South China Sea

Troubled waters

Print edition : August 19, 2016

China's People's Liberation Army (PLA) Navy soldiers patrol near a sign in the Spratly Islands, known in China as the Nansha Islands, on February 9. The sign reads "Nansha is our national land, sacred and inviolable." Photo: REUTERS

A Taiwanese fishing boat set sail to Itu Aba, which Taiwan calls Taiping, Taiwan's sole holding in the disputed Spratly Islands, in protest against the International Tribunal's ruling on the South China Sea, in Pingtung, Taiwan, on July 20. Photo: DAMON LIN/REUTERS

China defies the Permanent Court of Arbitration’s ruling on its claims in the South China Sea.

A wave of righteous defiance has engulfed China’s establishment following the award by a Tribunal based in The Hague, which has rejected the country’s position on its maritime boundary in the South China Sea. The Tribunal, formed by the Permanent Court of Arbitration (PCA) at the unilateral request of the Philippines, has trashed the legal validity of the nine-dash line—the demarcation line underlying China’s claim to most of the South China Sea. “There is no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’,” the Tribunal ruled.

The five-member arbitration panel opined that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) superseded China’s nine-dash line, the locus of China’s 69-year-old claim to nearly 85 per cent of the South China Sea. The Tribunal ruled that China did not have a “historic title” over the waters of the South China Sea.

It also slammed China for damaging parts of the ecosystem in the Spratly Islands, a contested archipelago, through overfishing and development of artificial islands. It said that “China had violated the Philippines’ sovereign rights in the exclusive economic zone by interfering with Philippine fishing and petroleum exploration, by constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone”. It further ruled that the disputed Spratly Islands “cannot generate maritime zones collectively as a unit” as claimed by China.

China’s response

China has gone ballistic in its response to the ruling. “The Arbitral Tribunal established at the Philippines’ unilateral request has no jurisdiction over relevant submissions, and awards rendered by it are null and void and have no binding force,” asserted a Chinese government White Paper released soon after the award. “China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China does not accept or recognise those awards. China opposes and will never accept any claim or action based on those awards,” it observed.

The White Paper also explained that Nanhai Zhudao (the South China Sea Islands) are China’s inherent territory and said that the activities of the Chinese people in the South China Sea dated back more than 2,000 years. The core of China’s argument is that the ruling is invalid as UNCLOS, the basis for the formation of the PCA, has no jurisdiction over historical claims and territorial and sovereignty issues.

China’s state-run news agency quoted Tung Chee-hwa, Vice Chairman of the National Committee of the Chinese People’s Political Consultative Conference, as saying that UNCLOS provides its signatories an option to make an exception in cases concerning maritime boundary delimitation. Among the over 30 countries that have exercised that option are Britain, France and Russia, permanent members of the U.N. Security Council.

On that basis, Tung pointed out that China ratified UNCLOS in 1996 when it made a declaration reaffirming its sovereignty over all its archipelagos and islands, including those in the South China Sea. Besides, in 2006, China made another declaration, under Article 298 of the Convention, that any maritime boundary delimitation issues were excluded from the jurisdiction of any dispute resolution mechanism under the Convention.

Tung added that China had refused to join the arbitration process initiated by the Philippines because of the 2002 Declaration on the Conduct (DOC) of Parties in the South China Sea. It was then agreed that bilateral negotiation among the disputing nations over sovereignty issues would be promoted. The DOC also affirmed the freedom of navigation in the South China Sea for all nations of the world in accordance with UNCLOS.

“To have attended the arbitration proceedings at The Hague would undermine a process that has long been in place to resolve the dispute in a bilateral and peaceful manner,” Tung observed. Besides, UNCLOS rules clearly provide that until the bilateral discussions have been exhausted a country should not approach the PAC to adjudicate border disputes, he observed.

Citing its genesis, the Chinese side and several established scholars assert that China’s jurisdiction over the nine-dash line is irrefutable. In an interview with the China Central Television (CCTV), Huang Jing of the Singapore-based Lee Kuan Yew School of Public Policy argued that the legality of China’s position over its maritime boundary in the South China Sea was firmly anchored. Professor Huang explained that the nine-dash line was jointly demarcated as a collaborative exercise between the United States and the Republic of China, following imperial Japan’s defeat in the Second World War. He pointed out that the U.S. had fought island by island to defeat Japan, which had occupied the entire South China Sea. “In 1945-46, only two countries in the region, China, at that time Republic of China, and the Philippines [were in contention]. But the Cairo declaration and the Potsdam Declaration said very clearly that all the territory occupied by the Japanese imperial forces should be returned to China.”

