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St.

Paul’s Model United Nations | 21st – 23rd December 2018

UNITED NATIONS SECURITY COUNCIL

STUDY GUIDE
St.Paul’s Model United Nations | 21st – 23rd December 2018

INTRODUCTION
With an extension of 3.63 million square kilometers, the South China Sea is of great importance for two
main reasons. On one hand, it possesses extensive amounts of food and a seabed that contains 11
billion barrels of oil as well as 190 trillion cubic feet of natural gas. But, on the other hand, it has also
become a crucial route through which around a third of the world’s shipping, equivalent to a total of
US$5.3 trillion in annual trade, transits (Gewirtz, 2016, & Council on Foreign Relations, 2017).

This explains the interest of the six Asian countries, including China, who are currently claiming the
ownership of the small land features within the South China Sea and it is why, nowadays, this sea is one
of the most dangerous hotspots in the world (Gewirtz, 2016). However, this dispute is by no means new.
In fact, according to the (2001), it started in the decade of 1930 and since then, it has had two particular
periods (1994-1997 and 2009-now), when tensions have escalated significantly (Associated Press,
2016).

Such a current rise in tensions, together with the multiplicity of actors, the importance of the natural
resource at stake and new developments in the dispute like the UN Permanent Court of Arbitration
decision to rule out China’s claims over Scarborough Shoal in favor of the Philippines in 2016, were the
reasons that led to the selection of the South China Sea case as the subject of this research paper. Also,
considering that this case raises a major question about what would be the fairest way to settle the
conflict, this paper aims at analyzing the ongoing situation in further detail through the lens of theories
about global distributive justice, the collective ownership of the Earth and the principle of common
heritage of mankind under international law.
St.Paul’s Model United Nations | 21st – 23rd December 2018

INFORMATION ABOUT THE DISPUTE

The natural resources at stake

As introduced previously, when referring to the territorial dispute over the South China Sea, it is
important to understand that the natural resource at stake there is not the South China Sea per
se, but the land features that are scattered through it. These land features can be observed in
Figure 1 within the yellow circles and Gewirtz (2016, p.2) characterized them as being usually
very small in size as well as underwater during the high tide.

Figure 1. South China Sea

Note: Own highlighting of a map by Tønnesson (2000).


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In addition to this, Figure 1 also shows that these land features are mostly1 divided into two
major archipelagos, namely the Paracel Islands (on the north) and the Spratly Islands (on the
south). In regards to the northern grouping, the Central Intelligence Agency (2016) argues that
they occupy around 7.75 square kilometers and are constituted by 130 small coral islands and
reefs.

Similarly, according to the Council on Foreign Relations (2017), more than 100 small islands
and reefs form the Spratly Islands, which together have a total area of 3.1 square kilometers on
the southern part of the sea. Moreover, both groups are known to possess rich fishing grounds
as well as other natural resources such as deposits of oil and gas (Council on Foreign
Relations, 2017), which is where their importance lies.

A historical approach on the involved actors and their corresponding claims

In his detailed reconstruction of the South China Sea dispute, (2001, p.7) was able to track the
first claim to these territories back to the colonialism period. In fact, according to him, Great
Britain became, in 1877, the first country to formally claim two of the largest islands of the
Spratly archipelago, namely Spratly Island and Amboyna Cay, with the purpose of legally
exploiting guano2 there.

This event in itself did not trigger any conflict, as there was little interest in those land features,
so the situation remained stable until Japan started to gain considerable power at the beginning
of the 1930s. France considered this an expansionist threat and thus, as a countermeasure, it
formally claimed both the Paracel and the Spratly Islands between 1930 and 1933 in order to
prevent Japan from using them as support points for a potential military expansion (Tønnesson,
2001, p.8).

1 Although the Scarborough Shoal, which is also circled in yellow in Figure 1, does not
belong to any of those two major groups, it is still under dispute.

2 As (2001, p.6) describes, guano is bird excrement and it was used as fertilizer and for the
manufacture of soap.
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In spite of the overlapping claims between Great Britain and France, (2001) continues by
arguing that Great Britain did not opposed France when the latter “established a permanent
presence in the Paracels” (p.8), but it did not withdraw its original claim either. At that point,
however, Japan objected and went ahead to formally claim the Spratly Islands for itself as well
as to set up a military presence there.

