Competing Claims: The Developing Role of International Law and Unilateral Challenges to Maritime Claims in the South China Sea.

• Author: Leddy, Kevin

Table of Contents I. Introduction 786 II. The South China Sea Dispute against the Backdrop OF International Law 789 A. A Snapshot of the Dispute 789 B. The Dispute in the Context of International Law 793 1. Overview of UNCLOS 793 2. Key Operating Provisions of UNCLOS 794 III. Conflicting Approaches of Legal Claims in the RegiON 799 A. China 800 1. Historic Entitlement Arguments 801 2. Evolving UNCLOS Arguments 802 3. Chinese Domestic Policy 803 4. Unilateral Action 804 B. Vietnam 806 1. Historical Arguments 807 2. Vietnam's Developing Legal Arguments 808 C. The Philippines 811 1. A Brief Summary of the Philippines' Legal Position 812 2. The Philippines v. China ITLOS Case, Arbitration, and the Aftermath 813 IV. International Protest as a Temporary Solution and the Future of the Dispute 815 A. How Protest Works 816 B. Why Protest is Helpful 817 C. Shortcomings of Protest 819 D. The Future of the Dispute 821 1. The Legitimacy of International Bodies' Legal Determinations Needs to be Strengthened 822 2. Western Countries Should Continue to Supervise the Development of International Dispute Resolution Mechanisms 825 V. Conclusion 827 I. INTRODUCTION

In August 2019, former White House National Security Adviser John Bolton admonished China's use of coercion and "bullying tactics" to intimidate neighboring countries out of resource development rights in the South China Sea on Twitter. (1) The White House's criticism of efforts by the People's Republic of China (China) to forcibly increase its maritime presence in the region represents yet another flashpoint in the escalating conflict over strategic waterways and landmasses in the 3.5 million square kilometer area of ocean that spans from the Gulf of Tonkin in the Northwest to the coastal borders of Malaysia and Brunei in the East. (2) China's assertion of its right to disputed waters and landmasses, combined with the competing assertions of regional claimants and Western powers with security interests in the area, has escalated the South China Sea into a region of major strategic importance. (3)

The South China Sea carries one third of global maritime traffic and an estimated $5 trillion in international trade annually. (4) Lucrative fisheries and oil supply routes carry nearly 80 percent of China's crude oil imports through disputed waters in the area. (5) Additionally, several estimates predict that bedrock in the South China Sea contains oil and natural gas reserves roughly equal to those of Mexico, making it one of the most important waterways of the twenty-first century. (6)

For centuries, these waters have been vital to the economic survival of neighboring Vietnam, Brunei, Malaysia, and the Philippines, each of which made political declarations of ownership in various pieces of the region to support domestic fishing operations, oil extraction, and territorial interests. (7) China, however, asserts territorial claims in the region based on historically ambiguous documents that it claims prove an original territorial interest in the region as far south as the Paracel and Spratly Islands near the Philippines. (8) In the past half-century, China's growth as an economic and military power on the global stage coincided with land-grabbing and island-building campaigns to assert territorial control of the region, often resulting in conflicts with claimant countries and non-claimants who hold security interests in the area. (9) Indeed, just months into former President George W. Bush's first term, a Chinese fighter jet collided with an American spy plane, and during former President Obama's presidency the USNS Impeccable, an American surveillance ship, had to be escorted through the region by a guided-missile destroyer after being told to leave an area south of Hainan island in the Gulf of Tonkin. (10)

Claimant countries and interested non-claimants have largely resorted to international law to address Chinese aggression in the region. (11) Many countries have urged Beijing to abide by the United Nations Convention on the Law of the Sea (UNCLOS), which sets zones of control based on areas of coastline. (12) China, however, views UNCLOS as incompatible with its domestic laws and rights to its claims in the South China Sea that it has established throughout history. (13) Even after a five-judge panel in the Hague unanimously rejected the legal basis of China's maritime claims, (14) China's Supreme People's Court issued a regulation stating that China has a clear legal basis to safeguard maritime order in the disputed region. (15) Attempts to maintain the status quo through political concessions by the Association of Southeast Asian Nations (ASEAN) have only led to more aggressive land-grabbing and assertions of territory that effectively cannot be revoked.

