains sunk during high tide. It belongs to the state in whose continental shelf it is

positioned. In the case it is located in the territorial waters of the state, it is possible to

measure territorial waters from the baseline of the low-water line (Roach, 2014).

3.2. Definition of Baselines

3.2.1. Normal Baseline

The baseline is the low-water line along the shore and can be located in both, the mainland

and natural islands. The baseline serves as a fixed land point from which the state's territorial

sovereignty prolongs further in the sea. Any point lying on the baseline is called base point.

Under the Article 16 of the UNCLOS, the coastal states are required to issue geographical

chart or list with baseline, which was drafted in compliance with the geodetical

measurements. The position of baseline can seriously affect the area of territorial waters, the

contiguous zone, and the EEZ because they all are measure from there. This becomes crucial

15
if some island or low tide elevation far from the coast becomes the base point because the

state's sovereignty extends significantly and in the case of distant islands also

disproportionally. The basepoint for delimiting the maritime zones cannot lie on the artificial

island nor at human-built structures such as oil-drilling rig, light tower, offshore docking or

oil pumping facility (McCorquodale, 2007).

3.2.2. Archipelagic Baseline

While delineating the baseline, different rights apply to archipelagic states. The UNCLOS

describes the archipelagic state as a country that is composed of a group of islands. Among

one of the five world's countries that fall into this category belongs the Philippines, the

country playing a role in the South China Sea dispute. The difference in the case of

archipelagic states is that the sea between single islands is regarded as the internal waters

where the state possesses exclusive sovereignty. The archipelagic country is allowed to

connect by straight baselines the outermost points of its furthermost islands under the

condition that the largest islands are covered within the baselines. The length of straight

baselines shall not surpass 100 nautical miles. The basepoint for the baseline cannot be

placed on low-tide elevations unless any object like a lighthouse that is continually above the

sea level, has been built there. The internal waters demarcated by straight baselines should

not be intended to cut off from the high seas or the maritime zones owned by another state. If

this happens, the existing rights of both states should be continuously abode under the

agreement (United Nations Convention on the Law of the Sea, 1982).

16
3.3. Definitions of Maritime Zones

3.3.1. Territorial Waters

Territorial sea is the maritime zone that is closest to the land territory, and from the legal

point of view it is equivalent to the land territory of the coastal state; thus the state holds full

sovereignty over it. Territorial sea measures up to12 nautical miles seaward from the

baseline. All domestic laws are valid and enforceable in territorial waters. However, under

the principle of innocent passage that excludes fishing, polluting, weapons usage or spying,

the foreign vessels are allowed to navigate through territorial waters without prior permission

if they pass fast and do not stop on the shore (McCorquodale, 2007).

3.3.2. Contagious Zone

In maximum 24 miles measured from the baseline, the contiguous zone extends. In the

contiguous zone, the coastal state possesses some sovereignty as well. Nonetheless, the state

is not allowed to use this area to control state's security. The contiguous zone comes under

international waters, and for this reason, any country of the world is allowed to use the water

space as well as the airspace above without any restriction. This freedom of movement even

applies to the navigation of international warships and the overflight of military aircraft.

Nevertheless, in the contiguous zone, the coastal state is entitled to take necessary steps

needed for prevention and punishment of coastal state's laws violated within state's territory

or its territorial waters. Among those laws belong laws related to taxation, customs,

immigration, pollution, and any other regulations that apply within state's territory or

territorial sea (McCorquodale, 2007).

17
3.3.3. Exclusive Economic Zone

The Exclusive economic zone (EEZ) had not existed until the second part of the 20th century.

However on demand of the coastal states, the area of 200 nautical miles from the baseline,

was defined as EEZ. The delimitation is necessary mainly for the coastal states whose

geological continental shelf, typically copious in natural resources, is fractional or non-

existent. Within EEZ the coastal state is guaranteed the prior right in exploring, exploiting

and maintaining both, living and non-living natural resources of the subsoil, seabed, and

waters superjacent to the seabed. The state is entitled to lead there the marine scientific

research and can profit from producing the water, currents and wind energy. Consequently,

the state is allowed to place there any construction needed for mining, gathering the energy as

well as the artificial islands can be built there. But important to mention that no additional

maritime zones extend around those human-made structures. Alike in the contagious zone, in

the EEZ all states are allowed to move freely and are permitted to lay submarine cables and

pipelines there. (McCorquodale, 2007).

3.3.4. Continental Shelf

The continental shelf is an underwater margin of the continental crust and comparing to the

open ocean; it is shallow. Thanks to its fertility and abundance in natural resources, the

continental shelf is assessed by coastal states but unfortunately not every country disposes of

it. Today, if the state's geographical location is endowed with continental shelf, the state

regards it as a natural prolongation of its terrestrial territory. To the continental shelf, the

exclusive economic zone was later defined, so the coastal states could get prior right to enjoy

the natural wealth lying up to 200 nautical miles offshore Exceptionally, the states are

allowed to prolong their sovereign rights for exploitation and exploration in the continental
18
shelf up to 350 nautical miles. However, to claim extended continental shelf, the state has to

demonstrate in front of the Commission on the Limits of Continental Shelf (CLCS) that the

continental shelf is a natural prolongation of the mainland. If proved successfully, the state

gets consent from the CLCS to prolong its sovereign rights for usage of natural wealth until

350 nautical miles. Beyond EEZ but still, within these 350 nautical miles from the land, the

state holds sovereign rights in exploiting and exploring the soil and subsoil of the maritime

areas of the continental shelf. However, unlike in the case of EEZ, the state does not possess

exclusive rights for exploring water column. This means that every country in the world can

enjoy fishing in this location (McCorquodale, 2007).

3.3.5. International Waters

Behind the outer margin of the EEZ, the rest of the sea or ocean extends, and UNCLOS

defines the territory as international waters, sometimes it is also called high seas. This area

can be defined as a territory of no man but the land of every man. International waters are

belonging to everyone, the freedom of movement, exploration, and exploitation if in

compliance with international law, applies to this territory. Any ship sailing within

international waters is obliged to float under the flag of the state where registered otherwise it

is considered as an illegal passage. Jurisdiction in the international waters comes under the

state where the ship is registered (McCorquodale, 2007). As the SCS is a crucial intersection

for international trade, the non-involved countries incline to think that majority of the SCS

should hold a status of international waters (Ruff, 2016).

19
 3.4. Overlapping Maritime Zones

As many countries share a seashore, naturally in the most cases the territorial sea of the states

will overlap. In the case of bordering states, no state is allowed to prolong its territorial

waters beyond the median line between the two countries unless the unusual circumstances

occur (Attard, 2014). In the areas where two or more seashore states face each other less than

400 nautical miles, the EEZs overlap. Article 74 of UNCLOS suggests that the delimitation

should be compliant with international law. The ICJ encourages to solve overlapping zones

by at first drawing median lines, secondly to adjust median lines respecting possible special

conditions and lastly to ensure that the result is impartial for both states (Fietta, 2016).