Later on, in 1940, Japan was able to expel the French from the biggest island of the Spratlys
(called Itu Aba) and this paved the way for Japan to exclusively control the South China Sea
during the period 1942-1945 (Tønnesson, 2001). Nevertheless, their control ended when Japan
surrendered during the Second Sino-Japanese War.

With this, so far, the number of involved actors in the dispute for the land features of the South
China Sea reached three: Great Britain, France and Japan. Yet, this was about to change
considering that, after 1945, the most active claimer of both archipelagos became:

[…] The Republic of China (the government of Chiang Kai-shek) who sent naval
expeditions both to the Paracels and the Spratlys in 1946-47, set up sovereignty
markers, and established a permanent presence on ltu Aba and Woody Island,
the largest feature in each group. In 1948, the government in Nanjing published a
map with a dotted U-shaped line encompassing virtually all of the South China
Sea (Tønnesson, 2001).

About this ‘U-shaped line’, it is important to mention that it was constituted originally by eleven
dashes on the map of the South China Sea, which included the Gulf of Tonkin. However, in
1953, after the change in the Chinese regime, the portion of that gulf was removed and it
became a nine-dash line. Since then and as Figure 2 exhibits, this nine- dash line has remained
as China’s claim over the existing land features of this sea (Associated Press, 2016 & Gewirtz,
2016).
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Likewise, in 1949, the results of the Chinese civil war introduced a new claimant in the dispute:
Taiwan. This was the place where the government of Chiang Kai-shek was forced to flee after it
lost control of its mainland as well as of Hainan . Once in Taiwan, this government claimed
being the legitimate Chinese government and consequently, it also claimed for Taiwan all land
features covered within the same nine-dash line as China (Council on Foreign Relations, 2017).

One year after that, Vietnam acquired the status of a sovereign country worldwide with two
different regimes. In the north, the ‘Democratic Republic of Vietnam’ had the recognition and
support of China, and, in the south, the ‘State of Vietnam’ remained practically a French colony.
From these two, it was the southern regime, which formally claimed both archipelagos as well
as demanded the right to occupy them . But what is more, Figure 2 shows that these territorial
claims over the Paracel and Spratly Islands have being maintained even after the 1975
Vietnamese reunification (Council on Foreign Relations, 2017).

In this regard, it is relevant to note that the French response to the Vietnamese claim already in
the 1950s was to withdraw its claim to the Paracels and to agree that they belonged to Vietnam,
although it still kept its claim to the Spratly Islands. The latter, however, became dormant a few
years later (in 1957), when “the French government decided to do the same with its Spratly
claim as Britain had done in the 1930s: Neither officially abandon nor actively defend it” . Also
within this decade, this source mentions that Japan formally abandoned its claims to all islands
in the South China Sea during the 1951 San Francisco Peace Conference. All this together,
took France, Great Britain and Japan out of the pool of involved actors in the dispute.

Moving on, the next important event to motivate new claims started in 1967, when a global
initiative began to discuss how countries should handle the continental shelves beyond their
national jurisdictions. This negotiation process ended in 1982 with the signature of the United
Nations Convention on the Law of the Sea (hereafter UNCLOS)
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and it was relevant for the evolution of the South China Sea dispute because, during this period,
proposals such as the Exclusive Economic Zone (EEZ) and the possibility of enlarging the
continental shelves to the same extend as the EEZs gained a lot of support. The latter, in
addition to the discovery of oil and gas deposits underneath the South China Sea, gave rise to
more claims over its land features .

The first of such claims was made by the Philippines, which, according to this same source,
started by declaring, in 1971, that the western half of the Spratly Islands was part of the
Philippines. Afterwards, as Figure 2 and Rosen (2014) indicate, this country extended its claim
to include 50 land features from the Spratly archipelago, which they called the Kalayaan Island
Group, as well as the Scarborough Shoal.

Lastly, also based in these principles, Malaysia and Brunei came to present claims over some of
the land features of the South China Sea, particularly in regards to the Spratly Islands. In fact,
according to McDevitt (in Roach, 2014, p.i), Brunei only claims Louisa Reef for itself, while
Malaysia claims seven land features from the Spratly Islands since 1979, namely:

 Swallow Reef.
 Amboyna Cay.
 Barque Canada Reef.
 Commodore Reef/Rizal Reef.
 Erica Reef.
 Investigator Shoal.
 Mariveles Reef.

