[Updated] Defining the post-arbitration nine-dash line: more clarity and more complication

The Central Party School's article, headlined, "China does not accept the jurisprudential legitimacy of the SCS arbitral tribunal's decision," PLA Daily, p.6, July 18

The Central Party School’s article, headlined, “China does not accept the jurisprudential legitimacy of the SCS arbitral tribunal’s decision,” PLA Daily, July 18, p.6

One week on from the UNCLOS arbitration ruling on the South China Sea, the PRC’s response continues to somehow both clarify and complicate the issue at the same time. The latest episode in the unfolding mystery of the nine-dash line seems to diminish the line’s linkage with oil and gas claims designated unlawful by the Tribunal, while ramping up its associations with “historic title” over large sweeps of archipelagic waters [but seemingly not the entire Spratly archipelago – see update at the bottom]. 

On Monday an article published on p.6 of the PLA’s official newspaper offered a clear and detailed post-ruling definition of the nine-dash line from authors at the Central Party School. One of its main purposes was to refute the Tribunal’s inferred reading of the nine-dash line as a blanket claim to historic rights within the area it encloses. (Grateful HTs to Bill Bishop for digging it up and Bonnie Glaser for drawing attention to its significance.)

The article offers a more complex clarification of the line’s meaning than my optimistic reading of last week’s PRC Government Statement: whereas i read the Statement as implicitly separating the nine-dash line from China’s maritime rights claims, this article spells out at least some explicit links between the two.

On the other hand, it offers little or no support to the expansionist reading of the line that has underpinned many provocative PRC actions in recent years. In particular, the CPS scholars’ definition does not appear to support a claim to oil and gas resources out to the edge of the nine-dash line. This was a key element of the implied reading of the nine-dash line that the Tribunal struck down as unlawful. It’s a position that the PRC has backed up with coercion against other claimants’ energy survey ships in the past, and it’s also the basis for the notion, widespread in PRC domestic discourse, that rival claimants, especially Vietnam and Malaysia, are “plundering” China’s resources.

The writing of this article is attributed to CPS Postgraduate Studies Institute Deputy Dean Wang Junmin 王军敏, but the newspaper byline attributes it collectively to the CPS Center for Research on the Theoretical System of Socialism With Chinese Characteristics. It is, as such, not a government statement, but it’s very detailed, takes into account the Tribunal ruling, and could end up being close to the interpretation the PRC goes forward with in the wake of the ruling.

This interpretation can be summarized as follows. The nine-dash line is not a blanket claim to historic rights over all waters within, but rather to three distinct sets of rights across different geographical areas:

  1. Sovereignty over the islands within the line (the original meaning of the line when the KMT government published it in 1948)
  2. “Historic title” (历史性所有权) to waters enclosed by straight baselines drawn around island groups within the line (definitely including the Paracels, for which the baselines have already been announced, but not necessarily for the whole Spratly group)
  3. Non-exclusive fishing rights in others’ EEZs where (a) they overlap with the line and (b) Chinese fishers traditionally fished under high-seas freedoms

The article begins by arguing the UNCLOS does not constitute the entirety of international maritime law, and that customary international law continues to apply on matters where rules are not provided for in UNCLOS. In particular, the authors argue,

“The UNCLOS did not provide rules for the issue of territorial sea baselines for continental countries’ archipelagos; nor did it provide rules for historic rights, although it affirmed their status in international law.”

The author(s) state that the Philippines “distorted” the nine-dash line by (a) presenting it to the arbitral tribunal as representing a Chinese claim to sovereign rights and administration over all of the waters and seabed within; and (b) by arguing that the PRC claims “historic rights” (历史性权利) within the line, when in fact the PRC claims “historic title” (历史性所有权) over areas within the line, putting the case outside the Tribunal’s jurisdiction.

This line of argument appeared, fleetingly, in China’s 2014 Position Paper, which noted that disputes concerning “historic bays or titles” were exempt from compulsory dispute resolution under Article 298. According to the author(s), China has “historic title” to internal waters within archipelagic straight baselines.

