In a few days, the Philippines is expected to file its Memorial with the Permanent Court of Arbitration that acts as the Registrar for the arbitration panel established under Annex VII of the 1982 UN Convention on the Law of the Sea. The act represents the first major milestone ever since the Philippines launched its arbitration case against China over the disputes in the West Philippine Sea.
It is expected that the Memorial will contain an extensive treatment of the legal status of China’s claim to sovereignty and exclusive jurisdiction over the entire South China Sea, represented by the so-called Nine Dashed Lines map (9DL).
Among the main issues that must be squarely addressed is the nature of China’s claims in the South China Sea, and the precise contours of sovereignty and jurisdiction which they claim to have in the entire area.
For decades, China has implemented a policy of ambiguity with respect to these claims, not fully committing to any specific legal principles or uncontested factual circumstances to buttress its position. Even when it formally communicated the (9DL) to the international community for the very first time in 2009 through a Note Verbale addressed to the United Nations, it maintained its legal ambiguity through a clever play on words in describing its claims, saying that it only “…has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil…” Such a general phraseology actually can accommodate the system of maritime zones defined in UNCLOS, which recognizes sovereignty over land and the adjacent territorial sea, and sovereignt rights and jurisdiction over the EEZ and continental shelf. A subsequent Note Verbale in 2011 again impliedly adopted the UNCLOS framework, by claiming that the Spratly Islands group “…is fully entitled to Territorial Sea, Exclusive Economic Zone, and Continental Shelf.”
The policy of ambiguity was important for legal and diplomatic purposes.
First, it gave China plausible basis to assert that it was acting consistently with international law, including UNCLOS, and that the problem was only due to competing claims to sovereignty over islands that generated maritime zones. With this, China was able to maintain legally and diplomatically that it was not necessarily claiming absolute sovereignty over the South China Sea.
This allowed China to avoid being seen as acting in violation of international law, particularly fundamental principles of customary international law binding on all States, such as the principle that no state can place areas of the high seas under its sovereignty. “High seas” in this instance refer to the oceans beyond the territorial sea which the international community universally holds to be no more than 12 nautical miles from its shores.
Second, it blunted direct and express criticism by the rest of the international community, and probably prevented other States from making clear and unambiguous positions regarding China’s claims, since they could not precisely determine what China was claiming.
However, since 2009 China’s policy of ambiguity has been eroded, not by the actions of other states, but by China itself through its maritime activities. Certain actions of China within the South China Sea were simply not consistent with the principle of giving due regard to the rights of other states in the seas, such as the freedom of navigation, and recognition of the rights of coastal State rights to the 200 nautical miles EEZ and continental shelf adjacent to their shores. Its interference with the navigation of US Navy ships in the high seas, prevention of seismic surveys of Vietnam and the Philippines in their own waters, and sending of law enforcement ships to prevent the arrests of Chinese fishermen illegally fishing in the waters of Indonesia, Vietnam, and the Philippines could only be justified if China were claiming absolute sovereignty over the entire area of the 9DL, not merely the maritime zones under UNCLOS.
Documentary ends policy of ambiguity
From the end of February, Western military and defense analysts have been abuzz over the boon of information revealed by China’s state-run media. From December 24-31, 2013, China’s state-owned television channel CCTV-4 ran an 8-part documentary, loosely translated into Journey in the South China Sea.
The full series was eventually uploaded to the Internet (on both CCTV and Youtube) and has received quite a bit of attention. It is clearly meant to enlighten the Chinese people about China’s interests in the South China Sea: it extolled the beauty and importance of the South China Sea from the Chinese perspective and attempted to rally the Chinese people to support the government’s policies.
But it also reveals much about China’s civilian and paramilitary operations in this sensitive maritime region. The documentary apparently hits the final nail in the coffin of the policy of ambiguity, and ominously presents what previously had been officially hidden from public view: China’s intentions for the South China Sea, including all the littoral states around it.
