Among the most contentious issues in the 21st century is the geo-political dispute in the South China Sea (SCS) which is participated by 6 governments in the region. These governments, China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei – have laid competing claims to various pinpricks of territory.[1] [The] dispute [is] over territory and sovereignty over ocean areas, and the … island chains claimed in whole or in part by a number of countries.[2] Apart from the claimant states, we also have other Asian countries who are interested in maintain[ing] peace and stability in the region. Another stakeholder is the United States which has an interest in the dispute because of its role as an “international police” in protecting freedom of navigation. It also has an interest because of its mutual defense treaties with states in the Asian region, along with its other political, security and economic motives.
The Philippines finds itself in the middle of a stalemate with the other claimants, most especially China. It is important to note that an absolute victory over the asserted claims is virtually impossible and it is necessary that the State cede some of its sovereign rights over the area in order to achieve mutual benefits and regional stability. This conclusion is due to the difficulty in ascertaining conclusiveness of the claims and based on the rules of the game in the international arena and contextualized in the existing international asymmetry between the competing states.
The author proposes that the claimant states should come up with a multilateral and binding treaty regarding the joint management of the disputed areas. This treaty should aim to satisfy the interests of the States and also provide measure for enforceability, such as penalties and an arbitration clause.
The maritime territorial disputes in the area are summarized as follows[3]:
- a dispute over the Paracel Islands in the SCS, which are claimed by China and Vietnam, and occupied by China;
- a dispute over the Spratly Islands (Spratlys) in the SCS, which are claimed entirely by China, Taiwan, and Vietnam, and in part by the Philippines, Malaysia, and Brunei, and which are occupied in part by all these countries except Brunei;
- a dispute over Scarborough Shoal in the SCS, which is claimed by China, Taiwan, and the Philippines, and controlled since 2012 by China; and
- a dispute over the Senkaku Islands in the East China Sea (ECS), which are claimed by China, Taiwan, and Japan, and administered by Japan.
Of the abovementioned territories, the Philippines has interest over the Spratlys and the Scarborough Shoal. The Spratly Island is composed of 100 to 230 scattered rocks and reefs 2-6 meters above the sea-level … [which] is not viable for long term human habitation for lack of fresh water supply.[4] The Scarborough shoal is a large coral atoll, about 10 miles in width, triangular in shape, located approximate 124 nautical miles west of Luzon. Parts of the barely submerged reef are awash at low tide, and some scattered rocks, from 0.3 to 3.0 meters high, are visible from a distance. South Rock (Itu Aba), located at the southeastern extremity of the shoal, is the highest and largest elevation. The reef encloses a lagoon that varies in depth from 9 to 13 meters, but with many patches of as little as 1.7 meters depth.[5]
The Spratlys, Scarborough, and the rest of the area remains contentious because of its location and natural resources. The SCS ranks as one of the world’s most strategically vital maritime spaces. More than $5 trillion in trade flows through its waters each year, one-third of all global maritime commerce.[6] It is also a strategic military base, both for China, in establishing itself as a rising military power, and the US, for maintain its influence in the region. SCS has a significant contribution in sustaining marine life in … the entire South China Sea.[7] It teems with at least one-tenth of the worldwide fishing stock; its azure depths boast untapped oil and natural-gas deposits.[8] It is also an offshore shelter, regeneration area, migration path, and food supply for the fisheries in the SCS.[9]
To aid in the formulation of a solution, presented below are the basis of the claimant states. An understanding of the diverse backgrounds is essential because “If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained, you will also suffer defeat. If you know neither the enemy nor yourself, you will succumb in every battle.” (III: Attack by Stratagem, an excerpt from Sun Tzu’s the Art of War)
The Philippines grounds its claim over the Scarborough Shoal, locally known as Bajo de Masinloc, [in] its exercise of both effective occupation and effective jurisdiction [over the island] since its independence.[10] The Philippines claims eight islands in the Spratlys, which are the Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef. These are reefs and atolls within the Spratly chain of islands. China occupies and has built artificial islands on Mischief and Subi while the Philippines maintains a sentry of Marines on a beached World War II transport ship on Second Thomas.[11] Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are reefs occupied by China but also claimed by the Philippines. The basis of the claim of the Philippines in the Spratly Islands are as follows:
- Contiguity and propinquity in relation to the “Hinterlands Theory”,[12]
- Abandonment and occupation,[13] and
- Article 76 of the United Nations Convention on the Law of the Seas (UNCLOS)[14].