Nevertheless, as the control of the part of the sea brings to the state wealth and power thanks

to the extended sovereign rights, it is natural that the countries are striving to gain a bigger

part of the overlapping maritime zone at the expense of the other state.

Another way how the states are trying to increase the area of their sovereignty, is by claiming

another island located in their maritime zone because this island will generate additional

maritime zones. This is the case of the disputed Paracel Islands and Spratly Islands. Six

countries are lying a claim over these small archipelagos. The maritime zones extend around

some of these islands, thus the state that owns them, holds more rights for exploitation of the

natural resources. The claimants participating in the dispute over the Paracel Islands and the

Spratly Islands are justifying their claim over the territory either by historic rights or because

the islands locate in their EEZ. The following chapter is going to analyze in detail the claims

of the all six actors.

20
4. Territorial Claims of Particular Countries

The chapter describes the historical and territorial ground of each state for claims in the South

China Sea. The numbers of occupied islands are covered, including the information on the

overlapping claims. Some sections also discuss which maritime zones can the owned territory

generate because this increases the value of these islands. The part also refers to the isle

construction in the SCS because it has become a very common practice, which increases the

value of the reef. Brunei is covered more in depth since it is marginal claimant and later in

this work, it will not be further described. Particular attention is also devoted to Indonesia

since it has a potential to become the seventh claimant.

In the territorial claim in the SCS, two small archipelagos play a crucial role: The Spratly

Islands and Paracel Islands. The Spratly Islands are claimed by China, Malaysia, Taiwan, the

Philippines, and Vietnam, at the same time, Brunei's EEZ covers one or two cliffs of the

Spratly Islands. The Paracel Islands are disputed by China, Taiwan, and Vietnam. In the case

of Spratly Islands, except Brunei, all claimant nations have its presence there. Among them,

Vietnam occupies the highest number of Spratly Islands, in total around twenty out of 200

islands. (Muhibat, 2015).

4.1. Territorial Claim of China

China has the most rapidly growing economy, navy and mercantile fleet in the world,

promotes massive shipbuilding industry and owns 52 important seaports and 16 important

inland river ports. But still its movement on the eastward to the Pacific Ocean can be

controlled by a group of three archipelagos, passage to the Indian Ocean Region can be

21
locked at the Straits of Singapore-Malacca, Sunda, and Lombok. Navigation from China

towards northeastern Asia Pacific Region can be locked by Osumi, Tsushima, and Tsugaru,

these three straits are regulated by Japan. China is by some experts assessed as the most

disadvantaged state in the Asia Pacific Region. Nevertheless, China claims the greatest part

of the SCS (Muhibat, 2015).

In its claim, China had recalled to the longest historical records that date back to the year 110

when Han Dynasty disembarked in the area around the Spratlys. The next exploration crew

was sent there by Ming Dynasty at the beginning of the 15th century. From the 12th till 17th

century many Chinese historical chronicles made notes about Spratlys and even illustrated the

level of the elevation above the water level. China made the first official claim over Paracel

Islands in 1876. Seven years later, the Chinese expelled the German research team out of the

Spratlys. Nevertheless, during the 20th century, China was losing some islands for other

countries. In the 1930s, also Japan had a presence in the SCS. In 1947, the highly debated

nine-dashed map was released for the first time. The method of demarcation and the meaning

of the map has never been explained. In 1996, China issued the baselines around the Paracel

Islands but did not refer to the Spratly Islands, but it was promised to resolve the problem

later. There has not been another clarification of the map offered so far (Rowan, 2005).

China claims the most extended part of the SCS as well as it performs a lot of policies to

enforce its aims. In 2009 the UN Secretary-General received from China Note Verbale

asserting indisputable Chinese sovereignty over the islands in the SCS and the respective

waters. The map of the nine-dashed line was attached to the Note Verbale. However, a

validity of the nine-dashed claim is highly questioned by the international community. From
22
the Chinese mainland, the u-shaped nine-dashed line extends downwards beside Philippine´s

and Vietnamese shores and ends down, near Malaysian coast. The nine-dashed line wholly

encompasses Taiwan and its adjacent waters. In total, the nine-dashed line covers 90% of the

South China Sea's surface (Muhibat, 2015).

It is unclear whether China is intending to claim only EEZ around islands located within the

nine-dashed line or whether it is claiming the whole area bordered by nine dashes. Some of

the legislative documents issued by China state that the Chinese jurisdiction applies not only

on the EEZ delimited from the islands but on the whole area inside the nine-dashed line. It is

arguable whether China is claiming historical rights over the South China Sea territory. The

second Note Verbale brought by China in 2011 does not contain term historical rights

however it hints that China is claiming historical rights to resources found within the nine-

dashed line. Nevertheless, the direct reference to Chinese historical claims to the South China

Sea is included in Article 14 of China's national legislation on the EEZ, arguing that the

historic rights of China should not be intervened by the EEZ delimitation. There are also

academic documents written by Chinese but also foreign authors that are stating that China

has historical rights to fishing, oil and gas exploration and exploitation inside the entire nine-

dashed line (Muhibat, 2015).

The international community involved in the conflict expressed objection that under

UNCLOS the historical right is not a credible claim. The Philippines and Vietnam have

already commented that according to UNCLOS the state can derive the natural resources only

around the maritime zones surrounding the land or island territory thus they are not going to

acknowledge the Chinese historical right for resources within the nine-dashed line.
23
Furthermore, it would be difficult for China to prove historical right for fishing as there are

requirements for characterizing the species and techniques of fishing to which the historical

right relates. To certify the claim China would have to bring evidence of continuous

application of such activities within EEZ of other state and also, would have to show that the

practice was accepted by the other state by not willfully fishing within its EEZ. Finally, the

claim would have to meet consent of the international community. Even impossible seems to

prove historical right for extracting oil in the EEZ of another country (Muhibat, 2015).

Excluding the Paracel Islands that are wholly controlled by the China, the country has also

been occupying seven features in the Spratly Islands (Vuving, 2016). Some sources stated

that China had its presence also on Eldad, Whitsun, McKennan, and Gaven South Reef,

however, this speculation was later rebutted. However, since Eldad Reef and Whitsun Reef

are strategically important, it is expected that one of the claimant states will occupy them

soon. It is also very likely that these two reefs have been slowly artificially modified from the

low-tide elevations into islands. The sailing maps from the 90's marked these reefs as the

low-tide elevations, but today both constitute of dunes that have been growing size. This

effect might have been caused by wind and waves that accumulated sand on the coral reefs.

But the various sources witnessed that it has been Vietnam and China that are silently

building the island to settle it (Vuving, 2016).

