South China Sea Dispute: Role of UNCLOS
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- 6 days ago
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Introduction
The South China Sea is regarded as one of the busiest seas in the world and a vital gateway for trade and merchant shipping. The South China Sea disputes refer to maritime and island claims among various sovereign states within the region. The disputing parties are China, Brunei, Taiwan, the Philippines, Vietnam, and Malaysia and are geopolitically situated in the Indo-Pacific region.
The areas of dispute are the Spratly Island, the Paracel Island, sea boundaries in the Gulf of Tonkin and elsewhere. Indonesian Natuna Islands waters are also disputed. The reason why these regions are claimed and are of interest to the abiding nations is the acquisition of fishing grounds around the two archipelagos; reputed crude oil and natural gas in various areas of the South China Sea and control over strategically significant shipping channels.
History of South China Sea Territorial Dispute
When World War II was at its peak, the Imperial Japanese Navy and Army had employed a number of islands for military purposes and claimed that these islands were not claimed by anyone, although it was documented historically that France had governed some of those islands prior to their colonial territories being taken over by the Japanese.
At the conclusion of the war, the 1951 Treaty of San Francisco compelled Imperial Japan to relinquish any land that they had gained during the war. The People's Republic of China made numerous claims to the islands throughout the negotiations in the 1951 treaty. Chinese claims in the South China sea are accounted for in part by the nine-dash line.
Originally an "eleven-dashed-line," the line was initially marked by the Kuomintang regime of the Republic of China in 1947, for its claim over the South China Sea. Upon the takeover of mainland China by the Communist Party of China and the establishment of the People's Republic of China in 1949, the line was taken and modified to nine dashes/dots, as it was supported by Zhou Enlai. China's 1958 statement defined China's claims in South China Sea islands on the nine-dotted line map. The heritage of the nine-dash line is regarded by some officials of the PRC government, and by the PRC military, as giving historical justification to their South China Sea claims. The Geneva Accords of 1954 that concluded the First Indochina War accorded South Vietnam sovereignty over the Vietnamese territories south of the 17th Parallel, including the Paracel and Spratlys' islands. Two years after, the North Vietnamese government asserted that the People's Republic of China is the legitimate claimant of the islands, while South Vietnam occupied the Paracel Islands.
Countries Involved in South China Sea Dispute
Contemporary International laws and evidences based on history elucidate the manner in which the various regions are making their claims and objections regarding the Sea areas. Following are the numerous claims made by the various countries that are involved in the conflict:
China: China contends that ancient records of history reveal that China was in possession of the entire waterway and it was not until the modern era that the conflict arose. China also asserts rights and legal interests over the Sea. But China has failed to establish its possession over the area.
Vietnam: The nation makes its claims on grounds of inheritance. It was not until the 1970s that Vietnam made its claim following the deterioration of its relations with China.
Malaysia: The nation asserts that the feature in the south Spratley lies within the border of Malaysia's continent and hence their claim is valid on legal terms as well.
Indonesia: The nation only asserts the segment of the sea that falls under its exclusive special economic zones.
Philippines: It grounds its claims historically. They only seek the portion that falls under their exclusive economic zone.
Brunei: Its claim is rooted in EEZ as stated by the United Nations Convention on the Law of the Sea (UNCLOS).
South China Sea Dispute Causes
Claims Over Islands:
The Paracel Islands are claimed by China, Taiwan and Vietnam.
Although The Spratly Islands are claimed by China, Taiwan, Vietnam, Brunei and Philippines.
Scarborough Shoal is claimed by Philippines, China and Taiwan.
China's Assertion:
Since 2010, China has been transforming uninhabited islets into artificial islets to bring it under UNCLOS (eamples would include Haven Reef, Johnson South Reef and Fiery Cross Reef).
China has been altering the size and character of the reefs by altering their physical land characteristics. It has also created airstrips on Parcel and Spratly.
Chinese fishing fleets are conducting paramilitary activities on behalf of the state and not the commercial activity of fishing.
The US is quite displeased with this construction of artificial islands and calls it the actions of China as constructing a 'great wall of sand'.
Other Issues:
Lack of clearly defined geographic boundaries of the South China Sea.
Conflict regarding dispute settlement mechanisms.
Lack of defined legal status of the Code of Conduct (COC) contribute to it.
The varied histories of remote, sparsely populated archipelagos of the sea complicate the issue further and make it more complex.
Why are nations interested in these waters?
The South China Sea is a critical shipping route. The United Nations Conference on Trade and Development puts the figure at more than 21% of international trade, worth $3.37 trillion, passing through these waters in 2016.
It is also rich in fishing grounds that supply the sustenance of millions of people in the region. Over a half of the world's fishing fleet works in the area. Even though sparsely populated, the Paracels and the Spratlys could potentially have deposits of natural resources around them. Not much detailed work has been done in the area, and thus estimates are largely based on the mineral riches of the surrounding areas.
Impacts of the South China Sea Dispute
The South China Sea Dispute has harmed the living territories of the dispute but together with them, other nations engaged in trade with them are impacted as well. It is one of the most crucial trade routes and it is necessary to resolve this dispute over the South China Sea so that the trade and economic activities of the nation are not halted.
Moreover, the US is playing a significant role in healing the controversy as it has extensive security obligations in East Asia and is allied with some of the nation’s surrounding the South China Sea, including the Philippines, Singapore, and Vietnam. Thus, any controversy between them will impact the US directly.
Indian stand in dispute
India has maintained that it is not a party to the SCS dispute and its presence in the SCS is not to contain China but to secure its own economic interests, especially that of its energy security needs. However, China’s increasing ability to decide and expand its role in the South China Sea has compelled India to reevaluate its approach on the issue.
As one of the major aspects of the Act East Policy, India has initiated internationalizing conflicts in the Indo-Pacific region to counter China's aggressive moves in SCS. In addition, India is employing its Buddhist heritage to forge a deep connection with the Southeast Asian region.
India has also sent its navy to Vietnam in the South China Sea to ensure the security of sea lanes of communications (SLOC), leaving no room for China to assert anything. India is also a member of Quad initiative (India, US, Japan, Australia) and lynchpin of Indo-Pacific narrative. These actions are considered as containment by China.
References
DISCLAIMER- This article has been submitted by Anurag, trainee under the LLL Legal Training Program. The views and opinions expressed in this piece are solely those of the author.
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