Professor John Norton Moore Explains South China Sea Controversy

Professor John Norton Moore is the Walter L. Brown Professor of Law and director of the Center for National Security Law and the Center for Oceans Law and Policy.

January 11, 2016

The stakes are high in the percolating South China Sea controversy, a dispute involving China's aggressive ocean boundary and island sovereignty claims. In a Q&A, University of Virginia School of Law professor John Norton Moore examines the legal and political concerns confronting the United States and the nations involved.

The dispute over land, boundaries and navigation has the potential to impact the globe, Moore said. The South China Sea is a critical waterway through which about one-third of the world's crude oil shipments pass each year. China's recent building of artificial islands in the disputed area has only heightened concerns.

Moore, an authority on international law, national security law and the law of the sea, was formerly the counselor on international law to the State Department. In all he has held six presidential appointments, including as chairman of the board of directors of the U.S. Institute of Peace.

What is the dispute in the South China Sea about?

The South China Sea dispute is a highly complex island sovereignty and oceans boundaries dispute involving the Spratly Islands, the Paracel Islands, and Scarborough Shoal, as well as a unique "nine-dash line" demarcation boundary drawn by China enclosing approximately 90 percent of the relevant area in the South China Sea, with its hundreds of islands and reefs. Regional participants in the dispute include the Philippines, Vietnam, Indonesia, Brunei, Malaysia and China (including Taiwan). The dispute pits China against a regional strategic rival, Vietnam, and against its' ASEAN neighbors.

There is also an East China Sea dispute between the strategic rivals of China and Japan over the Diaoyu/Senkaku Islands. The nine-dash line claim and other aggressive Chinese actions in the dispute also present critical issues of navigational freedom for the entire world.

Why is the dispute in the South China Sea particularly important when looked at from a global context?

The core community common interest in the oceans is that of navigational freedom; an interest critical for both commerce and security. China's illegal nine-dash line claim, as well as its aggressive building of artificial islands in the disputed area, directly implicates this core global oceans interest. The dispute is also of importance in relation to the behavior of China, a nuclear super power, with respect to its engagement with its neighbors and the rest of the world. Will China simply seek to bully other countries through an exercise of raw military power, or will it resolve its differences peacefully through the rule-of-law? 

The particularly problematic Chinese actions in the dispute concern ambiguous assertions of jurisdiction rooted in its nine-dash line (which has no basis in the law of the sea), its aggressive actions against peaceful activities of its neighbors in the area and, most recently, aggressive building of artificial islands harming the fragile environment, as well as baseless assertions of oceans boundary claims asserted from these artificial islands. Should the dispute escalate, the United States has a mutual security treaty with the Philippines. With respect to the East China Sea dispute between China and Japan, the United States also has a mutual security treaty with Japan.

How do international laws and the law of the sea apply to the disputes in the South China Sea?

Fortunately, the U.N. Convention on the Law of the Sea applies fully to the dispute, with all of the regional disputants parties to it. At least 20 different articles from the U.N. Convention apply to this complex dispute, thus setting important legal parameters for the parties. The Philippines recently instituted an arbitration against China under the U.N. Convention, and the tribunal has declared that it has jurisdiction over relevant issues. China has sought to deny the jurisdiction of the tribunal but a decision on the merits for at least some of the disputed issues is now expected in the spring or summer of 2016. Disputes concerning competing claims to the land-territory of natural islands in the area are governed by general international law, as opposed to the UNCLOS Convention.

Are there other similar disputes in recent history?  How would things work differently if this sort of dispute were happening in North America or in another location?

Oceans disputes are common. The United States and Canada, for example, have a history of oceans disputes. But these U.S./Canada disputes are resolved, or simply managed, peacefully by both nations.  What makes the South China Sea dispute more difficult are the enormous complexities of multiple island sovereignty claims, coupled with multiple oceans boundary issues, China's ambiguous asserted "nine-dash-line" claim in the area, and the aggressive actions of China in asserting its claims against its ASEAN neighbors. China should clarify that its nine-dash line claim only has relevance for disputed islands in the area and has no relevance for oceans claims, it should negotiate bilaterally with its neighbors where feasible to resolve individual components of the dispute, and it should work collectively with its ASEAN neighbors in a multilateral resolution of remaining problems.

China's current posture is counter to its own critical interest in protecting navigational freedom worldwide as a nation developing a major blue-water navy and as a principal exporting nation in the world. Further, China's stance toward its neighbors is needlessly harming its relations with them. Finally, given the enormous complexities of the dispute, the only realistic way to resolve the matter short of a century of struggle and wasted opportunity to develop the resources of the area, is through multilateral negotiations with all the affected states.

What other countries have an important interest, and why?

The South China Sea is a critical waterway for merchant shipping transiting the area; shipping carrying trade there has an estimated value of $5.3 trillion per year. Approximately $1.2 trillion of that trade makes its way to U.S. ports. About one-half of world merchant tonnage and one-third of world crude oil shipments pass through these waters each year. As such, every nation in the world has an interest in peaceful resolution of this dispute; a resolution that fully protects navigational freedom as set out in the U.N. Convention on the Law of the Sea. The world also has a major stake in China, as a superpower, resolving its disputes peacefully and through the rule of law.

What’s the position of the United States?

The United States takes no position on the island sovereignty disputes or unresolved oceans boundary claims in the area, which are issues for the respective regional parties to resolve. It has a strong stake, however, in protecting navigational freedom in the area and in assuring that the illegal Chinese nine-dash line claim does not become a precedent for balkanizing the world's oceans. It also has a critical interest in encouraging peaceful resolution of these disputes; particularly given its mutual security treaties with the Philippines and Japan. Further, the United States has a critical interest in maintaining the effectiveness of the UNCLOS Convention and all of its provisions as reflecting an enormous achievement in the international rule of law.

The effectiveness of the United States in constraining this dispute and protecting the UNCLOS Convention is severely diminished by the U.S. Senate not yet providing advice and consent to the Law of the Sea Convention as has been repeatedly urged by every American president and every chairman of the Joint Chiefs of Staff following the renegotiation of the deep seabed mining provision in 1984.

United States non-adherence to the UNCLOS Convention, driven by a patina of false information about it espoused by an ideologically driven opposition, has already cost the United States two of its four deep seabed sites with strategic minerals of an estimated one-half trillion dollars, at the same time as China and Russia move aggressively to lock up their own seabed sites. Continued non-adherence is also costing the United States effectiveness in resolving critical oceans disputes such as those concerning the Arctic Ocean and the South China Sea, and it has cost the United States its traditional leadership in oceans matters.

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