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In 2009, enormous changes have been witnessed in the South China Sea (SCS).[1] It is essential to note a few security issues as follows:

First, as the UNCLOS set the deadline for all coastal states to submit their establishments of the outer limits of the continental shelf to the Commission of the Limits on the Continental Shelf (CLCS) by May 13, 2009, Southeast Asian states adjacent to the SCS were hastened to submit their submissions in the SCS’s sea areas. Notably, on February 17th, the Filipino Congress approved the legislation on territorial waters, putting Scarborough Shoals and part of Spratlys under the Filipino jurisdiction. On May 6th, Malaysia and Vietnam made a joint submission relating to an area in the South of the SCS. On May 7th, Vietnam submitted a separate submission on its own relating to an area near the center of the SCS. 

In accordance with the Article 9, Annex II of the UNCLOS: “The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between states with opposite or adjacent coasts”. In accordance with Article 46 (sic) of the Rules of Procedure of the Commission: “In cases there is a dispute in the delimitation of the continental shelf between opposite or adjacent states , or in other case of unresolved land or maritime disputes, submission shall be considered in accordance with Annex I  to these rules. In accordance with para.5 of the Annex I of the Rules of Procedure “In cases where a land or maritime dispute exists, the Commission shall not examine and qualify a submission made by any of the states concerned in the dispute”; and “the submissions made before the Commission and the recommendations adopted by the Commission thereon shall not prejudice the position of states which are parties to land or maritime dispute”. From these regulations, the Commission is not in the position to settle disputes of sovereignty on the sea, and has no mandate to resolve the overlapping areas in the extended continental shelf. They are, instead, in charge of the delimitation of the extended continental shelf. Therefore, any solutions to SCS disputes would eventually depend on claimants themselves through their negotiations. Submissions of the outer limits of the continental shelf only highlight the existing disputes and increasingly broaden the dispute scope.

Second, many transnational oil companies have entered the SCS for exploration. In 2007, the cooperation project between PetroVietnam, British giant BP, and CononoPhillips of the US of constructing a natural gas pipeline in the disputed sea area in the southern part of Vietnam has gone into operation. On July 20th, 2008, Vietnam and Exxon-Mobil of the US reached a preliminary cooperation agreement on oil exploration, of which exploration sites were located right in Sino-Vietnam disputed sea areas. In August 2009, the Filipino government approved an oil and natural gas exploration project by Forum Energy, a British Company and its partners on the Reed Bank in the Spratly archipelagoes, etc.

The involvement by the transnational oil corporations has further complicated the SCS disputes. These transnational oil companies have strong economic and commercial ties with both governments of host countries and their own governments. Therefore, as tensions increase in the SCS, their governments cannot avoid being embroiled in the disputes so as to protect their own interests. The involvement by transnational oil companies itself is a double-edged sword. On the one hand, they could exert their influence on the host countries, ensuring detente in the SCS to avoid the loss and damages inflicted upon their self-interests. On the other hand, as their invested oil fields are threatened by other parties to the disputes, they may seek to put pressure on the host government to use force to protect their oil exploration contracts. Therefore, the involvement by various transnational oil companies definitely causes potential security threats in the SCS region.

Third, countries surrounding the SCS have dispatched arm forces to strengthen their unilateral control of the sea areas that they always claim sovereignty. As a result, attacks, harassment, and arrests of Chinese fishermen in the Chinese traditional fishing waters occurred. For instance, on June 20th 2009, Indonesia’s patrol boats twice entered into China’s traditional maritime space, arresting 8 Chinese fishing boats and 75 Chinese fishermen. This is among few incidents that have occurred over the past years. According to reports by fishing administration in Hainan Province, Guangxi Province and local government as well as fishermen, the arrest by SCS littoral states have been on the rise, inflicting enormous sufferings on the Chinese fishermen. According to the statistics reported by the defense police in Hainan Province, from 2003 to 2008, the total numbers of fishing boats of Hainan Province operating in the Spratlys arrested by littoral states reached 75, with 75 fishing boats and 738 fishermen arrested, and direct economic loss and damage of up to RMB 3.5 million. The harassment of the Chinese fishing boats operating in the Chinese traditional sea areas by foreign militaries has adversely affected the SCS security, thus sharpening contradiction among the countries involved.

