Unravelling the Strands of the South China Sea Conundrum: A Critical Analysis of China's Actions and Statements

Author:Ali Movaghar
Position:Ali Movaghar is a Law PhD Candidate at City, University of London. He holds an LLM in Maritime Law, a BSc in Nautical Science-Navigation and a BEng in Electrical Engineering, all with Distinction. He has worked on board different ocean-going merchant ships as both Engine and Deck officer as he holds two Maritime Certificates of Competency
Pages:31-49
 
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(2020) 34 A&NZ Mar LJ 31
UNRAVELLING THE STRANDS OF THE SOUTH CHINA SEA CONUNDRUM: A
CRITICAL ANALYSIS OF CHINA’S ACTIONS AND STATEMENTS
Ali Movaghar*
1 Introduction
The South China Sea remained more or less calm until the 1960s when significant amounts of oil and natural gas
reserves were discovered underneath the seafloor. Subsequently, the surrounding States, including the People’s
Republic o f China (h ereinafter, China) , began to lay competing claims to geographical features and maritime
zones in the South China Sea in an unprecedented manner and the South China Sea Dispute was born. In addition
to the energy resources, the claims are also driven by the lucrative fisheries of the South China Sea which are
crucial for the food security of hundreds of millions of people in the littoral States.1 The South China Sea is home
to over 3,300 known species of marine fishes, its fisheries em ploys at least 3.7 million people and it has been
estimated that, in 2012, about 12 % of the world’s total fishing catch, worth US$21.8 billion, came from this
region.2 The South China Sea has also a significant strategic importance as a primary shipping route. An nually, a
total of one-third of the global merchant shipping, carrying about US$3.4 trillion in trade, transits the South China
Sea.3 Importantly, about 90% of the petroleum imported by major countries like China, South Korea and Japan
also passes through the same body of water.4
The South China Sea, th erefore, is the epicentre of changes in the international balance of power which also has
the potential to trigger military conflict.5 This is mainly because China’s coercive attitude in the South China Sea
is a source of tension and instability in the region. China’s assertions regar ding its historic rights in the South
China Sea are also, at best, ambiguous and contradictory. The following recent incidents illustrate the volatility
of the situation in the South China Sea. In April 2020, a Chinese maritime surveillance v essel chased, rammed
and sank a Vietnamese fishing vessel which was fishing in waters around the contested Paracel Islands and this
prompted Vietnam to lodge an official protest against China .6 A few weeks later in the same month, China gave
Chinese names to 80 geographical features in the South China Sea7 in order to strengthen its sovereignty claim
over those features. Along the same policy lin es, for several days in April a Chinese government ship tailed a
Malaysian government vessel which was carrying out exploratory drilling in the South China Sea.8 The US
accused China of taking advantage of the distraction of the COVID-19 pandemic to advance its presence in the
South China Sea9 and subsequently sent its warships to the area.10 According to a former Australian defense
official who is currently the executive director of the Australian Strategic Policy Institute, the Chinese move was
‘a quite deliberate Chinese strategy to try to maximize what they perceive as being a moment of distraction and
the reduced capability of the United States to pressure neighbors’.11 An Australian warship was subsequently sent
to the area in order to join and conduct nav al exercises with the US Navy.12 In early July, the US deployed not
* Ali Movaghar is a Law PhD Candidate at City, University of London. He holds an LLM in Maritime Law, a BSc in Nautical Science-
Navigation and a BEng in Electrical Engineering, all with Distinction. He has worked on board different ocean-going merchant ships as both
Engine and Deck officer as he holds two Maritime Certificates of Competency.
1 Clive Schofield, Rashid Sumaila and William Cheung, Fishing, not Oil, is at the Heart of the South China Sea Dispute’, The Conversation
(15 August 2016) is-at-the-heart-of-the-south-china-sea-dispute-63580> accessed 24 July 2020.
2 Ibid.
3 The Strategic Importance of the South China Sea’, World Geostrategic Insights (25 June 2020)
of-the-south-china-sea/> accessed 24 July 2020.
4 Ibid.
5 CJ Jenner (ed) and Tran Truong Thuy (ed), The South China Sea: A Crucible of Regional Cooperation or Conflict-Making Sovereignty
Claims? (CUP 2016) 1.
6 ‘Vietnam Lodges Protest Against Beijing After Fishing Boat Sunk in South China Sea’, NBC News (04 April 2020)
ng-after-fishing-boat-sunk-south-n1176631> accessed 24 July
2020.
7 ‘Outrage as Beijing Names Islands in Disputed South China Sea’, New Straits Times (21 April 2020)
disputed-south-china-sea> accessed 24 July 2020.
8 A Ananthalakshmi and Rozanna Latiff, ‘Chinese and Malaysian ships in South China Sea Standoff: Sources’, Reuters (17 April 2020)
d-malaysian-ships-in-south-china-sea-standoff-sources-
idUSKBN21Z1TN> accessed 24 July 2020.
9 Ibid.
10 Peter Suciu, Are America and China Headed Towards a South China Sea Showdown?’, The National Interest (23 April 2020)
