VietNamNet Bridge - The East Sea (international known as South China Sea) sovereignty issue consists
of a number of separate disputes. The Paracels are claimed by Vietnam and China
(for purposes of this article, Taiwan-Republic of China and the People’s
Republic of China are treated as a single entity under the name of “China”).
Scarborough Shoals are contested by China and the Philippines. The Spratlys are
claimed wholly or partly by Brunei, China, Malaysia, the Philippines and
Vietnam. There are also disputes over maritime zones, such as the exclusive
economic zones and the extended continental shelves.

China's U-shaped line in the East Sea (red line).
Added to this already complex situation is China’s mysterious “U-shaped line,”
which arbitrarily encircles most of the South China Sea, creating disputes over
maritime space and rights between it and Brunei, Malaysia, the Philippines,
Vietnam, Indonesia, and potentially all states in the world, which have rights
in the South China Sea as prescribed by the United Nations Convention on the Law
of the Sea (UNCLOS).
The dispute over the Paracels and the waters belonging to them is a bilateral
matter between China and Vietnam and should be resolved bilaterally between
these two countries.
Similarly, the dispute over Scarborough Shoals and the waters belonging to them
is a bilateral matter between China and the Philippines and should be solved in
a similar manner.
The Spratlys and the waters belonging to them are claimed wholly or partly by
Brunei, Malaysia, the Philippines, Vietnam and China, so this dispute is
multilateral by definition. As such, the resolution of the Spratlys dispute
requires a multilateral mechanism involving all the claimants.
China’s approach
China’s officially stated approach for resolving the South China Sea disputes is
bilateral negotiations. It is interesting to examine this approach closely in
principle and in practice.
First, let us consider the Paracels dispute. Despite insisting on the approach
of bilateral negotiations, China refuses to apply that approach to this
bilateral dispute.
Second, let us consider the Spratlys dispute. Clearly bilateral negotiations
could not be expected to bring about a settlement of this multilateral dispute.
Suppose the Philippines and Vietnam were to negotiate and settle bilaterally the
dispute over the Spratlys and the waters belonging to these islands, would China
accept that as a solution?
Third, let us consider what China means by “negotiation.” China’s policy is not
to negotiate on the issue of sovereignty. Its policy is (a) sovereignty belongs
to China, (b) the claimants should shelve the sovereignty disputes and (c)
jointly develop the resources with China. Therefore, by “negotiation” China only
means negotiation on temporary arrangements, not negotiation on the issue of
sovereignty.
These three considerations show that China’s approach of “bilateral
negotiations” is not for the aim of resolving the sovereignty disputes.
It might even be said that refusing to negotiate the question of sovereignty,
rejecting the approach of bilateral negotiation over the sovereignty of the
Paracels, and rejecting the approach of multilateral negotiation over the
sovereignty of the Spratlys, are all tactics to block progress toward a
negotiated settlement of the South China Sea sovereignty disputes.
From the point of view of strategy, the absence of a settlement gives China, as
the claimant with overwhelming hard and soft powers, increasing opportunities to
strengthen its control and weaken those of the others. Another reason for the
bilateral approach is that if the South East Asian claimants deal with China
individually, they will be more likely to succumb one by one to China’s superior
strength.
Another component of China’s approach, one which is unstated but practised, is
to maximise the contested area. China’s mysterious U shaped line, which covers
most of the South China Sea, and China’s actions—e.g., those against the
Philippines at the Reed Bank in 2011 and those against Vietnam in the Binh Minh
2 and Viking 2 incidents in May and June 2011—are examples of this. In a
dispute, the party that has overwhelming strength is likely to achieve more aims
than the others. Therefore, the larger the contested area, the more China is
likely to gain.
The approach for the South East Asia claimants
While the approach for China has three components, namely, (a) maximising the
contested area, (b) temporarily maintaining the condition of sovereignty dispute
while consolidating effective control, and (c) divide and conquer, the South
East Asian claimants, being the weaker parties to the disputes, should adopt the
opposite approach: minimising the contested area, which minimises scope of the
sovereignty dispute, and strength in numbers.
In the attempt to minimise the contested area, the South East Asia claimants
could appeal to international law regarding maritime delimitation, including the
principles codified in UNCLOS, to minimise the extent of the waters belonging to
the contested islands. According to this, the Paracels, Spratlys and Scarborough
Shoals might not deserve any EEZ, and even if they do, their EEZs will not
extend far beyond 12 nautical miles. This means that the contested area should
not extend far beyond 12 nautical miles.
Despite the fact that the South East Asia claimants cannot be united regarding
the sovereignty issue yet, they can be united in the common approach of
minimising the contested area. This is the point on which they could unite in
order to achieve strength in numbers.
However, while this common approach gives the South East Asian claimants a legal
and diplomatic advantage over China’s, the South East Asian claimants still do
not have enough resources to resist China’s drive for effective control. This is
why the US’s interest in the disputes is important to them. Equally, this is why
the same interest is objectionable to China.
The rights and interests of the US
Of course the US has no rights or interest in the issue of sovereignty over the
contested islands.
The issue of sovereign rights over maritime space, on the other hand, is a
different matter.
First, the middle of the South China Sea is an area that potentially does not
belong to any state as EEZ. Potentially all states in the world share equal
rights over the water column in this area. If a county tries to claim excessive
maritime space in the South China Sea, that threatens to take away the rights of
the international community, including those of the US, in this central area.
Second, while China says that it respects the freedom of navigation in the South
China Sea, China’s interpretation of the freedom of navigation in the EEZ is far
more restrictive than that of the US. The clashes between China and the US
regarding military surveillance in the South China Sea, such as the Impeccable
incident in 2009, are to do with this difference in interpretation.
Third, China has never stated officially what the U shaped line means, or the
extents of its claims in the South China Sea, or what rights it claims within
those extents. The hidden intention poses a risk to all states that use the
South China Sea, including to the US and its allies.
Fourth, maximising the contested area, as China seeks to do, increases the risk
of conflict and the risk of adverse effects on user states of the South China
Sea, including on the US and its allies.
Given these considerations, it would be in the interest of the US that the area
of the waters belonging to the contested islands is minimised. This aligns with
what would benefit the South East Asian claimants, and is opposite to China’s
aims, all without the US necessarily taking side on the question of sovereignty
over the contested islands and over the waters belonging to them.
From a geopolitical point of view, if the South China Sea were to become China’s
lake, or if South East Asia were to fall into China’s orbit, there would be
significant effects on the balance of power in the Western Pacific and Eastern
Indian Ocean. Therefore, it would be in the interest of both the US to prevent
these possibilities from happening.
This means that the South East Asian claimants and the US will try to act on
their common interests, without the US necessarily taking side on the question
of sovereignty over the contested islands and over the waters belonging to them,
while China will try to oppose US involvement and to prevent the South East
Asian claimants from acting together.
Duong Danh Huy
(The author would like to thank Ha Nguyen, Dang Vu, Thuy Tran and Truong Le for
valuable comments and discussions)