Is South China Sea International Waters
The South China Sea has been an ongoing source of tensions between Mainland China, its neighboring countries, and the United States for decades. This has roots in the political, legal and territorial disputes between the parties involved in the region. Given the importance of maritime security and stability in the region, it is essential to understand the legal basis as to whether the South China Sea should be deemed as international waters or not.
The United Nations Convention on the Law of the Sea (UNCLOS) has been a significant source of debate among maritime experts as to the nature of the waters in the South China Sea. For example, UNCLOS states that all coastal states have exclusive protection rights over the waters adjacent to their coast up to 12 nautical miles; beyond this, the waters are considered international waters and are open to commercial navigation.
One of the perspectives advocating why the South China Sea should be seen as international waters is that the majority of countries have not laid claim on the entirety of the South China Sea. Even Mainland China’s exclusive economic zones in the South China Sea only extend up to 200 nautical miles, which is less than the full extent. This implies that, due to the lack of declared control over the entire area, the waters around it should be viewed as international.
Moreover, Hong Kong’s decision in 2016 to declare a fishing exclusion zone over the region was met with criticism from maritime scholars for two primary reasons. Firstly, this was seen as a violation of the ‘free navigation principle’ as it limits the freedom of passing ships. Secondly, the move was deemed as being particularly unfair due to the lack of official claims of sovereignty. All of this points to the fact that the South China Sea largely should be considered international waters.
However, others dispute this argument by asserting that the legality of a state’s control over particular waters is determined by control exercised rather than the actual legality of claims. Supporters of the latter view point to the fact that Mainland China has held de facto control over all islands in the South China Sea due to the presence of its naval forces at the area. For example, Sir James Hose, a member of the United Kingdom’s Diplomatic Service, stated in 2020 that: ‘China has argued it has exercised effective control over the islands and waters of the South China Sea since the 1990s, and we cannot deny this fact.’
Historical Arguments
Historically, arguments for international waters in the South China Sea date back to the ‘ Manila declaration’ in 1949. This declaration was the first official recognition of China’s claim of sovereignty over the region, and declared all waters connecting the islands of the South China Sea part of its territorial waters. This set the precedent for China’s claim over the region, and it has consistently asserted its ownership over all waters within the South China Sea.
However, historically there is a lack of evidence to support the idea that the South China Sea is exclusive to China. Records of the Ming dynasty in the 16th Century highlights the use of the region as a major trading route. Additionally, the British Empire in the 19th Century quickly accorded navigation rights to other country’s through treaties in the region. The absence of similar political or legal documents in support of exclusive Chinese sovereignty of the region helps to suggest that the South China Sea has always been international waters.
Finally, the United States has long asserted that the South China Sea should be part of the global commons and should remain open for neutral navigation. This idea has been reinforced by frequent US military patrols in the region in recent years, which have been met with criticism from Mainland China.
Regulatory Policies in Place
Recently, the Chinese government made a move towards increasing regional control of the South China Sea through the implementation of a series of environmental regulations. These regulations target activities including foreign fishing vessels, large-scale tourism and geological exploration, which are deemed as being in violation of China’s continental shelf claims.
This has led to increased tensions in the South China Sea as the US and its neighbors have viewed China’s move as a means to exercise control over the region while sidestepping the issues of international laws. One of the main policy implications arising from these regulations is that they may be seen as a means of discouraging foreign vessels from entering the region.
Furthermore, the Chinese government has recently announced plans to build seven artificial islands in the South China Sea. The purpose of these islands is to facilitate military activities, but also to promote economic development in the region. This has caused further unrest among other countries, as the islands are seen by some as a way for China to gain control over the region rather than granting it to the international community.
Subsequently, there have been a number of meetings between the countries in the region in order to reach a consensus regarding the South China Sea. In 2015, the Philippines and China agreed to the ‘Joint Declaration’ in which they agreed to settle their differences regarding territorial rights peacefully. However, these agreements have failed to ease tensions in the region as both sides continue to assert their respective claims.
Economic Factors at Play
Bigger economic factors also shape the debate as to whether the South China Sea should be considered as international waters or not. The existence of extensive deposits of oil and gas in the region has further complicated matters as it has allowed Mainland China to strengthen its economic presence in the region.
Notably, a number of major oil companies have presented projects for exploration in the South China Sea which have been met with criticism from the governments of the other countries in the region. This has led to the introduction of legislation that seeks to limit access to all energy-related activities in the region. This has been further complicated by the EU’s current ban on importing goods sourced from the South China Sea.
Moreover, the National Resources Tribunal of China has asserted that any exploration of the seas currently taking place in the region is separate from the established sovereignty claims. This decision has been controversial as it ostensibly grants exclusive rights to Chinese companies to explore and exploit resources in the area. As such, this may act as a further deterrent to international involvement in the South China Sea, suggesting that the region may yet remain within the scope of Chinese control.
Potential Futures
The international community’s concerns regarding the South China Sea are unlikely to be assuaged quickly, as both sides continue to pursue their claims to the region. On one hand, Mainland China continues to bolster its economic and military presence in the region, while on the other, other countries are actively trying to limit Chinese access to the region.
Given this situation, it remains unclear when a conclusive decision about the legal status of the South China Sea will be made. Moreover, it is difficult to predict what the consequences of any decision would be as the repercussions of an international ruling on the region would be far-reaching.
In the short-term, it seems that the area will remain in a state of flux, with tensions between the parties involved likely to remain high. It is likely, however, that the situation will eventually reach a resolution as all parties involved have an interest in avoiding a full-scale conflict in the area.
Possible Strategies
In order to identify potential solutions to the South China Sea question, it is important to first consider all the available options. First and foremost, countries in the region could come to an agreement as to how to share resources, as well as a way to guarantee fair access to the waters. This could be done via a treaty between all the countries involved, or through the mediation of a third-party.
A second approach could involve the International Court of Justice (ICJ), which could offer a legal resolution to the issue; the decision of the ICJ, however, would not be binding on any of the parties involved. Alternatively, the countries could involve the United Nations (UN) in the matter, as the UN has the legal authority to decide on matters of international waters.
Finally, the countries could also decide to settle their dispute through direct negotiations. This could involve long-term confidence building measures, as well as closer economic ties. However, this approach may be difficult to achieve given the long-standing mistrust between the countries involved in the region.
Political Considerations
The situation in the South China Sea is further complicated by the presence of the geopolitical and geostrategic interests of the countries involved. For example, the United States has long sought to maintain its presence in the region in order to limit Chinese influence and preserve its own interests. This has been met with increasing resistance from other countries, as well as from China itself.
Moreover, there are concerns in the region over the potential security and stability implications of a potential conflict in the region. For example, increased naval patrols by China in the South China Sea have been seen as a possible threat by other countries and as such, there has been an increase in military activities in the area as a means of establishing control.
Finally, it is important to consider the regional and global implications of any decision regarding the South China Sea. A decision in favor of granting the region to China, for example, would have implicat ions for the rest of the world as it could be seen as a sign of Chinese dominance of the region. This could, in turn, lead to an increase in tensions between China and other countries in the region.
Conclusion
The South China Sea is a complex issue, with a number of political, legal and economic considerations at play. Both sides have strongly argued their claims to the region and it is unlikely that a resolution will be reached immediately. However, with careful consideration and dialogue, it is possible that a fair and equitable resolution could eventually be found.
