The South China waterway, which is a part of the Pacific Ocean, is a bordering waterway that includes a huge variety of terrain. The area is crucial because it serves as a transition for the transportation operations of numerous nations. The region is also said to have enormous amounts of gas and oil beneath its seabed. (Buszynski 142). South of Taiwan Island and Mainland China is where the South China Sea is located, to the east of Cambodia and Vietnam, and to the west of Philippines. The region also borders Malaysia to the east. The sea consists of several uninhabited islands and is, therefore, a subject of competing for sovereignty and hegemony claims by many countries. The claims are shown by the many names that are used by different nations to refer to the sea and its islands.
The English name for the sea is the South China Sea, with an equivalent name in all most of the European languages. The countries that border China calls it by different names reflecting the historical claims of sovereignty over the sea and its islands. It is considered by many European and South Asian countries as a route to China's trading opportunities. The territories and states bordering the South China Sea consist mainly the China Republic, also known as Taiwan, the People's Republic of China, Indonesia, Brunei, the Philippines, Malaysia, Singapore, and Vietnam (Dutton 47).
The South China Sea contains at least two hundred and fifty atolls, shoals, reefs, cays, sandbars, and small islands. These features have no indigenous inhabitants and most of them are naturally below the water surface at a high tide. Some of the features are perpetually submerged, with most of them naturally under water at the great tide. (Thayer 557). The topographies are also categorized into archipelagos.
Geopolitically, the South China Sea is quite significant for many reasons. The area is one of the most used sea lanes worldwide, actually the second (Sutter and Huang 67). Economically, the sea facilitates shipping activities to many states and is the main route to conducting business activities between countries. The Philippine's Department of Environment and Natural Resources carried out research on the water body and found that it contains a third of the world's marine diversity biologically. The mentioned aspects have made the South China Sea an important area for the biological ecosystem. Because of its oil and gas reserves and multiple economic advantages, it has led to several territorial disputes from its neighboring states, most of them claiming ownership and control. However, the sea's fish stocks are depleted (Dutton 54). Therefore, many countries are citing fishing bans as a way of fighting for their territorial sovereignty and as proof of their hegemony claims.
Statement of Facts
Origin of the Disputes
Various countries and sovereign states have made territorial claims on the vast water body. Most of the sea's territorial disputes arise from its economic importance, ranging from the rich ecosystem to the vast oil reserves of estimated 11 billion barrels besides its gas reserves projected to be 190 trillion measures in cubic feet (Buszynski 152). The disputes have been considered as Asia's most dangerous conflict point. China claims almost the whole sea as within its territory, basing its claims on the nine-dash line (Dutton 44). In this case, it attempts to bar other countries from conducting any activity in the waters that has economic impacts whatsoever. China holds that foreign militaries should not carry out intelligence activities like reconnaissance flights in its exclusive economic zone, under international law.
Indonesia, Taiwan, and China have engaged in disputes over the waters located to the north-east of Natuma Islands. Taiwan and China as well as the Philippines battle over the Scarborough Shoal. China, Vietnam, and Taiwan encounter over entitlements on the Spratly Islands. China disputes with Vietnam over the Paracel Islands. The Gulf of Thailand is claimed by both Vietnam, Thailand, Cambodia and Malaysia. Finally, Malaysia and Singapore fights over Johore and Singapore Straits (Thao 107).
Facts of the Case
The past few decades have seen China and Vietnam clash severally over the South China Sea, each of them claiming sovereignty. The 1974 and 1988 clashes, for example, have seen China grow and expand its control over the sea. For a long time now China has been extending its maritime influence and power into the water body. In the 1970s, several Chinese governments controlled a part of the Paracel Islands, while South Vietnam controlled the other (Thao 109). Over the years, several soldiers from both sides have been killed in naval clashes over the island. Recently, China's power and control spirit have gained momentum, starting with the foundation gained in the Paracels. In the year 2014, China commenced its actions of drilling for oil in the South China Sea waters, triggering a great dispute with Vietnam. The two countries have vigorously prosecuted their claims over the Paracel Islands (Jinming and Dexia 289).
In May 2014, China placed a drill rig for drilling oil in waters adjacent to the disputed Paracel Islands in the Sea. China began to drill an oil well in the southwest part of the Paracel Island to test for the presence of oil (Buszynski 146). The country's main aim was to test and check whether the oil could be found in commercial quantities. In mid-2014, China withdrew its oil drill rig and shut it down claiming that they had finished the test drilling. Beijing made a statement that China would carry out an assessment of the test results and then decide on the subsequent steps of drilling oil in the island.
