I recently contributed an essay to Technosphere, a multimedia online magazine based out of Berlin’s Haus der Kulturen der Welt (HKW): China’s “Blue Territory” and the Technosphere in Maritime East Asia.
According to the magazine’s calculations, it’s a 648-second read.
It’s part of a set of presentations that comprise a dossier on the theme of land and sea. I can recommend checking out some of Technosphere’s other dossiers, especially those on creolized technologies and risk and resilience.
My contribution contains some of the arguments developed in my PhD thesis, which fortunately is now done and dusted. It’s titled “Chinese Popular Nationalism and PRC Foreign Policy in the South China Sea” — as always comments and criticisms are much appreciated, so if you feel like taking a look, you can download it by clicking on the title.
East Asia Forum has kindly published a piece from me on recent developments in Sino-Vietnamese relations. To supplement it, i’m posting here a table comparing the South China Sea-related elements of the last 7 joint statements between the two.
The comparative table was the basis for the article’s argument that General Secretary Nguyen Phu Trong’s visit to Beijing last month did not involve any softening of Vietnam’s position on the issue.
According to a knowledgeable Vietnamese source, there are three types of Sino-Vietnamese bilateral joint statements issued after high-level meetings. In ascending order of importance these are:
- Joint press release (联合新闻公报, thông cáo báo chí)
- Joint communique (联合公报, thông cáo chung)
- Joint statement (联合声明, tuyên bố chung)
These documents are often not released in English, and some of the translations that have appeared have been incomplete or unreliable, so the table above compares the Chinese full text as published by state media (links are in the caption area above).
The table also includes an item, not discussed in the EAF article for space reasons, on cooperation in public opinion work. In the 2011 joint statement, the two sides pledged cooperation on “strengthening public opinion guidance and management” – which, in the context of several weeks of anti-China protests through the middle of that year, was tantamount to a Vietnamese undertaking to dampen anti-China sentiments.
Interestingly, however, there has been no analogous item in the recent joint documents — even after another, even more intense, wave of anti-China sentiments burst forth in 2014 during the HYSY-981 oil rig standoff. Its omission from subsequent documents might indicate an acceptance on China’s behalf of the strength Vietnamese nationalist sentiments that flow in its direction at times of heightened tensions. Perhaps also an acknowledgement that Hanoi is already doing what it can to promote Sino-Vietnamese friendship? Any other readings?
The EAF piece is reposted below. Based on some early feedback, i should have been clearer that in suggesting . . .
China may have pulled back from its pursuit of particular claims that have no basis in international law
. . . i do not mean the PRC has seen the light and is abandoning all claims deemed unlawful in the UNCLOS arbitration. Just that there are some unlawful aspects of China’s claims that it is no longer pushing, and this has removed some of the major drivers of Sino-Vietnamese tensions.
As always, further comments, arguments, additions and corrections are much appreciated.
Unless i’m mistaken (again), i think the official Statement of the Government of the People’s Republic of China in response to the arbitration result might just have made an important and long-awaited clarification of the meaning of the nine-dash line.
The status of a PRC Government Statement is about as high as a statement’s status can get in the the PRC system. This one contains five numbered points, each explaining a different aspect of the PRC’s position.
- China’s historical claim to territorial sovereignty and “relevant rights and interests” over islands in the SCS
- The PRC government’s actions to uphold said sovereign rights and interests since 1949
- Four elements of the PRC’s rights and interests in the SCS:
- Sovereignty over SCS islands,
- Internal waters, territorial seas & contiguous zones based on SCS islands
- EEZ & Continental Shelf based on SCS islands
- Historic rights
- China’s opposition to other countries’ occupation of some of the Spratly archipelago
- China’s commitment to freedom of navigation for international shipping
I’m pretty sure this is the most comprehensive encapsulation of China’s claims in the South China Sea ever made. None of the elements are new, but i don’t think they’ve all appeared side-by-side in one document before. The claim to “historic rights”, for example, is included in the PRC’s 1998 EEZ & Continental Shelf law, but that document doesn’t refer to the nine-dash line. A diplomatic note to the UN in 2009 included the nine-dash line map for the first time officially, but didn’t mention historic rights. And another 2011 note to the UN specified that the Spratlys were entitled to EEZ and Continental Shelf, but didn’t include the nine-dash line map or “historic rights”.
