If a country cites international law to justify its position while avoiding having that position tested in court, such use of international law is just rhetoric, and does not deserve support from scholars.
In the article “Separating fact from fiction in South China Sea conundrum”, Dr Mark Valencia decries “a veritable fountain of government pronouncements, propaganda, and biased analyses” and the conflation of information with misinformation, and he claims to “separate fact from fiction when it comes to several oft-made statements.” Unfortunately his article contains a number of flaws that could contribute to the very problems he is trying to address.
One of the allegedly oft-made statements that Dr Valencia was refuting was that “[t]he US pivot or rebalance to Asia is enhancing security and stability in the region.” In actual fact, no government or serious analyst has made such a claim, and neither is the statement oft-made in the media. In any case, the US pivot or rebalance is hardly past gestation, and not even its most ardent proponents and supporters can say that it is already enhancing security and stability in the region. Nevertheless, it seems that Valencia is using this statement as a lead-in for putting forward the view that the US pivot has contributed to instability in the region, and it is still worth analysing his view.
Valencia argues that
China is convinced that the US is trying to draw Asean or some of its members together with Australia, Japan and South Korea into a soft alliance to constrain if not contain it. China alleges that tacit US support has emboldened the Philippines and Vietnam to challenge China's claims and actions.
Whether correct or not, the contrasting perceptions have enhanced rivalry and tension in the region. There is an honest difference of opinion regarding who is reacting to whom and who has the "right" or "obligation" to be active there.
But there is little doubt that the US pivot has contributed to instability in the region.
The fact is that stability and security in region started to deteriorate in 2007 when China put pressure on BP to withdraw from petroleum projects with Vietnam in the Nam Con Son Basin near the southern end of the South China Sea, a long way from the disputed Spratlys, and then in the same year mooted the establishment of Sansha Prefecture, which was to include Pratas Island and the disputed Paracel Islands and Spratly Islands. The situation got worse in 2008 when China put pressure on Exxon Mobil to withdraw from another petroleum project with Vietnam, and reached a peak in 2009 when it confronted the US Navy surveillance ship Impeccable, unilaterally enforced a fishing ban in the South China Sea, and submitted a map with the nine-dash line to the international Commission on the Limit of the Continental Shelf. A series of incidents followed in the next few years, including
● multiple occasions when China used force against Vietnamese fishermen,
● in March 2011 a Chinese maritime surveillance ship threatened to ram a seismic survey ship operating on behalf of the Philippines in the Reed Bank area,
● in June 2011 Chinese maritime surveillance ships sabotaged the seismic survey equipment being towed by the Vietnamese ship Binh Minh 2, and Chinese fishing boats attempted to do the same against the Viking II geological survey ship at another location, both within the 200 nautical mile EEZ generated by Vietnam’s mainland coast.
Serious tensions and instability in the region had thus existed prior to the US pivot from Afghanistan and Iraq to Asia-Pacific, which was proclaimed by US State Secretary Hillary Clinton in October 2011. Therefore China’s view that its “assertiveness” is a reaction to the US pivot cannot be an honest opinion as Valencia suggests. Matt Taylor Fravel, an expert on China, offers a more accurate view,
Over the past four years, U.S. policy towards the South China Sea has evolved in response to the increase of tensions in these disputes and in particular to China’s actions. Although the U.S. does not take a position on the underlying claims to sovereignty, it has increased its involvement in the dispute with an emphasis on the peaceful management of claims and ultimately the peaceful resolution of disputes. Because China has the greatest maritime capabilities of all the claimants, claims all of the land features in the South China Sea (along with Vietnam and Taiwan), and maintains ambiguity regarding the meaning and legal status of the of the “nine-dashed line,” U.S. policy has responded to Chinese actions more than those of any other claimant.