In January 2017, geophysicists of the China National Oil Company (CNOC), also referred to as also the China National Petroleum Company (CNPC), found out that that the Paracel islands were very rich in usable oil, which was anticipated to provide a huge flow of revenue for the coming 50 or more years. After a short while, China through its CNOC placed another drill rig known as the China Explorer on the Paracels to the southwest. China positioned the drill rig and began initial preparations for carrying out commercial drilling activities.
According to GPS readings by the Vietnamese government, China placed its China Explorer on a drill site that is 189 miles away from the Vietnamese coast high tide mark. This site is said to fall within Vietnamese exclusive economic zone (EEZ), thus falling within the Vietnamese EEZ (Thao 112). Vietnam claims an extension of their continental shelf to the site where China has placed the drillship. Vietnam is disputing with China on the Paracel Islands, both claiming ownership.
As soon as the China Explorer arrived at the Paracel Island, Vietnam issues a resolution to the United Nations Security Council requesting that China withdraws their drill rig. Vietnam does this through France which is an ally of Vietnam (Thao 107). They two countries aim at politically isolating China on the issue if other UNSC members vote for the resolution. Unfortunately, quite a number of the UNSC members feels that the South China Sea issue ought to be handled politically by all the parties concerned, China included. The members hold that the issue should not be debated at the UNSC the parties, not be a subject of debate at the United Nations Security Council. Thus, no vote occurs and Vietnam is disappointed.
Vietnam, in utter disappointment, writes to the United Nations General Assembly (UNGA) calling for a resolution to demand China to withdraw its drilling activities on the Paracels. Vietnam opts to call for multilateral dialogs with all other littoral states of the South China Sea. Their aim is to make a reasonable agreement about the competing claims. UNGA, in response, consequently passes a resolution calling for negotiations and requesting that the rig is withdrawn but China does not surrender. Vietnam government then dispatches its navy to force the CNOC drill ship to withdraw its activities. Due to the tense situation and passionate international interest in the situation, many international reporters join the naval expedition of the Vietnamese boarding the VNS Ho Chi Minh.
As soon as the Vietnamese frigates reach the CNOC drillship site, two Chinese frigates had already arrived. Naval protocols saw the Vietnamese commander demand to the China Explorer by radio that they withdraw and stop their drilling operations since they have no drilling license and are in Vietnamese waters. The commander also makes a demand that the two Chinese flagship frigates be withdrawn because they are combatant vessels in Vietnamese waters without being granted permission. He says that if the commands are not honored, the Vietnamese would topple the Chinese drillship over by firing at its legs. On hearing this, the China naval ships and the China explorer refuse to honor the withdrawal demands and war ensues between the two countries' war ships (Jinming and Dexia 290).
The naval vessels aggressively sailed towards each other and surrounded each other. When no side was giving in, the CNS Beijing sails towards the NVS Ho Chi Minh and the two vessels collide, causing a lot of damage to each other although neither of them seems to be in danger of sinking. This aggression saw China suffer 3 dead victims and numerous soldiers injured. Vietnam suffers 32 casualties and 10 people dead, including a French national Jean Cousteau who is the son of a famous undersea explorer Jacques Costeau, and an international photojournalist. The journalist met his death while trying to take photos while the situation was getting tense between the CNS Beijing and the Ho Chi Minh. CNS Beijing. Both navies withdraw after being incapable of more aggression. The CNS Beijing and the Ho Chi Minh head to the ports for repairs while the casualties and the dead are quickly helicoptered off (JAGC 108). The international press quickly dubbed the events as the "Paracels Incident".
Substance of Questions Posed
ICJ Jurisdiction
The Vietnam vs. the People's Republic of China case is brought to the International Court of Justice table immediately after the ICJ makes arbitration on the case that involved China vs. the Philippines on the same South China Sea issue. The ICJ ruled against China and for the Philippines in the case (Jinming and Dexia 293). Vietnam believes that after the court's ruling on the case, nothing can stop them from winning their case against China.
Vietnam's Argument
Vietnam writes an application to the ICJ suing China for damage caused by its vessels and the dead sailors. Vietnam also sues for reparations on the death of the international photojournalist Jean Cousteau. In its application, Vietnam seeks reparations amounting to $1,000,000 per day from China unless and until China withdraws its drillship and shuts it down. France, as an ally of Vietnam, opts to join the International Court of Justice case to seek reparations for Jean Cousteau who is a French national and was killed during the attack. In addition, Vietnam demands that all CNOC assets and overseas bank accounts are frozen, through an order by the ICJ, as collateral for China's payments of reparations to Vietnam. Vietnam claims that China's actions massively interfere with Vietnam's economic development. Vietnamese leaders would wish that the court ascertains their EEZ limits 200 nautical miles off the coastline. They also wish that their continental shelf is clearly ascertained after which they can continue exploring and utilizing their exclusive economic zone.
