South China Sea: Troubled Waters or a Sea of Opportunity?

Abstract

As a semi-enclosed sea, the South China Sea is the location of conflicts and disputes arisen from intra-regional claims by bordering States over various insular features and the surrounding waters and from extra-regional interests projected in the region. Regional cooperation is an approach called for by the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to address potential conflicts and disputes in semi-enclosed seas. The submissions to the Commission on the Limits of the Continental Shelf (CLCS) by two bordering States and the improved cross-Strait relations between Taiwan and China are two recent developments that have implications for stability and cooperation in the region. This article provides a background to these developments and highlights the assessments on the situation and prospects of the South China Sea presented by articles in this and the next Special Issue.

Keywords:

• disputes
• regional cooperation
• South China Sea

Notes

1. BBC News, 14 February 1999, “World: Asia-Pacific Analysis: Flashpoint Spratly,” available at news.bbc.co.uk/2/hi/asia-pacific/279170.stm (accessed 7 April 2010); Peter Brookes, “Flashpoint: The Great Wall Goes to Sea,” 8 July 2009, The Heritage Foundation, available at www.heritage.org/Research/Commentary/2009/07/Flashpoint-The-Great-Wall-goes-to-sea (accessed 7 April 2010).

2. AFP, 13 April 2008, “South China Sea Headed for Troubled Waters: Marine Experts,” available at www.illegal-fishing.info/item_single.php?item=news&item_id=2816&approach_id=29 (accessed 7 April 2010).

3. “Oil on Troubled Waters; Vietnam's Conoco Deal Draws Fire from China,” Far Eastern Economic Review (1996), available at www.faqs.org/abstracts/Business-international/Oil-on-troubled-waters-Vietnams-Conoco-deal-draws-fire-from-China.html (accessed 7 April 2010); Monica Feria, “South China Sea Flashpoint: Oil Finds Raising Stakes in the Spratlys,” Philippine Daily Inquirer, 19 April 2008, available at khmerkromngo.org/articles/philippineInquirer041908.htm (accessed 7 April 2010).

4. The text of the Declaration is available at the Web site of ASEAN at www.aseansec.org/13163.htm (accessed on 7 April 2010).

5. See Nguyen Hong Thao, “The 2002 Declaration on the Conduct of Parties in the South China Sea: A Note,” Ocean Development and International Law 34 (2003): 279–285.

6. The Commission of the Limits of the Continental Shelf was established by Annex II of the 1982 UN Convention on the Law of the Sea, done at Montego Bay, Jamaica, 10 December 1982, entered into force 16 November 1994, 1833 U.N.T.S. 397. Regarding the work of the Commission, see its Web site at www.un.org/Depts/los/clcs_new/clcs_home.htm.

7. Malaysia-Viet Nam Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect of the Southern Part of the South China Sea, Executive Summary, May 2009, available at the Web site of the Commission, supra note 6. Viet Nam Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982, Partial Submission in Respect of Vietnam's Extended Continental Shelf: North Area (VNM-N), Executive Summary, April 2009, available at the Web site of the Commission, supra note 6.

8. People's Republic of China, Letter to Secretary-General of the United Nations, Doc. CML/ 17/2009, New York, 7 May 2009; and Letter to Secretary-General of the United Nations, Doc. CML/18/2009, New York, 7 May 2009, available at the Web site of the Commission, supra note 6.

9. ROC Foreign Ministry reacted to the two submissions with a statement in Chinese issued on 8 May 2009, available at www.mofa.gov.tw/webapp/ct.asp?xItem=38031&ctNode=1548&mp=1; and with a statement in English on 11 May 2009, available at www.mofa.gov.tw/webapp/ct.asp?xItem=38046&ctNode=1548&mp=1 (accessed 10 May 2010).

10. See this Declaration at the ROC Foreign Ministry Web site at www.mofa.gov.tw/webapp/fp.asp?xItem=38073&ctnode=1548 for Chinese version; and at www.mofa.gov.tw/webapp/ct.asp?xItem=38077&ctNode=1901&mp=6 for English version (accessed 17 May 2010). In the English version, there are minor translation errors and imprecision from the original Chinese version.

