THE PHILIPPINE WOMENS UNIVERSITY, HZB SCHOOL OF INTERNATIONAL RELATIONS

AND DIPLOMACY

The South China Sea Dispute

A Short Paper on the Issue
Patrick C. Agonias
7/11/2015

This short paper on the South China Sea dispute is to be submitted to Amb. Rosario G. Manalo in partial
fulfillment to the course Contemporary Issues on International Law of MA-Foreign Service Graduate
Programme for the First Trimester SY 2015-2016.
Table of Contents

Background on Recent Developments on the South China Sea Dispute 2009-Present ................................ 2
Amb. Manalos Questions on the South China Sea Dispute ......................................................................... 2
References ..................................................................................................................................................... 6

1
Background on Recent Developments on the South China Sea Dispute 2009-Present

The dispute in the South China Sea is currently a flash point for conflict between China and several
claimant states in the region1. Due to the complexity of the issue, especially with regard to the sovereignty
of states, no peaceful agreement has been reached yet. The current tensions that can be seen today can be
traced back in 2009 when Viet Nam and Malaysia made a joint submission to the UN Commission on the
Limits of the Continental Shelf (CLCS) an extension of their respective continental shelves2. As a result,
China submitted an objection and decried that both states infringed on its claims in the area3. The Chinese
defined their claims, which encompasses nearly the entire area, in its nine-dash line map. The claim is
contested by other states in the region, including the Philippines.

According to Poling (2013), claimant states themselves, are guilty for failing to clarify their claims in the
South China Sea. Association of Southeast Asian Nations (ASEAN) member states has taken steps
toward the direction of clarifying their claims. Evidence of these steps is the 2009 joint submission by
Malaysia and Viet Nam to the CLCS and the Philippines baselines law, passed that same year4. On the
latter, the country established its coastal baselines, which is in accordance with the UN Convention on the
Law of the Sea (UNCLOS). China has the most ambiguous clam in the South China Sea, which was made
intentional by the government through its policy of strategic ambiguity5; this allows China greater
flexibility to interpret its position on the issue. The continuing presence of ambiguity on each claim,
despite the efforts of some, makes negotiations and identifying areas of cooperation more difficult.

The complexity of the dispute is known by claimant states, as result ASEAN urged all claimants to
exercise restraint and to avoid the escalation of tensions over the issue6. However, many states are
alarmed by recent aggressive activities by China in the area7. Although ASEAN failed to take a common
stand on the South China Sea dispute8, the US in particular has been critical on the Chinese. Likewise, the
Philippines in 2013 sought the assistance from the UN when it brought an arbitration case to the
International Tribunal for the Law of the Sea (ITLOS)9.

Amb. Manalos Questions on the South China Sea Dispute

The dispute has significant implications to international law, as such Amb. Manalo has posted the
following questions:

1. Do you think China has a legal basis to make its claim in the South China Sea? If so, what is it?

According to the Chinese government, the legal basis of their claim to the South China Sea is on the nine-
dash line map10. The map is also supported by historical evidences wherein China claims it was the first to
discover the islands (Han Dynasty), the first to exploit its resources (Western Jin Dynasty), first to govern

1
US Department of State. (2014). Limits in the Seas. Washington D.C. : Bureau of Oceans and International Environmental and Scientific Affairs.
2
Poling, G. B. (2013). The South China Sea in Focus. Washington D.C. : Center for Strategic and International Studies.
3
Ibid
4
Ibid
5
Dutton, P. (2011). Three Disputes and Three Objectives: China and the South China Sea. Newport: Naval War College.
6
Wong, C. H. (2014, May 10). Asean Concerned Over South China Sea Clashes. Retrieved July 6, 2015, from The Wall Street Journal:
http://www.wsj.com/articles/SB10001424052702304655304579553040100329398
7
There were incidents of standoffs with China between Viet Nam (2011) and the Philippines (2012). There were also various incidents of
Chinese harassment of Vietnamese and Philippine fisher folk (2011-2014). The most recent was Chinas rapid land reclamation projects in the
area (2015).
8
Hunt, L. (2012, July 20). ASEAN Summit Fallout Continues. Retrieved July 6, 2015, from The Diplomat: http://thediplomat.com/2012/07/asean-
summit-fallout-continues-on/
9
Schwartz, L. (2014). Competing Claims in the South China: Potential Paths Forward and Implications for the United States. Washington D.C. :
National Bureau of Asian Research.
10
Ibid

2
the island and record it in ancient maps (Song Dynasty)11. All these evidences aid Chinas claim to the
South China Sea by historical rights. If these evidences were to be viewed in the context of international
law, according to Hao (2011) China has territorial sovereignty over the islands based on: (a) the doctrine
of discovery, (b) doctrine of uti possidetis, (c) effective administration/exploitation of the territory; and
(d) recognition by the international community.