The majority of the reefs in the SCS are all year long submerged thus under UNCLOS they

cannot legally generate any maritime zone. However, the countries with China on the top

have been still building the artificial isles. The reason is that such a small ground located far

from the mainland serves as a distant supply base for navy or aircraft; therefore helps to
24
exercise state's control over the wide region including Spratlys, and facilitates further

expansion in the EEZ's that by any international law legally belong to other claimants in the

SCS. Due to China's massive island building going deeply down to the SCS, the other nations

involved in the SCS dispute cannot rely anymore on protection based on the distance from

mainland China (Duong, 2015).

4.2. Territorial Claim of Taiwan

Taiwan claims four islands group: the Spratly Islands, Paracel Islands, Macclesfield Bank,

and Pratas Islands. Taiwan was the first state to occupy the Spratly Archipelago. Today,

Taiwan has its troops stationed only at Itu Aba, the biggest isle of the Spratlys archipelago

(Rowan, 2005).

In 1949, after triumphing of Mao Zedong, the Chinese Communist leader, the government in

exile was established by Chiang Kai-shek, the Nationalist leader, who fled to Taiwan, where

he established a government in exile. Taiwan entered into a dispute over the SCS in 1949,

right after its dissolution from the communist mainland. Taiwan grounds its territorial claim

for the same reasons as China. Both Taiwan and China, are recalling to history, discovery,

occupation, and extended continental shelf. These two countries also agree that the territory

appertains to China. However, both consider themselves to be that China. Considering their

hostile relations in the past, it is interesting that China has never contended the territory in the

South China Sea ruled by Taiwan. Except for historical claims that are identical with China,

the Taiwanese territorial claim has been advocated by the longest-lasting occupation. Taiwan

25
occupied Itu Aba since the 1950's. However, in the 1970's the dominance over the island

started being challenged for the first time (Riegl, 2014).

4.3. Territorial Claim of Vietnam

From the 21 reefs held by Vietnam, only 11 reefs can generate EEZ; another seven are less

valuable because they can create only territorial sea if UNCLOS is respected. The rest three

low-tide elevations cannot provide any zone (Vuving, 2016).

Vietnam justifies its dominance over the islands by a combination of continental shelf

principle and historical rights. In the 15th century, Vietnam governed the Spratly Islands, and

this claim was recorded during the 17th century when the majority of Vietnamese maps

covered parts of the Spratly's under Vietnamese rule. Since 1884, Vietnam was under the

colonial rule of French, who prolonged its governance also over the Spratly and Paracel

archipelago. The second argument is grounded in the prolongation of the continental shelf,

which would also encompass the area of the occupied islands. Nevertheless, in 1982,

Vietnam defined the straight baselines starting at its coast, but not all of them were consistent

with UNCLOS, therefore not accepted by the international community (Rowan, 2005).

Together with China, Vietnam has been the nation most often using hard power in the South

China Sea dispute. Vietnam believes to possess a right to extend its sovereignty over the

whole Spratly Islands, which are according to Vietnam offshore district of Khanh Hoa

Province. Furthermore, Vietnam claims the Paracel islands that have been completely

controlled by China since 1976 (Rowan, 2005).

26
The country also has had a significant number of garrisons on the islands to maintain its

control. In 1988, the islands were occupied by approximately 350 soldiers, and four years

later it was already 1000 troops. The islands are very well fortified, the central unit on Sin

Crowe Island is protected by anti-aircraft batteries and coastal artillery. Like China, Vietnam

has been accused several times of constructing artificial platforms and airstrips even on the

reefs that are usually several feet under water. However, the Vietnamese presence on these

reefs has been challenged as due to their geologic structure they cannot be a subject of

appropriation (Rowan, 2005).

4.4. Territorial Claim of the Philippines

The Philippines has had permanent control on nine islands. Furthermore, there are

speculations that Irving Reef, the tenth natural feature is patrolled by the Philippine Navy

vessels arriving regularly to guard the territory (Vuving, 2016). The Philippine's aspirations

for sovereignty over these islands meet with the ambitions from China, Malaysia, Taiwan and

Vietnam (Rowan, 2005).

The Philippines has several arguments to believe in its legitimate sovereignty over several

islands found in the Spratly's. By UNCLOS, the islands are located within the adjacent or

contiguous zone of the major Philippine islands; the area is commercially and strategically

crucial for the state; and the last, the most powerful statement recalls to the historic rights.

The claimed islands were abandoned after WWII and later re-discovered by Philippines

(Rowan, 2005). In 1947, Tomas Cloma, the Philippine merchant, set up colonies on the eight

27
islands. According to the Philippines, the Spratly Islands were terra nullius when Tomas

Cloma made the first step there. Consequently, Ferdinand Marcos, the then president of the

Philippines, in 1978 published a decree proclaiming the sea-bed, sub-soil, continental margin,

and airspace are to be under the jurisdiction of the Philippines. The proclamation also

provided an explanation that these territories do not legally apply under the sovereignty of

any country. Nevertheless, due to historical reasons, state's needs and efficient control that is

consistent with international law, this land, and respective waters, are a matter of the

sovereignty of the Philippines (Elleman, 2013).

Even though many authors are stressing a quite high credibility of the Filipino arguments, it

is important to note that there are sources that challenge the Philippine's reasoning. Even if

proximity is the reason for considerable demarcation of the maritime jurisdiction, it is not a

decisive factor. The Spratly's are not included in the Philippines' continental shelf as there is a

trough between the Philippine archipelago and Spratly Islands. Therefore the natural

extension of the continental shelf does not apply. The Philippines are allowed to ask for 200

nautical miles of EEZ but if delineated from the Philippines archipelago, the whole area of

Spratly claimed by the Philippines would not be encompassed. Also, the statement about

abandoned land is invalid since the other states had a presence on the features at the time the

Philippines laid its claim (Odgaard, 2002).

4.5. Territorial Claim of Malaysia

Malaysia occupies five reefs, and claims another six, which are settled by the other

claimants. Malaysia's claims clash with the interests of China, the Philippines, Taiwan, and

28
Vietnam. If evaluating the geographical aspects of the islands and other structures disputed

by Malaysia, the only formations that could attribute all maritime zones are the Shallow Reef,

Amboyna Cay, Barque Canada Reef, and Commodore Reef/Rizal Reef. From rocks, it would

be Erica Reef, Investigator Shoal, and Mariveles Reef that could generate territorial sea. The

other structures claimed by Malaysia are low tide elevation, submerged during low tide or

further than 12 nautical miles from mainland or island, thus unable to have the maritime zone

(Roach, 2014).

Malaysia is the only claimant nation that has not recalled to the historical rights but bases its

claim on its EEZ, continental shelf extension, and the effective occupation of the Spratly

Islands (Roy, 2016). Except this, the country has been proving its effective control by

extracting petroleum and natural gas in the waters around the occupied islands (Shicun,

2013).

