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Trouble on the High Seas:  Territorial Disputes in the South China Sea

Trouble on the High Seas: Territorial Disputes in the South China Sea

Pham-Huy-Thong-A-Sacrifice-2011-Oil-on-canvas-140-x-160-cm By David Hervey

Last week, President Barack Obama held a summit in California with the leaders of the ten member countries of the Association of Southeast Asian Nations, or ASEAN. This summit was the first of its kind, and an important part of the Obama Administration’s long-term attempt to “pivot” to the Asia-Pacific region. Also notable was news, around the same time as the summit, that China had placed surface-to-air missiles on islands that it disputes with Vietnam and Taiwan. China claims most of the islands South China Sea as its own, and with them, claims the territorial waters and exclusive economic zones around the islands that are codified in the UN Convention on the Law of the Sea (UNCLOS). The Chinese Government’s claims date directly after the end of World War Two, when the Nationalist government of China produced a map showing its claims in the region. When the Communist Party took over in 1949 and pushed the Nationalists into exile in Taiwan, they adopted these claims. The South China Sea is important economically and strategically because it hosts about 30% of the world’s shipping and has oil reserves in some areas. However, these claims are disputed by Brunei, Malaysia, The Philippines, and Vietnam. Taiwan also disputes these claims, but the dispute is more complicated because the Taiwanese government’s argument is not that the islands are not China’s, but that it, rather than the Communist Party, is the rightful government of China and therefore the true owner of the islands.

Although the islands are not in imminent danger of attack, there are several possibilities that potentially explain why the Chinese government placed missiles on the islands.The missiles may have been stationed there as a message to the ASEAN leaders meeting with President Obama, who has been seeking to counter Chinese territorial ambitions in the region. Also, they may have been moved there as a response to Taiwanese President Ma Ying-jeou’s recent visit to one of the disputed islands which is controlled by Taiwan. China may also be looking toward a more long-term goal of slowly consolidating control in the area. This is roughly similar to the land-reclamation and manufacturing of islands in the area, which appear designed to bolster China’s legal claims that the islands are in fact islands, rather than uninhabitable rocks. The relatively quiet placement of the missiles (it was not publicized by China, but instead was announced by Taiwan) supports the view that the missiles are not a publicity-driven ruse, but instead a strategic maneuver.

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President Obama’s decision to hold a meeting with all the ASEAN leaders marks a departure from previous US policy in the region, which had been conducted primarily with individual countries, rather than entire blocs. America has long had close relations -- and a mutual defense treaty -- with the Philippines, but has only recently had friendly relations with Vietnam. Meeting as a bloc will probably be a more effective approach, as the individual ASEAN countries have similar interests in the South China Sea (namely, to protect their territorial holdings from China) and the United States is sympathetic to their interests. However, it places the United States more at odds with China, of whose peaceful rise (to borrow the term used by the Chinese Government) the US has been fairly accommodating.

On the other hand, the United States has sometimes undermined its own policies related to the disputes. The US Navy has recently conducted two exercises called “freedom of navigation operations” in waters claimed by China. In this sort of operation, warships sail through disputed waters as a way to contradict the claims of a disputant. However, the US warships did not do anything in the disputed waters that would not be allowed in territorial waters. Under international law, to conduct a true freedom of navigation operation, a ship has to engage in military or economic activity. This could be anything from a helicopter taking off to casting a fishing pole off the side of the ship. Similarly, the US consistently encourages the various South China Sea claimants to solve their disputes under international law, and specifically under UNCLOS, but the United States has not ratified the UNCLOS treaty, making its claims seem somewhat ironic.

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Given the rapid development of the countries surrounding the South China Sea, and the Sea’s strategic and economic importance, it is important for the disputes in the area to be resolved peacefully. The United States' shift to a more multilateral policy is a step toward more efficient diplomacy with ASEAN, but could easily appear to China to be a confrontational step. Navigation exercises in the Sea present a contradictory challenge. While China has ratified UNCLOS and argues that an international court asked to arbitrate the dispute lacks jurisdiction, the US has not ratified UNCLOS, the international treaty it is using to argue against Chinese claims. The United States’s foreign policy in the region is evolving in useful ways, but it is also apparent that there is more progress to be made. The United States appears to be wary of making any confrontational gestures, but seems unaware that even moves made with a benign intent will be interpreted as provocations by the Chinese Government, and even more so in the state-run Chinese media, which has accused the United States of “sowing dissension and deliberately stirring up tension,” in reference to the freedom of navigation exercises and ASEAN Summit. With this reality, it could at the very least give its gestures the force of international law.

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