Table 1: Recognition of China Position in the International Community

Time Conference Facts

1951 San Francisco Treaty of Peace with Japan renounces all rights, titles and claims to the
Japan Spratly Islands and to the Paracel Islands. USSR
Head of Delegation Andrei Gromyko pointed at the
conference: Xisha, and Nansha Islands are
indispensable parts of China.
1952 Japanese Foreign Minister Katsuo The Atlas plotted Xisha, Nansha, Dongsha and
Okazaki recommended World Atlas Zhongsha Islands as part of Chinas territory.
with his own signature, and page 15 of
the Atlas is Map of Southeast Asia
1955 First Aviation Conference of the Delegates at the conference held that Dongsha, Xisha
Pacific region of the International Civil and Nansha Islands in the South China Sea are key
Aviation Organization (ICAO), passages in the Pacific Ocean, and weather reports of
Manila. these areas are vital to the international civil aviation.
Therefore, the conference passed No. 24 Resolution,
requiring the Taiwan government reinforce
meteorological observation. When the Resolution
was signed, no country, including the Philippines and
South Viet Nam, raised any objection or reserved
opinions.
(Hao, 2011)

2. Do you think the Philippines have a legal basis to make its claim in the South China Sea? If so, what
is it?

According to the Philippine government, the legal basis for its claims in the South China Sea are: (a) the
Treaty of Paris of 1898, (b) claims to the Kalayaan group of islands, and (c) its baselines law of 2009 or
Republic Act No. 952212. The baselines law of 2009 was passed in order to clarify the scope of Manilas
claim in the South China Sea. According to Poling (2013) the law took two critical steps towards this:
First, it claims a 12-nautical-mile territorial sea and an EEZ of up to 200 nautical miles from straight
territorial baselines between coordinates enumerated in the law. Second, the law did away with the
Kalayaan box, declaring that, although Manila still lays claim to the islands and other features within it,
it does so only via UNCLOSs Regime of Islands. The law aided in clarifying the Philippines legal
maritime claims in the South China Sea.

3. What method should be used to avoid conflict (pursuant to international law)?

Pursuant to international law, both states (China and the Philippines) should use the method as prescribed
in the UN Charter, Chapter 6: Pacific Settlement of Disputes, Article 33 (1). The article states that:

11
Hao, S. (2011). Chinas Positions and Interests in the South China Sea: Chinas Positions and Interests in the South China Sea:. Washington
D.C. : Center for Strategic and International Studies.
12
Republic of the Philippines. (2009). Republic Act No. 9522. Manila: Republic of the Philippines.

3
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice. (United Nations, 1945)

In short, both states can peacefully settle their disputes either through negotiation or voluntary arbitration.

4. What are the obligations of these two states to avoid conflict? What are they doing and are they doing
it?

The obligations of these states to avoid conflict is two follow the Pacific Settlement of Disputes of the
UN Charter by exhausting all peaceful means of their own choice. Both states have been doing this
although through different means. China prefers bilateral negotiations with different states13, on the other
hand, the Philippines has been engaging the international community to support its claims in the South
China Sea. The diplomatic campaign by the Philippines included going ASEAN and to the UN
particularly, ITLOS14. However, China has been aggressive in asserting its sovereignty over the islands.
Several incidents have occurred between China and other claimant states, which further escalated the
tensions in the dispute, particularly with Viet Nam and the Philippines15. Recently China has accelerated
its land reclamation project in the area that alarmed observers of the dispute. Meanwhile, Manila has
made some diplomatic gains when it submitted its memorial to ITLOS (the move was praised by the US
and the EU) and urged member states of ASEAN in pushing for a Code of Conduct in the South China
Sea16.

