South China Sea: just waiting for the breeze? by Geoffrey Till

Their aim was to ensure that the problem would not too badly affect the general situation - until something came up to change the terms of the issue. This was a matter, as the Russians used to say, of ‘sitting on the shore and waiting for the breeze.’ So they built the Berlin wall; for the West this seemed a crisis, but in fact it wasn’t – in effect it ended the Berlin problem as a crisis, leaving it merely as an irresolvable international problem which, for the next 30 years, both East and West showed they could live with. 

Perhaps, then, the same philosophy should be applied to the apparently equally intractable problem of jurisdiction over the South China Sea and its rocks and islands? Perhaps the sensible and modest aim should be merely to wait for better times – the breeze- and in the meantime to concentrate on containing the effects of the dispute as much as possible. This seems to be the philosophy behind Track 2 negotiations which aim at talking through the issues in workshops like this in order to improve general understanding, at the 2002 agreement by all parties, not to resort to the use of force as a means of hoping to resolve the issue and by proposals for the joint exploration of the potential mineral resources of the area, which temporarily put questions of jurisdiction aside.

But there are several reasons which suggest that such a policy, however well intentioned, might turn out to be over sanguine and that something more radical may be required as well.

THE GROWING IMPORTANCE OF ENERGY

One of the main reasons for the fact that the South China Sea is so intractable is its energy potential. The whole world is engaged in an anxious search for the future energy resources that just might be found below the waters of the South China Sea. The point is that these resources, assuming they exist, are increasingly important and this will inevitably put growing pressure on the current situation.

THE GROWING SYMBOLIC VALUE OF MARITIME JURISDICTION

Jurisdiction over islands is peculiarly sensitive because it symbolizes the authority and the reputation of claimant states, both domestically and internationally. Because islands are necessarily remote from the centres of government, they are seen as general ‘performance indicators’ of a regime’s capacity to rule effectively. This is why the dispute over the Falkland islands was so important to the governments of both Argentina and the UK; what was at stake was not simply a matter of jurisdiction over distant islands, but the reputation, even the survival as it turned out, of the two conflicting regimes. This is partly because in the modern media age, the people at large cannot be excluded from such complex issues – and they often seem to be more nationalistic than their governments.

It is generally hard to contest the fact that, quite unlike the Europe of the late 1950s, the Asia-Pacific region is one in which two partially competing trends may be discerned. The one is an increasing recognition of the need for a cooperative approach to common problems that is partly based on a lively appreciation of the costs of doing otherwise and partly on recognition of the consequences of increasing levels of economic interdependence. But alongside this, the growing sense of national pride that is natural for the ‘rising’ powers of the area. At a time when India and China, Cambodia and Thailand still clash over disputed borders[1], and when MM Lee’s suggestion that South-east Asia needs the United States to ‘balance’ China sparks furious debate amongst that country’s citizens.[2] It is hard to deny that old-fashioned nationalism remains strong in the area, not least at the popular level. But what has undoubtedly grown is the capacity of these now more active and powerful states to take actions which have significant impact on the international environment. For both these reasons, the main parties to the South China Sea dispute are getting both more cooperative and more competitive at the same time and the latter of course, makes it more and more difficult to resolve the situation.

THE LAW IS NOT STANDING STILL

Far from resolving disputes over maritime jurisdiction in itself, the United Nations Convention on the Law of the Sea [UNCLOS] merely provides a means by which jurisdiction might be first claimed by disputants and, if they all agree to submit otherwise irresolvable disputes to external arbitration by which such disputes might be concluded. As Malaysia and Singapore have shown by their agreement to abide by the results of external arbitration of their maritime jurisdictional disputes, this is a possible way of ending the South China Sea jurisdictional issue once and for all. But so far, none of the disputants have demonstrated willingness in this way to subordinate national interests to the cause of establishing greater regional harmony over the issue.