h-china-sea-showdown-147296> accessed 24 July 2020.
11 Ibid.
12 ‘Australia Joins US Warship in South China Sea as Tensions Grow’, The Telegraph (22 April 2020)
us-warship-south-china-sea-tensions-grow/> accessed 24 July 2020.
(2020) 34 A&NZ Mar LJ 32
one but two aircraft carrier strike groups in the South China Sea13 and a few weeks later, Australian warships were
reportedly confronted by the Chinese Navy near the disputed Spratly Islands.14 Subsequently, Australias Foreign
Minister and Defen ce Minister strongly criticised China’s actions in the South China Sea as ‘coercive conduct’
that continues to ‘destabilise the region’.15 In a declaration to the United Nations,16 the Australian Government
then firmly rejected China’s maritime claims in the South China Sea as having ‘no legal basis which, acco rding
to analysts, marks a dramatic shift in Australia’s position.17 Thus, as tension with China is escalating, the South
China Sea currently seems to be the world’s most important body of water which requires a meticulous analysis
of the engendered legal and regulatory issues.
Given that unlike American warships, the Australian warships did not even come within 12 nautical miles of the
contested Spratly Islands,18 the question (once again) arises as to whether China has or can assert sovereignty over
waters beyond its legitimate territorial sea generated by its mainland coast. In fact, through its baffling Nine-Dash
Line map (hereinafter, the NDL) and various ambiguous statements, China seems to have laid distinctive
sovereignty claim to the entire South China Sea. Its premeditated physical actions such as enlargement of some
of the insular features in the South China Sea and militarisatio n of the area, have compounded the Dispute and
have raised several legal issues. From an international law of the sea perspective, the most significant issue in the
Dispute is China’s sovereignty claim to the entir ety of the water s in the South China Sea. Although sovereignty
over the land features in the South China Sea is also one of the most fundamental issues, it will be put to one side
for it is outside the scope of the international law of the sea. This paper, therefore, attempts to answer the following
questions:
a) Which actions and/or statements of China in the South China Sea Dispute are incompa tible with the
internatio nal law of the sea and/or gener al internationa l law?
b) Since China ha s never officially clarified the na ture of its NDL claim, what a re, if any, valid
interpreta tions of the NDL map?
c) Is any of the insula r featur es of the Spra tly Archipelag o an ‘island’ within the meaning of modern
internatio nal law of the sea?
d) What is the best way forward for the States involved in the South China Sea Dispute?
In regard to the first question, the paper demonstrates that China is violating several rules of international law and
that, part of this violation is a consequence of the ambiguities in certain provision s of the United Nations
Convention on the Law of the Sea, 1982 (hereinafter, UNCLOS III or simply UNCLOS). The paper argues that the
Qiongzhou Strait in the South China Sea is an international strait where all vessels an d aircraft are entitled to
enjoy an unimpeded transit passage and that China’s strict regulations that are applied to merchant vessels who
intend to transit the strait, are incompatible with Article 38 of UNCLOS. The paper also examines the straight
baselines that China has e stablished along its mainland coast and around the Paracel Islands, and concludes that
some of those baselines do not conform with the relevant UNCLOS provisions e.g. Articles 7 and 47. It is also
argued that the enlargement of the submerged geographical features of the Spratly Islands by China is a breach of
international law. As another incomp atibility, China’s use of force policy in the South China Sea is argued to be
a threat to the international maritime security and in direct contradiction to UNCLOS and the Charter of the United
Nations (UN). Lastly, China’s refusal to respect the ruling of the Arbitral Tribunal in the South China Sea
Arbitration is argued to be against the norm s of international law and leading to international disorder.
13 South China Sea: What's China's plan for its Great Wall of Sand?’, BBC News (14 July 2020)
accessed 24 July 2020.
14 Frank Chung, South China Sea: Australian Warships reportedly ‘Confronted’ by Chinese Navy’ (23 July 2020)
alian-warships-reportedly-confronted-by-chinese-
navy/news-story/912d1b7e27b6ed48a7dd69a68ca5faae> accessed 24 July 2020.
15 Brett Lackey, Australia Slams Beijing over its ‘Coercive Conduct in the South China Sea as Tensions Between the Two Nations
Threaten to Boil Over’, Daily Mail (24 July 2020)
ive-conduct-South-China-Sea.html> accessed 25 July
2020.
16 UN Document No. 20/026 Available at
_2019/2020_07_23_AUS_NV_UN_001_OLA-2020-00373.pdf>
accessed 26 July 2020.
17 South China Sea Dispute: Australia Says Beijing's Claims Have No Legal Basis’, BBC News (25 July 2020)
> accessed 26 July 2020.
18 Andrew Greene, ‘Australian Warships Encounter Chinese Navy in Contested South China Sea’, ABC News (23 July 2020)
07-23/australian-warships-encounter-chinese-navy-south-china-sea/12481514> accessed 26 July 2020.

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