Spratlys > Collection > Claims > Indonesia & Spratly Islands Dispute

RE-VISITING THE SOUTH CHINA SEA

by B.Raman

The incident involving a spy-in-the-sky aircraft of the USA's National Security Agency (NSA) and a Chinese military aircraft over the South China Sea on April 1,2001, should draw attention to the deliberate vagueness of China's territorial claims relating to not only the Spratly Islands, but also the waters of the South China Sea itself.

In the past, China had referred to the islands as its territory and to the South China Sea itself as its "historic waters"

Does China claim only the islands? Does China also claim the sea as a whole as its territorial waters or does it admit that these islands are located in the "high seas" as interpreted by international maritime law? What are the implications of China's description of the South China Sea as its "historic waters" for navigation rights through the South China Sea and for air rights in the air space over the sea?

These are questions which keep arising from time to time, but Beijing has avoided answering them in a categorical manner.

A similar policy of calculated vagueness is maintained by Beijing in respect of the area of the Natuna gas fields of Indonesia.  At the fourth informal workshop on the South China Sea attended by China and the ASEAN countries held in Surabaya, Indonesia, in 1993, China, which had previously been reluctant to produce any documentary evidence in support of its claims, produced for the first time a map which indicated what it called its historic waters.  The Indonesians noticed to their surprise that the Chinese claim line was marked between the Natuna Islands of Indonesia and a gas-bearing area located 250 KMs to the North-East of it, which lies within the limit of the Exclusive Economic Zone of 200 nautical miles (320 kms) claimed by Indonesia, thereby raising the suspicion that China probably looked upon this gas-bearing area also as historically belonging to it even though it had never claimed it in the past before the discovery of gas.

Since then, repeated Indonesian attempts to obtain an oral or written communication from China giving a clear elucidation of its claims have proved in vain.

It has been the consistent stand of the US that while the ownership of the Spratly Islands is a matter to be decided by China and the concerned ASEAN member-countries (the Philippines, Malaysia, Brunei and Vietnam) in which it has no locus standi, it would not accept China's claim that the entire South China Sea constituted its "historic waters".  In the past, the US had also made it clear to Beijing that it would resist any attempt to interfere with international sea and air navigation rights through the South China Sea.

In March 1995, after the Filipino accusation against Beijing relating to its clandestine occupation of the Mischief Reef, Mr. Benjamin Gilman, the then Chairman of the House International Relations Committee, tabled a resolution in the US House of Representatives warning China against using force or intimidation in the South China Sea. The resolution added that "the right of free passage through the South China Sea is in the national security interest of the US".

In a statement issued on May 10,1995, the US State Department said: "The US would view with serious concern any maritime claim or restriction on maritime activity in the South China Sea that was not consistent with international law."

On June 16,1995, Mr. Joseph Nye, US Assistant Secretary of Defence for International Security, told pressmen at Tokyo: "If military action occurred in the Spratlys and this interfered with the freedom of the seas, then we would be prepared to escort and make sure that navigation continues."

A Pentagon study said: " The US takes no position on the legal merits of the competing claims.  Our strategic interest in maintaining the lines of communication linking South-East Asia, North-East Asia and the Indian Ocean makes it essential that we resist any maritime claims beyond those permitted by the Law of the Sea Convention."

In the face of these US warnings, a spokesman of the Chinese Foreign Ministry stated as follows on May 18,1995:" On the issue of the navigation rights in the South China Sea, the Chinese Government holds a definite and clear-cut position, namely, Chinese action to safeguard its sovereignty over the Nansha Islands (Spratly Islands) and the relevant maritime rights and interests will not affect navigation through and the freedom and safety of flights over the international waterway of the South China Sea in keeping with the international laws."

This statement, while assuring Chinese respect for the air and sea navigation rights of the international community over the international waterway of the South China Sea, did not specifically renounce Chinese claims that the South China Sea constituted its historic waters.  On the contrary, it asserted that China had relevant maritime rights and interests in the waters of the South China Sea, without specifying them.

Since then, the US has been regularly sending its ships and aircraft through the South China Sea in order to assert its position that the waters of the South China Sea constituted "high seas" and that the air space over these high seas is international air space and not Chinese air space.

The NSA plane, which force-landed in Hainan on April 1,2001, after reportedly colliding with a Chinese plane, was apparently sent there not only to collect electronic intelligence, but also to re-assert the US position that the air space over the South China Sea constituted international and not Chinese air space.