Of particular note is the Statement’s treatment of the nine-dash line. The first paragraph of point 1 begins by referring to its sovereignty over the territories of the Spratlys, Paracels, etc., states that China’s activities there date back 2,000 years, and then concludes that this established “territorial sovereignty and relevant rights and interests.” What’s especially interesting is that an explanation of the nine-dash line is presented separately in a second paragraph (also under point 1) that reads:
“Following the end of the Second World War, China recovered and resumed the exercise of sovereignty over Nanhai Zhudao which had been illegally occupied by Japan during its war of aggression against China. To strengthen the administration over Nanhai Zhudao, the Chinese government in 1947 reviewed and updated the geographical names of Nanhai Zhudao, compiled Nan Hai Zhu Dao Di Li Zhi Lue (A Brief Account of the Geography of the South China Sea Islands), and drew Nan Hai Zhu Dao Wei Zhi Tu (Location Map of the South China Sea Islands) on which the dotted line is marked. This map was officially published and made known to the world by the Chinese government in February 1948.”
The nine-dash line, according to this authoritative statement, was created to “to strengthen the administration over” the Chinese-claimed islands of the South China Sea. No mention of “historic rights.”
The omission of a link between the nine-dash line and China’s “historic rights” wouldn’t, on its own, mean much, if they weren’t mentioned elsewhere in the statement. But they are: they are on the list of 4 elements that comprise the PRC’s maritime claims, where they are once again listed separately from the territorial claims represented by the nine-dash line.
This seems to imply very strongly that the nine-dash denotes the extent of the area within which China claims sovereignty over islands, and does not demarcate the extent of the area within which China maintains a claim to “historic rights,” which had been one of the most likely readings.
The separate treatment of the nine-dash line strongly implies that the nine-dash line does not depict the geographical extent of the PRC maritime rights claim.
If this implication was intended, it should be apparent in China’s behaviour. One sign in favour of this reading is that the PRC’s “cable-cutting” operations against Vietnamese survey ships around the edge of the nine-dash line area in 2011 and 2012 seem to have ceased since that time (see above map).
Going forward, if this is correct, we might also expect to see a winding back of China’s opposition to other countries’ activities near the edges of the nine-dash line, such as Vietnam’s oil and gas projects in the Nam Con Son Basin. And the path of the PRC Coast Guard’s “regular rights defense patrols” should no longer hug the nine-dash line. Where fishing in the “traditional fishing grounds” off the Natuna Islands (mostly outside the nine-dash line) might fit in, i’ve no idea.
And with the nine-dash line appearing decoupled from “historic rights” in a Statement of the PRC Government, this should mandate the same treatment to be repeated in future statements by lower-level authorities like individual leaders, the MFA and its spokespersons.
Time to get back to work, long and fascinating night ahead….please share any thoughts and corrections. I can only hope my hasty read of this present statement might turn out a little closer to the mark than my prediction of the arbitration outcome.
Here’s a bit of speculation ahead of the UNCLOS arbitration decision on Tuesday, written for the Australian Institute of International Affairs’s website.
My argument is that, however shrill and legally unconvincing the PRC’s propaganda campaign may seem, it will force the tribunal to take politics into account to an even greater extent than it would have otherwise — so expect some significant concessions to China. As Bill Bishop points out, the CCP has a long tradition of overcoming deficiencies of reason via sheer force of rhetoric (强词夺理). Of course, i could be proved wrong in short order; if so, things may get very interesting for the PRC’s relationship with the UNCLOS.
I’ve also added in the page numbers of the article’s references to the tribunal’s Award on Jurisdiction. Obviously i’m not a lawyer and it’s a case where the fine-grain details are crucial, so i’d especially appreciate any corrections.
AIIA Australian Outlook
July 7, 2016
By Andrew Chubb
On 12 July, an international arbitral tribunal will hand down its findings in a landmark case brought by the Philippines against China over the South China Sea issue. The decision will have far-reaching implications, not only for this contentious maritime dispute but also for international law and politics in East Asia.
United States officials have expressed concern that the decision may exacerbate tensions in the region if China responds to an adverse finding with new assertive moves in the disputed area. However, contrary to the expectations of many observers, a total victory for the Philippines is unlikely. At least some key findings will probably favour China due in part to the political interest of the tribunal in protecting the status and relevance of the law of the sea in international politics.
The case has been particularly contentious due to China’s allegation that the Philippines is “abusing” the UN Convention on the Law of the Sea (UNCLOS) processes. China’s subsequent refusal to take part in the proceedings, relentless propaganda campaign aimed at delegitimising the tribunal among domestic and international audiences, and its frenetic efforts to enlist statements of support from foreign governments, have created a backdrop that means the tribunal is unlikely to decide the case on legal merits alone.