So the authors say the Philippines “slandered” China’s nine-dash line by providing a distorted reading of its meaning to the Tribunal. Here’s how they explain its true meaning:

First, looking at China’s practical exercise of state power, China has never claimed all the waters within the line as its territorial sea or internal waters, exercising state sovereignty there. In fact, the 1958 Territorial Sea Declaration, at the same time as proclaiming the applicability of the straight baseline system and setting the breadth of China’s territorial seas at 12nm, implicitly noted that international waters [exist] between the Chinese mainland and coastal islands, and Taiwan and surrounding islands, Penghu, Pratas, Paracels, Zhongsha, Spratlys and other islands belonging to China [ZH]. In 1996 the Declaration of Territorial Sea Baselines announced the territorial sea basepoints and baselines for the Paracel Islands, thereby implying that within the ‘nine-dash line’ China would, in accordance with the UNCLOS, take the Paracels as an integrated whole entitled to territorial seas, contiguous zone, EEZ and continental shelf. Likewise, China’s 2011 note to the UN Secretary General claimed that the Spratlys also enjoy territorial seas, EEZ and continental shelf. This implies: China has never claimed all the waters within the ‘nine-dash line’ as China’s historic waters or that it enjoys historic rights .

Second, the Philippines used the Chinese expression ‘historic rights’ (历史性权利) to argue China had not claimed ‘historic title’ (历史性所有权). As everyone knows, historic rights in international law refers to the rights enjoyed continuously by a state in certain waters since ancient times. Historic rights include historic title and non-exclusive historic rights. Waters subject to historic title are called ‘historic waters’ (历史性水域), these are part of a coastal state’s internal waters or territorial seas, and mainly include historic bays. other coastal waters adjacent to the coast, and the waters within archipelagos. Non-exclusive historic rights are divided into historic rights of passage and historic fishing rights. The former refers to innocent passage through internal waters, specifically all countries’ rights of innocent passage through areas not originally regarded as internal waters, but which became enclosed as such through the coastal state’s application of straight baselines.[ZH] The latter refers to non-exclusive rights to fish in areas that were previously fished in accordance with high seas freedoms but which have now become a coastal state’s EEZ [or] archipelagic waters.[ZH] The mere use of ‘historic rights’ in the PRC EEZ and Continental Shelf Law, by MFA spokespersons, and by Chinese scholars, does not imply China does not claim ‘historic title’. In fact, our country has historic title and historic fishing rights in different areas within the nine-dash line.

Third, China’s ‘nine-dash line’ rights claims mainly comprise: 1. China has territorial sovereignty over islands, reefs, cays and shoals within the line; 2. China has historic title to waters within archipelagos or island groups that are at relatively close distance and that can be viewed as an integrated whole, these areas are China’s historic waters, they are our country’s internal waters,[ZH] and China has the right to draw straight baselines around the outermost points of these waters and claim state administrative zones such as territorial seas, EEZs and continental shelves etc. in accordance with the UNCLOS. 3. When waters within the ‘nine-dash line’ become [part of] another country’s EEZ or an archipelagic state’s waters, China has the right to claim historic fishing rights or traditional fishing rights in the overlapping areas.

The many references to non-exclusive fishing rights contrast sharply with the complete absence of any mention of claims to oil and gas rights. As noted, it was precisely that (implied) claim that led to the line being designated unlawful. The 2012 CNOOC oil blocks, especially, convinced the Tribunal that China was acting in accordance with this reading of the line (see especially the Award paragraphs 208-214). But under the above definition, the nine-dash line seems to have no significance at all to the geographic scope of China’s energy rights claims.

2012 CNOOC oil and gas blocks, noted by the Philippines vs China arbitral tribunal

2012 CNOOC oil and gas blocks, noted by the Philippines vs China arbitral tribunal

The other striking thing about this definition is the heavy focus on the issue of historic title over internal waters enclosed within straight baselines around island groups — an issue addressed in an excellent article by Yanmei Xie over the weekend. There is plenty of reason to think that straight baselines might be about to enclose the Spratlys, a move that would significantly harden the PRC’s position.

