South China Sea
China and the Association of Southeast Asian Nations (ASEAN) agreed 18 May 2017 to a framework for a code of conduct in the South China Sea, a development that could ease tensions in the disputed waters. ASEAN and China agreed to the framework that establishes guidelines for a final agreement. The terms were reached at a meeting in the southwestern province of Guizhou.
A draft of the framework describes the projected agreement as "a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea," adding it is "not an instrument to settle territorial disputes."
The Permanent Court of Arbitration (PCA) in The Hague on 12 July 2016 ruled that China has no legal basis to claim “historic rights” to islands in the South China Sea and had violated the Philippines' sovereign rights. "The Tribunal concluded that there was no legal basis for China to claim historic rights within the sea areas falling within the 'nine-dash line'," the Hague-based Permanent Court of Arbitration said. The nine-dash refers to a demarcation line on a 1947 map of the sea, which is rich in energy, mineral and fishing resources.
The tribunal also found China had violated the Philippines’ sovereign rights. “Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone.” In a unanimous, hard-hitting ruling, the Hague tribunal maintained that the disputed Spratly islands "cannot generate maritime zones collectively as unit" as claimed by China.
There are a few basic facts about China's claims in the South China Sea that are central to understanding the dispute. China has declared the South China Sea to be a "core interest" worth fighting for, along with Taiwan and Tibet, but it only discovered this fact in 2010.
There are three separate and distinct conflicts in the South China Sea, a fact that is normally confabulated in news coverage:
- There are dozens and dozens of islands in the South China Sea, subject to conflicting claims by various countries [think of the scene in Braveheart "These Documents Were Lies When You Wrote Them!"]. The United States takes no position in such third party disputes.
- China claims the entire South China Sea, via the infamous "Nine Dash Line" map. The United States says this claim is silly, since under international law maritime claims must be based on pieces of ground [coasts, rocks, etc], and cannot be based on simple lines on a map [actually, there are several such maps, and the lines do not line up]. The United States conducts Freedom of Navigation operations to assert US claims. China finds such operations annoying. China only discovered this ownership in 1949. China's claim to the entire South China Sea is unique in maritime law, and contravenes the fundamental principle of the Law of the Sea that requires maritime claims to be based on land features, not arbitrary lines on the water on a map. There is no basis for a "split the difference" compromise.
- China has dredged coral and sand to form a handful of artificial islands which it is using as unsinkable aircraft carriers. Shina appears to assert that this artificial ojects have territorial waters. These claims violate a fundamental principle of maritime law that such artificial creations cannot acquire territorial waters. Arguing in the alternative, China might claim that since the entire South China Sea constitutes internal waters, the territorial water around the artificial islands is simply an extention of that claim.
Despite many Chinese diplomatic assurances to the contrary, Chinese assertiveness in the South China Sea is an attempt to re-establish traditional Chinese hegemony in the region. China's strategy is taking concrete actions to solidify its claims in the South China Sea, and Chinese officials have underscored such perception.
China has asserted its claims for the South China Sea's rich mineral, oil and fishing grounds by increasing patrols and escorts for its fishing fleets. The ships’ excursions regularly raise regional tensions. ASEAN foreign ministers meeting in Brunei in April 2013 agreed to pursue dialogue with China on a Code of Conduct in the South China Sea. ASEAN wants a legally binding agreement to discourage such aggressive moves. It would replace a ten-year pledge by the claimants not to cause conflict, known as the Declaration of Conduct.
In February 2014 the United States for the first time explicitly rejected the U-shaped, nine-dash line that China uses to assert sovereignty over nearly the whole South China Sea, experts say, strengthening the position of rival claimants and setting the stage for what could be an international legal showdown with Beijing. Washington had always said that it takes no position on competing territorial claims in the South China Sea among China, the Philippines, Vietnam, Malaysia, Taiwan, and Brunei and opposes any use of force to resolve such issues.
The international community, he said, would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea. "I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features" in the region, Russel said.
Unlike other countries, Beijing's claim to up to about 90 percent of the South China Sea is not based on claims to particular islands or other features but on a historical map China officially submitted to the United Nations in 2009. The map contains a nine-dash line forming a U-shape down the east coast of Vietnam to just north of Indonesia and then continuing northwards up the west coast of the Philippines. The nine-dash line has been considered by many experts as incompatible with the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which rejects historically based claims.
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