Background and Players of the South China Sea Conflict

Figure 1: Dash Line (The Strait Times: Troubled waters in South China Sea, 2016)

The following map shows the claims of the countries: China, Vietnam, Malaysia, Brunei, the Philippines and Taiwan. Taiwan will not be considered as a country of its own (for the purpose of game playing and territory conflict), since Taiwan claims whole Mainland China as territory anyway, and vice versa does China claim Taiwan as their territory, which as both players think should be united to one China. We can see that the Paracel Islands are conflicted between China and Vietnam, and the Spratly Islands are conflicted by all named players, at least to some extent. The Nine-Dash-Line can be considered as a maximal claim, which China demands in the South China Sea. With this claim comes fishing rights, hydrocarbon production, and military hegemony. If China realized the whole demand and claims within the Nine-Dash-Line, the demands of the Exclusive Economic Zones of the other states would be nullified or reduced. Anyway: Even without China’s Nine-Dash-Line claim, the Exclusive Economic Zones

of the other neighboring countries are overlapping. China is part of the UNCLOS agreement; however states, that the claims within the South China Sea predated UNCLOS and therefore also the Exclusive Economic Zone claims, by the neighboring countries have no meaning for China (The Diplomat - What Does the Nine-Dash Line Actually Mean?, 2016). The reason why the borders are drawn by China in dash-lines, is to have the border more applicable to include archipelagos, which means also to establish ‘artificial islands’ and installations to upgrade the status of simple ‘rock-territory’. By the upgrade, the Paracel Islands can be treated as island, which have under UNCLOS the right for an Economic Exclusive Zone. These ‘fact-on-the- ground’ plus the ‘historical waters’ make up two sides of China’s claim within the South China Sea (Truong & Knio, 2016, pp. 64-65).

Figure 2: Chinas claims in South China Sea (Wikipedia.org: Picture South China Sea claims map by Voice of America, 2012)

Unofficial maps, which already included a U-Shaped line, existed previously to the 1947 Kuomintang (Republic of China: 1912-1947) map. In the 1920s, the Chinese cartographer Hu Jinjie included ‘the Dongsha and Xisha Islands at the time’. In the year 1933, this map was changed and enlarged to the area of the Nansha Islands (which are the names of the Spratly Islands, the Paracel Islands and others), which was then occupied by France (France occupied Indochina as a colony or ‘protector’). The line then includes the 7-9 N latitude. This can be regarded as ‘the first version’. In 1935 a second version of a map was drawn, which included then the 4 N latitude, which included then the territories of ‘Zengmu Ansha (also known as ‘James Shoal’). The ‘New China’s Construction Atlas’ is one document, which shows that claims, based on the 1935 decisions (Wu, 2013, p. 79).

The ‘Declaration on China’s Territorial Sea’ in 1958 was yet no clue about the U-shaped line. China signing the ‘Law on Territorial Sea and the Contiguous Zone’ in 1992, resulted in showing the territorial sea line of 12 nautical miles from the coast. In May 1996, China made a map public in which the coast of the mainland and the Paracel Islands (called Xisha in China) were signed in with the help of 28 dots. By signing the ‘Law on Exclusive Economic Zone and Continental Shelf, in 1998, China made claim to territory to which it has ‘historic rights’ without mentioning exactly what that means. The U-Shaped line or Nine-Dash-Line was only introduced by China in 2009, as China protested against Malaysian and Vietnamese claims. Here China also posted a map with the Nine-Dash-Line to the United Nations (Wu, 2013, pp. 78-80); (United Nations - Document CML/17/2009 - China drwaing the Nine-Dash-Line, 2009).