In 1957, Malaysia got its independence from the UK, and since that time it has applied

policies to ensure sustainable economic grow. The British colonials left reliable

infrastructure, efficient bureaucracy and a very profitable export sector with a capacity to

expand. To successfully export it was indispensable to maintain relations with the

neighboring countries (Ang, 2010). Malaysia for the first time expressed its interest in the

Spratly's in 1979, right after the Philippines had laid its claim over part of Spratly's.

Malaysia's responded by announcing a map describing its continental shelf, which was also

covering Amboyna Cay, Commodore Reef and Swallow Reef (Odgaard, 2002).

29
The most notable reef under Malaysian control is the Swallow Reef. It has been called the

Swallow Island since Malaysia, except having research station there, also scattered on soil

from its mainland. On the part of the reef, Malaysia has created a 50-acre artificial island with

a hotel, diving resort, and small air-strip what was not aimed only to fortify Malaysia's claim

but also to boost economic activity and consequently to claim EEZ around the island (Storey,

2016). Swallow Reef has been known as the first artificial island in Spratly's, and today

Malaysia defends its position on the island by more than 70 soldiers based there. The island is

regulated only by Malaysia, but the dominance over the island has been challenged by China

and Vietnam (Roach, 2014).

4.6. Territorial Claims of Brunei

Brunei is a minor actor in the SCS dispute. Brunei's claims are principally based on its 200

nautical miles of EEZ measured from its coastline. However, its EEZ is crossing with the

Chinese nine-dashed line, Taiwan, Malaysia and marginally also with Philippine's EEZ

(Dolven, 2014). Unlike the other claimants, Brunei has not built any structures on the reefs

nor stationed its troops on the disputed territory. However, Brunei has claimed the Louisa

Reef and Rifleman Bank (Rowan, 2005).

Louisa Reef is a marginal coral reef whose capability to generate EEZ is highly questionable

since very few rocks stay dry during low tide, and some sources even claim that it is year-

round submerged. Brunei lays its claim on the fact that the Louisa Reef is found within

Brunei's EEZ. At this moment it is also claimed by China, which supports its claim by the

nine-dashed line (Roach, 2014). Regardless the clash of claims between China and Brunei in

30
the South China Sea, the current relations between both countries can be described laid-back;

both countries admit that they have claim over Louisa Reef, but further incidents did not arise

(Elleman, 2013). In 2009 Brunei sent to CLCS a prior information about delimitation of the

outer limits of its continental shelf over 200 nm from the coast and China did not comment it

(Shicun, 2013).

It is Important to note that Louisa Reef was claimed by Malaysia until an agreement was

signed with Brunei in 2009. Malaysia has annulled its claim under the condition that the

petroleum extracted in the areas of the earlier overlap would be shared (Dolven, 2014). Since

Vietnam claims all Spratly's, eventually it may include the Louisa Reef into its zone of

interest. Nevertheless, Vietnam has never given due publicity to the geographical

demarcation of the archipelago. Brunei did not further comment the Vietnam's claim

(Elleman, 2013).

The Brunei's claim on the Rifleman Bank is based on a document from 1954 where Britain

partially affirmed boundaries of Isle Borneo. Nevertheless, later in 1988, Brunei prolonged its

continental shelf to 350 nautical miles what also covers Rifleman Bank. In this case, Brunei's

claim for extended continental shelf seems to not being consistent with UNCLOS, which

does not allow the natural prolongation of the continental shelf to be discontinuous (Rowan,

2005). The Brunei's natural extension of the continental shelf is interrupted by East Palawan

Trough. Furthermore, Brunei has not attempted to expel foreign fishing vessels from the

territory it claims (Valencia, 1997).

31
To epitomize, Brunei's role in the South China Sea is restrained not only due to the marginal

part of the sea territory coming under the Brunei's administration but also because of the

improbability that the Louisa Reef and the Rifleman Bank could generate any maritime zone

due to their geological predisposition. The Louisa Reef dispute with Malaysia was bilaterally

solved, but the relations with the other claimants remain on the mutual acknowledgment of

the overlapping maritime zones, but any noticeable conflict between Brunei and the other

claimants happened. So far Brunei does not seem to be concerned about reinforcing its

position in the area.

4.7. Territorial Claim of Indonesia

Indonesia should be mentioned if evaluating conflict in the SCS because it is probable that in

the future it could be the seventh claimant in the SCS dispute. For a long time, Indonesia has

held position of a mediator in the South China Sea dispute, but this is uncertain now because

of overlapping maritime boundaries with China and Vietnam (Hyer, 2015).

Despite the fact that Indonesia does not claim any of the Paracel nor Spratly Island,

Indonesian EEZ does extend into the South China Sea. In 2010, the tensions between

Indonesia and China had been surging due to the infringement of Indonesian EEZ by Chinese

fishers. In the beginning, it seemed that Indonesia was firmly refusing the Chinese nine-

dashed line. Nonetheless, according to the newest events, there is a sign that Indonesia has

reconsidered its intermediate position in the conflict and rather started to recognize the

excessive Chinese claims in the South China Sea. Except escalated relations with China,

there is pending EEZ between Indonesia and Vietnam what potentially could increase

32
Indonesian engagement in the South China Sea Maritime dispute if undecided (Elleman,

2013).

Indonesia has been responsibly engaged while delimiting maritime boundaries with its

neighbors. Dozens of sea boundaries were enclosed between Indonesia and its neighbors, and

it was agreed with Malaysia and Vietnam on two baselines surrounding waters of Natuna

Islands. These agreements were intended to delimit continental shelf. On the other hand, the

question of EEZ between these countries is still pending. In 2003 Indonesia and Vietnam

after twenty-five years finally concluded agreement defining their continental shelf boundary.

However, it assigns only to the seabed. The division of their EEZ remains unsolved.

Indonesia did set unilateral limits of its EEZ in the area, but Indonesian delimitation is not

consistent with seabed agreement signed between both nations in 2003. Therefore it might

cause that in the future the EEZ would be under the jurisdiction of Indonesia while the seabed

under the water column would be administrated by Vietnam. Since the seabed and water

column are coincident, it will not be easy to conduct conflict-free exploration and

exploitation of the marine resources (Elleman, 2013).

However, the 2003 agreement on the seabed boundaries in the South China Sea that

Indonesia enclosed with Malaysia and Vietnam is challenging the nine-dashed line claimed

by China. So far there have not been objections raised or diplomatic notes sent from China

relating to the demarcation. Furthermore, in 2010 Indonesia has publicly disagreed with the

territory covered by the nine-dashed line. Furthermore, even if the Chinese nine-dashed line

would not be recognized, the possibility of Chinese and Indonesian maritime border overlap

still stays here in the case China would claim EEZ and continental shelf from the Spratly's
33
that remain above water during high tide. It is highly questionable how many features from

the Spratly Islands deserve to have EEZ and continental shelf, but in 2011 China argued that

the Spratly's claimed by them are capable of generating EEZ and continental shelf (Elleman,

2013).

