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III. International Law and UNCLOS

Issues of international maritime law are devilishly tricky to sort out in the South China Sea, a body of water dotted by hundreds of island archipelagoes. In many cases, legal zoning limits mean that there is overlapping of territorial claims among the nations involved.

Maritime law was very murky and confusing prior to 1982 as there was no set standard and many coastal states claimed different limits to their territorial waters. The customary limit to one’s territorial waters had been 3 nautical miles, but definitions varied and were disputed in many separate instances.

In 1982, the United Nations Convention on Laws of the Sea (UNCLOS) expanded the 3-mile baseline to a zone of 12 nautical miles. These were “territorial waters.” Among other significant reforms adopted by UNCLOS was also that nations were given a 200-mile exclusive economic zone (EEZ) extending from their shores in which they controlled all resources to be found in these waters.

An unintentional side effect of UNCLOS was that territorial quarrels over islands became more contested and heated than ever before, since islands were now newly significant given the fact that the host nation could now claim as territorial waters everything within the 12-mile radius of water surrounding the island – not to mention a 200-mile surrounding EEZ. This has also greatly magnified the dispute among China and Association of Southeast Asian Nations (ASEAN) states in terms of ownership of the many islands and archipelagoes in the South China Sea.

One of the most controversial articles in UNCLOS deals with “straight baselines.” Under a certain interpretation of the provisions of UNCLOS, a nation may draw straight territorial lines if there are many islands within its own body of water. This provision is in part the cause of China’s sweeping claims in the South China Sea.

Under this logic, China has claimed nearly the entire South China Sea for its own, drawing a famous “U-Shaped Baseline” that contains nearly all territory in the South China Sea, on the grounds that the PRC claims nearly all of the island archipelagoes in the region and can rightfully encircle all of them within a single water baseline – contiguous to the motherland. Some academic scholars have blasted this interpretation, saying that the United States could easily by similar logic claim half of the entire Pacific Ocean, citing Hawaii and Alaska’s position in the far west and drawing straight baselines to enclose the area of sea that they contain. Other ASEAN nations have protested similarly on the grounds that they have just as much rightful claim to the South China Sea islands as the PRC does, and hence could use the straight-baseline method to stake out nearly the entire Sea for themselves as well if they chose to.

IV. Interests at Stake

a. The People’s Republic of China

Beijing needs energy more than it has ever before. China’s national thirst for oil is going to become greater and greater as its economy continues to expand by leaps and bounds, a demand for oil that is shared by the entire Asian economic region as a whole and which exacerbates the nature of the South China Sea dispute. As mentioned, the need for energy makes the Sea more critical than ever, not only because of the Sea’s own plentiful petroleum resources, but also because of the strategic water passageways that it provides for China’s “String of Pearls” oil corridors from Middle East suppliers.

The strategic value of the region is also great for China, as Chinese command of the South China Sea would not only secure great resources and advantages for Beijing, but also permit Beijing to choke off supplies headed to unfriendly nations. Unsurprisingly, the prospect of this is cause for great alarm among Asian neighbors.

As always, the factor of national pride cannot be overlooked when it comes to the PRC, as Beijing has historically viewed territorial claims as part of its national prestige and honor. As is with the case with Taiwan, Tibet and Xinjiang, Beijing is almost intractable when it comes to issues of national sovereignty. China cannot well withdraw from its claims in the South China Sea without incurring humiliation at home and abroad, a factor that must be taken into account by any negotiation partner in bilateral talks about the Asian region.

b. The United States of America

The US has less visible reason to engage in direct military conflict over the South China Sea than it would, say, over a direct Chinese invasion of Taiwan. But the dividends at stake are no less substantial or tangible.

The United States’ interests in the South China Sea are almost entirely those of China’s reversed. PRC control of the Sea region would enable it to shut off much trade and oil heading to U.S. allies in East Asia such as South Korea and Japan, with suffocating consequences. In addition, U.S. warships and carrier battle groups frequently transit through the Sea and the nearby Strait of Malacca, meaning that their mobility would be greatly hindered if the PRC were able to close off these sea lanes of communication.

Secondly, of course, the United States seeks to limit and contain the PRC in its rise to power, and the South China Sea represents merely another arena in which this power game is being played out. But U.S. public opinion might be unable to perceive a tangible U.S. interest in the South China Sea, and be unwilling to support armed intervention in such a “faraway” region.

Finally there is the idealism of the United States itself when it comes to “preserving freedom abroad.” The United States has made itself a name for being a meddling interventionist in global affairs, and nowhere is this reputation more cemented than in the area of international maritime law. The United States is not a signatory of UNCLOS, but has faithfully abided by all of its provisions and has ironically become its greatest enforcer and champion. In recent decades there have been countless incidents and engagements by U.S. forces in the name of “preserving freedom of navigation of the sea for all nations.” If there is anything that will spur Washington to intervene in the region, it may be the indignation over China’s “unreasonable” claims to the Sea and the threat that it poses to world sea traffic.