3 Through the EEZ, countries obtain sovereign rights to exploit the existent marine
resources within an area of 200 nautical miles from their territorial sea (Lowy Institute for
International Policy, n.d).
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Figure 2. Current territorial claims over the land features of the South China Sea, by
claimant country.

Source: Stratfor (2017).

As such, the main actors nowadays involved in the dispute are the following six countries:
China, Taiwan, Philippines, Vietnam, Malaysia and Brunei (Lowy Institute for International
Policy, n.d; Tønnesson, 2001; Associated Press, 2016; Gewirtz, 2016; Council on Foreign
Relations, 2017 & Stratfor, 2017). However, there are also two other actors involved at least
indirectly, namely the United States and the Association of Southeast Asian Nations (ASEAN).

In the first case, according to the Council on Foreign Relations (2017), the United States is
involved significantly in the conflict, despite not making any territorial claim, because
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of its alliances with Japan and the Philippines as well as its own security and economic
interests. And, in the second case, the ASEAN has also been involved in the dispute since
1995, when this organization began to campaign in favor of the establishment of a code of
conduct on the multilateral level that, at the end, was never agreed upon as binding (Stratfor,
2017).

Existent empirical evidence about the involved actors and their claims

In order to assess the aforementioned claims, it is first required to present the existent empirical
evidence about each claim. Hence, this sub-section will continue by exposing and analyzing it
on a country basis.

 China and Taiwan

Figure 3. Nine-dash line map


As explained above, both China and Taiwan
ground their claim on a U- shaped nine-
dash line map first published in 1948 (see
Figure 3), which was based on an argument
of ‘historical usage’ instead of a legal
justification under the UNCLOS (Lowy
Institute for International Policy, n.d).

In spite of this, Gewirtz (2016) points out to


the fact that “the map does not appear to
have become part of any ‘official’ Chinese
government document until it was attached
to a note verbale that China submitted to
the United Nations in 2009” (p.10).

Source: Gewirtz (2016, p.11).


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Moreover, included in that communication, was the following statement from China:

China has indisputable sovereignty over the islands in the South China Sea and
the adjacent waters, and enjoys sovereign rights and jurisdiction over the
relevant waters as well as the seabed and subsoil thereof […]. The above
position is consistently held by the Chinese Government, and is widely known by
the international community (Permanent Mission of the People’s Republic of
China to the United Nations, 2009, p.1).

The latter remark, together with the nine-dash line map, is still consider by Gewirtz (2016, p.11)
to be a too ambiguous claim because it fails to explain the concrete meaning of the line. For him
(as well as for Tønnesson, 2001), it is not clear whether it represents a territorial claim, a
national sea boundary or a historical claim. This is important to know because it makes a legal
difference within the framework of the UNCLOS.

For example, if it were a historical claim, it would involve historic rights over waters, seabed and
subsoil that “go beyond what UNCLOS itself authorizes” (Gewirtz, 2016, p.12) and would
therefore be inconsistent with it4. Whereas, if it where any of the two other cases, no UNCLOS
tribunal would be able to arbitrate the conflict as it has no competence over sovereignty claims
nor over the delimitation of sea boundaries (Gewirtz, 2016, p.12). In any case, though, Austin
(2015) mentions that China’s stance is not aligned with the international practice due to the fact
that it claims sovereign rights over submerged reefs, which are not considered as land territories
under the UNCLOS and thus, “are not subject to sovereignty claims” (Roach, 2014, p.9).

On the contrary, Taiwan’s claim was clarified in 2005. Since then, it just focuses on the land
features within the nine-dash line like islands and continental shelf as well as the

4 In 2016, the Permanent Court of Arbitration (2016) under UNCLOS reached to the
conclusion that “there was no legal basis for China to claim historic rights to resources
within the sea areas falling within the nine-dash line” (p.2).
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waters surrounding the islands, but not the whole body of waters (Tsirbas, 2016). However, as
mentioned before, it still lacks of a legal justification according to UNCLOS.