How it all began

The process of demarcating what was first called the 11-dash line commenced in 1946. At that time, Chinese soldiers were ferried in a U.S. warship to name all the rocks and islands of the South China Sea, including habitable islands, where Chinese troops were then positioned. “In that survey they drew the 11-dash line, now the nine-dash line,” Prof. Huang said. “The 11-dash line/nine-dash line was drawn in 1946, and was published in 1947 on the map of China; and [was accepted] in the 1952 San Francisco peace treaty conference. Even though neither the People’s Republic of China nor Taiwan attended the meeting, no one at that time challenged the 11-dash line. People began to challenge the 11-dash line/nine-dash line only recently.”

Prof. Huang explained that the exigencies of the Vietnam war changed the 11-dash line to nine-dash line. He pointed out that since the Americans heavily bombed the Ho Chi Minh trail, the land supply line that connected north and south Vietnam, the Vietnamese were forced to establish a sea route as their logistical lifeline. But that required crossing the 11-dash line belonging to China. Consequently, the Chinese side decided to fine-tune their maritime boundary along the nine-dash line to ensure unimpeded war supplies to the Vietnamese.

However, rapid decolonisation, which resulted in the emergence of new countries—Malaysia, Brunei and unified Vietnam—each wanting to establish a foothold in the South China Sea, triggered a challenge to the nine-dash line. Prof. Huang said that geopolitics played a major role in defining Washington’s position towards the South China Sea. He pointed out that during the Cold War, when the Soviet Union was an ally of Vietnam, and China a “quasi-ally” of the U.S., Washington was “quite supportive” of Beijing’s claims in the South China Sea. Yet, its position began to shift gradually with the collapse of the Soviet Union and the end of the Cold War. By 2010, the Americans decided to stage a comeback in the Asian theatre with the “Rebalance” or “Pivot to Asia” doctrine of the Barack Obama administration, with China as the target.

He pointed out that prior to the announcement of the Pivot, the U.S. was looking at four issues: the Taiwan issue, the South China Sea issue, the North Korean nuclear issue and the Tibet/Xinjiang issue, which could be leveraged as a “strategic justification” to re-enter the Asian theatre.

“After serious consideration they realised that the North Korean issue is not a good one for this purpose. Taiwan has of course become a strategic liability for the United States. South China Sea is an issue that the U.S. can take full advantage of to engage the Chinese not only strategically but to achieve the moral high ground and put the Chinese on the defensive. That is why at the APEC (Asia-Pacific Economic Cooperation) summit in Vietnam in 2010 both secretaries—Secretary of State Hillary Clinton and Defence Secretary Robert Gates—made a surprise attack: they gave a speech on South China Sea, that the United States has a commitment to the stability of the freedom of navigation. After that South China Sea has become a huge issue and China has been pushed on the defensive,” observed Prof. Huang.

The Chinese have been quick to underscore that the U.S., keen to promote its geopolitical interests in the Asia-Pacific, has been egging on the Philippines as its proxy in the South China Sea dispute. In one of his briefings following the Tribunal’s award, Lu Kang, the Chinese Foreign Ministry spokesman, asserted that the current crisis in the South China Sea could be mainly attributed to the U.S. Rebalance doctrine that had led to accumulation of U.S. forces in the Asia-Pacific. “Before the implementation of the so-called Rebalance of the Asia-Pacific by the U.S., the South China Sea was very tranquil and peaceful. But then here come the Americans and their policy of rebalance to Asia; and things have changed,” he observed.

China, firm on the nine-dash line boundary, has been engaged in countering the U.S. Pivot. For instance, the Chinese took effective control of the Scarborough Shoal, in the disputed Spratly Islands chain, in 2012 after a long standoff. However, China has not militarised it yet. Its move, nevertheless, has brought the military defence treaty between the Philippines and the U.S. into sharper focus. But the U.S. has now got the approval to establish five military bases in the Philippines, deepening and expanding its regional Pivot.

The Chinese have also built airstrips on Mischief Reef and Subi Reef, also in the Spratly Islands archipelago. Shortly after the Tribunal’s ruling, two civilian planes landed on the two reefs. The Subi Reef is just 26 kilometre from the Thitu Island occupied by the Philippines. The Mischief Reef is 250 km west of the Palawan island, also in the Philippines.