China's Holding
The ICJ lacks jurisdiction over the case. As such, the legal body does not have a considerable influence on the issues substantially covered in relation to the subject matter of this case, which is territorial sovereignty. Both countries claim territorial sovereignty over various South China Sea's maritime features and this is beyond the Conventional scope of jurisdiction (Thayer 562). China also holds that the reparations asked for by the Vietnamese government are far much unreasonable. Freezing of CNOC's assets and overseas bank accounts is an act that is not under the jurisdiction of the International Court of Justice. China holds that the ICJ cannot award a rule the issue of CNOC assets that are outside China because it is limited by its conventional duties under the international rule of law (Jinming and Dexia 297). Vietnam's threats to the Chinese naval frigates is also be said to have been the key source of the war and thus it cannot sue for damages especially on their ship because they did not act out of innocence.
The "Nine-Dashed Line" Theory
China cites its claims on the drill site using the "Nine-Dashed Line" theory. This theory explains the historical claim of the South China Sea by China dated back to 2,000 or more years ago. According to the "Nine-Dashed Line" theory, China maintains a base and a city in the Paracel islands especially the Woody islands, which establishes the Paracels as falling under Chinese territorial waters (Gao and Jia 100). The nine-dash line is based on the littoral states territory and the development of equidistant boundaries under the UNCLOS system. China asserts indisputable territorial sovereignty and maritime privileges over the water body islands as it was the first to exploit the Sea Islands resources since the end of the World War II (JAGC 105).
France Government and Jean Cousteau
The France government does not have a right to claim reparations for its national journalist Jean Cousteau's death because the case involved Chinese and Vietnamese governments only. The journalist was aboard Vietnamese naval ships before he met his death at the scenery and Vietnam has a due diligence of protecting him and his rights. Vietnam may, however, speak for Jean Cousteau, who was arguably within Vietnamese territory and to whom the country owed a duty of protection and due diligence.
Reporters Without Borders
This is a non-governmental organization that is concerned with issues affecting journalists and the freedom of the press. The NGO also files a Written Statement opting to join the case on behalf of journalist Jean Cousteau citing China's violation of the international law on human rights, especially that affecting journalists. However, China refutes and claims to cite the fact that they are not answerable to his death and are by no means going to provide for reparations. China holds that if the journalist's family or the Reporters Without Borders body believe that they have a claim against China, they should file the suits in China's law courts and the case can be settled through bilateral talks.
The Laws
UNCLOS
The United Nations Convention on the Law of the Seas (UNCLOS), signed in 1982, has a major objective of ending the struggles that exist between the South China Sea coastal states whose intentions are to expand their control over the maritime areas. According to the law, coastal states can claim a territorial zone up to 12nm off the sea. They can also claim another 12 nautical mile contiguous zone. This amounts to a total 200 nautical miles EEZ whereby they have special right to discover and exploit available maritime resources situated along the seabed and islands. According to Article 2 of the UNCLOS, China confirms its sovereignty over the Sea's islands and archipelagos. Article 298 of the UNCLOS also expressly offers state parties a right to opt out of a compulsory arbitration on disputes regarding historical titles and sea boundaries (Hong 258).
However, the UNCLOS is widely exploited by Vietnam for the relevance of the case. Vietnam asserts an indisputable sovereignty over the Paracels and Spratly archipelagoes as well as its unwavering interests and legal rights in the maritime zone citing the 200nm-mile UNCLOS provisions (Hong 258). The state also supports a full compliance with the UNCLOS procedures and provisions and asserts its implementation, including peaceful dispute settlement through proper interpretation and application of the law agreements. Vietnam also uses the Association of Southeast Asian Nation (ASEAN) to fight for its economic stability and internal protection from external influences and threats such as China.
The Vienna Convention on the Law of Treaties
This is a treaty regarding international laws on agreements and treaties between various states. The treaty was developed in the year 1969 by international law commission as a guide to the formation and the effectiveness of treaties (Hong 258). This convention serves to favor China against the UNCLOS it recognizes and validates China's historical claims on the sea and especially the Paracel islands.