 Vietnam

Vietnam has also adopted a historical-based claim against China. In fact, according to BBC
News (2016), Vietnam argues that China did not claim sovereignty over the Paracels or over the
Spratlys Islands before 1948, while Vietnam has the 1887 Franco- Chinese treaty, which proves
that it has owned both island chains since the 17th Century (BBC News, 2016).

Nevertheless, from the legal perspective, Figure 4 shows that Vietnam’s claims over both
archipelagos reach beyond the 200 nautical mile area of the Exclusive Economic Zone (EEZ) it
is entitled to. Therefore, most of its claim has no legal support under UNCLOS.

Figure 4. Division of the South China Sea according to UNCLOS’ EEZ principle.

Source: BBC News (2016) based on data from UNCLOS and CIA.
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 The Philippines

The Philippines, unlike the previous three countries, bases its claim on the geographical
proximity that it possesses in regards to the Scarborough Shoal and the Spratly Islands (BBC
News, 2016). In the case of the former, Rosen (2014) points out that “the Philippines has a
superior claim to the Scarborough Shoal” (p.48) over China because there are two facts that
grant its case more legal weight. First, the shoal is 400 nautical miles closer to the Philippines
than to China and second, it is within the Philippines’ EEZ as shown in Figures 4 and 5.

Likewise, Figure 5 demonstrates that many of the claimed features from the Spratly Islands are
located within the Philippine EEZ. Nevertheless, the way the country claims these features as a
general claim over the ‘Kalayaan Island Group’ lacks of a legal foundation in the sense that it
includes features and water space not subject to appropriation similarly to the case of the nine-
dash line. (Rosen, 2014, p.48)

Figure 5. Philippine’s claim within the dispute.

Source: Rosen (2014, p.7).

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 Malaysia and Brunei

According to Roach (2014) both Malaysia and Brunei base their claims over some South China
Sea land features on the principles of the 200 nautical mile area of EEZ as well as of the
continental shelf.

In the case of Malaysia, as Figure 1 showed, its claim fully overlaps with the claims of China,
Taiwan and Vietnam, but only partially with Philippines in connection to Commodore/Rizal Reef.
However, it is not possible to determine which country (among Malaysia, Vietnam and
Philippines5) bears the strongest claim due to the overlapping of EEZs (Roach, 2014, p.31).

Finally, in regards to Brunei’s claim, the issue lies not on the overlapping of EEZs as only
China/Taiwan shares the interest in Louisa Reef, but on what exactly this feature is. About it,
Roach (2014) concludes that “Brunei would appear to have the better claim to sovereignty over
Louisa Reef” (p.43) if it is agreed that the aforementioned shoal can be considered to be an
island under UNCLOS. Whereas, if it were just considered a submerged feature or a low-tide
elevation, then it would just be a part of the continental shelf that belongs to Brunei. In any case,
though, Roach (2014, p.43) believes China’s claim to be wrong.

The current state of affairs

As we have seen so far, China, Vietnam and Philippines are major rival claimants in the South
China Sea dispute. Particularly between China and Vietnam, their relationship is the most
volatile. In 1974 and 1988, China’s seizure of the Paracels and the Spratlys respectively from
Vietnam led to military clashes between the two states resulting in the death of around 130
Vietnamese soldiers and civilians (BBC News, 2016).

5 Roach (2014, p.31) argues that China’s (and therefore, Taiwan’s) claim finds itself among
the weakest ones from the group.

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Afterwards, in May 2014, tensions rose again because China started drilling in search for oil 17
nautical miles from one of the disputed Paracel Islands (called Triton Island). Since this took
place 120 nautical miles from the coast of Vietnam, it sparkled not only strong protests from the
latter, but also a stand off that ended with a Vietnamese boat sinking (Lowy Institute for
International Policy, n.d).

Besides this, China has also strongly antagonized the Philippines. In 1995, for example, the
Associated Press (2016) reports that China took control over Mischief Reef (disputed by
Vietnam, but specially by Philippines) and started building “octagonal huts on stilts” with the
argument of providing refuge to fishermen. The Philippines opted to protest through the ASEAN,
which is when the institution launched the unsuccessful campaign in favor of a code of conduct
(Stratfor, 2017).

