International Law and Conflict in the South China Sea

In an era of international trade, world order, and globalization, the South China Sea has grown to become one of the largest economic areas in the world, with $3.4 Trillion in overseas commerce each year, a large fishing industry, and valuable reserves of natural resources [1].  However, this body of water is home to one of the largest, most complicated territorial disputes in the world.  With its historical claims and conflict, multiple countries laying claim to its miniscule islands, and China’s rapid militarization of the region, international law has little power to untangle this net of territorial chaos.  This is due to the lack of enforceability of International Law and the reluctance of nations to employ different strategies to ensure accountability and compliance.

International Maritime Law - UNCLOS

International Maritime Law was established by the United Nations Convention on the Law of the Sea (UNCLOS) in 1982.  This gives countries boundaries on what they can and can’t do in international waters, as well as establishing a country’s maritime jurisdiction.  Some of the important conditions that pertain to the South China Sea Conflict have been listed as follows [2]:

1. A country has sovereignty in waters up to 12 nautical miles from its coastline,  meaning that it can do virtually anything in these waters, including military drills and build-up.  Some nations in this region have claimed alternate areas of sovereignty, such as China, with its “Nine-Dash Line” which is in direct violation of the UNCLOS, since it is conducting military operations far beyond the 12 nautical mile limit.

2. Exclusive Economic Zones (EEZ’s) were established.  This gives coastal states 200 nautical miles of ocean where they are allowed to solely conduct economic activities, including obtaining natural resources, and scientific research.  Other nations are allowed passage through these areas, by water or air.  EEZ’s are important since they establish a tangible legal stake for countries’ claims in the South China Sea, but these also cause contention with countries such as China and Vietnam that feel their historical claims have been infringed upon. 

3. All states are allowed to traverse, research, and fish in international waters, but are obliged to conserve resources.  Some countries, like China, have gone beyond these provisions, militarizing territory they have no legal stake in (based off UNCLOS). 

4. Any disputes to this policy are to be taken to the International Tribunal for the Law of the Sea or the International Court of Justice.  (These are international courts where countries can resolve their disputes.)  This serves as an accountability mechanism for any violations of International Maritime Law, but there is little that can be done to actually enforce the ruling, as seen in Philippines v. China.

UNCLOS established the prevailing laws of the sea today, but they are far from enough to solve a dispute as complex as that in the South China Sea.

The Dynamics of the South China Sea Conflict

Image borrowed from Voice of America [3]

Along the coastlines surrounding the South China Sea basin are the countries of China, Vietnam, Malaysia, Brunei, and the Philippines.  With the establishment of maritime law at UNCLOS, these countries all established their EEZ’s in the surrounding waters.  Despite the provisions stated in the UNCLOS, countries like Vietnam and China exaggerate the size of their EEZ’s, going past the 200 nautical mile limit.  This is especially true of China, who’s territorial claims, the “Nine-Dash Line,” encompasses 62% of the South China Sea, brazenly defying the 200 nautical mile EEZ limit [4].  Recently, China has been constructing artificial islands in these disputed waters, and increasing their military presence, posing a threat to the security of the region [5].  

But the history of this conflict in the South China Sea began far before the conflicts of today and even precedes the UNCLOS.  In 1935, in the beginnings of World War II, Japan expanded its influence over the islands of the South China Sea, occupying island archipelagos such as the Spratly Islands and the Paracel Islands, both of which were previously claimed by Qing China and France.  At the end of the war, China established its “Nine-Dash Line,” claiming the majority of the South China Sea basin and the islands within.  After the Vietnam War, in 1974, China reaffirmed its control of the Paracel Islands, which were disputed previously by South Vietnam.  Finally, in 1982, UNCLOS was established, creating modern maritime law.  This was intended to ease tensions in the region, but this delegitimized China’s historical claims in the region, so it instead exacerbated these tensions [6].

China’s claims have led to a great deal of contention with the other states on the South China Sea.  In the 2016 case, Philippines v. China, the former filed a complaint of many charges and violations of the UNCLOS against China.  They accused China of taking control of Scarborough Shoal, a reef 140 miles from their mainland in their EEZ.  They contested China’s “Nine-Dash Line” and the creation of artificial islands on the high sea and in other EEZ’s.  China argued that it did have authority over these waters due to historical use.  The tribunal ruled in favor of the Philippines, declaring China’s construction of artificial islands outside of their sovereign waters to be violating the UNCLOS.  China’s historical basis to these waters had been eliminated when it signed the treaty.  Most importantly, the tribunal stated that the “Nine-Dash Line” had no legal basis.  Despite this ruling, China still continues their territorial overreach in the South China Sea, building artificial islands and doing military drills, their government saying they will neither recognize nor enforce the decision [7].  By breaking international law and rapidly militarizing the region, China is securing their control of the region, which could have serious political and economic implications.

How to Maintain the Law in the South China Sea
International Law is a relatively new development, and it faces many difficulties in being enforced.  Since these laws govern entire countries, there is not a set mechanism of accountability to where a country can truly be held to the law.  There is no international authority established to enforce laws, so the only real approach to enforcing international law is a multilateral approach, where a coalition of many countries agree to penalize a country for a violation of the law economically, politically, or militarily.  The difficulty in enforcement of International Law stems from the fact that there is no single enforcement authority, but rather, the necessity of a coalition of nations which is often hard to organize when nations are onslaught with their own issues.

The complications that International Law poses in terms of enforceability are exemplified in the South China Sea conflict, where China is intentionally infringing the agreements made in the UNCLOS with their militarization and territorial claims in this region.  Little decisive action has been taken to punish this behavior.  

However, there is some degree of enforcement in international law which could be employed, as described by Section VII of the UN Charter [8].  This is done diplomatically by ending relations with a certain nation, economically through trade restrictions such as embargoes or sanctions, or, as a last resort, militarily.  These powers are reserved for acts that disrupt peace or are considered acts of aggression.  

The UNCLOS in itself has no method of enforcement, despite the ruling of the tribunal court, meaning that by itself it is a weak agreement that can easily be breached.  But if this were paired with Section VII, violations of this law that are considered acts of aggression could be punished.

This is the case with China.  They aggressively claimed the nine-dash line, impeding on the EEZ’s exclusive to other countries, and they have now militarized the region.  With this act of hostility, Section VII should, despite the difficulties of multilateral enforcement, be employed with the provisions of the UNCLOS to hold them accountable and to preserve the fragile balance that is characteristic of the South China Sea region.

David Vojtaskovic is a first-year who plans to study Economics and History. He is a Staff Writer for the Law Review's Blog and can be reached at david_vojtaskovic@brown.edu.