The claim of China is based on ‘historical rights’ and its nine-dash line. The nine-dash line [is used] to justify its claims to features and water space. [15] It demarcates a vast but vague stretch of ocean from China’s southern coast through most of the South China Sea.[16] The nationalist government first adopted the dash drawings in 1947, when officials inspected the South China Sea on a US naval ship before drawing the dashes on their return.[17] China’s claim [over the Scarborough Shoal] is based on the argument that it acquired sovereignty through discovery of the unoccupied territory and established (and maintained) a legal presence on the island before anyone else.[18] Chinese sovereignty of what is known as the Spratly Islands is based on numerous factors, including historical evidence, economic development, effective occupation and internal recognition.
The Permanent Court of Arbitration (PCA) ruled that “China’s claim to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line” are contrary to the [UN] Convention [on the Law of the Sea] and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention.”[19]
The PCA reasoned that “[it] did not see any historical activity that could have been restricted or controlled [by China], and correspondingly no basis for a historic right[20]. Further, China’s ratification of the Convention in June 1996 did not extinguish historic rights in the waters of the SCS. Rather, China relinquished the freedoms of the high seas that it had previously utilized with respect … [in] certain sea areas which the international community had collectively determined to place ambit of the Exclusive Economic Zone (EEZ) of other States.[21]
The claim of Vietnam over the Spratlys dates back to the 1930s, when France annexed the islands as terra nullius.[22] Great Britain, which had controlled some of the Spratlys in the 1800s, abandoned its claim following the French annexation and effective occupation.[23] French title to the Spratlys was legally and soundly established [24] because this mode of acquisition of territory was valid at that time, France’s title to the archipelago was ceded to South Vietnam in the 1950s and the South Vietnamese government (and subsequently a united Vietnam) effectively and peacefully controlled the islands until [China] forces illegally occupied Itu Aba Island in 1956. This was followed by another illegal occupation over the islets of the archipelago in 1988.[25] The subsequent occupation by China did not transfer ownership over the territory because by this time, acquisition through force is no longer recognized in international law.
The claims of Taiwan are similar to those of China, and are based upon the same principles.[26] Malaysia’s involvement in the Spratlys was the result of its continental shelf claim of 1979 … which is based on the presence of the islands and rocks in its claimed continental shelf and EEZ jurisdiction.[27] Brunei does not claim any of the islands, the only feature it claims is Louisa Reef.[28] This claim is based on an Exchange of Letters signed in 2009 by Malaysia and Brunei which has “established the final delimitation of territorial sea, continental shelf, and exclusive economic zone between the two countries.[29]
Seeing now the basis of each State’s claim in the disputed islands, it is tempting to determine who owns the areas based on the strengths and validity of each the claims vis a vis international law. However, exclusive rights and ownership over the area is not the sole way to resolve and attain victory. In all fighting, the direct may be used for joining battle, but indirect methods will be needed to secure victory. (V: Energy, an excerpt from Sun Tzu’s The Art of War)
The states must concede that an absolute and complete resolution of this issue is almost impossible, and in the slim chance of being attainable, could be achieved only after a very long and tedious determination. The decision, if any, could even be unenforceable. This is firstly because “historical evidence surrounding this particular feature is unpersuasive”[30] making it difficult and uncertain for any court or tribunal to establish absolute territorial ownership and sovereignty. Second, because of conflicting ideas between the “concept of sovereign equality among States” and the “reality of international asymmetry” prevailing over the relationship of China and the other claimant states. Simply stated, the legal landscape in the international arena is different from the legal landscape for domestic conflicts. Different rules and principles apply. In over to prevail over the international dispute, one must navigate through the unique terrain of international laws. Hence the saying: If you know the enemy and know yourself, your victory will not stand in doubt; if you know heaven and know earth, you may make your victory complete. (X. Terrain, an excerpt from Sun Tzu’s The Art of War)
Given those complications, the most strategic use of this claim does not lie in using them to prove ownership and sovereignty but using them to leverage a claimant state’s position in the negotiations for a multilateral treaty.
