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 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.