Worse still, the law is, so to speak, not standing still. UNCLOS also provided for a system by which states may assert rights over the ‘natural prolongation’ of their continental shelf out to a cut-off point of up to 350 nautical miles from their coasts. This is likely to be a technically difficult and complex process[3] which leads to three further difficulties. Firstly, identifying cut-off points depends partly on positions on the straight base-lines from which the 200-350 mile arcs may need to be measured, but these are already the subject of acrimonious dispute. Secondly,  the data required is complex and very liable to diverse interpretation. Thirdly, the process depends on claimant states providing detailed oceanographic information about the sea bottom in areas that are possibly claimed by others. In such cases, attempts to gather such information might in itself become controversial, rather in the manner of the recent unpleasantness between China and the United States over the Impeccable incident.[4] For both reasons, some suggest that cooperative or at least coordinated research and submission of data to the United Nations Commission on the Limits of the Continental Shelf would be advantageous[5] but so far there seems little sign of that. China, indeed, has not yet submitted such a claim, but has reacted angrily to both Malaysia and Vietnam which have.

These potential difficulties have grown in the recent past because, although rights to prolonged continental shelf rights are held to be ‘legally inherent,’ there still existed a practical ‘deadline’ of 13 May 2009 for the submission of claims [or at least ‘preliminary information’] for states that were party to the Convention before 13 May 1999. It was for that reason that Malaysia and Vietnam submitted the claims they did, claims which if accepted would seriously impact on China’s own claims to the islands and rocks within that area of arguably ‘prolonged continental shelf’.

THIS IS A DRAMA WITH AN INCREASING CAST

The South China Sea dispute is already more complex than the Berlin crisis was, because there are so many more disputants with views to be considered. In effect, and although there were differences in emphasis between allies, there were just two sides to the West Berlin dispute. There are, however, three claimants to the Paracels and six to the Spratly islands and/or their surrounding waters. The legal status of one of the claimants, Taiwan, further clouds the issue of course.

Worse, non-state actors are increasingly involved and this complicates the matter still further. Fishermen desperate to hunt out dwindling stocks have often been thought involved in the inadvertent but possibly deliberate escalation of various aspects of the overall dispute, raising its temperature and putting pressure on governments to support, even intervene to protect, their nationals. Moreover, oil companies have also become increasingly involved in exploration of the oil-bearing potential of the South China Sea and this in turn has sucked in further external interests. Recently for example, Scot Marciel, a deputy US assistant secretary of state responsible for Asia, complained before the Senate Foreign Relations Committee about China’s alleged threats to the economic interests of US oil companies working with Vietnamese partners. Although the United States does not take sides on the dispute itself he said,  “We object to any effort to intimidate US companies… We have raised our concerns with China directly… Sovereignty disputes between nations should not be addressed by attempting to pressure companies that are not party to the dispute.”[6]

The reported rise in incidents of piracy in various parts of the South China Sea could, if unchecked, have the same unfortunate centripetal effects effect if it spreads into areas of dispute.[7]

Moreover, by-standers such as Japan, the United States and most countries in Southeast Asia while not claimants in the dispute, do have interests at stake, not least free navigation. As such they may be expected to take a close interest in how the dispute is handled, if not in a preferred set of outcomes. The United States, for example, has not been slow to urge a the peaceful conduct of the dispute and a series of clear warnings that the outcome must not interfere with free navigation. The increasing salience of the South China Sea as an area by which much of the maritime trade of Eastern Asia passes, gives the dispute a strategic significance that is likely to increase the stake of outsiders in this dispute still further. 

GROWING NAVAL POWER

Finally, the Chinese seizure of the Paracels in 1974, Fiery Cross reef in 1988 and Mischief Reef in 1995 all show that in their naval forces, states have a method by which they can redefine the situation in a manner decisive enough to establish a de facto presence. Against this background the steady growth of the naval and air power of most of the claimants must be regarded with at least with a degree of concern. The increasing strength of Chinese forces in the area, especially since the completion of its base near Sanya on Hainan, and its oft-reported aspirations for the development of an aircraft carrier capacity could well be seen as the most striking local example of the acquisition of potentially decisive naval forces of this sort. But there are others, such as the establishment of Vietnam’s ‘Region 2 naval forces’ responsible for protecting Vietnamese sovereignty over its southern continental shelf.[8]The fact that this is a dispute involving one great power and a number of small and medium ones complicates the issue still further. In a world in which the weak can sometimes bully the strong, this is no tidily symmetric situation like Berlin was.

WHAT IS TO BE DONE?