This position takes into account the well-established in International Law is the concept of sovereign [and fictional] equality among states. This means that all States “have equal rights and duties and are equal members of the international community, notwithstanding differences o an economic, social, political or other nature.[31] This concept includes the following four principles[32]:
- That States are juridically equal;
- That each State enjoys the right inherent in full sovereignty;
- That the personality of the State is respected, as well as its territorial integrity;
- That the State should, under international order, comply faithfully with its international duties and obligations
However, in reality, states are unequal because of disparities in their military strengths, economies and other factors. This inequality, or international asymmetry, comes in to play prevalently during the resolution of the dispute.
China has an undue advantage in the SCS Dispute. It is a rising world superpower which has superior economy and military strength against all other claimants. China has also been initiating its Belt and Road Initiative (BRI) which could further boost its economy. Other Asian countries are craving to have a share China’s growth, giving China more leverage in negotiations. China also has a large impact in the global trade and restrictions that it could impose will severely and adversely affect any opposing country.
International asymmetry has led to the existing contention that international laws have no force against powerful nations such as the US. This is exemplified by the fact that despite Nicaragua’s victory against the US in an International Court of Justice ruling, it had difficulties to enforce the award. The only factor that prompted the US to comply is its interest to maintain a positive global image.
Taking the concepts in the present context, let us examine the arbitration between China and the Philippines. China refused to participate in the arbitration, saying the case was illegal [because] the panel lacked jurisdiction. Even though the PCA ruled in favor of the Philippines, China refers to the ruling as a mere ‘scrap of paper’. In defiance to the award, [it] transformed at least seven reefs into artificial fortresses, complete with naval and air facilities, including runways and helipads, [which were] declared by [the PCA] to belong to Manila.[33] The Philippines is left without any legal remedies for enforcing the arbitral decision. It cannot compel China to abide by the ruling. As a “co-equal” state, the Philippines is bound to respect China’s sovereignty and cannot impose the PCA’s decision absent consent from China. There PCA also lacks an enforcement mechanism. In the realm of global governance, the supreme executive body is the U.N. Security Council, and China holds veto power as a permanent member.[34]
A way to combat this asymmetry is for the smaller claimant states to act collectively. But “[w]e cannot enter into alliance with neighboring princes until we are acquainted with their designs…” (XI: The Nine Situations, an excerpt from Sun Tzu’s The Art of War.) Each state has an interest that they want to advance, and chances are, these interests are not mutually exclusive of each other. However, if the smaller claimants negotiate individually with China, there is a greater possibility of non-realization of their interests. The claimant states, initially excluding China, should convene to discuss their interests. Then they should adopt a stance that could achieve a majority of their interests. These states should understand that sacrificing some of their interests is necessary to achieve a solidified common ground and enhance their overall bargaining power.
After “unification” of the smaller claimant states, the next issue would be bringing China to the negotiation table. China has already established military bases in the disputed islands and rocks of the SCS. Considering its military superiority in the region, it has very minimal need for negotiating with the other states. However, there is still a chance. “By holding out advantages to him, he can cause the enemy to approach of his own accord; or by inflicting damage, he can make it impossible for the enemy to draw near.” (VI: Weak and Strong Points, and excerpt from Sun Tzu’s The Art of War.)
China, like all other nations, is concerned with its global image. China’s BRI is a multi-billion-dollar initiative [which] aims to link Southeast Asia, Central Asia, the Gulf region, Africa and Europe with a network of land and sea route.[35] In order to successful complete the project, China should establish good relationships with the countries involved in the project. China’s failure to comply with the PCA’s decision could tarnish its image with respect to other states. It will be an indication that China is a dangerous state to deal with because it does not submit to international courts and does not respect international rulings. If the Philippines could use the PCA decision to pose a threat to China’s image, then there is a possibility of coming up with a binding multi-lateral agreement. The states could also use the strengths of their own respective claims to enhance their bargaining power.
Note that it is in the best interest of the entire region if the states avoid armed conflict and use a diplomatic approach. Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting. (III: Attack by Stratagem, an excerpt from Sun Tzu’s The Art of War.)
Once the states are in the negotiating table, a preparatory and legally binding multilateral treaty should first be completed. The preparatory treaty should contain stipulations that would safeguard and promote the creation of the second treaty. It should also include a preliminary Code of Conduct that would govern the claimant states prior to the perfection of the second treaty. It should contain clauses that ensures enforceability and provides a course of action in case of breach. The ultimate objective of the preparatory treaty is the creation of a secondary treaty that would, more or less, permanently govern over the disputed area. This treaty should include a code of conduct, a determination of entitlements and rights over the area, and stipulations to make it legally enforceable. Examples are an arbitration clause and penalties for violations. The Svalbard Treaty[36] is a possible model for this treaty. Arbitration clauses are indispensable so that the parties could have legal recourse in case of violation.