Even if the merits of the Philippines’ claims are strong, the arbitrators will be keen to avoid appearing to make a one-sided ruling. Instead, they will seek to make at least some concessions to China in order to neutralise Beijing’s political attacks on the tribunal’s authority, minimise the political fallout, and forestall the possibility of a Chinese withdrawal from UNCLOS. The latter scenario, while highly unlikely, would be a major disaster for the cause of international law, so it is likely to be among their considerations as legal professionals.
The current state of play
The Philippines has asked the arbitral panel to rule on 15 specific questions concerning the South China Sea with the aim of clarifying the limits of the sea areas that China can legally claim under UNCLOS. The Philippines’ contentions can be summarised as:
- China’s claims to “historic rights” within the nine-dash line are invalid under the Convention (submissions 1 & 2)
- Scarborough Shoal is not an island, and therefore generates no entitlement to maritime rights beyond 12 nautical miles (nm), such as an Exclusive Economic Zone (EEZ) or Continental Shelf (submission 3)
- China’s outposts in the disputed Spratly archipelago are also not islands, and therefore also generate no EEZ or Continental Shelf entitlement (submissions 4, 5, 6 & 7)
- China has conducted maritime law enforcement and economic exploitation activities in areas where it does not have any lawful claim, thereby violating the Philippines’ lawful rights under the Convention, while also violating the Convention’s safety requirements (submissions 8, 9, 10, 13 & 14)
- China’s massive island-building projects breach the Convention’s rules on artificial islands, constitute unlawful appropriation of maritime spaces, and violate the Convention’s obligations not to damage the marine environment – as do its fishing, coral and clam harvesting activities at Scarborough Shoal and in the Spratly Islands (submissions 11 & 12)
The Philippines is also asking the tribunal to order China to drop any unlawful claims and desist from any unlawful activities (submission 15).
In response, China argues that these matters are “in essence” issues of territorial sovereignty, which UNCLOS was not intended to govern, and maritime boundary demarcation on which China has invoked its right to reject compulsory dispute resolution. Beijing also argues the Philippines is legally bound by its previous “commitments” to settle its disputes with China through bilateral negotiations.
However, in October 2015, the tribunal issued its preliminary award and found that it is competent to rule on at least seven of the Philippines’ 15 claims against China. In an official statement, China expressed anger at the ruling, this time accusing both the Philippines and the arbitrators themselves of having “abused the relevant procedures”. Notably, however, it avoided any suggestion that it was rejecting the UNCLOS itself.
But as Phillipines legal academic Jay Batongbacal has noted, the tribunal had a strong incentive to accept jurisdiction over the case because doing otherwise would have been tantamount to an admission that UNCLOS is irrelevant in one of the world’s most important waterways, and one of its most dangerous maritime hotspots.
However, the same considerations make a total victory for the Philippines unlikely. Not only would this outcome draw even more furious political attacks on the tribunal’s authority from China, a decision seen as one-sided would increase the rhetorical bite of Beijing’s international propaganda.
The Award on Jurisdiction issued last October foreshadowed findings favourable to China on some key issues. For example, it noted that if China’s island-building and law enforcement actions are found to be “military in nature” then it may be unable to rule on their legality as these are excluded from the Convention’s dispute resolution procedures (p.140).
Perhaps even more importantly, the Award (pp.62-63) also flagged the possibility of the tribunal providing an implied reading of the nine-dash line’s meaning for China: development that could effectively legalise the PRC’s infamously unclear and expansive claim.
What to expect
The case’s greatest significance may lie in providing the first legal precedent defining specific criteria for what constitutes an “island” (entitled to an Exclusive Economic Zone and Continental Shelf under UNCLOS), as opposed to a “rock” (which is only entitled to 12 nautical miles of territorial sea).
Previous international legal rulings have deliberately avoided this question, but the Philippines’ submission has put the issue front and centre. The Award explicitly noted that “the Philippines has in fact presented a dispute concerning the status of every maritime feature claimed by China” in the disputed area (p.72). This suggests the tribunal may make the long-awaited definition. This would also accord with the arbitrators’ imperative to maximise UNCLOS’ relevance in international politics as it would help clarify the status of other disputed maritime rights claims in Asia and beyond, notably Japan’s claim to a 200nm EEZ around Okinotorishima.
It is no certainty that this will happen. It remains possible that the tribunal would simply rule that there may exist one or more islands within 200nm of the relevant areas: a conclusion that would be sufficient to prevent consideration of the Philippines’ claims against China in those areas.