Later on, in 1997, the Philippines used some of its navy ships to stop Chinese boats from
reaching the Scarborough Shoal, which also triggered objections from China (Associated Press,
2016). In 2012, this conflict escalated, when China arbitrarily took control of the Scarborough
Shoal preventing the Philippines fishing boats to enter the area. This resulted in Manila taking
China to the UN tribunal under UNCLOS the following year. In July 2016, the tribunal finally
issued its ruling over the claims raised by the Philippines stating, among others, that:

China had violated the Philippines’s sovereign rights in its exclusive economic
zone by (a) interfering with Philippine fishing and petroleum exploration, (b)
constructing artificial islands and (c) failing to prevent Chinese fishermen from
fishing in the zone. The Tribunal also held that fishermen from the Philippines
(like those from China) had traditional fishing rights at Scarborough Shoal and
that China had interfered with these rights in restricting access. The Tribunal
further held that Chinese law enforcement vessels had unlawfully created a
serious risk of collision when they physically obstructed Philippine vessels
(Permanent Court of Arbitration, 2016, p.2)

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In spite of this official ruling, it is important to mention, as the Associated Press (2016) does,
that China has rejected the court’s decision and said that it would not be bound by it.

The rest of the countries are more silent claimers in the dispute. However, most of them have
illegitimately occupied the contested islands whether in a form of military or paramilitary
presence to strengthen their sovereignty claims. The only exception to the rule has been Brunei,
who does not occupy any maritime features or maintain any military presence in Louisa Reef
(Sands, 2016).

Furthermore, some of the claimants have created an extension to the islands such as an aircraft
runway and military garrison and some even built artificial islands claiming it is their rightful
sovereignty rights. For instance, in recent years China has built the largest number of artificial
islands in the Spratlys archipelago, while Vietnam also reportedly added approximately 23
hectares of land to the Spratly Island. Taiwan and Malaysia too have undertaken similar
constructions on Itu Aba and Swallow Reef, respectively (Reuters, 2016).

This has only increased the difficulty in the resolution of the dispute, which anyway lies in
several factors. First of all, the South China Sea is a strategic area particularly for an economy
as it contains an abundance of untapped natural resources (including oil and natural gas) as
well as being one of the busiest shipping lanes (Lowy Institute for International Policy, n.d).
Thus, a successful claim of the territory will yield great economic benefits to the countries.

Secondly, the conflict involves several actors whose claims are overlapping. Many of which
have illegally occupied the disputed islands and set up military facilities. This creates a tension,
which can always invoke an armed response since none of the countries want to lose the
territory they believed they rightfully owned. Reaching a commonly satisfied solution is therefore
difficult.

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Thirdly, an involvement of international actors like the ASEAN is ineffective as these institutions
lack an enforcement mechanism to assert the countries’ compliance. The US, on the other
hand, has its own agenda and thus cannot be a rightful channel to settle the dispute. It also
needs to follow an international law to maintain its credibility in the region. Any aggressive
actions can undermine its influence in the region.

However, the recent development in the South China Sea disputes shows a positive progress
for China, who has always attempted to impose bilateral negotiations as the way to solve the
dispute. About this, Paddock (2016) mentions that the new president of the Philippines, Rodrigo
Duterte, despite taking an aggressive stance at first and after his visit to China in October 2016,
seems to have reached a common agreement with China in exploring the untapped resources
together. Similarly, Ritter (2017) indicates that, in January 2017, Vietnam and China also
released a joint statement to try to peacefully end their dispute.

With these bilateral improvements, it is also unexpected the advances that have occurred in the
last months on the multilateral level. In this regard, Stratfor (2017) reports a meeting between
China and ASEAN members, which took place in Bali during the week of February 27th. Their
goal, the same as in 1995, is to “formalize a legally binding code of conduct to govern maritime
disputes in the South China Sea” (Stratfor, 2017) and for that they are also planning to meet
again in June. According to this source, the reasons for this new wave of interest in a code of
conduct are twofold:

 Even if China does not recognize it publicly, the decision taken by the Permanent Court
of Arbitration in 2016 hurt China’s stance. This motivated China to change its strategy as
to try to prevent, on one hand, more division between its neighbors and, on the other,
less involvement from external powers.