Clearly the US pivot could not have contributed to instability prior to October 2011. Could it have done so after that? Answers to this question are likely to be subjective. China, wishing to assert control over at least most of the area within the nine-dash line against smaller countries, would naturally portray US presence as contributing to instability. The other countries, which wish to resist this, could well consider US presence as contributing to stability. It must be pointed out that no country except China has spoken against the US pivot. It is possible that as the US pivot develops it will contribute to stability in some respects and instability in others, but weighing these up might not be simple, and it is too early to say objectively whether the US has contributed or will contribute to stability or instability. Regardless of what the answer might be, it must be remembered that stability in the form of smaller countries having to accept coercion by a big one is not a desirable end in itself.
Valencia attempts to refute the statement “China’s assertiveness regarding its maritime claims has created instability” by making the other claimants look as bad as China:
There are also International Court of Justice precedents that should discourage disputants from undertaking unilateral activities that would alter the nature of disputed areas.
Another DOC provision pledges the parties to resolve their differences "through friendly consultations and negotiations by sovereign states directly concerned".
China has indeed been increasingly aggressive in implementing its claims. But other claimants have also undertaken unilateral activities on and at features and in maritime areas claimed by China. Indeed, China maintains that the Philippines has violated both DOC provisions and that Vietnam is on the verge of doing so.
All claimants have contributed to the instability.
However, he misses an important legal point at the heart of the matter when it comes to maritime tensions in the South China Sea. China’s position is that Brunei, Malaysia, the Philippines, Vietnam, and possibly even Indonesia, are unilaterally carrying out petroleum activities in areas that it claims, thereby violating UNCLOS’s Articles 74 and 83, which have been interpreted as requiring the claimants to refrain from such activities in disputed areas. Its view is that these activities are the source of tensions, and that its own assertive actions are justifiable reaction. The other countries, on the other hand, take the view that their petroleum activities take place is areas that are not subjected to legal disputes, which means Articles 74 and 83’s requirement above does not apply, therefore China’s assertive actions are unjustified and are the source of tensions. The salient difference in opinion here is not one of “what belongs to whom”, but “what is disputed”, and it is the root of most of the maritime incidents.
Article 74 and 83’s requirement that the claimants refrain from unilateral petroleum activities in disputed areas is clearly equitable. Without it, a claimant might extract oil and gas that might later be proven to belong to another country. Therefore, on the surface it looks as if China’s position is reasonable. However, a deeper look shows that China’s argument is false. Consider a scenario in which a country claims an area regardless of the fact that there is little or no chance that any international court will award that area to it. Its strategy in making such a claim is to create a dispute in the area and use that to prevent others from carrying out petroleum development there, even if it has little or no chance of winning that area in court. Suppose this strategy is further augmented by not giving any international court the jurisdiction to rule on matters relating to maritime delimitation, so that none can adjudicate or arbitrate. Should Article 74 and 83’s requirement that the claimants refrain from unilateral petroleum activities in disputed areas still be applied to this area? If so then this requirement, whose purpose is to ensure fairness, will be turned into a licence to benefit from making excessive claims. Instead, while the requirement itself is fair, its application to a given area is only fair if that area has been objectively determined to be subject to a legal dispute. If the claimants disagree on whether an area is subject to a legal dispute, which is the situation we have in the South China Sea, then only the international courts and tribunals should be relied on to objectively make this call.
Unfortunately for the South China Sea, the cynical strategy described in the previous paragraph is what China is employing: it is making arbitrary, excessive maritime claims, and at the same time denying the international courts and tribunals the necessary tools to determine where the areas that are subject to legal disputes are. By doing this, it seeks to accuse other countries of unilateral petroleum activities in “disputed areas”, and to justify its actions against them. It is ironic that while China appeals to the principles in UNCLOS Articles 74 and 83 in this strategy, it is the only claimant that denies UNCLOS’s tribunal the jurisdiction to interpret an apply those Articles relating to sea boundary delimitations. If it gives UNCLOS’s tribunal the necessary jurisdiction, that tribunal is likely to rule that the other countries’ petroleum activities are not in legally disputed areas at all, in which case Valencia’s assertion that “[a]ll claimants have contributed to the instability” will be shown to be false.