Although the case is too complex to predict specific findings with certainty, the Philippines’ best hopes probably lie in obtaining an explicit rejection of China’s claims to “historic rights” and an affirmation that Scarborough Shoal—but not the much larger Spratly archipelago—is a rock and not an island, meaning the surrounding waters outside 12nm cannot be subject to any legitimate Chinese claim.
US officials worry that the ruling may exacerbate tensions in the region if China responds to an adverse finding with more assertive moves. Reclamation activities at Scarborough Shoal and the declaration of an Air Defense Identification Zone in the South China Sea have been touted as possible responses.
Despite China’s decision to ignore the tribunal’s verdict, it has major stakes in UNCLOS’ ongoing viability. These include deep seabed mining concessions in international waters and its outer continental shelf claim in the East China Sea. UNCLOS is also central to China’s argument that US naval surveillance activities off its coast are illegal.
This leaves Beijing in the awkward position of trying to cast itself as a defender of UNCLOS while ceaselessly attacking an arbitration process constituted directly under its auspices. The continuation or even intensification of China’s political campaign threatens the global authority of UNCLOS as it seeks to divide signatory states into opposing camps. I may be proved wrong on Tuesday but I suspect the SCS tribunal’s arbitrators will be only too aware of this as they prepare their ruling.
“The arbitrators will themselves be judged by history”: domestic aspects of China’s UNCLOS propaganda blitzPosted: June 27, 2016 There has rightly been plenty of attention directed towards the PRC’s furious campaign to enlist, or at least appear to enlist, international support for its rejection of the arbitral tribunal that will shortly adjudicate on 15 complaints about China’s actions in the South China Sea. The latest broadside against the tribunal from the People’s Daily is a helpful reminder of some domestic aspects shaping the propaganda blitz.
The wave of propaganda from China’s English-language mouthpieces (and presumably those in other languages too) is certainly not receding, and in fact judging by Xinhua’s Twitter stream it is gathering momentum.
The weekend just gone brought forth one of the more brazen pieces of propaganda from Xinhua, titled, Turkey agrees China’s stance for resolving disputes via dialogue. Readers who clicked through to the story may or may not have noticed that by “Turkey,” the article was in fact referring to Dogu Perincek, Chairman of the Patriotic Party, which has zero seats in the Turkish parliament, and who just recently got out of jail following one of Erdogan’s crackdowns.
But “Chairman of the Turkish Patriotic Party” sounds quite legitimate and credible, at least when translated into Chinese. Not surprisingly, then, the story was widely publicized in the domestic media under the headline: Turkish Patriotic Party Chairman says China has no duty to obey the South China Sea arbitration ruling.
This points to the importance of domestic considerations shaping China’s campaign to delegitimize the UNCLOS arbitration. As is so often the case, domestic may help explain quite a bit: the curiously un-legalistic tone of China’s critiques of the international legal process, with lots of high-strung rhetoric of brazen betrayals and malicious conspiracies instead; a fixation with getting foreigners to back the PRC’s position (even as the Beijing maintains its resolute opposition to “internationalizing” the issue); and a conga-line of usually obscure domestic organs lining up to say exactly the same thing, from the China Society of the Law of the Sea to the China Fisheries Association.
Besides pursuing the ever-elusive goal of “unified thinking” among party and military, there are good reasons why the CCP would be concerned about shoring up support among the general public in China. In early 2013, before the PRC had gone public with its rejection of the arbitration, about 6 out of 10 urban survey respondents indicated that they thought international arbitration sounded like a reasonable way of handling the South China Sea disputes. The article that appears below in summary translation, from the People’s Daily‘s foreign affairs commentary team “Zhong Sheng,” seems illustrative of how hard the CCP is trying to delegitimize the arbitration among domestic audiences. It appeared on p.3 of the official party mouthpiece, and became a top headline throughout the day on major commercial news portals on June 27.
The article also makes plain the PRC’s heavy stake in the ongoing viability of the UNCLOS system, which has put China is in the awkward position of trying not to undermine the convention while ceaselessly attacking an arbitration process constituted directly under its auspices. This may seem hopelessly contradictory, but in the CCP’s eternally-correct dialectical approach to policy there’s generally a way for the party to have its cake and eat it too. In this case, the correct handling of the contradiction lies in convincing domestic and international audiences that China is in fact defending the authority and integrity of the UNCLOS by rejecting the arbitration. Not only is the Philippines maliciously “abusing” the process, and the US hegemon puppeteering behind the scenes, the arbitrators themselves are reckless and ill-intentioned co-conspirators who will be judged by history.
