The Evolution of Asia’s Contested Waters

Asia’s maritime disputes extend well beyond just the East and South China Sea. From the Indian Ocean to the Sea of Okhotsk, the region is home to stubbornly persistent disputes over waters, seabed, and the resources they hold. Progress has been frustratingly slow, but the landscape of Asia’s contested maritime space has not remained static during the twenty-first century. Some boundaries have been resolved even as new disputes have arisen, thanks in large part to the extension of continental shelf claims beyond 200 nautical miles. And in some sub-regions, countries have proven much more committed to dispute resolution than their peers.

Maritime Disputes in Asia

Note: These maps treat the maritime claims of China and Taiwan as identical. Exclusive economic zones and continental shelves are assumed to be 200 nautical miles unless otherwise specified in domestic legislation or international filings.

Dispute Resolution

Seven decades after the end of World War II and two decades after the United Nations Convention on the Law of the Sea entered into force, the Asian littoral remains more disputed than not. But that is not the entire story. Asian nations have proven willing to compromise in order to manage and resolve their disputes, and whether through negotiation or third party arbitration, the pace and creativity of such solutions has increased during the twenty-first century. Many of these recent agreements hold lessons both positive and negative for those disputes still outstanding.

Vietnam and China, 2000

This agreement delimiting the Sino-Vietnamese maritime border in the Gulf of Tonkin created China’s only resolved maritime boundary. For deeper insights, see Isaac Kardon’s recent AMTI Analysis, “The Other Gulf of Tonkin Incident: China’s Forgotten Maritime Compromise.”

Key Takeaways:

China can prove willing to negotiate on maritime borders and make concessions, including giving Vietnam more of the gulf in recognition of its longer coastline and islands.

An accompanying agreement to share fisheries on both sides of the boundary was key to the resolution.

Difficult issues like oil and gas rights had to be “shelved” in order to reach an accord.

The agreement did not ignore islands in determining maritime entitlements, but gave them only partial effect.

Singapore and Malaysia, 2008

The International Court of Justice (ICJ) resolved a decades-long dispute between Malaysia and Singapore over Pedra Branca, South Ledge, and the Middle Rocks, with Pedra Branca going to Singapore, the Middle Rocks to Malaysia, and South Ledge to “the State in the territorial waters of which it is located.”

Key Takeaways:

Third party arbitration can resolve long-standing and seemingly intractable disputes, but only with political commitment from both sides.

A historical claim loses its value if not regularly upheld. The Sultan of Johor (now part of Malaysia) had original claim to Pedra Branca, but Malaysia failed to object to various Singaporean exercises of sovereignty over the years.

Low-tide elevations cannot be independently claimed as territory. The court ruled that South Ledge is submerged at high tide and belongs to whichever state has sovereignty over the seabed, to be determined by a later delimitation of territorial waters.

Malaysia and Vietnam, 2009

Malaysia and Vietnam made a rare joint submission to the Commission on the Limits of the Continental Shelf in which they extended claims to the seabed in the southern part of the South China Sea but agreed to pursue joint development in the disputed area.

Key Takeaways:

Resource sharing agreements can be viable alternatives to explicitly demarcating boundaries.

The submission gave a country’s right to a 200-nautical-mile EEZ primacy over a competing claim to an extended continental shelf. Each state extended its shelf claim until it reached the other’s EEZ boundary, but not beyond.

The Philippines’ objection that the submission might infringe on its own extended continental shelf showed the difficulty of bilateral agreements in a multilateral dispute.

The fallout showed the limits of maritime law in the face of historic claims. Manila also objected that the submission ignored its claim to part of Malaysia’s Sabah State, while China said the seabed in question lies within its “nine-dash line.”

Myanmar and Bangladesh, 2012

This EEZ and continental shelf delimitation in the Bay of Bengal was the International Tribunal for the Law of the Sea’s (ITLOS) first ever ruling. For more, read Sarah Watson’s AMTI Analysis, “The Bangladesh/Myanmar Maritime Dispute: Lessons for Peaceful Resolution.”

Key Takeaways:

Tribunals like ITLOS can be used to peacefully settle disputes in Asia.

Accepting compromise gave both countries access to oil and gas resources that they were previously denied.

Special circumstances, like Bangladesh’s concave coastline, are important considerations in equitable delimitation.

Resolutions can have positive ripple effects; the ICJ delimited the India-Bangladesh maritime boundary just two years later.

Japan and Taiwan, 2013

Japan and Taiwan established an area around the disputed Senkaku (Diaoyutai) Islands (not including their 12-nautical-mile territorial waters) in which both countries’ fishermen could operate. Tetsuo Kotani explores the agreement in more depth in a new AMTI Analysis, “The Japan-Taiwan Fishery Agreement: Strategic Success, Tactical Failure?”

Key Takeaways:

The arrangement was key to deescalating bilateral tensions in the wake of the Japanese government’s nationalization of the disputed islands, and was in sharp contrast to the confrontational approach adopted by Beijing.

Contentious territorial disputes can be shelved to further mutually beneficial economic goals, even in Northeast Asia where strategic trust is comparatively low.

Political concerns help determine strategic negotiating objectives; Tokyo’s primary concern was heading off a Taipei-Beijing united front on the Senkakus.

Reaching agreement is only a first step. The effective implementation of the fisheries agreement remains a work in progress, and will be for years to come.

Indonesia and the Philippines, 2014

After 20 years of negotiations, the Philippines’ decision in 2009 to align its maritime claims with the United Nations Convention on the Law of the Sea paved the way for agreement on an EEZ boundary in the Celebes Sea.

Key Takeaways:

Setting aside historical claims – in this case the Philippines’ boundaries under the 1898 Treaty of Spain – can open the way for a mutually beneficial resolution.

Delimitation can be taken step-by-step; Manila and Jakarta have vowed to resolve their continental shelf overlap next.

Claimants can still cooperate on major initiatives regardless of boundaries, as evidenced by the 2007 Coral Triangle Initiative in these waters.

Facing intractable disputes on some fronts, such as the South China Sea, does not preclude countries from making progress on other boundaries.