The diplomatic relations between Indonesia and China have been developing above-standard

if omitting incidents in 1967 when Indonesia feared the advancement of communism. In

1993, China gave publicity to the new maps that claimed historical rights over waters that

were covering EEZ of Indonesian Natuna Islands. In reaction, the Indonesian Foreign

Minister sent a diplomatic note to express disagreement and later, in 1995 the Beijing was

asked to justify its claim. In response, Indonesia was informed that China does not oppose

Indonesia and is open for negotiations. Indonesia has rejected China's offer for negotiations

and in 1996 to demonstrate its sovereignty, Indonesia answered by exercising its army forces

in Natuna Island (Elleman, 2013).

The relations between China and Indonesia got colder again in 2009 after eight Chinese ships

with 75 fishers were arrested after illegal fishing within Indonesian EEZ in the South China

Sea. China objected that those fishermen were detained in the area where China has

traditionally been fishing and therefore asked for an instant release of its citizens and their

vessels. After negotiations, 59 out of 75 fishers were liberated. The Indonesian Ambassador

to China informed that Indonesia is considering punishment for these Chinese Fishermen for

infringing the Indonesian EEZ. Nonetheless, the same incident reoccurred twice in 2010

(Elleman, 2013).

34
Subsequent these critical events, the Indonesian ex-ambassador to China expressed that the

corresponding maritime border between these two countries needs to be discussed. Later, the

more specific proposal by Agus Suhartono, the Indonesia's Navy Chief of Staff, stated that

China and Indonesia should define their overlapping maritime boundaries. These two

proclamations signify that there are overlaying maritime claims between these two countries

in the South China Sea thus the maritime boundary would be needed. Even though it is

unclear whether these statements represent the opinion of the Indonesian government's

authorities, still there is a possibility that these utterances reflect how the Indonesia's attitude

towards Chinese claims in the South China Sea is changing in the course of time. The

development of the Indonesian view on the China as a player in the South China Sea dispute

is attributable to the economic partnership between both countries. The reciprocal trade has

increased notably from $1.18 billion in 1990 to $7.464 billion in 2000. For Indonesia, China

is the 5th biggest trade ally, but Indonesia is only 17th for China (Elleman, 2013).

The news from 2014 reveals that Jakarta is worried about aggressive Chinese expansionism

even if Indonesia declares no sovereignty discord with China in the South China Sea,

including Natuna Islands. General Moeldeko, the chief of the Indonesian National Armed

Forces (TNI), has revealed that Indonesia is reinforcing its military capacity in the Natuna

Islands to be prepared for any threat resulting from unpredictable changes in relations

between South China Sea claimant nations. Although the TNI officials are not allowed to

release any shifts in the presumptions of the state´s civil servants, the high-ranking officers

have disclosed that Indonesia has been disturbed by the latest Chinese movements in the

South China Sea (World Scientific Publishing, 2015).

35
5.Violent Conflicts in the South China Sea

The following chapter illustrates examples of some conflicts that appeared among particular

claimants from the 1970's until now. Many of them resulted in violence, some of them have

been resolved in a diplomatic way.

5.1. 1970's

For a long time the Paracel and Spratly Islands were considered as valueless thus today's

claimants have not been very interested in it. Until the 1970's it was mainly China and

Taiwan that paid attention to the islands but this changed in 1973 when the Philippines and

Vietnam started to occupy the first of the Spratlys (Rowan, 2005). The principal reason why

the islands started being conflict-worth was the oil crisis in the 70s, which led the nations to

explore new sources of hydrocarbon to increase dependence on the oil imported from the

Middle East. Since the South China Sea is abundant in gas and oil, the other nations became

aware of the value of the territory (Riegl, 2014).

The first violent conflict in the South China Sea occurred in 1974 when two Chinese fishing

vessels got into the area of Paracel Islands. The South Vietnamese reacted with force and

expelled the Chinese out of the Paracel archipelago. Later, the South Vietnamese army

implemented troops on Money and Robert Islands and cleared the Chinese ensigns away.

China responded within a few days by moving its military personnel from Woody Island to

Money and Duncan Islands where troops of both nations encountered. After several weeks of

battle, the Vietnamese ships were sunk, and the forces of China retook control of the whole

group of Paracel Islands (Rowan, 2005).

36
5.2. 1980's

In 1982, the United Nations Convention on the Law of the Sea was defined. Consequently,

this gave to the coastal states stronger argument to claim extended maritime zones and

respective land territory.

In 1983, Malaysia for first time occupied Shallow Island, that was at that time settled by

Vietnamese (Roach, 2014). The then Malaysian foreign ministry stated that Swallow Reef

has always been the land belonging to Malaysia. Also, the Malaysian government protested

about the Vietnamese proclamation of maritime zones in the Spratlys. This elicited a reaction

from China and Vietnam that remonstrated against Malaysian acting. Even if this did not

trigger armed conflict, at that time, this step result in positive relations between Malaysia and

Vietnam (Odgaard, 2002).

In 1988, China and Vietnam entered in to battle over the Johnson Reef found in the Spratly

Islands, which ended with 70 lost Vietnamese lives. The Johnson Reef is a good indicator of

how seriously the involved states are taking the dominance over the reefs. The Johnson Reef

is a feature that is visible only during low tide, but still, the Chinese took advantage and built

there the stockpile outpost, industrial pier, helipad, and modern oceanic observation base

(Rowan, 2005). Carl Thayer, a specialist in Southeast Asian affairs, admits that even

seemingly unimportant features can be valuable for the states. The Chinese facilities, built on

otherwise deserted land features , will provide to the Chinese Army and Navy the necessary

support for the future expansion of sovereignty in this disputed region (2015).

37
5.3. 1990's

The 90's were turbulent years in the South China Sea mainly for the Philippines, Taiwan, and

Vietnam. To reinforce its claim, China has started using both, soft and hard power. In 1992,

Beijing published the Territorial Sea Law, which described the Paracel and Spratly Islands as

Chinese territory since this did not discourage the other claimants, China has featured in most

of the armed collisions in the South China Sea (Rowan, 2005).

In 1992, China got into armed conflict with Vietnam again when Vietnam accused China of

extracting oil in the Gulf of Tonkin and implementing Chinese troops at Da Luc Reef. In

reprisal, China captured twenty Vietnamese freight ships on the way to Hong Kong.

Regarding the so-called Vietnamese oil blocks, Vietnam got into an armed dispute with

China again in 1994 (Rowan, 2005).