Valencia refutes the statement “China's claims in the South China Sea are illegitimate and even absurd” by considering it in the two different contexts of sovereignty disputes over islands and jurisdictional disputes over maritime space, so let us examine these two contexts separately.
Concerning sovereignty disputes over islands, his statement, that “China's sovereignty claims are just as valid or invalid as those of the other claimants”, is reasonable but unnecessary. The fact is third party governments do not take sides on question of sovereignty over islands. For instance, the United States have repeatedly stated that it takes no side in the sovereignty dispute, and few analysts from third-party countries take the view that any side’s claims to sovereignty over islands are illegitimate or absurd.
Concerning jurisdictional disputes over maritime space, Valencia argues that “China has never specified what it claims nor has it clarified what it claims by its so-called nine-dash line”, with the implication that since China has not specified or clarified its claims, it cannot be said that those claims are illegitimate or absurd. However, his argument does not convey the whole story. While China is maintaining a strategic ambiguity over the nine-dash line, it has acted against other countries at numerous locations inside that line, for example,
● It has unilaterally used force against Vietnamese fishermen and attempted to enforce an annual fishing ban that covers a large area in the South China Sea.
● It has attempted to drive out British, US and Indian petroleum companies working with Vietnam in the Nam Con Son Basin, Vanguard Bank and in Blocks 127 and 128 along Vietnam’s Central coast, and it has disrupted Vietnam’s petroleum activities in these areas by cutting seismic equipment being towed by survey ships, as well a putting out oil blocks there for bidding.
● It has claimed that its fishermen have traditional fishing rights in Indonesia’s EEZ. In one incident, a Chinese Maritime Surveillance ship trained its gun on an Indonesian coast guard ship, forcing the latter to withdraw.
● It claims James Shoal.
● It has challenged the Philippines petroleum activities in the Reed Bank areas, including threatening to ram a geological ship operating on behalf of the Philippines.
Map 1: Locations relating to some of China’s actions in the South China Sea. X is location of the Binh Minh 2 cable cutting incident. Y is the location of the Viking II cable cutting incident. Z is the location BP’s Moc Tinh and Hai Thach projects. 127 and 128 are blocks that Vietnam contracted out to ONVG Videsh.
Regardless of China’s ambiguity over the nine-dash line, those actions are tantamount to claims to rights over living and mineral resources over huge areas within the nine-dash line, and, as will be shown in the analysis below, they are illegitimate and absurd.
Even if some of the islands in the Paracels and the Spratlys were entitled to an EEZ, claiming a 200 nautical mile EEZ for them would in most cases be inconsistent with UNCLOS, which stipulates equitable delimitation of overlapping EEZ entitlements, and with maritime delimitation precedents. Claiming an EEZ that extends as far as the nine-dash line would also be outrageous. Some of China’s actions took place nearer to other countries’ undisputed and larger territories than to the disputed islands. In maritime delimitation law, this is equivalent to China claiming more than 100% effect for these small islands, which is absurd. This means China’s position, as embodied by those actions, is clearly absurd.
It should also be remembered that the Paracels and Spratlys are subjected to sovereignty disputes that are unlikely to be resolved in the foreseeable future. This means that the disputes over any EEZ belonging to these islands will also be unresolved in the foreseeable future. Given this situation, it is bad faith for any country to try to claim the full EEZ entitlement for these islands, thereby imposing an intractable jurisdictional dispute over most of the South China Sea. Such maximum inflation of the disputed area seriously undermines regional stability and security. As an analogy, imagine how the situation in the East China Sea and Pacific would deteriorate if Japan were to claim the full 200 nautical miles of EEZ for the tiny, disputed Shenkaku/Diaoyu Islands, demand that China and Taiwan share the maritime resources just off the coast of China’s Zhejiang Province and along the eastern coast of Taiwan, and take actions to jeopardize China’s and Taiwan’s economic activities in those areas. Clearly, it would be good faith, and certainly good for regional stability and security, to minimise the effect of the intractable sovereignty disputes over islands by minimising the EEZs claimed for them.