Some episodes are particularly enlightening because they present and interpret, from China’s own perspective and through statements of its own officials, certain important events that took place in Vietnamese, Indonesian, and Malaysian, and Philippine waters. The documentary obligingly illustrates China’s viewpoint with with maps, geographic coordinates, and English subtitles that leave little room for doubt as to China’s intentions and plans for this entire maritime region. They also clearly demonstrate and in fact extol what China is quite willing and waiting to do whenever they encounter ships and citizens of these countries even in their own waters.
Episode 4 reveals that China’s Bureau of Fishery Adminitration was tasked with a top secret project to build the installations on Mischief Reef in August 1994 for purpose of safeguarding “China’s maritime sovereignty.” The site was chosen because of its strategic location as a base to supply and protect Chinese fishermen from “foreigners,” and is ominously presented as an “iron rod” which serves as “a solid foundation to solve the South China Sea dispute.” This information clashes with the official explanation given by Chinese diplomats at the time, which described that the installations were only fishermen’s shelters in case of inclement weather.
The full extent of China’s strategic investment in the Mischief Reef installation goes beyond economic and military, as Episode 5 showcases its human investment: one soldier has been stationed on the isolated reef for the last 16 years. No wonder China argued back in 1999 that they needed to install satellite TV dishes on Mischief Reef in order to respect the human rights of their soldiers stationed there.
Episode 8 showcases how far China’s nominally civilian maritime agencies are willing to go in enforcing their maritime claims. It celebrates in great detail a “glorious battle” against Vietnamese civilian ships that took place on 29-30 June 2007, which began when Vietnamese naval auxiliary ships (basically supply vessels) prevented China National Petroleum Corporation from conducting a seismic survey in waters west of the Paracel Islands, on the Vietnamese continental shelf. Although China portrays the Vietnamese as over 30 armed vessels, no armaments can be seen mounted on either of the two Vietnamese vessels that were visibly involved. China sent two of its civilian maritime law enforcement vessels to the area to repulse the Vietnamese ships, to the point of actually ramming the Vietnamese upon orders of the China State Oceanic Administration.
These offensive, and highly dangerous, maneuvers are seen by defense analysts, such as Scott Bentley of the Australian Strategic Policy Institute in one article, as indicating that China may now be promoting offensive operations. After all, as one Chinese official puts it, “it is much easier to attack than to defend.”
The 2007 incident is also significant because it took place at a time when Vietnam, together with the Philippines, was still party to the now-defunct Joint Marine Seismic Undertaking (JMSU) which was hailed as a major step toward confidence-building in the region in step with the spirit of the 2002 Declaration of Conduct of Parties in the South China Sea. Prior to the broadcast of the documentary, practically no one knew that such a clash took place.
If the intention of the cover-up by both sides was to at least keep the peace, CCTV’s revelation seems to pointedly discard any pretensions that all was ever well between the two states under those agreements.
Pressuring Indonesia, others
Although Indonesia has consistently held itself to be not party to the disputes in the South China Sea, China clearly considers the opposite to be untrue.
Episode 4 opens with a standoff that took place on May 12, 2010, in Indonesian waters west of the Natuna Islands, when a lone Indonesian “frigate” attempted to arrest a Chinese fishing vessel. Two Chinese maritime enforcement vessels arrived to protect the Chinese vessel, pressuring the Indonesian vessel to withdraw. In another article on the incident, Bentley sheds light on the fact that the Indonesian vessel was actually a small fast patrol vessel with superior long-range weaponry that could have easily defeated the larger Chinese vessels’ deck guns; however, its satellite communications had been jammed, and without instructions from Indonesian command it wisely chose not to engage despite the fact that the Chinese were illegally fishing well inside the Indonesian EEZ.
Like the 2007 incident with Vietnam, information about the 2010 standoff involving Indonesia had been suppressed by both sides.
