CHINA'S ISLAND BUILDING IN THE SOUTH CHINA SEA: COLLATERAL EFFECT ON THE UNCLOS AND POTENTIAL SOLUTIONS.

• Author: Belding, Sean P.
• Position: UN Convention on the Law of the Sea

1. INTRODUCTION II. FRAMING THE SCS DISPUTE A. An Artery of Globalization: SCS's Vital Role in the Global Economy 1. Trade 2. Energy Security 3. Resources B. Legal Claims throughout the SCS C. The Nine-Dash Line: China's Historical Legal Claims over the SCS 1. Birth of the Nine-Dash Line 2. The Note 3. International Legality of China's Claim within the Nine-Dash Line versus Island Building and Militarization 4. Acts of War: China's Forceful Taking and Military Control of the South China Sea III. COLLATERAL EFFECTS ON THE UNCLOS'S CLCS AND FREEDOM OF NAVIGATION: ARE SUPERPOWERS EXEMPT? A. China's Undermining of the UNCLOS 1. The Commission on the Limits of the Continental Shelf 2. Freedom of Navigation under the UNCLOS B. Collateral Effects of the CLCS: The Arctic and the Gulf of Mexico 1. The Arctic IV. GLOBAL CONFLICT: POTENTIAL FOR DISPUTE RESOLUTION OR A FALSE DREAM? V. CONCLUSION I. INTRODUCTION

   The South China Sea (SCS) is one of the most hotly contested areas in the world. Six nations--Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam--assert overlapping and ever-changing claims throughout the area that result in constant conflict. In 2009, Vietnam and Malaysia submitted a joint brief to the United Nations claiming a portion of the SCS continental shelf. Disputing the claim and supporting its own claims over the SCS continental shelf and various SCS features, China submitted the "nine-dash line map" (1) to the Commission on the Limits of the Continental Shelf (CLCS). (2) In July 2016, the Permanent Court of Arbitration (PCA) rejected the nine-dash line and China's historical rights to the SCS. (3) Ignoring the PCA, violating international law, and inflaming the global SCS conflict, China continued creating artificial islands and militarizing the SCS. (4)

   China's forceful taking and militarization of the SCS has far-reaching implications for a wide variety of international laws, globalization, and energy security. However, this comment specifically focuses on the collator effect of China's SCS actions on the United Nations Convention on the Law of the Sea (UNCLOS), the failure of the 2016 PCA Award, and potential solutions to the SCS dispute. Part II highlights the SCS's importance to the global economy, frames the SCS dispute, and establishes China's historical claims. Part III analyzes the collateral consequences of China's SCS actions on the UNCLOS. Part IV evaluates the key findings and failures of the recent 2016 PCA Award and offers alternative solutions to the SCS dispute. Part V is a brief conclusion urging politicians, military advisors, and governments to consider a peaceful resolution and the creation of an international organization that strengthens the UNCLOS, preserves international trade and energy security, and ultimately prevents war.

2. FRAMING THE SCS DISPUTE

   1. An Artery of Globalization: SCS's Vital Role in the Global

      Economy

      The SCS is one of the most important areas of the globe for three reasons: (1) trade; (2) energy security; and (3) resources. (5)

      1. Trade

         The SCS's critical trade route serves a vast majority of the global population and is an engine for global commerce. One estimate suggests that "more than half the world's maritime trade goes through [the SCS]." (6) The SCS accounts for approximately $5.3 trillion in trade a year, allowing essential energy and food resources to pass through the area free of impediment. (7) Additionally, the Wall Street Journal estimates that U.S. imports and exports account for $1.2 trillion of the $5.3 trillion in annual trade. (8) One journalist has described the SCS as "both the fulcrum of world trade and a crucible of conflict " (9) Ultimately, any destabilization of the SCS could impact global commerce. (10)

      2. Energy Security

         Controlling the SCS has major implications for energy security. The key factors driving energy security in the SCS are "high and volatile energy prices, China's rapid emergence as a huge oil and gas importer, Japan and Northeast Asia's total and continuing dependence on imported oil and gas, and Southeast Asia's emergence as a net oil and gas importer." (11) About one-third of the oil trade and more than one-half of the liquefied natural gas (LNG) traded throughout the world passes through the SCS. (12) China alone requires approximately 3.77 billion barrels of oil per year--2.46 billion of which are imported. (13) Additionally, China consumes approximately 6.78 trillion cubic feet of gas a year and imports about 2.08 trillion cubic feet of that gas. (14) The entire Asia Pacific consumed 24 trillion cubic feet of natural gas. (15) Furthermore, Australia is estimated to become one of the biggest providers of LNG in Southeast China by 2020. (16) It is estimated that by 2035, 90% of Middle Eastern fossil fuel exports will be sent to Asia. (17) Substantial conflict or war in the SCS could create a global energy crisis.