In 1995, the Chinese ships arrived with constructors at Mischief Reef, which was controlled

by the Philippines at that time. The Chinese started to build several constructions on the

island claiming that the installations are aimed to be shelters for fishermen. The Philippines

viewed these cabins as a Chinese step to move its territorial claims forward and verbally

expressed strong dissatisfaction with the Chinese steps (Carpenter, 2001). Since the Armed

Forces of the Philippines were very weak at that time and the Mutual Defense Treaty

enclosed between the Philippines and the USA did not cover the disputes over Spratlys, the

only way to resolve the problem was diplomacy. The Philippines accused China of breach of

the 1992 ASEAN Declaration. The ASEAN members have put concerns about the security

development in the South China Sea and all members were asked to abide the 1992

Declaration. The Chinese foreign minister Qian Qichen replied by stating that China is
38
willing to resolve any dispute without force and by the international law, involving UNCLOS

(Storey, 2007). Since this incident, the Philippines tried to focus on bilateral cooperation with

China. Nonetheless, the increased collaboration did not help to avoid future violent incidents.

In 1997 both countries got into conflict near Scarborough Shoal. In 1999, the Philippines

warships sunk two Chinese fishermen's vessels (Jae-Hyung, 2002).

In 1998, Vietnam attacked the Philippines fishing boat near Tennent Reef. A year later,

Vietnam again shot on the Philippines reconnaissance aircraft in the Spratly's area (Jae-

Hyung, 2002). In 1995, the first armed conflict occurred between Taiwan and Vietnam when

Taiwan fired on a Vietnamese cargo ship (Jae-Hyung, 2002). In the 90's Malaysia continued

in seizing the reefs but was more moderate while doing it. In 1999 Malaysia established on

Erica Reef, and Investigator Shoal naval offices called Sierra Station and Papa Station,

respectively (Ho, 2014).

5.4. The Development since 2000

5.4.1. China

In the late 1990's and early 2000's China became aware of increasing worries of the Southeast

Asian countries regarding the Beijing's acts in the South China Sea and decided to promote

China's Good Neighbour Policy. To ease tensions, in 1999 – 2000, China enclosed with every

ASEAN member cooperation arrangement that predetermined diplomatic, economic, political

and security collaboration in the 21st century. In 2001, talks about free trade area between

China and ASEAN have started. In 2002, by the Declaration on the Conduct of Parties in the

South China Sea enclosed between ASEAN and China undertook the signatory parties to

39
pursue a peaceful resolution of disputes and encouraged the parties to evade acts that would

provoke other members. By signing the DoC, China got the confidence of the regional actors

what was a platform for expanding economic and trade relations (Glaser, 2013).

The prospect of peace in the China Sea terminated in 2007 when dozens of violent conflicts

occurred mainly between the Philippine's, China's and Vietnamese fishing vessels due to the

fishing around Paracel and Spratly Islands. Each claimant was accusing its rivals of

intervening the territorial waters around the disputed islands. The affected countries solved it

by firing the boat or in a better case by arresting the crew (Fels, 2016). The same year,

Vietnam also favored to open gas fields in its EEZ and invited foreign corporations to

participate in the exploitation. This was strictly refused by (Glaser, 2013). In 2009, for the

first time also Indonesia got into clash when arrested the Chinese fishermen who illegally

fished in the Indonesian EEZ (Fels, 2016).

To reassert the right to possess the South China Sea territory, the claimants were not only

using hard power, but also introducing various laws and policies. In May 2009 China had

prohibited fishing in the South China Sea during summer and to enforce the new regulation

the marine fleet was sent there. This act triggered protests from the Vietnamese side due to

the infringement of its traditional fishing rights (Muhibat, 2015).

In 2010, due to increased tensions, the ASEAN decided to balance the powers by an

inclination to the USA, which made China adapt a more moderate stance (Glaser, 2013).

However, to reinforce patriotism over the islands, China had started to offer tourist cruises to

some of the claimed islands. In response to the Chinese expansionism, in 2012, Vietnam
40
introduced a law proclaiming sovereignty over the entire Paracel and Spratly islands. China

has reacted by founding Sasha city in the Paracel Islands, which since that time have hosted

Navy garrisons and also 159 artificially implemented inhabitants. To keep the population of

around 800 people on the deserted islands, the supplies are delivered there regularly by

Chinese Navy (Muhibat, 2015).

A violent clash happened in 2012, when close to the Scarborough Shoal, eight Chinese

fishing boats were inspected by the Philippine Navy. On the boat, the Filipino officers found

illegal catch including rare species. To defend the Chinese fishermen, the Chinese patrols

came to the place. The Philippines has decided to pull back and so recalled the warship and

sent there the Coast Guard cutter instead. However, China reacted by sending new patrols

there and imposed economic pressure on the Philippines. The diplomatic talks between both

countries failed. After U.S. verbal intervention, both parties agreed to leave the area, but this

promise was not kept by China (Glaser, 2013). Since the incident, China restrained the other

nations from approaching the Scarborough Shoal. Reportedly, after diplomatic talks between

China and Rodrigo Duerte in 2016, China now considers allowing the other countries to

access the shoal once again (Lim, 2016).

5.4.2. The Philippines

In 2012, to emphasize the awareness of its claim, The Philippine government had decided to

enforce the Act to reinforce the consciousness of its right to claim islands and reefs in the

South China Sea. Shortly after the Philippines, Vietnam reacted similarly by the introduction

of the Law of the Sea of Vietnam, relating to the Paracel Islands and Spratly Islands (Shicun,

41
2013).

In 2016, The Permanent Court of Arbitration in The Hague has decided for the Philippines

that in 2013 brought to the court the Chinese nine-dash line. The judicial proceeding found

that the Chinese claimed nine-dash line does not have under UNCLOS any legal basis to

claim historic rights. The tribunal has also stated that any of the Chinese occupied reefs has a

right to extend 200 nm of the EEZ for China. The court has also blamed China for breaking

its responsibilities as an UNCLOS member because China damaged maritime life while

constructing the artificial islands. The foreign minister of China has claimed that the country

does not recognize the court's decision (Dingli, 2017).

However, the turn in Philippine's role in the SCS came in 2016, after the election of

Philippine's new president, Rodrigo Duerte, who after long lasting above-average relations

with the USA, turned away from Washington and rather warms up the relations with China.

5.4.3. Vietnam

From 2000's Vietnam enclosed several cooperation agreements with China during the good

China policy period. However this has not guaranteed peace, Vietnam and the China engaged

in several conflicts mainly due to the clash of fishing vessels, the number of conflicts

escalated in 2009 when China detained 33 Vietnamese fishing boats that were in the

proximity of the Paracel Islands sheltering from the storm. The situation also escalated when

in 2009, Vietnam tabled two proposals to CLCS. The first proposal was submitted with

Malaysia and regarded delimitation of their maritime border. The second suggestion was

42
proposed solely by Vietnam and considered the continental shelf prolongation (Van Dyke,

2013).

Due to the high number of clashes in the region, in 2013 the USA decided to increase its

investments into the maritime security in the SCS. In 2013, from 32 million dollars provided

by the USA, more than half was given to Vietnam. The same year, the USA and Vietnam

agreed on increased collaboration in the field of defense and economy. During the Vietnam

War, the USA built the navy base in the Cam Ranh Bay, this base is today held by Vietnam;

the peak of mutual trust in defense was when in 2013, Vietnam agreed to share the base with

the U.S. naval forces (Hayton, 2014).