This Note analyzes the approaches that neighboring ASEAN claimants, non-claimant states with security interests, and international organizations have adopted to address the unique challenges that Chinese territorial claims have created for international law in the South China Sea. It argues that unilateral challenges to excessive territorial claims around islands and other strategic formations in the regions are necessary to curtail Chinese aggression in the region where international law has been insufficient to solve these problems. Part II details the South China Sea conflict against the backdrop of UNCLOS and the unique challenges that the complicated geopolitical characteristics of the region create in its implementation. Part III analyzes the developing territorial assertions of China and neighboring ASEAN countries, such as Vietnam and the Philippines, concluding with an analysis of the Chinese government's dismissal of the Philippines v. China arbitral decision that existing dispute resolution systems under UNCLOS are presently inadequate to stop territorial losses. Finally, Part IV argues that unilateral protest in the form of freedom of navigation operations by interested parties in the region is a viable temporary solution to the problems posed by the existing principles and dispute resolution mechanisms of international law and offers predictions and recommendations for permanent solutions in the region.

2. THE SOUTH CHINA SEA DISPUTE AGAINST THE BACKDROP OF INTERNATIONAL LAW

   The South China Sea dispute has escalated considerably over the past five decades. (16) Although Beijing's assertions of Chinese claims in the region have been remarkably consistent over time, neighboring ASEAN states, interested non-claimants, and international organizations with security and trade interests in the region have varied their responses to these claims. (17) The conflict can thus be framed by surveying competing maritime boundary claims in the region and differentiating between the legal and political responses that interested actors have employed in response to excessive Chinese maritime claims. (18)

   1. A Snapshot of the Dispute

      The South China Sea is one of the most consequential geopolitical regions in the world today. (19) It is more than eight hundred thousand square miles in area, teems with natural resources, and is one of the most consequential maritime commerce regions in the world. (20) The region contains important sea communication lines and is the site of one of the most important strategic geographic chokeholds, the Strait of Malacca, a frequent forum for standoffs between the naval forces of the United States and China. (21) Former Secretary of State Hillary Clinton once summarized the strategic importance of the region and the dangers of increased Chinese assertiveness during her remarks at an ASEAN regional forum in Hanoi: "The United States has a national interest in freedom of navigation, open access to Asia's maritime commons and respect for international law in the South China Sea." (22)

      Experts disagree over the historical catalyst for the Chinese government's aggressive assertion of maritime claims over nearly the entire region. (23) This Note will not attempt to go into great detail about the historical origins of China's assertion of maritime boundaries encompassing many of the islands, reefs, and shoals in the region, as numerous scholars have already created an excellent body of work that details the history of the South China Sea. (24) A general overview of China's historical claims, however, is useful to put an analysis of such arguments in context. In 1947, the government of China, led by Nationalist leader Chang Kai-Shek, published a map of the South China Sea. (25) This map included a U-shaped line of eleven dashes and encompassed nearly all of the South China Sea, including the Pratas Islands, the Macclesfield Bank, and the Spratly Islands, with the southern-most tip of the line touching James Shoal, which is as far south as 4 degrees north latitude. (26) The map gave Chinese names to 132 islands, reefs, and other features in the area. (27) Historical evidence demonstrates that the U-shaped line was intended to be the median line between China and the other coastal states in the region, but the Chinese government did not specify the intended baselines for this delineation. (28) The eleven-dash-line was inherited by the communist government of China and is the basis of the Chinese government's claims in the region today, (29) although two dashes were removed in the Gulf of Tokin in 1953 by order of Zhou Enlai as a concession to the communist government in North Vietnam. (30) Appendix 1 shows China's current U-shaped claim delineation, which is commonly referred to as the "U-Shaped Line" or the "nine-dash-line." (31)

      It is commonly accepted that the nine-dash-line represents the Chinese government's claim for islands and surrounding waters within the line, but Beijing has been unclear about the claim's dimensions, which islands and reefs are included, and how far each island's coastal rights extend. (32) China used the nine-dash-line in an official communication for the first...