Fourth, the interference by major external powers in the SCS has further aggravated the SCS issue. As mentioned above, on the Filipino Congress’s approval of “New Baselines Law”, Director of the Asia Research Center at the US Heritage Foundation Waiter Lohman has published an online-paper titled “Spratly Archipelagoes: the US leadership in the SCS is being challenged”, appealing to the US government for a more public support of the Filipino sovereignty claim to the SCS, and pointing out that China’s territorial claim to this area is “aggressive, and unjustified”. He wrote that the Spratly disputes were not only the Filipino’s problem but a more fundamental issue for the US and other states which pinned their hopes on the US as their leader in the Asia-Pacific. This provocative remark obviously did no good to security and stability in the SCS region. Therefore, countries surrounding the SCS have continued to deploy their troops in the SCS region and conduct frequent military exercises in the SCS region to assert their claims to the SCS sea areas, thus constituting a formidable threat to the security in the SCS region.

There are a few proposals to these above security issues.

First, SCS is a semi-enclosed sea. Given this geographical condition, it is relatively difficult for littoral states to claim an extended continental shelf beyond 200 nautical miles. If Exclusive Economic Zones (EEZs) and continental shelf are measured from the starting point of the coastlines or from the ones of the main island adjacent to the continent, there will emerge a “common sea” beyond 200 nautical miles. Therefore, this “common sea” can be included in the reports submitted to the CLCS, rather any related parties to the disputes. Yet, in case any disputed islands, including the Paracels and the Spratlys, which are universally recognized as islands not rocks, shall have EEZs and continental shelf in accordance to the Article 121 of the UNCLOS, there should be an area in the SCS that is not under any state’s control. As a result, claimants’ submissions of their limit of continental shelf to the Commission of Limits on Continental Shelves (CLCS) by May 13, 2009 is not likely feasible. It is necessary that parties involved use peaceful means through diplomatic negotiations to delimitate the overlapping sea areas.

Second, concerning oil exploitation in the SCS, China’s initiative of “setting aside disputes for joint development” has achieved limited success over the past 10 years. The main reason is because of the involvement by transnational oil companies, and the fact that the countries surrounding the SCS have lost their interest in the initiative of joint development. In addition, some states adjacent to the SCS are unwilling to share with other states the economic benefits which accrued from their oil exploitation in the disputed sea areas. More importantly, the lack of of appropriate responsibility among claimants has prevented them from sitting down to discuss joint development and work it out effectively. To remove those obstacles to regional cooperation on exploration and development of natural resources, it is essential that a mechanism or arrangement be set up to help strengthen mutual trust among disputants. The establishment of such an arrangement means the institutionalization of cooperation among countries involved through diplomacy so as to achieve harmony and mutual understanding with regard to the SCS issue. In this sense, China and ASEAN countries are expected to double their efforts to this end.

Third, due attention should be attached to cooperation on development of fish resources in the SCS to minimize or avoid the occurrence of attacks, harassments and arrests. Management and preservation of the fishing resources for cooperation in the SCS is a daunting task since fish always move in flocks on a very large scale on the sea. In this light, over exploitation of fish resources in the region is a very serious and pressing issue. In the scope of a semi-enclosed sea, no single country can handle well the task of preserving fishing resources. Therefore, it is necessary to establish an institution in charge of the minimum preservation of fish resources. On January 11th, 2008, Filipino House Speaker stated that the Philippines and China agreed to set up a joint fishing ground in the disputed areas in the SCS which would reduce tensions in the region. He proposed that the two countries can invite other Southeast Asian countries, especially Vietnam to participate in the joint fishing ground, eventually reaching an agreement on fishing. If successful, the countries surrounding the SCS would be able to undertake fishing cooperation activities inside the area and it is my strong confidence that attacks, harassments and arrest of fishing boats would be significantly reduced.

Prof. Dr. Li Jinming

Institute of International Relations, Xiamen University, China

 


[1]Translated version