 The ASEAN members now are more interested in “moving toward unilateral action”
(Stratfor, 2017) considering that they are no longer sure about how

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engaged US currently is in fulfilling its security commitments in the region or about how
worthy is it to antagonize China.

In the meantime, however, China continues to deploy its military into the South China Sea,
improving defense infrastructure and placing weapons on the artificial islands it has build in the
Spratly Islands, while increasing its presence on the northern archipelago (Stratfor, 2017). And
so, the future of the conflict remains unclear.

POSSIBLE SOLUTIONS TO THE DISPUTE

With a conflict that started almost nine decades ago and six claimants, including a rising
power like China, it is difficult to come up with a practical solution that would satisfy all
actors involved. However, already in 2014, McDevitt (in Roach, 2014, p.iii) argued that
there were four ways this dispute could be solved, namely:

 Judicial Decision or International Arbitration

In the first place, McDevitt considers that the conflict could be mitigated if “all parties
agree to undertake judicial decision or arbitration” (in Roach, 2014, p.iii). This would
require the selection of a competent entity, which could be, according to the Council of
Foreign Relations (2017), either the International Court of Justice or the International
Tribunal for the Law of the Sea.

Once the entity is chosen, the latter would issue an award determining the legality of
each claim and settling the controversy. This, from the legal perspective, is an adequate
solution, but because such institutions lack of an enforcement mechanism, it relies
heavily on the willingness of all claimants to comply. Hence, considering the Chinese
rejection to the UN Permanent Arbitration Court’s award in 2016 as a precedent, this
solution is not viable unless all claimants previously agree on the binding character of
the awards or unless the selected institution is equipped with an enforcement system.

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 Resource Sharing

According to McDevitt (in Roach, 2014, p.iii), it could also be possible to solve the
dispute if all claimants suspend their sovereignty claims indefinitely and agree to
cooperate with each other in order to share resources like the fish, oil and gas lying
underneath the land features. Moreover, the idea is that through the establishment of
Joint Development Areas or resource-sharing agreements, all parties would benefit from
economic development in the area as well as they would be able to “deter potential

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sources of conflict like illegal fishing and skirmishes arising from oil and gas exploration”
(Council of Foreign Relations, 2017). This is why such arrangements are, what Taggart
(2016) calls, “highly symbiotic” and, it is very advantageous because, once the
resources are exhausted, the political and economic interests will be lower and
countries will be able to resume their territorial claims through, for example, international
arbitration.

 Renouncement of territorial claims in exchange of economic preferences

As McDevitt (in Roach, 2014, p.iii) argues, since China has become a major economic
power, it is possible for it to use strong economic incentives to make the other claimants
renounce their sovereignty claims. From a rational perspective, this would be a win-win
situation for all countries as they all benefit economically from the arrangement. But,
from a moral point of view, this would violate the citizens’ natural common ownership
rights to the resources in question.

 Use of force

Considering the current situation, where China has speed up “its defense buildup in the
area, installing weapons on its artificial islands in the Spratly archipelago and enhancing
its presence on the Paracels” (Stratfor, 2017), it is plausible for China, as the most
powerful claimant, to use military force to eliminate its rivals’ presence on the region.
This is a danger from which McDevitt (in Roach, 2014, p.iii) and the Council of Foreign
Relations (2017) warn us about as a short-term end of the dispute. However, on the
long run, this could not be considered a solution because it would only increase the
resentment against China and it could, eventually, lead to a war.

Therefore, from these four potential policies and consistently with the critical analysis
performed in the previous section of this paper, it is to be concluded that the ‘resource
sharing’ option is superior based on Risse’s principle of collective ownership of the
Earth as well as under the legal principle of common heritage of mankind. The latter is

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argued because none of the claimants can be considered the legitimate owner of the
South China Sea land features either from a moral or legal point of view. Thus, the
optimal solution favors the option that allows every country to have access to the
resources.

This, of course, would go hand in hand with the establishment of a binding multilateral
code of conduct in order to promote trust among parties. Such a code of conduct could
be based on the 2002 Declaration on the Conduct of Parties in the South China Sea,
developed within the framework of the ASEAN, but it would require a complete
commitment from all parties to comply with its provisions and to implement the
confidence building measures included in it (Council of Foreign Relations, 2017).

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