Indonesia, after all, had never considered itself as a party to the South China Sea disputes and projected neutrality as the core of its foreign policy for the region. Keeping this and other standoffs under wraps (there were at least two others, in 2011 and 2013) was essential for Indonesia to maintain a diplomatic and moral high ground that enabled it to lead a decades-long effort to seek and promote cooperative solutions for the South China Sea disputes.
But CCTV’s revelation only brings home the point, quite bluntly, that Indonesia’s efforts to act as a mediator to bridge the gap between ASEAN claimant states and China have had little or no value. Observers question why China would discard its main friend in promoting cooperative and negotiated solutions for the disputes.
The Philippines also features repeatedly in two episodes as the documentary refers to the Scarborough Shoal standoff of May 2012 as a mere case of “rescue” of stranded fishermen, whom the Philippines had been purportedly “seizing and arresting” at the shoal since 1997. It asserts the Chinese vessels had repeatedly confronted the Philippine “fleets” since April 2012, to safeguard fishermen and “the maritime sovereignty of China.”
In Episode 4, the documentary film crew gleefully raises Chinese flags over the small rock they are precipitously perched upon, and point out where the two countries set previously up their own signs and blew up the other’s. It ends patriotically by praising the China’s fishermen for “gaining” the South China Sea and the fishery administration for protecting “the maritime sovereignty of China.”
Even Malaysia, which has kept a low profile in these disputes all these decades, is pointedly targeted by the documentary, when Episode 1 showcases the flag-raising ceremony in 29 April 2013 over James Shoal, a little over 50 kilometers north of the coast of Sarawak. Even more interesting is the fact that the coordinates supplied appear to be outside the 9DL!
The rest of the documentary highlights China’s interests in the key resources, particularly fishing (Episode 7), shipping (Episode 5), and seabed resources (Episode 6) such as minerals and petroleum.
What China is willing to do
Interpersed throughout these episodes is China’s imaginatively revisionist interpretation of history through which it asserts “the facts” that underlie its claim of historic title or historic rights to the South China Sea. Amid the rhetoric and nationalistic fervor with which the narrator, and understandably the subjects, of the documentary are brimming with, one gets a sense in no uncertain terms how China officially regards the South China Sea: an area of maritime sovereignty over which it presently claims and eventually seeks to exercise absolute control.
This is even accompanied by an unmistakeable attempt at patriotic symbolism, which shines through the documentary exactly like the gigantic torch that the shape of the South China Sea and the land territory of China imaginatively form, as highlighted in Episode 1. From whatever angle, the viewer will get a very clear and vivid sense of what China has been and will be willing to do to enforce its will against other States in the region.
And it is clearly not directed against the Philippines only, but and and all other neighboring states claiming any significant portion of the South China Sea’s minute lands or vast waters.
Philippines-China arbitration and ASEAN
The fact that the documentary comes on the heels of the arbitration launched against China, and amid calls for a “clarification” of precise nature of Chinese claims to the South China Sea, has some very important implications.
First, as explained above, China’s legal position on the South China Sea has for decades been protected by a policy of ambiguity that allowed it to dodge and sidestep accusations of acting or standing opposed to contemporary international law. Through astute and carefully-crafted diplomatic statements and communications such as the Note Verbale of 2009, China has always been able to arguably stay within the penumbra of plausible interpretations and applications of UNCLOS. Such ambiguity would have been useful as a defensive shield against the Philippines’ argument that China has been asserting sovereignty, rights, and jurisdictions beyond those permissible under international law.
Absolute sovereignty, particularly, is limited by UNCLOS to internal waters and the territorial sea extending 12 nautical miles from one’s baselines, but all locations indicated in the documentary where Chinese maritime law enforcement are protecting “maritime sovereignty” are clearly beyond this distance. And even though UNCLOS recognizes that fisheries and petroleum rights within the EEZ and continental shelf can pertain to both mainlands and islands of coastal states, the small islands and rocks within the South China Sea are not likely to receive such entitlements, so only the mainlands of littoral States around the South China Sea can generate such zones.
