China and the South China Sea: A Peace Proposal

1 See Zou Keyuan, `Enforcing the Law of Piracy in the South China Sea', Journal of Maritime Law and Commerce, vol. 31, no. 1, January 2000, pp. 107-117.

2 This proposal was put forward by Prime Minister Li Peng in 1990. Lee Lai To, China and the South China Sea Dialogues (Westport, CT: Praeger, 1999), p. 18.

3 The acronym UNCLOS may be confusing in that it was previously used to refer to the three conferences of the United Nations on the Law of the Sea. It has since become the most frequently used acronym for the convention as such. In this paper it is used for the convention.

4 Virtually all the above-water islands in the Spratly area had been occupied by Taiwan, Vietnam, the Philippines and Malaysia before the PLA-Navy entered the area in 1987-88. In March 1988 more than 70 Vietnamese sailors died in an unsuccessful attempt to prevent China from occupying a reef that was close to an island occupied by Vietnam. Since then there have been many incidents, but no outright military clashes.

5 Law on the Territorial Sea and the Contiguous Zone (1992) and Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf (1998).

6 Greg Austin, China's Ocean Frontier: International Law, Military Force and National Development (St. Leonards: Allen & Unwin, 1998), pp. 180-184.

7 Ji Guoxing, Director of the Institute of International Strategy Studies, Modern Management Centre, Shanghai, has put forward the reckless proposal that China should `define its baselines of territorial seas in the Spratlys by taking as base points such small islands as Itu Abu Island, Thitu Island, Amboyna Cay, Flat Island, Nanshan Island, Commodore Reef, Swallow Reef and Spratly Island, then draw straight lines connecting them in a rectangular form, and define the 200 nautical mile continental shelf instead of the nine-dashed intermittent line'. Ji Guoxing, The Spratlys Disputes and Prospects for Settlement (Kuala Lumpur: ISIS Issue Paper, 1992), p. 24, and `China Versus South China Sea Security', Security Dialogue, vol. 29, no. 1, March 1998, pp. 101-112, on p. 103. Fortunately, the Chinese government has not heeded Ji Guoxing's advice. It may be added that Malaysia, which has not yet published any baselines north of Sarawak and Sabah, could possibly be harbouring a similarly dangerous idea of drawing a baseline connecting its claimed islets and reefs in the southern part of the Spratly area.

8 The PRC's Standing Committee of the National People's Congress ratified UNCLOS on 15 May 1996 and the ratification was announced in China Ocean News, no. 507, 17 May 1996, p. 1. Under international law the date of China's ratification is 7 June 1996, when the instrument of ratification was deposited with the Secretary-General of the United Nations.

9 To the extent that customary law equals the Convention, the states concerned were already bound by its rules before becoming a party to UNCLOS.

10 Also historically China tended to show little interest in the island atolls of the South China Sea in the periods when China was the strongest maritime power in the region. Marwyn Samuels has noted the irony of the fact that `China's concern for these relatively obscure islets, reefs and rocks grew proportionately to the weaknesses of its own position in the region'. Marwyn Samuels, Contest for the South China Sea (New York: Methuen, 1982), p. 24.

11 For two recent attempts to clarify the status of the nine-dotted line, see Peter Kien-Hong Yu, `The Chinese (Broken) U-shaped Line: Points, Lines, and Zones in the South China Sea', IBRU Boundary and Security Bulletin (forthcoming), and Zou Keyuan, `The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands', International Journal of Marine and Coastal Law, vol. 14, no. 1, 1999, pp. 27-55.

12 UNCLOS 121.3 reads: `Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.' It has been argued that since some of the Spratly islands are not `rocks', but reefs or atolls, they may generate a right to an EEZ and continental shelf. However, the term `rock' should probably be interpreted as synonymous with `small island'. For UNCLOS see: http://www.tufts.edu/departments/fletcher/multi/sea.html.

13 IEA, oil market report, January 2000 (cited in Aftenposten, 25 January 2000). If the figure for Taiwan is included in China's, then China/Taiwan is the world's fifth largest oil importer after the USA, Japan, Germany and South Korea. For an analysis of the impact of China's energy needs on its South China Sea policy, see Knut Snildal, `Petroleum in the South China Sea: A Chinese National Interest?', Cand. Polit. thesis in Political Science, University of Oslo, 2000.

14 See John H. Noer with David Gregory, Chokepoints: Maritime Economic Concerns in Southeast Asia (Washington, DC: National Defense University Press, 1996).

15 See Zou Keyuan, `Implementing Marine Environmental Protection Law in China: Progress, Problems and Prospects', Marine Policy, vol. 23, no. 3, 1999, pp. 207-225.

16 United Nations Environment Programme (UNEP), Transboundary Diagnostic Analysis for the South China Sea (version 3, 3 February 1999) and Vision and Plan - A Systematic Approach: Leading the EAS Action Plan to the 21st Century (UNEP[WATER]/EAS IG.9/4 Annex I), 10 February 2000, both available at: http://www.roap.unep. org/easrcu/index.htm.

17 Outline for Developing Hainan into an Ecological Province, approved at the Eighth Session of the Hainan Provincial Second People's Congress, 30 July 1999 (Haikou: Department of Development Planning, Department of Land, Oceanography, Environment & Resources, 2000).