Map 2: The green and black lines are respectively the equidistance and “quarter-distance” lines from disputed islands that might be entitled to EEZ. The blue lines are 200 nautical-mile EEZs from undisputed territories.
Map 2 shows how illegitimate, absurd and detrimental to regional security China’s maritime claims are.In the 2012 International Court of Justice ruling on the Nicaragua-Colombia dispute, Colombia’s islands were given an EEZ that extends a quarter of the distance to Nicaragua’s coastal islands. The Colombian islands involved are up to 13 times the area of the largest island in the Paracels and 50 times that of the largest in the Spratlys. If this “quarter distance” rule were applied to the four largest features of Paracels and four largest features of the Spratlys, their EEZs would only extend as far as the black lines on the map. Given that the Paracels and Spratlys are disputed territories, that means that they would give rise to the disputed EEZs enclosed by these lines. The territorial disputes over the islands and consequential jurisdictional disputes over maritime space would then be contained in small, defined parts of the South China Sea. This would have two enormous benefits for regional security. First, the jurisdictional disputes over maritime space that stem from the sovereignty disputes over Spratlys and Paracels would not affect the greater part of the South China Sea which lies outside the black lines. The black “quarter distance” lines would act as firewalls to contain the detrimental effects of these disputes. Second, once these disputes are contained in well defined and relatively small areas, the claimants will have a better chance of agreeing on measures for managing tensions and promoting co-operation on those areas.
Unfortunately, instead of seeking to contain the jurisdictional disputes in this way, China attempts to inflate them to cover as much of the South China Sea as possible. Although it has not declared specifically that it claims an EEZ up to the nine-dash line, it has acted against the other countries in a way that is tantamount to claiming maritime rights over vast areas within this line and, in places, right up to the line.
To see just how absurd China’s inflation of the disputed area is, let’s consider the hypothesis that the four largest features in the Parcels and the four largest in the Spratlys are given equal weight to large landmasses in maritime delimitation, which would result in their EEZs extending as far as the green lines. It must be stressed that this hypothesis is absurdly generous towards the Paracels and Spratlys, because in legal precedents and international practice such small islands are given much less weight in maritime delimitation than larger landmasses. Even then, it can be seen these hypothetical EEZs fall far short of the nine-dash line. Although China has not fully clarified what it is claiming by the nine-dash line, its actions as listed above show that it is asserting sovereign rights over the area bounded by the line, i.e., beyond even the most absurd claims for the Paracels and Spratlys' EEZs.
China has made two other claims that would qualify as absurd. It claimed Macclesfield Bank and James Shoal before the EEZ regime came into existence, as if those features were islands. This is absurd because these features are submerged, which means they cannot be appropriated. Nevertheless, China has never rescinded the claims.
While Valencia is correct to write that China “can make UNCLOS-compatible jurisdictional claims in the South China Sea”, that is only half of the story. The other half is, going by maritime delimitation jurisprudence, those claims cannot legitimately extend as far as the nine-dash line, or to the locations where China has acted against other countries.
UNCLOS does not work in isolation from the rest of international law and cannot work without good faith. To argue that it is compatible with UNCLOS to claim a 200-nautical-mile EEZ for small islands, while ignoring the principle of equitability that the Convention and international law in general stipulate, ignoring jurisprudence of maritime delimitation, is to cherry-pick international law and is sign of bad faith.It is important to note that UNCLOS’s Article 300 stipulates that “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.”
In trying to refute the statement, “The US is neutral regarding maritime claims in the South China Sea”, Valencia argues that
Although it has not ratified the 1982 Unclos and cannot be bound by it, the US insists that China must base its claims solely on it. The US also insists that any claims to maritime jurisdiction in the South China Sea must be from land. This implies that any Chinese claim to jurisdictional rights within the nine-dash line is invalid.