China Central Television Channel 4 being a state-owned and state-run media outlet directly under the State Administration for Radio, Film, and Television, which in turn is under the State Council of the People’s Republic of China, a very plausible argument could be made that Journey in the South China Sea expresses an official, public, and legally-attributable position.
Like a declaration against interest, it is definite proof of China’s policy and position that the South China Sea is not merely an area over which it claims only sovereignty over land and maritime zones around them consistently with international law, but rather a zone of absolute sovereignty unattached to any land territory. And the repeated references to its revised history establishes the point that its claim is rooted in a concept of historic title to the seas, that was flatly rejected in the over 30 years of multi-lateral negotiations that preceded UNCLOS.
This position definitely contravenes the general principles of customary international law, that no state can place the high seas under its sovereignty and that la terre domine la mer (the land dominates the sea), basic principles that underlie the treaty framework of maritime zones established by UNCLOS. In other words, the documentary could be presented and appreciated as positive and indubitable proof of the fact that, as argued by the Philippines, China is claiming sovereignty, rights and jurisdictions in excess of that permissible in international law, marked by events China has itself highlighted at the very periphery of the 9DL.
Second, China’s most formidable argument against the Philippines’ case have consistently revolved around its objection that the relief sought by the Philippines require maritime delimitations. All analyses of China’s possible positions, whether from official statements of its Ministry of Foreign Affairs, to commentaries by Taiwanese, Vietnamese, and other foreign policy scholars and advisors, including probable counter-arguments simulated by the Solicitor General and/or foreign counsel, have identified this as a keystone of China’s hypothetical legal defence. But such a defence depends fundamentally on the assumption that it concerns a maritime delimitation under UNCLOS: there is no provision in UNCLOS for a delimitation between maritime zones and such an expansive claim to historic title to the seas as that represented by the 9DL.
Although UNCLOS and general international law recognize that history, equated with long usage, may play a role in defining and establishing title, such recognition has been of limited application. Historic “title” can refer only to land territories and not the seas; UNCLOS recognizes only historic “bays” which are a very limited form of waters; and historic “rights” to resources refer only access to fisheries in another State’s waters (e.g., the EEZ). In fact, the system of maritime zones under UNCLOS clearly evince that if history is regarded as any indication of title, it can legitimately refer to no more than the internal waters within, and territorial seas within 12 nautical miles beyond, a coastal State’s baselines. Law of the Sea scholars like Clive Simmons and Pierre Dupuy consistently view UNCLOS has having intentionally and systematically restricted the concept of historic waters to only this very specific instances, if not eliminated it altogether. The Philippines itself initially claimed historic waters under the 1898 Treaty of Paris, 1900 Treaty of Washington, and 1930 US-UK Convention, during the initial discussions of the law of the sea back in the 1950s, but agreed to the package deal under UNCLOS when it became clear that the international community would not accept it.
Third, Journey in the South China Sea actually could serve as the final wake-up call for ASEAN and reinforce the groundwork for a unified position, even if only among the ASEAN claimant countries (plus Indonesia), on the South China Sea. The documentary proudly explains what China is willing to do and intends to do in its future maritime enforcement. It actually and directly contradicts the objective of China’s recent “good neighbourliness and friendship” initiative in its foreign policy, employed to successfully convince Vietnam, Malaysia, and Brunei to sign on to political declarations of cooperation and joint development. The CCTV documentary does nothing to reinforce China’s diplomacy, and in fact completely undermines it by unfortunately and perhaps unintentionally lending the latter a sense of duplicity.
China’s assertions that it aims to develop in a way that does not negatively impact its neighbours is plainly contradicted by the manner in which it portrays them as foreign invasive or aggressive forces with whom they engage in “glorious” battle, and against whom they have proudly and deliberately directed, since 2007, a steadily increasing number of ever-more forceful “fishery protection missions” that effectively deny them of their own EEZs and continental shelves at present, and can potentially shut them out of the South China Sea altogether in the future.