International Law & UNCLOS

International law suggests, that a territory (including islands) which is not claimed and occupied by any country, the status is called ‘terra nullius’, which means, anybody could make a claim to the territory by legal progress and actual occupation. There are actually five modes in international law: “ occupation, prescription, cession, conquest and accession.” By discovery the title ‘inchoate’ is created; it has to be followed by a real entering and taking possession of the land in a ‘reasonable’ time. The occupant has to show / display ‘territorial sovereignty’ the so called ‘effectivités’ to get a full title under international law. The entitlement to the territory can be lost, if the possession is discontinued by the occupant. In case a possession has a disputed status in regard its named ‘prescription’. Only states (countries) can gain such a title, individuals or organizations cannot gain those titles. Historically, this definition is problematic in the South China Sea, since the official claimant was often never made under this formality. China for example claims the Paracel and Spratly Islands for itself, based on fisherman staying on this islands; Vietnam claims the islands, because Vietnamese companies established operations there and King Gia has visited the Paracel islands in the year 1816, but without formally declaring the possession of the islands to the world; the declaration has just been spoken out on the island itself; so neither China

nor Vietnam has met here with the definition international law demands. The(United Nations Conventions of the) Law of the Sea or UNCLOS was established by a conference of the United Nations in 1982. According to this, the islands do not just count as territory itself, but the maritime zones of the islands comes with it. Islands, which are by definition inhabited by humans and show an ‘economic life; allow for maritime zones, while ‘low tide elevations’ or ‘submerged features’ (territories which are permanently, in high tide, is under water) do not allow for such titles (Huang & Billo, 2015, pp. 20-21).

In this regard rocks & islands need be differentiated, because it has certain different claims. UNCLOS differentiates between the islands, rocks and low-tide elevations. There are three expressions, which have an impact on a legal perspective. Islands and land have a territorial sea of 12 nautical miles, a contiguous zone of 12 nautical miles and an exclusive economic zone of 200 nautical miles. Rocks and low-tide elevations only create a territorial sea of 12 nautical miles + a contiguous zone of 12 nautical miles (so in total 24 nautical miles) (Harvard Kennedy School - Belfer Center for Science and International Affairs: Freedom of Navigation in the South China Sea: A Practical Guide, 2017).

But the difference between islands, rocks and low-tide elevations lays more in the detail. The term of territorial sea is in connection with the term of sovereignty. In this area, a state has the sovereignty and should not be disturbed by foreign interference in any way. UNCLOS however guarantees the passage through those territorial sea for other states. While another country’s ship makes a passage, it doesn’t have to notify the state in doing so. However some activities are not allowed while transiting (Harvard Kennedy School - Belfer Center for Science and International Affairs: Freedom of Navigation in the South China Sea: A Practical Guide, 2017):

• “threatening/using force against the state

• military exercises

• practicing with weapons

• surveillance operations

• propagandizing against the state

• launching/landing/taking on board aircraft or military devices

• loading/unloading illegal commodities, currencies, or persons

• polluting

• fishing

• research or survey activities

• interfering with the state’s communications, or any other facilities/installations”

The area of the contiguous zone lays in international waters. The main difference to the territorial sea area is, that the navigation of vessels cannot be limited here, under the condition, that no sovereign territory was under attack in the first place. Other states are under normal conditions allowed to trespass the contiguous zone with military vessels; also military surveillance is allowed here (Harvard Kennedy School - Belfer Center for Science and International Affairs: Freedom of Navigation in the South China Sea: A Practical Guide, 2017).

The maritime zone, which is known as Exclusive Economic Zone (EEZ) has an area of 320 kilometers (200 nautical miles) away from the coastline. The state who owns the coastal line has then claim to the resources in that 320 kilometer long area. Chinas claim however goes far beyond a 320 kilometer area from the coast and is then overlapping with other countries claims. The UNCLOS agreement, to which China is part of, was agreed on in the year 1982, and came into force 1994. China argues, that their claim to the territory predates the UNCLOS agreement (Buszynski, 2012, p. 4). Under UNCLOS it is not permitted to limit navigation in the EEZ. The EEZ and the contiguous zone together are also named ‘the high seas’ (Harvard Kennedy School - Belfer Center for Science and International Affairs: Freedom of Navigation in the South China Sea: A Practical Guide, 2017).

The following graph displays the Exclusive Economic Zone (EEZ) by UNCLOS with the 200 nautical mile border and China’s claim to control the area. The overlapping areas within the EEZ could be solved, by the ‘principle of equity’ (to share the resources); but China does not agree for such a solution, which is why the countries in the region invite companies from countries like India for Joint Ventures to building productions together [because the assumption is that China wouldn’t attack India’s fleet] (Truong & Knio, 2016, pp. 67-68).