The US also insists that China negotiate these issues multilaterally with a bloc of claimants - Asean - that includes non-claimants, and that it cease its aggressive actions there. The US may be neutral as to the sovereignty claims but it is decidedly not neutral regarding the jurisdictional claims.
In fact, the US’s position is:
● Claims to maritime space must be derived from claims to land and insular features.
● Disputes over territorial and maritime claims must be resolved without force or coercion.
● Support for the agreement of a full code of conduct.
Although the US has not ratified UNCLOS, it takes the correct view that certain provisions of UNCLOS are codification of customary international law. In particular, its insistence that any claims to maritime jurisdiction in the South China Sea must be derived from land and insular territory is simply the principle “the land dominates the sea” of customary international law. The fact that the US has not ratified UNCLOS does not mean it does not have the legal or moral right to make that insistence. In addition, this insistence in no way implies that "any Chinese claim to jurisdictional rights within the nine-dash line will be invalid", as Valencia claims. It simply means that any claim to maritime jurisdiction in the South China Sea, by any country, that is not derived from land (including insular territories) will be invalid. This position is neutral and in complete accord with international law.
If China does not intend to make claims to maritime space and does not intend to resolve the disputes with force or coercion, there is no reason to regard the US’s position as biased against it.
Furthermore US’s position does not include any insistence that China negotiate maritime jurisdictional claims with non-claimants, or with ASEAN as a bloc.
It is true that agreeing a code of conduct for the South China Sea would involve negotiation between China and ASEAN, but the US only expresses support for it, it does not insist that the two sides negotiate to reach an agreement. In addition, a code of conduct for the South China Sea has wider scope than just the territorial and maritime disputes, so it is reasonable for ASEAN countries that are not parties to these disputes to participate in the negotiation.
Threat to navigation
Valencia’s argument on this topic has been discussed by Robert Beckman, an expert on international law regarding the South China Sea disputes in the article “South China Sea: US and China’s different views”. Here it suffices to provide a quote attributed to Tommy Koh, president of the UNCLOS III Conference, regarding the question of military activities in the EEZ,
The solution in the Convention text is very complicated. Nowhere is it clearly stated whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted.
Valencia sets out to refute the statement “ASEAN or the Asean claimants are united against China”, but this refutation is also unnecessary: analysts and observers generally know that ASEAN are not united against China. It seems that he wishes to put forward the view that the security issues that involve China is no more serious than those amongst the ASEAN claimants. In this argument he writes
Asean claimants Malaysia, the Philippines and Vietnam cannot even settle their own disputes, some of which involve both conflicting sovereignty and maritime jurisdictional claims like that between Malaysia and the Philippines over Sabah and maritime claims based on them.
These security issues are every bit as serious as the Vietnam-China sovereignty and jurisdictional disputes centred on the Paracels.
Here he confuses disputes with security issues. Disputes are a fact of life; what matters is how the protagonists approach them. They can do in a way that do not cause tensions or security issues, or in a way that do, and the difference matters a great deal.
While Vietnam, the Philippines and Malaysia have disputes among themselves, they have not dealt with them in a way that causes tensions and security issues. It is a very different situation when it comes to China. Since 2007, all high-tension incidents and security issues in the South China Sea have involved China and another protagonist. One has to ask why this is so.
Regarding the maritime disputes, it is worth noting that Vietnam, the Philippines and Malaysia all accept UNCLOS’s dispute settlement procedures, which means that any one of them can take another to an international court or tribunal for matters relating to UNCLOS. This is both an incentive for these countries to avoid creating tensions and security issues and a safety net when things go wrong.
On the other hand, China has rejected UNCLOS’s dispute settlement procedures to the maximum possible extent, so in matters relating to EEZ boundaries no legal recourse is possible, and it can, and does, act in bad faith with impunity, giving rise to the tensions and security issues that we have been seeing.