But there might be yet another strange twist here. Looking again at the third paragraph above, the Party School authors define China’s claim of historic title to internal waters as existing in “archipelagos or island groups that are at a relatively close distance and that can be viewed as an integrated whole (my emphasis).” Which kinda seems to suggest the historic title aspect might be referring to the Paracels but not the Spratlys.

I’ve heard the “can be viewed as an integrated whole” argument for archipelagic straight baselines in the South China Sea numerous times from PRC sources, but i’ve never come across the “at a relatively close distance” criterion before. Why else might they have included this?

Here’s the answer (update 21/7):

Dylan Jones points out that the relatively close distance criteria refers to the distances between the islands, and a careful re-reading of the article confirms this. Here’s the Central Party School authors’ detailed explanation in translation:

“Most international legal experts consider state practice is forming, or has already established, international legal norms regarding continental states’ offshore archipelagos: the straight baseline system’s applicability to continental states’ offshore archipelagos is restricted to those archipelagos that can be seen as an integrated whole, with relatively small distances between the islands, and intimate connections between the waters and the mainland [. . . ]

The most likely and most appropriate method for China’s territorial sea baselines in the Spratly Islands is to imitate the method used in the Diaoyu Islands, for example, taking the main islands and reefs such as Itu Aba, Pagasa, West York, Spratly and Mischief as the centre, and linking together the surrounding reefs to establish baselines [. . .]”

“Looking at historic rights, China has historic title to waters between the relatively close, intimately connected islands that qualitatively comprise a unified whole, these waters are historic waters, China’s internal waters . . . China has the right to take those groups of islands within the Spratlys that are relatively close to each other as a single entity to establish territorial sea baselines,[ZH] and China’s Spratly Islands in the SCS have maritime administrative zones such as territorial seas, EEZ and continental shelf.”

So the author(s) do in fact believe a “historic title” claim over “internal waters” enclosed by straight baselines exists in the Spratlys — but rather than covering the entire archipelago, as per the Paracels baselines in 1996, it would only cover those parts within the archipelago that are close together. Here’s the Diaoyu example they refer to:

Diaoyu Islands straight baselines submitted to the UN in 2012

Diaoyu Islands straight baselines submitted to the UN in 2012

The authors repeat this “within the Spratlys” + “close together” + “intimately connected” recipe for Spratly straight baselines (and thus the scope of internal waters subject to historic title) no less than 6 times, so it’s fair to conclude this was a point they were keen to get across. That would be a tough sell domestically given that it would probably exclude James Shoal, that shallow patch of ocean considered by many (probably most) Chinese people to be the southernmost point of the nation’s sacred territory. This would be one reason to think the party might not make a Spratly baseline declaration in the near future after all.

Another rambling post…i really ought to shut up and let things run their course. But the riddle of the nine-dash line continues to string me along rather compulsively. If any readers have made it this far then at least i mustn’t be the only one.

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Xinhua spreading rumours, unpopular military commentary, and a witchhunt: the Scarborough Shoal media wave Part III (May 11-13)

Loida Nicolas Lewis “exposed” on the front page of NetEase (photo top-left), May 13, 2012. The caption beneath reads, “Identity of Philippines anti-Chinese demonstration plotter revealed”. On the right-hand side is a picture (which remains in the same place as of May 22) of China’s biggest Fisheries Law Enforcement Command ship, the Yuzheng-310, linking to a special saturation-coverage page dedicated to the Scarborough Shoal issue

I’m posting about stuff that happened more than a week ago, so i’ll start by apologizing to any readers who might have come here looking for up-to-date developments. To explain briefly, party-approved waves of media sensationalism, the Chinese public’s reaction to them, and the regime’s reactions to those public reactions, are crucial aspects of my research project, so my task is to document these in as much detail as i can. The PRC’s yearly South China Sea fishing ban, which started last week, has offered a much-needed circuit-breaker to ease the tensions, but even now that the wave has broken and rolled back, i still have a backlog of interesting conversations to discuss.

