The competition over marine resources and territorial claims has led to conflict in the South China Sea and elsewhere. Chinese expansionism, its growing presence in the Philippines and jurisdictional claims over areas in the South China Sea has escalated tension in the area. In an interview with N.W. Ali, Prof Jay L. Batongbacal, Director, Institute for Maritime Affairs and Law of the Sea (IMLOS) at the University of the Philippines, says the current situation in South China Sea is concerning due to the power imbalance in the region, which is shifting the axis of power for the smaller states in South East Asia and presents a potential threat to their territorial sovereignty and maritime jurisdictions.
N.W. Ali: Please explain the functional framework of the United Nations Convention on the Law of the Sea (UNCLOS) and the prospects of UN intervention, such as by sending military personnel to the South China Sea, to maintain and protect the territorial integrity of states and avoid the bullying on part pf China?
Jay L Batongbacal: UNCLOS has laid down the framework for coastal states to follow in determining their maritime zones and boundaries. According to its provisions, within 200 nautical miles from the coast, the waters form part of the Exclusive Economic Zone, while the sea floor is part of the continental shelf of the coastal state, and exclusive sovereign rights to the natural resources in those areas are reserved for those individual states. A breach of UNCLOS or a dispute arising between the coastal states do not necessarily mean that immediate military action on part of UN will follow. However, all states are responsible for resolving their disputes in accordance to UNCLOS. UN military intervention can only be involved in case of scenarios of potential outbreak of violence or security that threatens the region; for the UN to jump in to resolve the disputes, the situation must be really serious. For now, no country wants an armed conflict.
Ali: What is the genesis of 9 Dash Line and why is China proclaiming features in South China Sea as its own?
Jay: China's claim to the island chains is not new and has been there for few decades now. The history of the claim can be traced to a map published by the Kuomintang Government, based on the maps and cartographic books published by some private firms, entitled "Map of the South Sea Islands," in 1947. The dashed lines used by China to illustrate their claimed historical right was drawn as a part of this map to illustrate the territorial extent of China. The Chinese claim at that time, though, was limited to small scattered islands in South China Sea. The position of the Kuomintang Government about the territorial extent was adopted by the Mainland Government in China in 1952. Not having much of the background information on these, the mainland just named the islands within the dashed line, the Nansha (the Spratlys), Xisha (the Paracels), Dongsha (Pratas), and Zhongsha (an imaginary island group with no physical existence and is actually a misinterpretation of Macclesfield Bank and other submerged feature in South China Sea). China has never been able to adequately justify the claim to these island groups, primarily as they never exercised sovereignty over them over an extended period of time and also due to the existence of non-factual and imaginary claims over fictitious islands.
Things began to get serious in 2009 when all of the countries in South East Asia implemented UNCLOS and aligned their respective claims and jurisdictions in accordance with international law. China reacted badly as they knew if UNCLOS is implemented, their expansive claim to the South China Sea will be defunct, so thereafter China embarked on a program to strengthen their presence and activity in South China Sea, which led to more friction between China and smaller Southeast Asian States. The situation worsened when China began to interfere with activities in the exclusive economic zones of smaller States, and altercations were reported closer to the coasts of smaller states. The 2012 Scarborough Shoal incident, involving a standoff between Philippines and China, is one of the more recent examples of the escalation, and China's attempt to exercise jurisdictional rights as far as the edge of 9 dash lines. Scarborough Shoal is the only place near to its imaginary archipelago, having some features above water, and thus very precious for China to prove their claims within the 9-dash line.
Ali: How about the jurisdictional rights of China over the South China Sea?
Jay: China's jurisdictional claims prior to 2016 proclaimed that the areas within the 9-dash line were Chinese territory by historic title. They claimed to be the first to sail this sea and discover those islands and to administer them with regard to controlling and harnessing them. However, the international arbitral tribunal debunked this claim of China, as no other nation has thus far accepted China's sovereignty over South China Sea, not even in historical times.
Ali: In the light of the tribunal ruling, how could UNCLOS lead to de-escalation in South China Sea?
Jay: The growing conflict and competition for marine resources makes imperative the implementation of UNCLOS, especially in the South China Sea and elsewhere. The friction between states can be reduced by not considering the islands to extend the exclusive economic zones and continental shelf claims of the claimant countries. Thus, the claims would not result in too many overlapping maritime zones, which reduces the chances of disputes by diminishing the areas wherein more than one state can exercise their exclusive sovereign rights. The UN must play its part and support the implementation of UNCLOS as binding international law and give peace a sustainable chance to flourish.
Ali: What about the plans of China with regard to Arctic? And why is it on China's priority list?
Jay: Global warming has opened up the Arctic, allowing ships to pass through; this means it is opening up new trade routes between the East and West and vice versa. If the Arctic shipping routes open, China would have alternative maritime trade routes other than the South China Sea which is the doorway for China to Indian Ocean, Africa and Europe. This has interested China, so it has concerned itself with the geo-political and scientific developments related to Artic.
Ali: How are the states surrounding the Arctic concerned about the Chinese naval buildup in Arctic?
Jay: The countries surrounding the Arctic may be worried about the Chinese Navy and potential for military buildup in Arctic because of what happened with the port in Djibouti-Africa, where what started as a civilian port project eventually hosted a military supply base. China's growing interest in the Arctic trade routes may create friction points. China will have a tough time in convincing the states surrounding the Artic about building ports, since the different countries are still divided over allowing any access through the Artic. The US is also concerned about China's dual use of technology for trade and military purposes, and this will make it difficult for China to establish ports with any countries in that area. Chinese Artic policy can lead to the emergence of fresh flash points in the future given the divided opinion over access through the Arctic. Russia and United states are among the states who favor fully opening up of Artic for naval and maritime trade activities, while concerned states like Canada are against it since large parts of the Artic are considered to be Canadian territory by Canada.
(Professor Jay L. Batongbacal is Director, Institute for Maritime Affairs and Law of the Sea (IMLOS) at the University of the Philippines (UP). Batongbacal obtained his LL.B. (1991) from UP College of Law, and Masters in Marine Management (1997) and Doctorate in the Science of Law (2010) from Dalhousie University in Canada. Professor Batongbacal was a member of the technical team that prepared and defended the Philippines' claim to a continental shelf beyond 200 nautical miles in the Benham Rise Region, made in a Submission filed with the Commission on the Limits of the Continental Shelf (CLCS) pursuant to the provisions of Article 76 of the Law of the Sea Convention.)