However, in 2013, Vietnam has chosen ambiguous diplomacy. In 2013, Vietnam and China

negotiated about deepening their economic relations and support of bilateral trade. They also

proposed partnership which promised to cooperate in the areas of the SCS that were less

problematic and in the parts where China and Vietnam clashed more frequently, they agreed

to adopt rules that would lead to resolution of such conflict (Lam, 2015).

5.4.4. Malaysia

Malaysia was since 2000 a rather moderate claimant who preferred to maintain good trade

relations. The latest, most noticeable steps that Malaysia did in the South China Sea case was

a joint submission to the CLCS about a prolonged continental shelf that was filed together

with Vietnam in 2009. China reacted by note verbale sent to the United Nations, with the u-

shaped line of the SCS appended, and demanded the CLCS to reconsider the submission

43
carefully. Nonetheless, the territorial disputes between Malaysia and China have so far been

figured out by the diplomatic notes exchanged. In 2011 both countries agreed that they would

solve the territorial claims peacefully by multilateral debates and similar diplomatic events.

They have also reassured that their interest in the SCS should in no case obstruct the trade

between them (Shicun, 2013).

6. Role Of the Non-Claimant Nations

6.1. ASEAN

The Association of Southeast Asian Nations was founded in 1967 by Indonesia, Malaysia, the

Philippines, Singapore, and Thailand. However, later the organization has expanded and

accepted new members: Brunei, Cambodia, Laos, Myanmar, and Vietnam. The organization

was set up to bring order in regional steadiness through making its members to collaborate

culturally, economically and maintain the security via talks and negotiations instead of using

force. ASEAN was supposed to balance the force of China in the region. Even though it was

agreed to not ask major powers for involvement in the area, the target was to make the USA

maintain its presence in the Southeast region and therefore to keep there a balance of powers

(Mauzy, 2007).

In the field of security, ASEAN does not dispose of a great power due to the lack of

permanent army, navy, or fleet that would enable coercion of mutual treaties or punish a

violation of them. ASEAN is assuring the security in the region through annual regional

forums (Emmers, 2012). The first step towards cooperation in the South China Sea made by

ASEAN was in 1992 issuing of the Declaration On the South China Sea. However, the

44
efficiency of the document was questionable since China and Vietnam did not sign the

document. As the number of violent conflicts grew rapidly during 90's, it was indispensable

to discuss the conflicts multilaterally. In 1996, China finally engaged in talks with ASEAN

when joined the meeting in Jakarta. The result of this ASEAN gathering was the list of the

rules of conduct applicable on the South China Sea. Even though China involved in talks with

ASEAN, at the same time, it did not want to step back in its territorial claims (Rowan, 2005).

In 2002, the ASEAN members and China signed the Declaration on the Conduct of Parties in

the South China Sea. This document is not legally binding, and in the case one of the

signatories breaches the Declaration, the ASEAN does not dispose of an effective tool for

punishment. Secondly, the declaration did not specifically mention what areas does it cover.

However, since China participated in the birth of the document, it was considered as a great

success (Rowan, 2005).

However, the increased number of the clashes between fishing boats in the South China Sea

in the 21st century showed that ASEAN has failed to secure peace in the region. As a big

failure was considered the ASEAN summit in 2012 in Cambodia, where the involved actors

have complained about increasing aggression of China. The chairman has declared that the

clashes in the South China Sea are not the competence of ASEAN and for this reason should

be resolved bilaterally between the claimants (Hunt, 2012).

45
6.2. Japan

Japan does not claim any of the Paracel nor Spratly Islands. However, there are several

reasons why Japan also plays its role in the conflict. Since the SCS is Japanese neighborhood,

the peace there is in its interest. Japanese trade is contingent on the SLOTs there, and if any

violent conflict erupted in the SCS, the Japanese businesses would be severely affected.

Furthermore, it is not in Japan's interest if its first enemy controls the SCS (Er, 1996).

Secondly, China, Taiwan, and Japan are running territorial dispute over Senkaku Islands in

the East China Sea. Since 2012, due to the increased tensions between China and Japan in the

East China Sea, Japan started being indirectly involved in the SCS dispute as well. To

weaken China, Japan offered financial help to the Philippines and started being more

involved in the diplomatic talks with ASEAN. Since the acts of China in the South China Sea

will most likely set precedence on its conduct in the East China Sea, it is in the Japan's

interest to carefully observe the Chinese behavior in the SCS. In the case the conflict in the

ESC erupted, the USA would become militarily involved as well (Sheila, 2013).

Senkaku Islands comprise of five uninhabited islets and three rocks, but due to their location

in the center of shipping lanes, abundance in fishes and oil deposits, they become an

attractive real estate. China and Japan base claims on historical and territorial rights. China

recalls to Ming Dynasty that in the 14th century controlled the islands. Japan argues that after

the end of Sino-Japan war in 1895, China was under Treaty of Shimonoseki obligated to give

up all its territories, including Senkaku Islands. At the same year, Japan declared sovereignty

over the islands. However, at the end of WWII, by San Francisco Peace Treaty enclosed

46
between Japan and the Allied Powers, Japan was supposed to give up all of its occupied

territories, including Senkaku Islands. China believes that the islands should have become

administered by China; nevertheless, the islands got under control of the USA. In 1972,

according to Okinawa Reversion Treaty enclosed between the USA and Japan, the islands

were returned to Japan what China regarded the ulterior deal. China started to claim

sovereignty over the islands in 1970, shortly after high probability of oil deposits was

detected in the East China Sea. In 2012, China presented to CLCS its request for natural

prolongation of the continental shelf that also covers Senkaku Islands. Japan proposed to

share the sovereignty proportionally, where the EEZs of both states overlap (Dolven, 2014).

The dispute between Japan and China over Senkaku Islands escalated in 2012 when Japan, to

defend its sovereignty has enclosed contract with a private Chinese investor. Three of the five

disputed Senkaku islands were sold for $26 million by Kunioki Kurihara, the private Chinese

investor. In China, this has triggered the worst anti-Japanese protests since 1972. The event

also harmed the economy. The Japanese companies having offices in China have reported

losses, and the number of the flights between both countries dropped down (Dingli, 2017).

In reaction, China has delimited the territorial sea baselines around the Senkaku Islands and

the number of the Chinese patrols, guarding the territory, went up. China has also submitted

to the UN the explication of the baselines asserting that the Senkaku Islands are part of the

natural prolongation of the Chinese continental shelf. To fight back, in 2013, for the first time

in eleven years, Japan has augmented its defense budget (Dingli, 2017).

47
To fight diplomatically, Japan has also increased its cooperation with ASEAN. In 2013

during the Japanese Prime Minister's visit to Vietnam, Thailand, and Indonesia, the minister

had talked about a change in the security in the Asia-Pacific region and stressed the

collaboration with ASEAN as the Japanese national interest. The same year, Japan, the

pacifist nation since the end of WWII, has for the first time offered military aid to the

Philippine Coast Guard so it could better protect its territory in the SCS (Dingli, 2017).