Borrowing from the Svalbard Treaty, the terms of a multilateral joint development zone agreement, between the claimant states could include these notional terms:[37]
- A non-claimant state would be designed as the administrator (or trustee) over the zone. Indonesia, given its stature in ASEAN, might be suited for doing this.
- All countries that have occupied high-tide features in the zone would be allowed to remain; however, they would replace all military occupiers with civilians. Military equipment would be removed.
- The four parties would mutually agree to not assert territorial claims around any feature except that each occupier would have the right to establish 500-meter safety zones around each island/feature for safety and navigation purposes.
- The trustee would allow each of the four claimants to fish anywhere in the disputed area and be the sole licensee of any fishing. Licensing would be based on current Food and Agriculture Organization[38] standards to ensure sustainment of regional fishing stocks. Each one of the claimants would be entitled to a [percentage of the catch based on a mutually agreed upon stipulation].
- Mining in the area would also follow the [mutually agreed upon allocation].
- Oil and gas prospecting would be licensed by the administrator on a strictly competitive basis. The [mutually agreed upon allocation] would be applied to any royalties received.
- The administrator [Indonesia] would be the only state permitted to have permanently based military forces in the area, in order to enforce the agreement.
- The United States and the EU would provide security guarantees to Indonesia in the event that any of its forces come under attack.
- The agreement would enter into force by agreement among [majority vote of the claimant states] and any outlier’s share would be held in escrow by the administrator.
Variations could be made so long as it is consistent with the goal of maintain peace, stability and security in the region. It should provide mutual benefits to the claimant states and protect each of their rights over the area. The agreement should also include a stipulation for the joint development of the rich natural resources in the area. Lastly, the agreement and processes should constantly be monitored and changes should be timely made to ensure suitability of the treaty to all stakeholders.
These international procedures should be backed up by internal efforts that foster citizens’ trust and confidence to their respective governments. Some citizens might construe the proposal as a surrender of sovereignty. The citizens must be informed that the proposal is a strategic concession which takes into account relevant international principles. They should be given unbiased information that would allow them to appreciate the actions taken by their government. There should also be mechanisms in place to enable citizens to voice out their informed suggestions. It is important to “[r]egard your soldier’s as your children, and they will follow you into the deepest valleys; look upon them as your beloved sons, and they will stand by you event unto death.” (X: Terrain, An excerpt from Sun Tzu’s The Art of War). Otherwise, the proposal would create distrust and be the source of internal turmoil. Solidarity of purpose and objectives within a state is essential for the success of the international goals.
In conclusion, it is tempting to fight for what we believe as “ours”. It is likewise tempting to define what is “ours” based on our own claims and evidences, without regard to the merits of the other opposing states. However, we live in distorted times – distortions created by powers and desires. If we blindly fight for what is ours without regard for the current circumstances, we would lose. Ownership over the disputed area may be difficult to ascertain, but this is the universal truth: South China Sea belongs to Asia. Its vast resources are too much for just one country to utilize and manage. Forcing exclusive ownership will put all these resources and potential to waste. The best course is to a multilateral joint agreement that strikes a balance among all the stakes involved.
In the same vein, while we believe that the South China Sea belongs to the Filipino people, we cannot deny that it equally belongs to the rest of humanity, regardless of nationality. The proposed concession is not a betrayal of the state’s sovereignty but loyalty to the region’s peace and stability. It is high time we recognize that amidst national individuality there are things that remain universal. A State’s insistence of its claim would amount to an over-all deprivation of the South China Sea to the rest of the world.
____________
[1] Inside the international contest over the most important waterway in the world. [Video File]. (2016). Time. Retrieved from: http://time.com/4348957/inside-the-international-contest-over-the-most-important-waterway-in-the-world/
[2]Why is the South China Sea so contentious? 12 July 2016. BBC News. Retrieved from: http://www.bbc.com/news/world-asia-pacific-13748349
[3] O’Rourke, R. (24 May 2018). Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress. Congressional Research Service. [PDF File]. Retrieved from: https://fas.org/sgp/crs/row/R42784.pdf
[4] Libiran, J. Chapter 7: The Spratly Islands and the Scarborough Shoal. Public International Law Lectures [Power Point Slides].