The Chinese have also built a third strip at Fiery Cross Reef, which is long enough to allow the country to land any plane, from fighter jets to large transport aircraft, expanding Beijing’s reach in the southern portion of the South China Sea.

China may also be constructing a longer-range high-frequency radar station on Cuarteron Reef, in the Spratly Islands archipelago, which is also claimed by the Philippines and Vietnam. Analysts say that the radar would enable China to monitor air and ship traffic in the south far away from the Chinese mainland.

As part of its China-containment doctrine, the Americans are eyeing a military base in Vietnam’s famous Cam Ranh Bay. The New York Times reported last May, ahead of President Obama’s visit to Vietnam, that “Washington will lift a partial arms embargo and allow Vietnam to buy lethal weapons from the United States”. It added: “The Communist government has long asked for the ban to be revoked, and American access to Cam Ranh Bay could be part of the payoff.”

Yet, many Chinese scholars have dismissed such an eventuality, despite sharp differences between Beijing and Hanoi, otherwise close economic partners, over the South China Sea. In an emailed response to Frontline, Shen Dingli, Vice Dean of the Institute of International Affairs at Shanghai’s Fudan University, said: “That is never Vietnam’s option. Vietnam is not a U.S. ally and as a communist country would never qualify as a U.S. ally. Therefore, to make [Cam Ranh Bay] as a U.S. base is never an option.”

The Chinese have backed their emotive rejection of the Tribunal’s award with moves suggesting greater entrenchment in the South China Sea. Official media reports said that the Chinese would deploy floating nuclear reactors, which would provide fresh water to personnel posted in the islands, through a process of desalinisation.

The website of the People’s Liberation Army (PLA) said that in tune with China’s “determination and ability to safeguard its sovereignty in the SCS”, a new destroyer, Yinchuan, has been commissioned in the PLA navy. It is likely to subsequently join the battle group, led by the new aircraft carrier, which is currently under construction.

Within days of the ruling, China also flew a long-range bomber over the disputed Spratly Islands and commissioned two naval supply ships, reinforcing its intent to deepen its anchorage in the South China Sea. The Chinese website reported that two large supply ships, Honghi and Luomahu, of 20,000 tonnes each, had been commissioned at an unnamed naval port in the Guangdong province.

Typically, supply ships replenish warships far away from the coast. The move signals China’s intent to maintain a durable naval presence in the high seas.

Diplomatic initiative

But simultaneously and robustly, the Chinese have also activated the diplomatic track to lower tensions, in the hope of achieving a long-term solution, by pursuing a multitrack approach.

Chinese Premier Li Keqiang led the surge of diplomatic activism from Beijing. In Ulaanbaatar, where he had gone to participate in the Asia Europe Meeting (ASEM) earlier in July, Li met with his Japanese counterpart, Shinzo Abe.

The meeting was significant. A previous statement by Japanese Foreign Minister Fumio Kishida on the South China Sea award had incensed Beijing. “Japan strongly expects the parties’ compliance with this award,” Kishida had asserted. Li also met Nguyen Xuan Phuc, the Prime Minister of Vietnam. The stage is also set for talks with the Philippines, where former President Fidel Ramos has been handpicked by President Rodrigo Duterte as Manila’s special envoy for talks with Beijing.

As tensions spiralled, the Americans sent Chief of Naval Operations Admiral John Richardson to meet Chinese navy commander Admiral Wu Shengli. This has been followed by the presence in Beijing of the U.S. National Security Adviser, Susan Rice, for talks at the highest level in China.

The facts on the ground were also changing along with the high-level diplomatic engagements. South China Morning Post reported that the Chinese have removed their HQ-9 to surface-to-air missile batteries from Woody Island in the Paracel Island chain, which is also claimed by Vietnam. Apparently, this was done in response to the withdrawal of John Stennis, the U.S. aircraft carrier, from the South China Sea to Hawaii.

The tensions may plateau, especially ahead of the G20 summit in Hangzhou in September, but the underlying causes of the friction in the South China Sea are structural and strategic. A lasting solution may arise only if Washington sheds its “unipolar” mindset and allows accommodation for rising powers such as China in the Asia-Pacific, in a world where multipolarity has become an inescapable reality.