UNGA's Resolution
When Vietnam writes to the United Nations General Assembly (UNGA) calling for a resolution to demand China to withdraw its drilling activities on the Paracels, UNGA responds by passing a resolution to call for negotiations and requests that the rig is withdrawn from the drill site. China does honor UNGA's resolution,
UNGA resolutions have an effect on the ICJ's ruling on its cases in ton is two ways: if the resolution is binding or not binding. In the case where a resolution is binding, the court issues a decision, if not binding, the court issues a recommendation. In the Vietnam vs. the People's Republic of China case, UNGA's resolution does not affect the court's decision or ruling as it is not binding. Thus, the court can only issue a recommendation on the case.
Conflict Resolution
According to ASEAN Secretary General, the issue of the South China Sea is viewed not only as concerning competing for sovereignty claims but also as about economic stability and harmonious coexistence in the region. This claim being true, as seconded by China, a system for crisis management need to be developed in the South China Sea area (Jinming and Dexia 295). A wide range of measures can be employed to prevent and ease the regional tensions as well as minimize risks of military conflicts. The disputes can be mitigated though the following means:
Resource Sharing
Coastal states claiming sovereignty from both sides of the sea can cooperate on resource development such as oil and gas. The resources can later be shared among all the claiming states in a peaceful manner. Resource sharing can be done through the signing of bilateral agreements such as patrolling mechanisms that could deter sources of conflicts in the region.
Inter-Military Communications
The conflicting states can as well improve dialogue and communication between their military forces through military communication mechanisms such as military hotlines. China and Vietnam, for example, have agreed to institute a military hotline that will help in managing military emergencies within their jurisdiction. As for this case, the military aggression between the two nations would not have ensued if the hotlines were already in place. The hotline systems connect leaders in the case where captains of naval vessels misinterpret naval maneuvers by vessels other nations.
Multilateral Framework
China and the ASEAN countries can build a code of conduct that is binding as a means of reducing regional clashes in the South China Sea (Jinming and Dexia 299). Confidence-building mechanisms and multilateral risk minimization measures are agreed upon by the parties that will help reduce territorial conflicts. The afflicted parties can also call for emergency sessions with the United Nations Security Council.
Economic Sanctions
Parties to a row in the South China Sea can also impose economic sanctions such as boycotts of goods and manipulate exports. Vietnam, for example, can sanction Chinese transactions, halt movement of certain products and services, or prevent travel arrangements between China and Vietnam (Jinming and Dexia 293). China can retaliate by barring Vietnamese exports and its purchases of Chinese treasuries. These sanctions can help prevent territorial conflict from escalating to an uncontrollable end.
Conclusion
The South China Sea is disputed for by several states. In an attempt to solve the issue, China holds that all parties concerned should seek proper means and ways of solving the conflicts including the integration of negotiations and consultations while maintaining respect for international law and historical facts. It maintains that the coastal states involved should engage in cooperation and dialogue so as to promote peace as well as political and economic stability in the sea region. The approach is perceived to lead to mutual trust, clearing of doubts, and facilitate friendly conditions for the proper settlement of the South China Sea issue.
Works Cited
Buszynski, Leszek. "The South China Sea: oil, maritime claims, and US-China strategic rivalry." The Washington Quarterly 35.2 (2012): 139-156. Print.
Dutton, Peter. "Three disputes and three objectives: China and the South China Sea." Naval War College Review 64.4 (2011): 42-67. Print.
Fravel, M. Taylor. "China's strategy in the South China Sea." Contemporary Southeast Asia: A Journal of International and Strategic Affairs 33.3 (2011): 292-319. Print.
Gao, Zhiguo, and Bing Bing Jia. "The nine-dash line in the South China Sea: History, status, and implications." American Journal of International Law 107.1 (2013): 98-124. Print.
Hong, Nong. UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea, London and New York: Routledge, 2012, xiv, 258 pp. Print.
JAGC, Raul Pedrozo. "Close encounters at sea: the USNS impeccable incident." Naval War College Review 62.3 (2009): 101-111. Print.
Jinming, Li, and Li Dexia. "The dotted line on the Chinese map of the South China Sea: A note." Ocean Development &International Law 34.3-4 (2003): 287-295. Print.
Sutter, Robert, and Chin-Hao Huang. "China-Southeast Asia Relations: Managing Rising Tensions in the South China Sea." Comparative Connections 13.2 (2011): 67-V,164-165. Print.
Thao, Nguyen Hong. "Vietnam and the code of conduct for the South China Sea." Ocean Development & International Law 32.2 (2001): 105-130. Print.
Thayer, Carlyle A. "China's New Wave of Aggressive Assertiveness in the South China Sea+." International Journal of China Studies 2.3 (2011): 555-583. Print.