      3. Resources

         Resources may play a lesser role than global trade and energy security throughout the SCS, but it has still driven controversy throughout the area. It is estimated that there are approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas in the SCS. (18) However, the SCS is relatively unexplored, and in November 2012, the Chinese National Offshore Oil Company estimated that undiscovered resources amount to 125 billion barrels of oil and 500 trillion cubic feet of natural gas. (19) Another essential resource in the SCS is its fish supply. The fishing industry employs more than 3.7 million people and generates billions of dollars every year. (20) By 2030, China is expected to supply 37 percent of total fishery production and 38 percent of the fish supply for human consumption throughout the world. (21) SCS trade and energy security drive the majority of disputes, but resources also play a role.

   2. Legal Claims throughout the SCS

      Gregory B. Poling asserts that the biggest issue surrounding the SCS is the failure of the claimants to clearly codify their claims. (22) Figure 1 in Appendix A is a visual representation of the various claims made throughout the SCS by Brunei, China Indonesia, the Philippines, Malaysia, Taiwan, and Vietnam. (23)

      Brunei's claim to the continental shelf extends into the SCS and encompasses the Louisa Reef, which is considered a portion of the Spratly Islands archipelago. (24) Indonesia has claimed a portion of the SCS based on the Exclusive Economic Zone (EEZ) its continental shelf, and its treaties with Malaysia and Vietnam delimiting maritime boundaries. (25) The majority of the Philippines' claims are created based on "the EEZs generated from its territorial baselines," however, the Philippines has "not demarcated the majority of [its] EEZs and continental shelves in the SCS" with Malaysia or China. (26) Additionally, the Philippines claims the Scarborough Reef and occupies several of the Spratly Islands. (27) Malaysia signifies its maritime boundaries in the SCS based on its maritime boundary with Indonesia's Tudjuh Archipelago and with the Philippines. (28) Malaysia has agreed to joint development with Vietnam in the western SCS, but it has not resolved ambiguities pertaining to Brunei's continental shelf claims. (29) Taiwan claims that it has "sovereignty over all features drawn within the dashes originally shown on a map published by the Kuomintang government in 1947--including the Spratly Islands, Paracel Islands, and Scarborough Reef." (30) Taiwan also occupies some of the Spratly Islands and "administers Pratas Island." (31) Vietnam claims it has historical rights to the SCS and the Spratly and Paracel Islands similar to China's. (32)

      Although Vietnam has attempted to negotiate maritime boundaries with several countries, (33) Gregory Poling notes that its claims throughout the SCS "provoked China into presenting the nine-dash line map as an official protest." (34) China has set boundaries with Vietnam, Taiwan, and the Philippines, (35) yet the primary disputes throughout the SCS revolve around specific features such as the Spratly Islands. Claiming these features grants a country greater control over trade, energy security, and resources in the SCS. These disputes caused China to submit its nine-dash line map, reinforcing its historical rights to the SCS. (36)

   3. The Nine-Dash Line: China's Historical Legal Claims over the SCS

      1. Birth of the Nine-Dash Line

         China's historical claims date back to the Silk Road on the Sea during the Qin and Han dynasties from 221 BC to 220 AD. (37) By 1935, China had claimed 132 names for islands and other insular features throughout the SCS and published these claims in an atlas. (38) In 1947, China published the eleven-dash line "to reaffirm and reiterate [its] sovereignty over the island groups in the SCS at the beginning of a new, postwar era." (39) In 1953, China entertained Vietnam's concerns by removing two dashes "from the eleven-dash line, leaving nine segments ..." (40) Thus, the nine-dash line was born.

      2. The Note

         China's primary foundation for its nine-dash line stems from its Declaration on the Territorial Sea, which was promulgated on September 4, 1958. (41) Eventually, China promulgated its Law on the Territorial Sea and the Contiguous Zone and its Law on the Exclusive Economic Zone and the Continental Shelf to codify its claims over several islands and features throughout the SCS. (42) As resources and energy security became a major priority throughout the SCS, tensions began to rise, and China started enforcing its claims over islands and areas within the Sea and its nine-dash line. (43) Most notably, China's "note verbale of May 7" openly contested Malaysia's and Vietnam's joint submission to the Commission on the Limits of the Continental Shelf, stating,

         China has indisputable sovereignty over the islands in the SCS and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.... The...