There are already indications that aside from the Philippines and Vietnam, both Indonesia and Malaysia are subtly shifting policy vis-a-vis China on account of the latter’s increasingly assertive maritime posture. China’s attempt to enhance its own maritime security is actually creating an opposite effect, as its outward maritime thrust causes the littoral States to seek help from the only other major powers they can ask from, Japan and the United States, both of whom China clearly distrusts and would much rather have pulling back rather than pushing in.
Taken separately, the potentially dangerous clashes at sea that Chinese maritime forces seem to be eager to engage in can actually form the basis of specific legal cases that could be filed by the littoral States against China under UNCLOS Annex VII. Unless it changes its basic policy on the South China Sea, China could actually find itself facing multiple legal challenges from all the littoral States for its maritime behaviour coupled with provocative and legally problematic public positions such as those expressed in Journey in the South China Sea.
The unreachable star
When the initial broad outlines of the legal approach to China’s actions were quietly proposed and debated among Philippine legal luminaries sometime back in 2011, it was already accepted that it would be an uphill battle that would be fraught with many difficulties. But three years on, certain elements seem to have shifted and the dynamic and fluid situation in the South China Sea has again merit a re-examination of strategies and next-moves. There is still quite a bit of uncertainty as to the future of the Philippines’ cause when one considers the procedural and substantive details; but in terms of broad strokes there is room for optimism and at least some assurance that the Solicitor General and foreign counsel will certainly give it their best shot.
The stark contrast between China’s diplomacy and its domestic publicity on the South China Sea only serves to support, rather than blunt, the Philippines’ case.
Certainly, even the Philippines-China arbitration is not a magic bullet that will definitely solve the entirety of the complex maritime disputes that comprise the South China Sea; that remains the veritable impossible dream until we witness a sea-change in all of the competing States’ legal, political, and diplomatic positions. Most important is the need for a major upheaval in China’s current spirit: giving its people the benefit of the doubt, the differences in its policies and positioning could also be interpreted as evidence of much deeper fissures in contemporary Chinese society.
China, after all, is not a monolithic super-State, but a delicately balanced conglomeration of contending social forces that increasingly press against the Communist Party’s iron rule, itself the object of contesting internal political factions. One possible reason why China does not want the Philippine-China arbitration to proceed could be that it presents a danger not to its external position, but rather to its internal security: an open and uncontrolled discussion of the 9DL and all its intricacies and ramifications might be something that the Chinese government is simply not yet prepared to rationally and effectively deal with, at a time when seething domestic discontent could be ignited by the smallest of sparks.
At present, the Chinese leadership is struggling to keep these forces in check, which is becoming more and more difficult as the gap between rich and poor widens and the benefits of rapid economic growth seem to be constrained to a smaller urbanized elite. This happens at a time when information is flowing more freely and uncontrollably, thus sowing or unearthing the seeds of discontent which, in a society of over 1.35 billion people, translates into truly serious problems of social cohesion.
Even as the next major milestone in the arbitration is passed in the next few days with the filing of its Memorial with the arbitral panel, the Philippines must necessarily brace for impact against the potential backlash expected from China. Whether the Philippines wins or loses its case, China’s actual intentions and future actions have been questioned by its own publicity, and its actions speak much louder than its words.
It seems that in the coming months or years, the important question will increasingly turn from what the Philippines will do next, to what will the other states in the region will do in light of how China is changing and evolving in responding to regional challenges.
For better or for worse, the Philippine challenge is a symbolic leap of faith that might be exactly what’s needed for those responses to be drawn. Sometimes, to reach for the unreachable star is precisely what one needs to do in order to spur any kind of change at all. – Rappler.com
The author is Assistant Professor, UP College of Law and Director, UP Institute for Maritime Affairs and Law of the Sea. The opinion stated in this article are given in a personal capacity and do not represent the positions or opinions of the national government, or any of its offices and instrumentalities.