At last, the evolvement in the region could also bring to the conflict the USA. According to

the bilateral Treaty of cooperation and Security enclosed in 1960 between Japan and the

USA, the USA undertakes to protect Japan militarily if any country decided to attack

territories controlled by Japan. Some experts assume that the U.S.-Japan treaty is the main

deterrent from seizing the islands by force (Dingli, 2017).

6. 3. The United States of America

Since a significant part of US trade is being shipped through waters of the South China Sea,

the national interest is to maintain peace there. The USA has had two major allies in the SCS

region: Japan and until 2016 the Philippines. Another relevant factor is that the USA has a

strong military presence around Chinese mainland, including SCS. The U.S. military bases in

or in the proximity of the SCS are to be found in South Korea, Japan, the Philippines, Guam,

Thailand, and Australia (Asia Maritime Transparency Initiative, 2014).

After U.S. departure from Vietnam in 1975, the U.S. involvement in the region was mainly

fixed to securing its access to the market. This was also given due to the Cold War and need
48
to focus rather on the relations with the Soviet Union. After the end of the Cold War, the U.S.

concern was to keep the freedom of navigation in the area and secure the access to the Asian

market. In 1991/1992, the U.S. forces were obliged to leave the Philippines due to the

Filipino nationalist rise. The rest of the 90's the USA primary aim was to secure trade

partnership. For this reason, at that time the USA visited several ASEAN meetings. Neither

the USA supported the Philippines in the Mischief Reef incident (Mauzy, 2007).

The USA has repeatedly reiterated that it will not intervene in the conflict and stands for

resolving the conflict by peaceful talks between the claimants. This was also proven when in

1995, the USA refused to take military action in the conflict when the Philippines, the

traditional U.S. ally got into armed conflict with China over Mischief Reef (Dingli, 2017).

However, the USA has always been frequently sending its Naval Forces and Air Forces to the

SCS waters to stress the freedom of navigation. In 2001, near to Hainan Island a U.S. EP-3

reconnaissance plane crashed with Chinese F-8 fighter jet. The accident happened

approximately 80 miles southeast of Chinese held Hainan Islands when one of the two

Chinese F-8 approached the U.S. EP-3 reconnaissance flight and inadvertently collided with

it. After the incident, the U.S. EP-3 managed to land safely in the Hainan Island but right

after landing the U.S. crew was detained by the Chinese and kept in until the U.S.

government did not express sorrow at lost lives of the Chinese pilots. Even though the U.S.

EP-3 was at that time flying over EEZ, thus did not violate any international law, the Chinese

functionaries still claimed infringement of Chinese sovereignty over the airspace (Fels,

2016).

49
Another, more recent example of the U.S. asserting the freedom of navigation in the region

happened in 2015. The USA sent its naval guarding boat to the 12nm miles strip of the

territorial water around the Chinese-built artificial island. China has called the act as a severe

provocation from the USA (Dingli, 2017).

However, the future development of the U.S. influence in the SCS is debatable. In 2016, the

election of Rodrigo Duerte, the new Philippine's president, brought an insecurity into long-

term held partnership between the Philippines and the U.S. Rodrigo Duterte vehemently

refuses the U.S. influence in the affairs of its country and rather inclines to the friendship

with China. President Duerte expressed its aim to send back home the American troops

residing in the Philippines and also to revise or revoke the Philippines-U.S. Agreements.

However later, Duerte acknowledged that the Philippines are strongly militarily dependent on

the U.S. and significant dissolution will not be possible in the short term (Parameswaran,

2016).

The second reason, why the SCS dispute could evolve for China is that fact that the new

elected U.S. President, Donald Trump, has rejected the U.S. membership in the Trans-Pacific

Partnership (TTP) (Baker, 2017). The TTP is a trade agreement signed between Australia,

Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and

Vietnam. The aim of the TTP is to raise living standards, transparency, and economic

interchanges among the members (Cimino, 2016). Barack Obama, the last U.S. president,

was for the TTP because he saw it as a great opportunity for the U.S. trade (Baker, 2017).

50
Because the USA was an immense economic partner for the other members, it is probable

that now, the current signatories will look for another big economic partner, which might be

China. Therefore, the economic ties between China and other members will mount, while

those with the USA will decline.

7. Conclusion

This study focused on the South China Sea and the dispute that has a potential to erupt into

major violent conflict. The value of the territory regarding reserves in natural resources has

been explained as well as the significance of the region for the global trade. The project tried

to integrate internationally recognized legal aspects, which determine the extent of the area

allowed to claim and define the scope of sovereign rights entitling each claimant to exploit

natural resources. The historical side of the claims in the SCS was considered in order to

explain the background of the conflict. The territorial clashes and other events in the SCS

were described in detail and evaluated. Last but not least, the role of non-claimant actors was

appraised.

The SCS problem is critical to explore because would a greater clash occur, navigation

through the world's most important sea-lanes would be endangered, and consequently, global

trade would be negatively affected. Six countries have been asserting its sovereign rights over

the territory, which has led to violent clashes several times. The overlapping maritime claims

in the SCS have not led to war yet; however, but as the tensions are prevailing, the risk of

major conflict remains. ASEAN, the regional organization that should empower the

claimants, has proven to have little impact on the conflict resolution.

51
The economic dependency of SCS territorial claimants on China has been preventing the

states from being more resolute while defending their claims. It is also probable that the

economic ties between China and the other claimants will deepen since the new American

president has decided to step back from TTP. Unless the USA financially counterbalances the

Chinese attempts to undermine the SCS claimants economically, the China's economic

hegemony will with high probability cause that the other claimants will slowly leave from its

territorial demands in exchange for commercial deals in their favor. Consequently, China will

get a significant influence in the SCS.

There is as well a concern that China using force in SCS can predetermine its acts in other

regions. If China decides to overtake the Senkaku Islands, it is very likely that there will be a

war between China and Japan. However, since Japan in defense terms is backed up by the

USA, and China has many trade interchanges with Japan and the USA, the major conflict or

even war would hurt their economies. For this reason, it is more probable that the disputes

over Senkaku Islands will be solved diplomatically. In the worst case scenario, to show off its

national prestige, both parties would use force only partially like they have used to in the

previous clashes.

After appraising all eventualities critically, it is important to mention that it is commonly

believed that China is the primary aggressor in the SCS territorial dispute; however, little

attention is given to the U.S. activity in the region. The USA has overseas military bases in

the SCS, right in the proximity of the Chinese borders. Besides, the USA has been enclosing

52
mutual defense pacts with the regional actors and providing them with financial support for

strengthening their naval forces. All things considered, the policies implemented by China

could be understood as a reaction to the U.S. involvement in the Southeast Asia region.

53
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