(Now just repeat ad nausem and — bingo! — another contradiction inevitably resolved…as long as the immutable laws of history haven’t been infiltrated by those same shadowy forces who got to the law of the sea.)
Appearing next to the article in the People’s Daily print version was a piece proclaiming that participants at a conference at Leiden University, co-organized with Wuhan University, had concluded: Philippines’ South China Sea arbitration violates international legal principles. An English version of the latter piece is available here: Int’l experts question proceedings of South China Sea arbitration.
Top headline on Sina, QQ, Baidu, Huanqiu, NetEase news platforms under headline. “Party paper: China completely capable of towing away Philippines ship on Second Thomas Shoal”
“Zhong Sheng” begins by observing that America’s pushing of the militarization of the SCS and words and deeds showing off its weaponry, have deepened China’s concerns about harm to its own interests, and raised China’s resolve to increase its capabilities to defend those interests.
Of course, the islands of the SCS belong to China and no country even said anything to the contrary otherwise until the 1970s. But then,
“tempted by the prospect of resources, the Philippines and other countries, under the excuse that the islands were within 200nm of their shores, attempted to using maritime administrative rights claims to negate China’s sovereignty over the Spratlys. To use a common expression, China’s Spratly islands were looted.”
As to why the PRC allowed this to happen,
“it wasn’t because China did not have the ability to stop the illegal occupations, but rather because of China’s extremely restrained response. However, China has bottom lines, and no Chinese government administration has made any compromise on the sovereignty questions. Today, in the southern part of the South China Sea China does not have a single oil well, Chinese fishing boats are often impounded, and fisherfolk often detained. People should ask whether this is the ‘strong bullying the weak’ or the ‘weak bullying the strong.’ “
Since the 1960s China has settled border disputes with 12 out of 14 land neighbours. This is “the best example of China resolving disputes through bilateral negotiation, of its independent foreign policy, its peripheral diplomacy policy of good-neighbourliness, and its practice and upholding of international law.”
The story of Second Thomas Shoal, according to Zhong Sheng, is evidence of China’s good intentions:
“China is completely capable of towing away the Philippine ship grounded there, but for the sake of the overall situation of stability in the SCS, China has kindly and patiently waited, all along maintaining an extremely restrained attitude.”
The Philippines’ has openly engaged in vile treachery 背信弃义 by requesting arbitration, Zhong Sheng tells readers, for in 2011 Pres Aquino agreed to joint development and promised to resolve disputes through negotiation. But then 18 months later he wantonly filed for arbitration without even telling China beforehand.
UNCLOS article 298 provides for state parties to declare non-acceptance of dispute resolution processes, including arbitration. China did this in 2006 and nearly 30 other countries have done likewise. Thus,
“China’s non-acceptance and non-participation, much less recognition, is completely in accordance with international law including UNCLOS. It is proper and legitimate, and is an action that respects international law and safeguards the integrity and authority of the UNCLOS. If the tribunal ignores basic principles of UNCLOS, and basic common sense in international law, forcing a judgement, it will set a dangerous precedent, opening a maritime ‘Pandora’s Box’, for which the arbitrators will themselves be judged by history.”
Finally, America is militarizing the SCS in the name of opposing militarization – it’s America’s ships and aircraft making waves there, and American officials who are “issuing evil words that destroy the peace and stability of the region.”
“America’s advancing of the militarization of the SCS, and its words and deeds that show off its weaponry, have deepened China’s concerns about harm to its own interests, and raised China’s resolve to increase its capabilities to defend those interests.”
China’s capabilities and determination mean that it will not compromise. However, China has no intention of becoming a world superpower, or even a regional boss.
“America absolutely does not need to worry about a strong China challenging its global interests. Ideas about treasuring peace have been handed down through the generations in China, and the gene of peace is deeply planted in the blood of the Chinese people.”
Here’s another attempt at what a blog post probably should be: a short comment on some things i’ve read online. It’s about the New York Times’ report this week on China’s island reclamation work in the Spratlys, which i think missed some important background context to China’s activities.
The subject, in summary:
China has been moving sand onto reefs and shoals to add several new islands to the Spratly archipelago, in what foreign officials say is a new effort to expand the Chinese footprint in the South China Sea. The officials say the islands will be able to support large buildings, human habitation and surveillance equipment, including radar.
This island reclamation is the latest in a long line of measures China has taken since the early 1980s to strengthen its presence in the Spratly Islands, which it views as crucial due to their proximity to China’s sea approaches, as well as present (fisheries) and future (energy) resource bounties.