New US-China relationship
In this topic Valencia discusses the US-China relationship and its role in stability or instability in the South China Sea. His argument elaborates on China’s narrative that the US is a significant source of instability. It is easy to see why China chooses this narrative: without support from the US, the other claimants will be less able to resist it.
But Valencia’s analysis misses the fundamental and overwhelming cause of the security problems in the South China Sea. This cause is not the US-China rivalry as he suggests. It is China’s drive to assert jurisdictional rights over a vast area of the South China Sea. This area is roughly the area within the nine-dash line. It matters little that China has not clarified what this line means, what matters to regional security is its drive to assert jurisdictional rights over the area within it. Even if there were no US-China rivalry, even if the US did not support the other claimants, and even if the US supported China, a grave security problem would still exist, at least for the countries on the receiving end of China’s drive.
It is a fallacy and patronising to suggest that the US’s presence has egged Vietnam and the Philippines on. Countries always try to defend what they perceive to be their rights. They do not need to be egged on by others. For example, the countries of South East Asia defended what they perceived to be their rights against China and the Mongol Empire even before Christopher Columbus arrived in the Americas. Furthermore, they are not so foolish that they can be egged on by others. Vietnam and the Philippines in particular know very well that the US did nothing when China seized features in the Paracels, Spratlys and Scarborough Reef.
Of course, China and its supporters can also say that China is defending what it sees to be its rights. So which side is correct?
In this conundrum, legal scholars such as Dr Valencia have a privileged position. Their knowledge of jurisprudence and international practice of maritime delimitation will allow them to compare the relative legal merits of Vietnam’s petroleum activities in the Nam Con Son Basin, or the Philippines’ petroleum exploration activities in the Reed Bank area, and China's respective counteractions to those activities. These legal scholars will also have known that much of UNCLOS is subject to interpretation, and that its compulsory dispute settlement procedure provides a way to do it in an impartial manner, without it a country can make mockery of the Convention. They will have known that Vietnam, the Philippines, Malaysia, Brunei and Indonesia have all accepted this dispute settlement procedure, while China has rejected it to the maximum possible extent, making objective interpretation and application of the most relevant articles of UNCLOS to the maritime dispute impossible.
Therefore, regarding the jurisdictional disputes over maritime space, legal scholars can thus offer a voice of reason by assessing objectively the relative legal merits of the conflicting actions on the sea, regardless of what China might or might not claim the nine-dash line to be. They should encourage the claimants to seek, or at least accept, the most authoritative interpretation possible: that by a relevant international court or tribunal.
Regarding the disputes over islands, these legal scholars could call on the countries involved to have the sovereignty disputes settled at court. It is worth noting that Southeast Asia is no stranger to this path of conflict resolution: Thailand and Cambodia have gone to court twice over the Temple of Preah Vihear and the surrounding area, Malaysia and Indonesia have gone to court over Ligitan and Sipadan Islands, and Singapore and Malaysia have gone to court over Pedra Branca Island, Middle Rock and South Ledge.
If international legal scholars such as Dr Valencia do not try to offer the most objective and accurate analyses possible and do not call on the disputants to have the disputes settled at court, then who will? Furthermore, if a country cites international law to justify its position while avoiding having that position tested in court, such use of international law is just rhetoric, and does not deserve support from scholars.
By Huy Duong
The author would like to thank Tuan Pham and Dang Vu for valuable comments.
“Separating fact from fiction in South China Sea conundrum”, Valencia,
 “America’s Pacific century”, Clinton,
 “U.S. Policy Towards the Disputes in the South China Sea Since 1995”, Fravel,
 “South China Sea: US and China's different views”,
 Quoted in “Military ships and planes operating in the Exclusive Economic Zone of another country”,Van Dyke, http://www.sciencedirect.com/science/article/pii/S0308597X03001258
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