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Growing Instability in the Law of the South China Sea

By   /  September 6, 2012  /  No Comments

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The South China Sea dispute involves potentially massive stores of oil and natural gas beneath the waters of disputed territorial and economic claim between China, Vietnam, the Philippines, Taiwan, Malaysia, and Brunei. For other nations, including the US, it involves ensuring the South China Sea, which carries about half the world’s trade, remains free for navigation. Most recently, tensions between China and the Philippines have grown amid unauthorized Chinese merchant vessels caught by Philippine authorities in contested waters, and Chinese antagonism toward US-Philippine military exercises carried out throughout this spring. In an April 21, 2012 statement, China warned the US that “[a]nyone with clear eyes saw long ago that behind these drills is reflected a mentality that will lead the South China Sea issue down a fork in the road towards military confrontation and resolution through armed force.” Yet, because of the erratic support and lack thereof for ratifying the United Nations Convention on the Law of the Sea (UNCLOS), the US has no strong foothold on which to rely in managing its national security interests in the South China Sea.

China’s claim extends well beyond what UNCLOS recognizes as the 200-mile-from-shore Exclusive Economic Zones of other claiming nations. With estimates that China’s energy needs will double over the next 25 years, China now looks to the South China Sea to provide for its anticipated increased demands. ExxonMobil’s announcement in October 2011 that it discovered a potentially sizable natural gas field near Da Nang led China to increase its aggression, warning foreign companies against proceeding in waters it claims.

China bases its claims to these islands on assertions that Chinese explorers found and named them centuries ago. “In layman’s terms, it’s absurd,” said Lt-Gen Juancho Sabban of the Philippine Armed Forces. He attributes China’s assertiveness to the Philippines and Vietnam both opening waters they claim to foreign companies. Shell and Chevron are already active in the Philippines, which also has been soliciting bids for fifteen more offshore exploration blocks.

The Philippines’ claim to these contested waters is found in UNCLOS. Undersecretary in Manila’s Department of Energy, Jose Layug, explained, “All areas we have offered are well within the 200 nautical mile exclusive economic zone of the Philippines under the UNCLOS. . . . Thus the Philippines exercises exclusive sovereign rights and authority to explore and exploit resources within these areas to the exclusion of other countries.” In this same dispute zone, the annual US-Philippines military exercises took place, involving 7,000 troops, including 4,000 US troops. Concurrently, three US ships were also in Vietnam for a five-day naval exchange involving other marine emergency training.

During the training, the US and Philippines militaries practiced protecting an oil rig as one of their exercises. A Philippines delegation visited Washington in January 2012 to discuss enhanced US military support in the South China Sea. “This area is vital to the United States,” explained Chief of US Naval Operations Admiral Jonathan Greenert. “It’s been an area vital to our navy and our focus for decades, because of . . . the trade routes, the large economies.” Adm Greenert added that the challenge was to maintain open and peaceful trade routes while minimizing hostilities.

China views the US involvement as meddlesome. China emphasized that the $30 billion in trade the Philippines has with China could soon double, and conversely, that China could punish the Philippines by restricting this trade for turning to the US for more military support.

Yet, the US enters a war game without rules in the South China Sea. While attempting to strengthen its ties with its allies the Philippines and Vietnam against China and its ally Cambodia, the US is not a party to the only legal framework that exists for managing international waters and regulating such a conflict. Although the US was a critical and influential player in creating the convention, Congress never actually ratified UNCLOS. In 2007, the Joint Chiefs of Staff asserted that UNCLOS “codifies navigation and overflight rights and high seas freedoms that are essential for the global mobility of our armed forces.” In other words, it enhances national security by giving the US Navy additional flexibility to operate on the high seas and in foreign exclusive economic zones and territorial seas. As tensions among China, the Philippines, and other Asean nations increase due to conflicting interpretations over what constitutes territorial and international waters, this enhancement of US national security becomes particularly important in the Asia Pacific region and the South China Sea.

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