Elsevier

Orbis

Volume 56, Issue 4, Autumn 2012, Pages 608-642
Orbis

Troubled Waters: China's Claims and the South China Sea

https://doi.org/10.1016/j.orbis.2012.08.007Get rights and content

Abstract

Among China's unresolved frontier questions, the South China Sea has become the most complex and troubled, and arguably the most significant and disconcerting. The economic and security stakes are high and the stake-holding states numerous and diverse. The claims that China (and others) make about the region reflect such interests but they are, ultimately, legal claims. Beijing's assertions of rights to the disputed areas have rested on three conceptually distinct grounds. Each presents a different mix of challenge and accommodation to international legal norms and the interests of other states, including China's neighbors, near-neighbors and the United States.

while China's behavior (as well as that of other interested states) has been more and less assertive at various times, China's three basic arguments claiming rights to the region have been comparatively stable. Both China's pattern of multiple legal arguments and fluctuating actions and rhetoric do little to resolve the debate over whether a rising China will be deeply disruptive of the regional and international order or whether it can—with sufficient skill and tolerable adjustments—be accommodated and integrated. Although China's stance on rights in the South China Sea may be partly the accidental product of conflicting agendas and shifting assessments, Beijing's embrace of three distinct lines of legal argument arguably constitutes a strategy that serves China's interests given the factual, legal and strategic environment that China faces.

Section snippets

High Stakes in a Sea of Troubles

The South China Sea is an area of major and long-term economic and strategic interest for China, its maritime neighbors and many states outside the region, including the United States. None of China's other territorial or maritime disputes equals the South China Sea in economic magnitude. The nearly one and a half million square mile area includes some of the richest fishing grounds in the world—ones that face severe depletion if catches are not effectively regulated. Beneath the sea lie

A Chinese Lake?: Claiming Sovereignty over the Sea

The most geographically expansive and, in some respects, most radical of China's legal argument concerning the South China Sea asserts that the vast majority of the area is in effect a Chinese lake—part of its territorial sea (or its rough equivalent) over which China has full, or nearly full, sovereign powers. The locus classicus of this claim is one interpretation of the ubiquitous PRC map showing nine dashes that sketch a U-shaped line enclosing a cow's tongue-shaped area. The line encircles

Islands and the Sea: “Indisputable Sovereignty” over Landforms and Rights in Adjacent Maritime Zones

China's most elaborate and most prevalent claims to the South China Sea are based on sovereignty over the land formations within the 9-dash line. Under principles set forth in UNCLOS, embedded in customary international law and accepted in international political practice, sovereignty over islands (and, to a lesser degree, lesser landforms) gives rise to significant rights over adjacent maritime areas, including essentially full sovereign rights over nearby zones and more limited jurisdiction

Keeping Threats at Bay: China's National Security Rights and Other States’ Obligations

A third basis for China's asserted rights over the South China Sea is China's purported national security rights and the correlative obligations of other states. For this still-emerging PRC analysis, the focus again has been U.S. military and intelligence activities off China's coast. Many of China's contentions overlap and entwine with China's arguments about rights in EEZs and other UNCLOS-governed maritime zones. But the “national security” argument is conceptually distinct—and in ways that

A Sensible Strategy for a Rising China in an Uncertain and Changeable Context?

China's multipronged legal arguments asserting rights over the South China Sea may serve China's interests, at least if one accepts a few plausible premises: China seeks (or wants to preserve the option of seeking) greater dominion over the region at acceptable cost; the legal rules and relevant facts are uncertain or changeable (potentially in China's favor); and China's power—and, in turn, its ability to shape (or even disregard) prevailing legal doctrine and existing patterns of control—are

Jacques deLisle is the director of the Asia Program at FPRI, the Stephen A. Cozen Professor of Law, University of Pennsylvania. This article is a revised version of a paper he delivered at a conference on “Contested Terrain: China's Periphery and International Relations in Asia,” on November 4, 2011. The event was cosponsored by the Foreign Policy Research Institute and the Reserve Officers Association, in Washington, D.C.

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Jacques deLisle is the director of the Asia Program at FPRI, the Stephen A. Cozen Professor of Law, University of Pennsylvania. This article is a revised version of a paper he delivered at a conference on “Contested Terrain: China's Periphery and International Relations in Asia,” on November 4, 2011. The event was cosponsored by the Foreign Policy Research Institute and the Reserve Officers Association, in Washington, D.C.

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