If the situation is indeed deteriorating as this survey suggests, in Lenin’s words, what is to be done? There are of course a plethora of additional suggestions about how the dispute can be contained and managed – and gradually made less intractable.

One of the most persuasive must surely be greater candour on the part of all claimants, about exactly what it is they are claiming. China’s infamous ‘u-shaped line’ is particularly corrosive from this point of view, since no-one can be sure whether China is claiming the whole of the water space within the line or merely the rocks, islands and associated water areas within the line[9]. Clarity here might relieve the minds of some of the other claimants. It is not clear why China does not do this, especially as its attitude to, and conduct of, the dispute is often taken as evidence of the ‘China threat theory’ which it so often deplores.[10]

Rather in the same spirit, the 2002 agreement urges parties to the dispute, in addition to abjuring the use of force, to refrain from acts that might worsen it. All too often, this seems an injunction more honoured in the breach than in the observance.  China’s announcement that Sansha city in Hainan would govern the Paracel and Spratly islands, high profile political visits to disputed islands, the tabling of assertive jurisdictional claims, the Philippine Republic Act 9522 to incorporate the Kalayaan Island Group and so on, seem hardly likely to act to promote harmonious relations and so not in the spirit of the 2002 agreement.

Another possibility might be the exploration of new types of functional cooperation, in areas of common interest such as agreed strategies on counter-piracy, search and rescue, the mitigation of risks to offshore installations or the exploration of establishing protocols to counter environmental pollution in the area.[11]  None of these apparently common-sensical accommodations would be easy however. The devil lives in the details. The local reluctance to enter into collective SAR arrangements for example might well derive from a fear that these could allow other countries to enter one’s territorial sea.[12]

In addition, it might be worth exploring more radical solutions as a means of breaking the log-jam or at least identifying more clearly what some of the current problems are. One such might be an agreement to submit all   the bundle of claims and counter-claims to some external authority for resolution with an advance undertaking to abide by the consequences. This was the way in which Argentina and Chile largely settled the Beagle channel dispute between them, or Malaysiaand Singapore the Pedra Branca issue. Another, much more radical, suggestion might be a watered down version of the Antarctic ‘solution’ basically declaring the area as a no-go area for naval, fishing and oil-exploration vessels for the next couple of decades[13]… Radical certainly, but much less so than descending into conflict  over the issue!

In the current circumstances none of these really radical solutions seems at all likely, but perhaps we need not yet despair of the effect of anything else – and that is because of one critical difference between the Berlin crisis and South China Sea dispute which has not so far been mentioned. This is that relations between the Berlin disputants was generally bad everywhere else and in a whole number of other ways too; this is not the case in the South China Sea, where international relations are generally improving as regional trade increases. Although this is a fundamental difference, it is still true that making progress on the dispute, rather than sitting on the shore and waiting for the breeze, would materially improve the international atmosphere still further.

Prof. Geoffrey Till

Corbett Centre, Kings College, London

Maritime Security Programme, RSIS, Singapore

Author’s Biography

Geoffrey Till

Geoffrey Till is the Professor of Maritime Studies at the Joint Services Command and Staff College and a member of the Defence Studies Department,  part of the War Studies Group of King’s College London. He is the Director of the Corbett Centre for Maritime Policy Studies. In addition to many articles and chapters on various aspects of maritime strategy and policy defence, he is the author of a number of books.  His most recent are  The Development of British Naval Thinking published by Routledge  in 2006, a volume edited with Emrys Chew and Joshua Ho, Globalization and the Defence in Asia [Routledge, 2008], and a second edition of his Seapower : A Guide for the 21^st Century  published in Spring 2009].In 2007 he was a Senior Research Fellow at the Rajaratnam School of International Studies, Singapore and is now Visiting Professor there. In 2008 he held the inaugural Sir Howard Kippenberger Visiting Chair in Strategic Studies at the Victoria University of Wellington He has completed a major study of the impact of globalisation on naval development especially in the Asia-Pacific region.  This will appear as an Adelphi paper for the International Institute for Strategic Studies, London. He is currently working on a historical study of naval transformation. His works have been translated into 9 languages, and he regularly speaks at staff colleges and academic conferences around the world.