South China Sea dispute and the United Nations Convention on the Law of the Sea (UNCLOS) (TH)

Context: China on Friday warned off a U.S. warship sailing near contested islands in the South China Sea, Beijing said, the first such encounter made public since the inauguration of President Joe Biden.

Analysis

South China Sea dispute: Some recent events

15 July 2020: U.S. rejects Beijing’s claims in S. China Sea

  • The United States has said it rejects Beijing’s claims in the waters surrounding Vanguard Bank off VietnamLucania Shoals off Malaysia, waters considered in Brunei’s exclusive economic zone and Natuna Besar off Indonesia.
  • U.S. also rejected Beijing’s southernmost claim of Malaysian-administered James Shoal, which is 1,800 km (1,150 miles) from the Chinese mainland.
  • Most of the China’s claims in the South China were dismissed by the 2016 decision which was issued by a tribunal under the UN Convention on the Law of the Sea.
  • U.S. noted that China is a party to it and called the ruling legally binding.
  • The United States, however, is one of the few countries that is not part of the convention, with conservatives opposing any loss of autonomy to a global body.

24 April 2020: Response of Various Countries against Chinese Aggression in the South China Sea

  • Even as several countries struggle to cope with the challenges posed by COVID-19, Beijing’s military moves in the contested South China Sea (through which one-third of the world’s maritime trade flows) continue to take place unabated.
  • The Vietnamese Ministry of Foreign Affairs reported early this month that a Chinese Coast Guard vessel “rammed and sunk” a Vietnamese fishing boat carrying eight Vietnamese fishermen in the Paracel Islands in the South China Sea.
  • There have been incidents involving Chinese fishing vessels and the Chinese Coast Guard with Indonesian fishing vessels in waters around the Natuna Sea as well.
  • There are also reports that China recently opened a research station on Kagitingan and Zamora Reef, in the West Philippine Sea, to gather data on the ecology, geology, and environment in the Spratlys.
  • Vietnam has been an ardent supporter of the U.S.’s freedom of navigation operations (FONOPS) carried out in the South China Sea.
  1. China has always taken a strong stand against these FONOPS of the U.S.
  2. In that direction, China also recently conducted anti-submarine drills in the disputed areas soon after the Pentagon deployed the U.S.-guided missile destroyer USS McCampbell in a FONOP in the South China Sea before the pandemic hit the U.S. mainland with full force.
  • At present, Vietnam is the chair of the ASEAN and will be presiding over the discussions on the Code of Conduct in South China Sea which has been a work in progress for long.
  • Vietnam has always been in favour of non-claimant countries or external players having an active voice and calling out China for its growing assertiveness in these contested waters. 
  • Unlike the Philippines, which has changed its stance quite often with respect to Chinese activities in the South China Sea, and Indonesia, which recognised the Chinese threat in the Natuna Sea rather late, Vietnam has held a firm stand against Chinese actions in the South China Sea.

1 April 2020: China chases Indonesia’s fishing fleets, staking claim to sea’s riches

  • Backed by Chinese coast guard ships, Chinese fishing fleets have been raiding the rich waters around the Natuna Islands (in the South China Sea), which are within Jakarta’s exclusive economic zone to fish but are also claimed by China.
  • Wary of offending its largest trading partner, Indonesian officials have played down incursions by Chinese fishing boats.
  • Jakarta’s exclusive economic zone, a 200-nautical-mile zone within its afforded special rights to exploit marine resources, overlaps with China’s capacious nine-dash line claim, under which Beijing asserts rights over nearly 90 per cent of the critical waterway.
  • That means the core of the ongoing dispute between the two countries boils down to resource exploitation rights within a section of the South China Sea northeast of the Natuna Islands.
  • While Indonesia’s claim is founded in the United Nations Convention on the Law of the Sea – a convention both Beijing and Jakarta have signed and ratified – the Chinese claim dates back to questionable territorial assertions first made in the latter part of the first half of the 20th century.
  • In 2016, the Philippines received a favorable judgment from The Hague-based international tribunal invalidating China’s nine-dash line claim in the South China Sea.

South China Sea Dispute

  • Different parts of South China Sea are claimed by China, Taiwan, Vietnam, the Philippines, Malaysia, and Brunei.
  • China’s claim to the South China Sea is based in history, dating back to records from the Xia and Han dynasties.
  • Nine-dash line: Boundary of the South China Sea as claimed by China.
  • The United States contends that the South China Sea is international water, and sovereignty in the area should be determined by the United Nations Convention on Laws of the Sea (UNCLOS).
  • UNCLOS states that countries can’t claim sovereignty over any land masses that are submerged at high tide, or that were previously submerged but have been raised above high tide level by construction.

Why does China want to control the South China Sea?

  • Control of the South China Sea would allow China to dominate a major trade route through which most of its imported oil flows.
  • The floor of the South China Sea may contain massive oil and natural gas reserves.
  • Sovereignty over the region could give China a level of energy security and independence far beyond what it currently possesses.

Some disputed islands in South China Sea that are frequently in news:

  1. Spratly Islands 
  2. Thomas Shoal
  3. Woody Islands
  4. Paracel Islands

Note: Ties between China and Japan have been strained by a territorial row over a group of islands, known as the Senkaku islands in Japan and the Diaoyu islands in China located in the East China Sea.

Kuril Islands

  • These islands are controlled by Russia and claimed by Japan.
  • The dispute over this volcano-intensive archipelago of 56 islands is the primary reason Japan and Russia have never signed a peace treaty to formalize the end of World War II.
  • At the end of the war, the Soviet Union invaded the Kuril Islands, some of which Imperial Russia had previously controlled.
  • While the transfer of the islands to the Soviet Union was included in the Yalta agreements, Japan continued to claim historical rights to the southern-most islands.

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

  • It is an international treaty which was adopted and signed in 1982.
  • The Convention has created three new institutions on the international scene:
  1. The International Tribunal for the Law of the Sea,
  2. The International Seabed Authority,
  3. The Commission on the Limits of the Continental Shelf.

Some of the key features of the Convention are the following:

  1. Coastal States exercise sovereignty over their territorial sea up to a limit not to exceed 12 nautical miles;
  2. foreign vessels are allowed “innocent passage” through those waters;
  • States bordering the straits used for international navigation can regulate navigational and other aspects of passage;
  • Coastal States have sovereign rights in a 200-nautical mile exclusive economic zone (EEZ) with respect to natural resources;
  • All other States have freedom of navigation and overflight in the EEZ, as well as freedom to lay submarine cables and pipelines;
    • Land-locked and geographically disadvantaged States have the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of the EEZs;
  • Highly migratory species of fish and marine mammals are accorded special protection;
    • Coastal States have sovereign rights over the continental shelf (the national area of the seabed) for exploring and exploiting it;
    • the shelf can extend at least 200 nautical miles from the shore, and more under specified circumstances;
    • Coastal States share with the international community part of the revenue derived from exploiting resources from any part of their shelf beyond 200 nautical miles;
    • The Commission on the Limits of the Continental Shelf shall make recommendations to States on the shelf’s outer boundaries when it extends beyond 200 miles;
  • The limits of the territorial sea, the exclusive economic zone and continental shelf of islands are determined in accordance with rules applicable to land territory, but rocks which could not sustain human habitation or economic life of their own would have no economic zone or continental shelf;
  • All marine scientific research in the EEZ and on the continental shelf is subject to the consent of the coastal State;
  • Disputes can be submitted to the International Tribunal for the Law of the Sea, to the International Court of Justice, to arbitration or conciliation.
  • The Tribunal has exclusive jurisdiction over deep seabed mining disputes.

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