For those who mightn’t care to read all the way to the bottom to find out what might be buried down there, here’s a summary of what’s below:

  1. Xinhua was the immediate source of war-preparations rumours denied by Ministry of Defense
  2. PLA Daily’s piece on May 12 appears aimed at Dai Xu and his powerful pro-war backers in China
  3. Fenqing witchhunt unmasking the “organiser” of the global Filipino demonstrations, via Weibo, becomes dominant in mainstream discourse

Read the rest of this entry »


“An issue of social stability”: the CCP’s Scarborough Shoal media blitz, Part II (May 10)

Yin Zhuo 尹卓 and Song Xiaojun 宋小军 recommend “violence” towards the Philippines on CCTV’s Huanqiu Shixian program, March 9, 2012

Whatever doubts i might have had regarding the effectiveness of the CCP’s campaign to focus Chinese people’s attention on the Scarborough Shoal standoff, they had disappeared by Thursday (May 10), when several Chinese friends here in Perth, Australia — whose usual attitude towards the South China Sea disputes ranges from tolerance-of-my-babblings to complete lack of interest — actively contacted me to say they thought China was about to go to war with the Philippines.

Thursday was probably the day the multimedia swell on Scarborough Shoal peaked, but the mechanics giving rise to it were in motion the evening before.

Foreign Ministry spokesman Hong Lei had already taken the encouragement of public outrage to a new level on his Wednesday afternoon press conference when he stated that the Philippines’ behaviour had “triggered strong reaction and concerns from the Chinese people at home and abroad”.

Then CCTV News’ 10.30pm Huanqiu Shixian (World View) current affairs program hosted “special commentators” Song Xiaojun (宋小军) and Yin Zhuo (尹卓), who recommended violent action (暴力行动) in response to the Philippines’ alleged renaming of Huangyan as Panatag Shoal and plans to remove all signs of China’s presence. Said Yin:

Now if they use force to remove our sovereignty markers, that is taking violent action, and we have the right to take equivalent action.

As far as i can tell, both of these serious-sounding provocations by the Philippines are non-stories. First, the Philippines has not renamed Scarborough Shoal — it still officially refers the feature as Bajo de Masinloc (and has certainly never called it Huangyan Island). Second, as the Sohu photo tour translated here a couple of weeks ago clearly shows, there are no sovereignty markers on Huangyan for the Philippines to remove.

Late on May 9 the Huanqiu Shibaoreleased a report on Philippines Defense Secretary Voltaire Gazmin’s May 9 comment that he he had interpreted remarks made by Hillary Clinton during the 2+2 meeting on April 30 as indicating the US would protect the Philippines from any attack in the South China Sea. After being reposted on the People’s Daily’s website (with Gazmin wrongly referred to as “Foreign Minister” 外长), this became a prominent headline on the front pages of all 5 news portals on May 10.

Contrary to at least one western analyst’s claim, among all the inflammatory coverage there was actually little in the way of official criticism of the US — hardly surprising given Defense Minister Liang Guanglie was on an official visit Washington. In fact, the official media gave plenty of play to the idea that America had refused the Philippines’ requests to step in, an approach that might well have been intended to make Chinese military action appear more feasible.

The Phoenix online video site was particularly enthused, leading with “China meets opportunity to retake Huangyan Island: will China and Philippines go to war?”.

Phoenix Online Video lead story, May 10, 2012: China meets opportunity to retake Huangyan Island, will the Philippines and China go to war?

I frequently saw and heard the line that “the US is maintaining a neutral stance” on Chinese TV and radio on May 9 and 10, and the PLA Daily stated that “even [the Philippines’] backers are not convinced” of its claims. (Here are some English-language examples from Xinhua and the China Daily.) On May 10 NetEase chose to include “America refuses to take sides on Huangyan Island issue” on its front page, just below the main headline linking to Gazmin’s comments, “Philippines: US guarantees Philippines will not suffer any attack in the South China Sea“.

While Liang’s visit and the need to downplay the Philippines’ international backing probably dictated that the US connection had to be largely limited to online media, the offline media nonetheless had plenty of material to work with. And judging by the apparent injunction to promote Huangyan-related reports, they needed it.

