China’s rhetoric-laden responses to recent developments in the South China Sea have diverted attention from what may be a significant shift in its thinking. Condemnatory language has been mixed with clues that Beijing is preparing to accept a legal regime in the South China Sea closer to the United Nations Convention on the Law of the Sea (UNCLOS) than its vaguely-articulated claim to ‘historic rights’. If China continues down this path it may be able to remove the most urgent sources of tension between it and the United States and greatly improve relations with Southeast Asia.
Since 1947, official Chinese maps have featured a ‘U-shaped’ or ‘9-dashed’ line encompassing a vast area of the South China Sea. The exact meaning of this line has never been made clear – some statements by the Foreign Ministry have led observers to believe it simply defines which features in the sea are claimed by China. However, some Chinese state agencies – including the coastguard, the navy, coastal provinces and the oil industry – have frequently acted in manners suggesting that they regard the line as a national boundary – over 800 nautical miles from uncontested Chinese territory. The latter interpretation would be completely at odds with UNCLOS, threaten freedom of navigation and represent a challenge to the current international maritime order.
However, recent statements by foreign and defence ministry spokespeople seem to be carefully-worded representations of a transition in policy. In particular they have given much greater prominence to the provisions of UNCLOS. This is significant because next year an independent tribunal (the Permanent Court of Arbitration – PCA – based in The Hague) is likely to find China in breach of some of the provisions of UNCLOS in a case brought by the Philippines.
On 29 October the PCA ruled that it had jurisdiction in the case and was moving to consider the merits of 15 complaints brought by the Philippines against China. These concern Chinese activities in and around the Spratly Islands in the southern part of the South China Sea, claimed in whole or part by China, Malaysia, Brunei, Vietnam and the Philippines. The Chinese Foreign Ministry’s response described the ruling as ‘null and void’, reaffirmed China’s ‘indisputable sovereignty over the South China Sea Islands and the adjacent waters’, and declared that the tribunal had ‘abused relevant procedures’, ‘deviated from the purposes of UNCLOS’ and ‘will lead to nothing’.
Response to US warship
However, the Foreign Ministry’s response to another development, the transit of an American warship, the USS Lassen, within 12 nautical miles of Chinese-occupied Subi Reef revealed a different attitude to UNCLOS. The United States chose to sail past Subi because, in its natural state, the reef would be submerged at high tide. Under UNCLOS such ‘low tide elevations’ are not territory and do not generate a 12nm territorial sea. China has constructed an artificial island on the reef but UNCLOS is equally clear: such structures do not count as ‘territory’ either. The Lassen’s transit was partly a physical demonstration that the US government did not regard Subi Reef as having a territorial sea and partly an exploratory mission to see what kind of legal status China would claim for the reef.
The Chinese response was ambiguous but suggests a move towards compliance with UNCLOS. For a start it did not object to the presence of an American warship within the U-shaped line per se. It didn’t even formally object to the Lassen sailing within 12nm of the reef. The Foreign Ministry spokesman did not claim the reef had a ‘territorial sea’ but referred only to its ‘nearby waters’. He did not say the US had ‘infringed’ Chinese sovereignty but had ‘threatened’ it. He then repeated the formulation about ‘sovereignty over the …islands and the adjacent waters’. The same language was also used by the Defence Ministry spokesman, Yang Yujun. This suggests both a degree of consensus within Chinese government circles and a deliberate effort towards trying to fit the country’s claims within the language of UNCLOS – albeit one that is not yet ready to be formally enunciated.
Similar language was found in the pages of the Global Times newspaper, often the home of hawkish hyperbole. However its main op-ed article about the USS Lassen’s transit stressed the importance of staying calm and analysing what the US had actually done. It then gave its readers an explanation of the meaning of UNCLOS’s provisions on territorial waters and, remarkably, informed them that China’s holdings in the Spratlys are not habitable islands and therefore do not qualify for a 200nm Exclusive Economic Zone around them. Given the paper’s ideological bent, this smacks of an effort in ‘public opinion management’.
Instead there appears to be a shift of emphasis. While the US is concerned about lines drawn in the sea, Chinese spokespeople and media outlets are increasingly emphasising sovereignty over the islands themselves. The main national TV news programme Xinwen Lianbo gave particularly unusual prominence to the Lassen’s patrol. It used the same formulations of ‘adjacent waters’ and made no claims to sovereignty over the whole U-shaped line. Instead it raised a spectre: warning the US against interfering with China’s activities on the reefs and declaring that ‘the Chinese side resolutely defends its own territorial sovereignty’.
But the US has never challenged China’s sovereignty claims over the islands. It has maintained strict neutrality on the claims as far back as the Second World War. Perhaps, by raising such a non-existent threat, Beijing will be able to declare itself resolute even as it aligns its claims with the provisions of UNCLOS in the coming months and years. An UNCLOS-based solution will give China much less maritime territory and access to fewer resources than would be the case under the most expansive interpretation of the U-shaped line. But by remaining steadfast on the islands it will be able to claim a victory in the eyes of its people.
Why the shift?
Why is China prepared to do this? There seem to be several factors. The most significant has been the consistent deployment of US statecraft. Washington has mobilised its full range of tools, from diplomatic discussions to gunboat diplomacy, to persuade and, to some extent, coerce Beijing into respecting the provisions of UNCLOS. Simultaneously the Chinese leadership may have come to see the benefits of UNCLOS for a country so dependent on sea-lanes for food, trade and energy supplies. UNCLOS has also legitimised China’s growing offshore naval power, facilitating transit through other countries’ EEZs, through the Japanese archipelago and as far as the US bases in Guam and Hawaii.
A third factor is the implications of the Philippines case at the PCA. Although China puffs defiance at the tribunal it is unlikely to be comfortable being painted as a violator of international law should the case go against it – as seems increasingly likely. And finally there has been very low key but assertive resistance from within Southeast Asia to China’s plans for a 21st century maritime Silk Road. It is possible that Beijing may have come to realize that it can’t pursue maritime cooperation with countries with which it is locked in maritime disputes.
All of these factors seem to be having the effect of encouraging the Chinese leadership to bring the country’s maritime claims into line with UNCLOS, reducing tension with the United States and Southeast Asia. Say it softly but there are signs of peace breaking out in the South China Sea.
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