[5] Batongbacal, J., 26 September 2014. Bajo de Masinloc (Scarborough Shoal): Less-known facts vs. published fiction. Institute for Maritime and Ocean Affairs. Retrieved from: http://www.imoa.ph/bajo-de-masinloc-scarborough-shoal-less-known-facts-vs-published-fiction/
[6] Beech, H., 26 May 2016. Inside the international contest over the most important waterway in the world. Time. Retrieved from: http://time.com/4348957/inside-the-international-contest-over-the-most-important-waterway-in-the-world/
[7] Id. Note 5
[8] Id. Note 5
[9] Id. Note 5
[10] Rosen, M., Philippine claim in the South China Sea: A legal analysis. August 2014. CAN Analysis and Solutions. CNA
[11] Id. Note 7
[12] Id. Note 4
[13] Id. Note 4
[14] UN Convention on the Law of the Seas
[15] Id. Note 11
[16] The South China Sea: Explaining the Dispute. New York Times. 15 July 2016. Retrieved from: https://www.nytimes.com/2016/07/15/world/asia/south-china-sea-dispute-arbitration-explained.html
[17] China’s claims in South China Sea ‘proposed by continuous boundary for the first time’. 22 April 2018. South China Morning Post. Retrieved from: http://www.scmp.com/news/china/society/article/2141323/chinas-claims-south-china-sea-proposed-continuous-boundary-first
[18] Id. Note 11
[19] PCA Case No. 2013-19, In the matter if the South China Sea Arbitration, p117, par 278, 12 July 2016.
[20] Id. Note 20, p115, par 270.
[21] Id. Note 20, p116, par 271.
[22] Pedrozo, R., CNA Occasional Paper: China versus Vietnam: An analysis of the competing claims in the South China Sea. CNA Analysis and Solutions. August 2014.
[23] Id. Note 23
[24] Id Note 23
[25] Id Note 23
[26] Territorial claims in the Spratly and Paracel Islands. Global Security.org. Retrieved from: https://www.globalsecurity.org/military/world/war/spratly-claims.htm
[27] Roach, J. Ashley. CNA Occasional Paper: Malaysia and Brunei: An analysis of their claims in the South China Sea. CNA Analysis and Solutions. August 2014.
[28] Vuving, A., South China Sea: Who occupies what in the Spratlys? 2016 May 6. The Diplomat. Retrieved from: https://thediplomat.com/2016/05/south-china-sea-who-claims-what-in-the-spratlys/
[29] Id. Note 29
[30] Id. Note 11
[31] Ansong, A., The Concept of Sovereign Equality of States in International Law (2016). GIMPA Law Review, 2(1), (2016), p. 15. Available at SSRN: https://ssrn.com/abstract=3171769 Citing: Declaration on principles of international law, friendly relations and cooperation among states in accordance with the Charter of the United Nations 1970.
[32] Id. Note 32, p. 14
[33] Filipinos protest China’s build up in disputed sea. Aljazeera. Retrieved from: https://www.aljazeera.com/news/2018/02/filipinos-protest-china-build-disputed-sea-180210095558354.html
[34] Almond, R.G., Interview: The South China Sea ruling. 16 July 2016. The Diplomat. Retrieved from https://thediplomat.com/2016/07/interview-the-south-china-sea-ruling/
[35] BRI a made in China, made for China initiative: US official. 2018 July 30. The Economic Times. Retrieved from:
//economictimes.indiatimes.com/articleshow/65195619.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[36] Svalbard Treaty was signed in Paris on 9 February 1920. The treaty provides for Norwegian sovereignty over Svalbard, while at the same time providing for certain rights for the other signatories. Retrieved from: https://www.google.com/url?sa=t&rct=j&q=& esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjO-KG0azbAhWCUrwKHWS1AqkQFggoMAA&url=http%3A%2F%2Flibrary.arcticportal.org%2F1909%2F1%2FThe_ Svalbard_Treaty_9ssFy.pdf&usg=AOvVaw3Ccbul668T1ef2tFBDOnDU
[37] Id. Note 11
[38] Food and Agriculture Organization is a specialized agency of the United Nations that leads global efforts to defeat hunger. FAO’s goal is to achieve food security for all and make sure that people have regular access to enough high-quality food to lead active, healthy lives.
Food and Agriculture Organization. UNFSS. Retrieved from: https://unfss.org/home/projects-of-partner-agencies/food-and-agriculture-organization-of-the-united-nations-fao/