The May 10 China Youth Daily‘s front page headlines included “Four points about the Huangyan Island incident” and “Philippines incites population’s emotions, seriously harming bilateral relations”. The Beijing Morning News had “Overseas Filipinos to hold anti-Chinese rally on May 11” and “Hard to be optimistic on Huangyan Island incident: China claims to have made all preparations”.

China Youth Daily front page, May 10, 2012

Huangyan even made the front page of the apparently (i’ve never read it) entertainment-focused Beijing Star Daily (北京娱乐信报), which led with, “Philippine newspaper article says Huangyan Island indeed belongs to China”.

Many, possibly even a majority, of the regional papers had the issue on their front pages too, including the Southeastern Business Daily 东南商报, City Evening News 城市晚报, the Chutian Metropolitan News 楚天都市报, and the Chuncheng Evening News 春城晚报 (those examples were obtained just by glancing through the Bs and Cs on ABBao). Shandong’s Weifang Evening News (Shandong) had one of the more dramatic splashes. The yellow headline reads “Trampling over China’s bottom line, Philippines miscalculates”.

Weifang Evening News 《潍坊晚报》 (Shandong) front cover, May 10, 2012. Headline: “Trampling over China’s bottom line, Philippines miscalculates”

The People’s Daily had a page 3 commentary, synthesizing most of the recent official Chinese comments, talking up the Philippines’ provocations (including the apocryphal renaming and removal of sovereignty markers). But most importantly of all, the People’s Liberation Army Daily came to the party with a foreboding piece that called Scarborough Shoal “an issue of territorial integrity, national dignity and even social stability“. Social stability is of course official code for popular protest (or lack thereof), so the implication was that China could be forced to attack the Philippines because the Chinese people are so angry.

This article was publicised in the main headline clusters on the front pages of all the 5 news portals except NetEase (for some reason consistently the least sensationalistic over the past few weeks), and it became the most-read news story on Sina that day, as well as the most commented-on (rankings here). The top comments, predictably, called for military action. Phoenix’s thread, involved more participants (62,000+) but Sina‘s were slightly more interesting:

“If [China is] not a paper dragon, please retake all the claimed islands that the Philippines is occupying.” [495 supports]

“Not taking active hardline measures in response is just verbal kung-fu. Protest protest protest, territory  needs protecting, protests cannot possibly address the root of the problem. What is a great power? One that can steadfastly uphold sovereignty and territory, protect its people’s life and property security, and not be subject to encroachments.” [399]

” ‘We resolutely oppose! We strongly protest!’ —- is this a dragon or an insect, we common people can tell at a glance, the Philippines understands quite clearly too. China’s current situation has gotten to the point where it is being bullied, we have been bullied for 100 years by Western imperialist powers, now even the running dogs of imperialism can come into our backyard and bark their heads off. At a time when we think we’re strong and powerful, can yelling out a few ‘opposes’ and ‘protests’, as we’ve done for the past 30 years, really scare away these wild mongrels? Chairman Mao once said, even the poorest man has a dog-whacking stick; now we’re not poor,our whacking sticks are thicker and more numerous, so i don’t understand why we’re covered in bruises and bite marks. Are the dogs just too fierce, or are we too cowardly?” [351]

The latter comment was deleted sometime between Friday and today. Why? Hard to say, given its only difference with the comments elsewhere was that it was more entertaining and better-written. Actually that could be one possible explanation.

More seriously, though, one clue may be the general lack of “treasure the memory of Chairman Mao”-type comments in comment threads of late. They were absolutely dominant last year. If the portals have indeed received instructions to reduce Maoism in the public discourse on this issue, that would support Jeremy Goldkorn’s suggestion that the Scarborough Shoal media frenzy has been an attempt to shift public attention away from domestic politics and the Bo Xilai affair.

That explanation is quite compatible with the one repeatedly put forward here, namely that the leadership is promoting domestic expressions of outrage, including criticism of its own stance as weak, in order to improve its position at the international negotiating table……something about two birds, one stone……single arrow, pair of eagles……etc. The Chinese ruling party is good at that.