By Simi Mehta
South China Sea, covering an area of 800,000 square kilometers (310,000 square miles), is semi-enclosed, with ninety percent of its circumference rimmed by land. Many of Asias most influential states are among its littoral countries: the Philippines, Malaysia, Brunei, Indonesia, Singapore, and Thailand; the Indochinese countries of Cambodia and Vietnam; and the People’s Republic of China (PRC, or China) and Taiwan (the Republic of China). Freedom of navigation through the South China Sea, particularly through the choke points of the Taiwan Strait in the north and the Strait of Malacca in the south, remains essential to the regions geostrategic role in linking northeast Asias seaborne trade with the rest of the world.
Over the past two decades competing claims to island territories, maritime and seabed jurisdictions, and access to fisheries have cast governments into a tangled nexus of regional jurisdictional conflicts and rivalries.
The matter of maritime boundary delimitation in the South China Sea is especially problematic, primarily because the present situation is defined in terms of a configuration of overlapping unilateral claims to sovereignty over an assortment of various semi-submerged natural formations scattered throughout the region. These hundreds of islands, islets, cays, reefs, rocks, shoals and banks comprise four main archipelagoes in the South China Sea: the Pratas, Macclesfield Bank, Paracels and Spratlys.
Though long ignored internationally, claims to sovereignty over territory in the South China Sea are based on acts of discovery, occupation, and, more recently, on certain inferred rights over continental shelf delimitation. Legal facets of the claims became more salient for governments when the prospects for petroleum exploration became real during the 1970s and the 1982 UNCLOS emerged as the standard for demarcating offshore jurisdictional limits for resource exploitation.
The American Perspective-
In 2010, US Secretary of State Hillary Clinton at the ASEAN foreign ministers meeting in Hanoi stated that US had a national interest in freedom of navigation, open access to Asias maritime
commons, and respect for internal law in South China Sea. She also expressed support for a collaborative diplomatic process on matters of dispute in the South China Sea. Apparently, this was a response to a disturbing expansion of Chinas definition of its core interests beyond Tibet, Xinjiang and Taiwan to include the South China Sea, for instance when in 2009, five Chinese ships surrounded the US Navy Ship Impeccable, an ocean surveillance ship, not too far from the Hainan Island; in an incident which China claimed involved intelligence gathering and an intrusion of its exclusive economic zone (EEZ).
Deputy Assistant Secretary of Defense Robert Scher made clear in his testimony to the US-China Economic and Security Review Commission in February 2010 that the US rejected any nations attempt to place limits on the exercise of high seas freedoms within an EEZ. It has been the position of the United States since 1982 when the Convention was established, that the navigational rights and freedoms applicable within the EEZ were qualitatively and quantitatively the same as those rights and freedoms applicable on the high seas. The US military activity in this region is routine and in accordance with customary international law as reflected in the 1982 Law of the Sea Convention.
The problem however is compounded by the fact that while the US has signed UNCLOS, it has yet to ratify it.
The Chinese Perspective-
China has reiterated its position on the South China Sea on many occasions. In countering the joint submission by Malaysia anVietnam to the United Nations Commission on the Limits of the Continental Shelf (CLCS), China used in its Note Verbale on 7 May 2009 the U-shaped line officially to defend its maritime territorial claim in the South China Sea. Even though China has verbally rejected the internationalization of the South China Sea issue, it has essentially been involved in some multilateral cooperation, such as the signing of the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC) and conducting joint seismic surveys with Vietnam and the Philippines in 2005 (though the latter was suspended in 2008 due to domestic pressure in the Philippines).
In the diplomatic storm with the United States at the ASEAN Regional Forum (ARF) in July 2010, Chinas strong opposition was mainly aimed at ruling out Americas involvement. Chinas
conflict with the US regarding the South China Sea issue has to be carefully examined within a broader context. The two countries have already tussled over a long list of contentious issues such as the conflict over the Korean Chenoa incident, the Taiwan arms sales issue and the value of the Yuan. Also in the light of increased security, china sees US as a counter balance to its rising influence in china.
It is believed that China is now taking a more open-minded approach in dealing with the disputes. Though the Chinese Defense Minister Liang Guanglie avoided mentioning the South China Sea disputes in the meeting, he had made a statement that was seen as conciliatory. China was willing to help establish a regional security mechanism, he said, while highlighting a few areas for cooperation, including in dealing with maritime security issues.
China has officially conveyed its willingness to pursue a peaceful approach with all the claimants and will not hinder the freedom of navigation in the South China Sea, which is a major concern for the US.
Analysing the future ahead-
The ongoing deliberations between ASEAN and China aimed at enhancing the DOC should fittingly include the US. Unless a proper working relationship is established between Beijing and Washington with regards to the use of the high seas, even establishing a comprehensive code of conduct between ASEAN and China would simply be meaningless if it is not able to prevent instability or even armed conflicts arising from a downturn in Sino-US relations.
A code of conduct that clearly defines activities permissible within the EEZ and a pledge to peaceful resolution of disputes will go a long way to resolve conflictual interpretations and ensure that no party hijacks the situation in the South China Sea in the of national interest. The Joint Statement of the 2nd US-ASEAN Leaders Meeting in September 2010 has highlighted the importance that both parties place on maritime security and the peaceful settlement of disputes.
ASEAN should take advantage of the situation and take on a leading role as a regional actor to bring the US to the discussion table together with China, in finding long term solutions for the betterment and prosperity of Southeast Asia, in particular and the broader East Asian region in general.
(The author is a Ph.D scholar in the American Studies Program at the Centre for Canadian, United States and Latin American Studies, School of International Studies, Jawaharlal Nehru University, New Delhi, and can be reached at simi@manavdhara.org).