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Loopholes And Lawfulness: De-Escalating Tensions In The South China Sea – Analysis

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By Pratnashree Basu

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Beijing on 1 March completed another military drill in a radius of six nautical miles in the South China Sea in what has become a usual and quite frequent routine of drills and counter-drills, military exercises, overflight entry into sovereign air space, etc., followed by an exchange of censures and warnings. If China is to be deterred from taking a leaf out of Moscow’s playbook in the near future, then the existing international maritime legal regime needs to be made more robust and inviolable.

The South China Sea has witnessed an intensification of turmoil over competing maritime territorial claims over the past decade as China adopts an increasingly assertive stance with respect to its maritime claims. This has resulted in the maritime space of the Indo-Pacific, particularly the South China Sea, in becoming more militarised and by extension, a potential flashpoint.

Delineation for de-escalation

At the heart of the matter lies divergences over maritime limits as laid out by international law, on the one hand, and historic rights on the other, which in turn leads to differences in understanding the constituent elements of sovereignty and its distinction from sovereign rights. Resultant challenges, therefore, relate to the extent and exercise of legal rights and its relation to sovereignty. As China gradually seeks to expand the ambit of what it considers its “sovereign rights”, it, in turn, has challenged the “sovereignty” of other littoral countries. Therefore, it becomes imperative to delineate the distinction between sovereignty and sovereign rights as an essential component of the South China Sea issue.

Beijing’s progressive inroads are largely for two popularly cited reasons: First, to diversify its sources of acquiring energy as the South China Sea holds an estimated 190 trillion cubic feet of natural gas and 11 billion barrels of oil in proved and probable reserves along with potentially undiscovered hydrocarbon reserves; and second, to exercise influence over the busy Sea Lines of Communication (SLOCs) that pass through these waters and, thereby, ensure maritime commercial and naval access towards the Indian and Pacific oceans. In addition to these reasons, China also claims historical rights over the South China Sea and, therefore, control over these waters is a crucial element as far as the Chinese Communist Party’s national aspirations for domestic politics and perception are concerned.

China’s determined projection of control in the area, primarily by establishing physical presence in the many small islands, shoals, atolls, and other rock formations that dot the South China Sea has been steadily expanding over the past decade. Referred to as the “salami slicing” strategy, this leads to a constant state of competition which, over time, has had a debilitating impact on resources and regional stability.

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The responses of littorals as well as external powers—US, Japan, Australia—have been largely episodic and reactive in nature. And whilst Beijing is often the principal instigator of tensions, for instance, by marking the Nine-dash line, creating artificial islands, initiating the new coast guard law, and increasing its maritime militia, etc., other littoral countries too have engaged in similar activates though on a much smaller scale.

The phrase ‘sovereign rights’ began to be unsystematically used in international maritime law since the 1970s (around the same time that the third UN Conference on the Law of the Sea was held, which led to the signing of the UN Convention on the Law of the Sea in 1982; it remains to be the key international legal maritime framework till date) to govern the rights of coastal states over resources in the continental shelf and the Exclusive Economic Zone (EEZ). Since the 1990s, the term has also been associated with reference to determining sovereign rights over energy resources. However, possessing sovereign rights over resources in the EEZ does not confer sovereignty over the same territory. Thus, the sovereign rights (limited set of rights and power) of a coastal state towards the exploitation of resources in the EEZ and the continental shelf is not equivalent to the exercise of sovereignty (supreme political authority) over the area.

This is exactly where differences between international maritime law and China’s domestic legal understanding of its authority lies as the latter does not cohere with international legal definitions. For Beijing, the South China Sea is its adjacent and relevant watersHowever, neither are legal terms identified by international law. China’s own legal maritime understanding is consequently an automatic extension of its ‘historical rights’ over the maritime space of the South China Sea. All actions of Beijing ranging from the construction of artificial islands to the passing of its coastguard law and everything else beyond and in between are therefore simultaneously justified in its own perspective while being in contravention with international maritime law.

Enabling practicable solutions

The periodic tension in the South China Sea over competing and overlapping claims has made the issue an extremely complicated one. On the other hand, it has also highlighted the ambiguities in interpreting the existing maritime legal order with reference to contravention of perceived rights and entitlements which creates the scope for studying, identifying, and mitigating the same.

There needs to be a thorough and meticulous assessment in the distinction between sovereignty and sovereign rights with respect to the South China Sea maritime space vis-á-vis each littoral state that borders the sea. This would enable the identification of gaps in the existing maritime legal regime, specifically with regard to sovereignty and sovereign rights, which in turn would facilitate the demarcation of specific rights, duties, and obligations with reference to the same. Necessary political incentives that would put the premium on noncompliance high enough are also required to be put in place to ensure that the international maritime law is adhered to.

Clarity with respect to the difference between sovereignty and sovereign rights would help in unpacking the convoluted problem that is the South China Sea. It would also lead to a more coherent understanding and appreciation of the political geography of this maritime space. In doing so, it would also help in the identification of the bottlenecks in the existing maritime governance framework and, thereby, enable the revisions required to remove the attendant ambiguities. Finally, this would allow for the framing of policy-oriented regional strategies which would be better equipped to address such discrepancies in future.

The views expressed above belong to the author(s).

Observer Research Foundation

ORF was established on 5 September 1990 as a private, not for profit, ’think tank’ to influence public policy formulation. The Foundation brought together, for the first time, leading Indian economists and policymakers to present An Agenda for Economic Reforms in India. The idea was to help develop a consensus in favour of economic reforms.

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