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Development & Settlement of disputes, U-shaped line and Maritime Delimitation

China’s claims and strategic intent in the South China Sea (part 1)

China’s claims and strategic intent in the South China Sea (part 1)

Scott Bentley
The Strategist

Natuna Islands

Natuna Islands

 

In a previous post, I detailed a number of recent incidents that have occurred involving Indonesia in the South China Sea, pointing out that the these incidents have occurred out to the furthest extent of China’s ‘nine dash line’ map. While I didn’t address the larger questions of China’s intentions and strategy in the South China Sea in that post (primarily for reasons of space), these larger questions were picked up in a reader’s response by Daniel Grant and are worth a closer look.

These are complex issues that are difficult to address with limited space, but I’ll attempt to condense them in two posts. This one deals with the implications of these incidents for China’s claims in the South China Sea, and the next will look at China’s strategy to enforce these claims in order to protect what it views as its maritime rights and interests in the area.

Grant’s right to point out that China views its actions in the South China Sea as reactive or defensive in nature. I’d agree that China undoubtedly sees itself as upholding or protecting what it views to be the status quo in these disputes and, contrary to the impression conveyed in Grant’s response, didn’t argue that such incidents are ‘deliberately designed to alter the status quo’. While other incidents further north certainly fit into this category, including the ongoing de facto occupation of Scarborough Shoal by Chinese Coast Guard vessels, the incidents I discussed involving Indonesia are different, though they have equally important implications for China’s wider strategic intentions in the South China Sea (SCS).

The key difference is this: unlike those in the Spratlys, the dispute off the Natunas isn’t about sovereignty at all; it’s a dispute solely over competing claims to maritime jurisdiction and the fundamental international legal norms from which such claims can be derived. China’s rationale for its claims to jurisdiction in the waters off the Natunas is based on a conception of ‘historic rights’ in the area, and this most recent incident indicates that China continues to view this principle as a legal justification for its claims in the SCS. The implications for the use of such revisionist legal justifications are potentially profound, because whether the Chinese deliberately intend it or not, they threaten to alter the status quo not only of the disputes themselves, but even more importantly the international rules and norms embodied in the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

Arguments persist regarding the lack of coordination among China’s various maritime law enforcement agencies as an explanatory factor in Chinese behavior, including in Grant’s response. I’d argue that these incidents tell us a great deal about Chinese strategic intentions in the SCS, and provide a certain amount of clarity about the extent and legal basis of China’s claims. The two are in fact closely related, for it’s the vast expanse of China’s claims represented in the nine dash line map that necessitates such problematic legal justifications.

Language in recent Chinese statements, including seeming recognition of the legal principle that ‘the land dominates the sea’, might have suggested that China was bringing its claims in the SCS in line with UNCLOS. But this recent incident suggests that any optimism may have been premature. While sometimes arguing within UNCLOS, a parallel justification for the nine dash line map has long existed in Chinese official thinking that can more aptly be described as ‘UNCLOS+’, with the plus referring to what China defines as ‘historic rights’. This parallel justification is plainly stated in China’s 1998 Law on the EEZ and Continental Shelf, despite there being no mention whatsoever of such rights in UNCLOS, an agreement China ratified two years previously.

The incidents in Indonesia’s EEZ off Natuna are particularly illustrative, as the possession of ‘historic rights’ is the only possible justification for China’s claims in this part of the SCS. The location where the incident from March occurred is over 200nm from the nearest possible maritime feature claimed by China in any direction (James Shoal to the east and Vanguard Bank to the North). This is significant because China doesn’t claim sovereignty over the Natuna islands, so the location lies outside any potential EEZ. According to some scholars, this was the impetus for China’s argument of ‘historic rights’ in the SCS, which was intended to ‘apply to water areas in the SCS where China could not establish an EEZ’.

Indonesia has long been aware of these problematic justifications for China’s claims in the SCS, as well as the severity of the potential threat to international rules and norms they pose. Though not widely publicised, in July 2010 Indonesia submitted a diplomatic letter to the UN (PDF) in which it argued that China’s claims as reflected in the nine-dash line map ‘clearly lack international legal basis and are tantamount to upset the 1982 UNCLOS’. In contrast to China, and in keeping with its UNCLOS rights, Indonesia asserts an EEZ out to 200nm from the shore of the Natuna islands. After learning of China’s claims in the early 1990s, Indonesia has repeatedly sought clarification from China as to their extent and legal basis. Since none has been forthcoming, Indonesia has essentially refused to admit that a dispute even exists in the area, though China insists that the two countries need to negotiate the limits of their maritime boundaries.

The tension between China’s arguments within and outside of UNCLOS is unsustainable over the long term, and may come to a head sooner rather than later. With reports suggesting that a ruling in the case submitted to ITLOS by the Philippines could come as early as April next year, Chinese legal analysts will be soon forced to grapple with and possibly even reconcile these competing justifications. Meanwhile, amidst China’s continued refusal to clarify its claims in the SCS, countries such as Indonesia have little choice but to infer China’s strategic intent from its actions, an inference that may not be without grounds and which I’ll come back to next time.

Scott Bentley is currently a PhD candidate at the Australian Defence Force Academy, UNSW. His research focuses on security strategies in maritime Southeast Asia. Image courtesy of Flickr user a_rabin.

This article first appeared in the The Strategist, the Australian Strategic Policy Institute Blog at http://www.aspistrategist.org.au/chinas-claims-and-strategic-intent-in-the-south-china-sea-part-1/

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