11. PRC Letters, supra note 8.

12. See the English version of the ROC Foreign Ministry Statement, supra note 9.

13. See the text of the Act at www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html (accessed 7 April 2010).

14. To both Taiwan and China, the Kalayaan Island Group is just a set of islets of the Nansha Qundao/Islands (or Spratly Islands, ) while the Scarborough Shoal is “Huangyan Dao” (or ) belonging to the Macclesfield Islands/Bank (or Zhongsha Qundao/Islands, ).

15. See the maritime zone notification made by the United Nations concerning the Philippines’ deposit of its geographical coordinates of basepoints, available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/mzn69.pdf (accessed 7 April 2010).

16. See the Chinese version of statement issued on 4 February 2009 at the Web site of the ROC Foreign Ministry at www.mofa.gov.tw/webapp/ct.asp?xItem=36869&ctNode=1548&mp=1; and the English version statement issued on 6 February 2009, available at www.mofa.gov.tw/webapp/fp.asp?xItem=36914&ctnode=1902 (accessed 16 May 2010).

17. See People's Republic of China, Letter to Secretary-General of the United Nations, Doc. CML/12/2009, New York, 13 April 2009, available at the Web site of the UN Division on the Law of the Sea at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/communicationsredeposit/mzn69_2009_chn.pdf (accessed 16 May 2010).

18. Vietnam, Permanent Mission to the United Nations, “Vietnam's Response to Philippine President's Signing of Baseline Act,” 13 March 2009, available at www.vietnam-un.org/en/news.php?id=77&act=print (accessed 7 April 2010).

19. See ROC Ministry of the Interior, The Claim of the Sovereignty of Nan-Hai, Including the Historic Waters, Belonging to This Country (), in Chinese, September 1992, on file with the author. This pamphlet-like government publication describes the geographic extend of the Nan-Han as “starting from the North Verker Bank () at 21°4′N to the north to the James Shoal () at 3°5′N to the south, and starting from the Vanguard Bank () at 109°36′E to the west to the Seahorse (or Routh) Bank () at 117°50′E to the east.” Three out of the four figures of longitude and latitude are slightly different from the ones cited in Nien-Tsu Alfred Hu's article in this Special Issue from Chang Wei-I (), Nan-Hai Tsu-Yuan K'ai-Fa yu Chu-Ch'uan Wei-Hu ( The Resources Exploitation and Sovereignty Protection of the South Sea) (Taipei County, Taiwan: P'an Shih Library, December 1994).

20. A reproduction of the map can be seen at Chang Wei-I, ibid., folded page at the end of the book.

21. See ROC Ministry of the Interior, The Claim of the Sovereignty of Nan-Hai, Including the Historic Waters, Belonging to This Country, supra note 19, at 14.

22. For a description and analysis of China versus Southeast Asia in general, and the situation of South China Sea in particular, before 2006, see Michael A. Glosny, “Heading Toward a Win-Win Future? Recent Developments in China's Policy Toward Southeast Asia,” Asian Security 2, no. 1 (2006): 24–57.

23. The change includes the admission of Taiwan as an observer in the United Nations World Health Assembly, the submission of a joint project proposal by Taiwan and China at the 2009 nineteenth Workshops on Managing Potential Conflicts in the South China Sea (the SCS Workshops), and the mutual efforts in concluding an Economic Cooperation Framework Agreement (ECFA) by June 2010.

24. Regardless the amicable surface, there is still a strong undercurrent in the international context in which China exerts its diplomatic pressure to control Taiwan's status. For example, in the International Consultations for the establishment of a regional fisheries management organization in the South Pacific, Taiwan was treated as a “Special Observer,” rather than an equal negotiating partner as in other similar negotiations and was designated as “Chinese Taipei Fishing Entity,” rather than “Chinese Taipei,” in the Final Act of the International Consultations on the Establishment of the Proposed South Pacific Regional Fisheries Management Organization signed on 14 November 2009. This implies that the South China Sea situation may well be a special case where China is willing to collaborate with Taiwan due to their common position on their claims in the South China Sea.

25. For a historical account of the evolution of the “One-China policy” with special reference to the key statements from Washington, Beijing, and Taipei, see Shirley A. Kan, “China/Taiwan: Evolution of the ‘One China’ Policy—Key Statements from Washington, Beijing, and Taipei,” Congressional Research Service (CRS) Report for Congress, 17 August 2009, available at www.fas.org/sgp/crs/row/RL30341.pdf (accessed 5 May 2010).

26. Convention on Prevention of Pollution from Ships (1973/1978), 1340 U.N.T.S. 61.