18 Liselotte Odgaard argues that a new order is emerging in the South China Sea, partly based on a balance of power between China and the United States, partly on regional consultations and cooperation; see Liselotte Odgaard, `Deterrence and Cooperation in the South China Sea', PhD dissertation in Political Science, University of Aarhus, 1999. Tom Næss claims that a cross-national `epistemic community' has been formed around the South China Sea, consisting of experts in maritime affairs who share a concern for resource management, environmental protection and respect for international law; see Tom Næss, `Environment and Security in the South China Sea Region: The Role of Experts, Non-Governmental Actors and Governments in Regime-Building Processes', Cand. Polit. thesis in Political Science, University of Oslo, 1999.

19 Baselines have three main functions: (1) to distinguish internal from territorial waters; (2) to serve as a basis for measuring the precise extent of the territorial zone, contiguous zone, EEZ and continental shelf; and (3) to serve as a basis for negotiating a median line when the zones of opposite states overlap. Baselines that violate the rules established in UNCLOS are unlikely to be respected by other states and will thus fail to fulfil any of the functions. Under UNCLOS, however, states may opt to use one baseline for defining the outer limits of their zones and other baselines for the purpose of delimitation with neighbouring states. For two analyses of the Vietnamese baseline system (which like the Chinese does not conform with UNCLOS), see Nguyen Hong Thao, Le Vietnam face aux problèmes de l'extension maritime dans la Mer de Chine méridionale [Vietnam facing the problems of maritime extension into the South China Sea] (Villeneuve d'Ascq: Presses Universitaires Septentrion, 1998) and Johan Henrik Nossum, `The Straight Baselines of Vietnam', MA thesis in Law, University of Oslo, 2000.

20 For an excellent analysis of the delimitation issue in the Gulf of Tonkin, see Zou Keyuan, `Maritime Boundary Delimitation in the Gulf of Tonkin', Ocean Development and International Law, no. 3, 1999, pp. 235-254.

21 South China Sea experts from the PRC and Taiwan already know each other from the annual workshops organized in Indonesia during the 1990s and have had numerous occasions to discover the extent to which their South China Sea policies coincide. See Ian Townsend-Gault, `Preventive Diplomacy and Pro-Activity in the South China Sea', Contemporary Southeast Asia, vol. 20, no. 2, August 1998, pp. 171-189; Lee Lai To, China and the South China Sea Dialogues (Westport, CT: Praeger, 1999); and Song Yann-Huei, Managing Potential Conflicts in the South China Sea: Taiwan's Perspective, East Asian Institute Occasional Paper no. 14 (Singapore: Singapore University Press, 1999).

22 Shee Poon Kim & Zou Keyuan, `The Scarborough Reef: Political, Strategic, Security and Legal Implications for Sino-Philippine Relations', East Asian Institute Background Brief no. 22, 29 September 1998. Zou Keyuan, `Scarborough Reef: A New Flashpoint in Sino-Philippine Relations?', IBRU Boundary and Security Bulletin, Summer 1999, pp. 71-81.

23 Since this is a legal question, legal scholars are likely to advise the claimants to refer it to the International Law of the Sea Tribunal. Its opinion could be sought on the capacity of the Spratly islands to generate a continental shelf and EEZ. However, if the court were to decide that one or a few of the islands can generate a continental shelf or EEZ, this would be to invite war over those islands. If, on the other hand, the court were to decide that none of the Spratlys can generate an EEZ or continental shelf, this would still have to be seen by the other claimant states as a Chinese concession. China cannot be expected to let the question be resolved in its disfavour without getting something in return. Thus it may be preferable to reach an agreement through negotiations.

24 UNCLOS 121.3 does not necessarily require that an island has actually sustained human habitation or economic life of its own in order to generate an EEZ and continental shelf, only that it can do so. Thus the capacity of the Spratly islands to generate maritime zones is open to interpretation. However, it does not make sense to allow the use of modern technology to establish human habitation or economic life with the purpose of establishing a right to extensive maritime zones. If this were allowed, then any high tide elevation could qualify. Marius Gjetnes is writing an MA thesis in Law at the University of Oslo on the legal status of islands, with special regard to the Spratlys.

25 Malaysia and the Philippines have already published their claims, but may prefer to reconsider before starting negotiations about delimitation.

26 If certain conditions are satisfied, a national continental shelf can go beyond the EEZ to a maximum of 350 nautical miles. It is therefore possible that there will be an international area of high seas in the middle of the South China Sea, while no part of the seabed remains outside national jurisdiction.

27 Reefs located in the vicinity of an island (less than 12 nautical miles) can be considered part of that island, and a baseline may be drawn around such reefs. Hence the territorial waters of some Spratly islands will extend more than 12 nautical miles from each island's coast.

28 See John W. McManus, `The Spratly Islands: A Marine Park?', Ambio, vol. 23, no. 3, May 1994, pp. 181-186.

29 For an analysis of the South China Sea rhetoric in the Chinese press, see Leni Stenseth, `Nationalism and Foreign Policy: The Case of China's Nansha Rhetoric', Cand. Polit. thesis in Political Science, University of Oslo, 1998.

30 Here too states have legal obligations. Under the 1992 Convention on Biological Diversity they are responsible for the conservation and sustainable use of their own biological diversity. Parties also have a responsibility to manage their own processes and activities which may threaten biological diversity, regardless of where these effects occur. And the parties are to cooperate in the implementation of the convention, particularly on matters of mutual interest, for example, shared ecosystems and areas beyond national jurisdiction, such as maritime areas that have not yet been divided into exclusive economic zones.