5. Why do you think China is insistent on claiming the entire South China Sea? Give two to three
reasons.

China is insistent on claiming the entire South China Sea because of its national interests. Hao (2011),
articulated that China are, but not limited to: (a) safeguarding its territories, (b) exploiting the areas of its
natural resources, and (c) protection of freedom of navigation in those waters. Dutton (2011) on the other
hand has a slightly different view on Chinas reasons or objectives for claiming the entire South China
Sea. He states that Chinas claims to the South China Sea are for: (a) regional integration (pursuant to its
overall policy of peaceful rise), (b) resource control, and (c) enhanced security (using the area as a
maritime security buffer zone to protect Chinas developed eastern coastal area).

6. What are some of the behind the scenes scenarios that are taking place between China and the USA?

The US has keen interest in the region, as such its policy known as the Pivot to Asia, with a priority on
the political-security and economic dimension17. It is only imperative that US would have to engage
China, especially as the tensions on the South China Sea have been escalating recently18. The US on their
end has criticized China for its aggressive behavior towards its neighboring states (who also have their
own claims in the South China Sea). In addition, it has supported these claimant states pursuit for a
peaceful settlement of disputes, particularly the Philippines19. Also, the US is positioning its self towards
enhancing political-security relations with its allies in the region. Observers, including China, the shift of
foreign policy of the US are to contain Chinas rise in the region. In response to the US, China continues
to reiterate its position and claims on the South China Sea issue. It has also urged all claimant states to

13
Hao, S. (2011). Chinas Positions and Interests in the South China Sea: Chinas Positions and Interests in the South China Sea:. Washington
D.C. : Center for Strategic and International Studies.
14
Department of Foreign Affairs. (2014). Ang West Philippine Sea. Pasay: Department of Foreign Affairs.
15
Ibid
16
Department of Foreign Affairs. (2013). Notification and Statement of Claim on the West Philippine Sea. Pasay: Department of Foreign Affairs.
17
US Department of State. (2014). Limits in the Seas. Washington D.C. : Bureau of Oceans and International Environmental and Scientific
Affairs.
18
Schwartz, L. (2014). Competing Claims in the South China: Potential Paths Forward and Implications for the United States. Washington D.C.
: National Bureau of Asian Research.
19
Ibid

4
bilaterally negotiate with China on the issue and to not let other states or organization (i.e. the US,
ASEAN, international arbitration) to interfere on the matter. China has also stepped up its efforts in
administering its authority in the islands through land reclamation projects, setting-up small military
bases, and implementing an Air Defense Identification Zone20. Further, it has continued to engage in
economic activities with its East and Southeast Asian states.

20
Hao, S. (2011). Chinas Positions and Interests in the South China Sea: Chinas Positions and Interests in the South China Sea:. Washington
D.C. : Center for Strategic and International Studies.

5
References

Department of Foreign Affairs. (2013). Notification and Statement of Claim on the West Philippine Sea.
Pasay: Department of Foreign Affairs.

Department of Foreign Affairs. (2014). Ang West Philippine Sea. Pasay: Department of Foreign Affairs.

Dutton, P. (2011). Three Disputes and Three Objectives: China and the South China Sea. Newport: Naval
War College.

Hao, S. (2011). Chinas Positions and Interests in the South China Sea: Chinas Positions and Interests
in the South China Sea:. Washington D.C. : Center for Strategic and International Studies.

Hunt, L. (2012, July 20). ASEAN Summit Fallout Continues. Retrieved July 6, 2015, from The Diplomat:
http://thediplomat.com/2012/07/asean-summit-fallout-continues-on/

Poling, G. B. (2013). The South China Sea in Focus. Washington D.C. : Center for Strategic and
International Studies.

Republic of the Philippines. (2009). Republic Act No. 9522. Manila: Republic of the Philippines.

Schwartz, L. (2014). Competing Claims in the South China: Potential Paths Forward and Implications
for the United States. Washington D.C. : National Bureau of Asian Research.

United Nations. (1945). United Nations Charter. New York: United Nations.

US Department of State. (2014). Limits in the Seas. Washington D.C. : Bureau of Oceans and
International Environmental and Scientific Affairs.

Wong, C. H. (2014, May 10). Asean Concerned Over South China Sea Clashes. Retrieved July 6, 2015,
from The Wall Street Journal:
http://www.wsj.com/articles/SB10001424052702304655304579553040100329398