The recent ruling by a United Nation Convention on the Law of the Sea (UNCLOS) Arbitration Tribunal of the on a case brought by the Philippines against China has been welcomed by many governments that are concerned about rising tensions in the South China Sea. However, within China it has provoked outpourings of defiance.
As expected, the Chinese government reasserted its staunch position of non-recognition of the Tribunal’s jurisdiction and non-acceptance of the ruling. Its military started new war games and announced air patrols in the South China Sea. An admiral warned the US that its freedom of navigation operations could “play out disastrously”, while another one vowed that China will never stop halfway its controversial construction on the Spratly reefs, adding that “The Chinese navy is prepared to react to any infringement of rights or aggression” . "The People's Liberation Army is ready," one source with ties to the Chinese military told Reuters. "We should go in and give them a bloody nose like Deng Xiaoping did to Vietnam in 1979."
As if not to be outdone in patriotic fervour, China National Nuclear Corporation announced that it would build nuclear power stations in the South China Sea, explaining that “[m]arine nuclear power platform construction will be used to support China’s effective control in the South China Sea.”
WeChat and the microblogs used daily by the majority of Chinese people have been flooded with two pictures. One is a letter which calls on veterans to enroll in the army again, with the similar comment, “if there is a war, I will be back to the front upon the call.” The other picture is a map of Chinese territory which marks out the nine-dash line, with the caption that “This is Chinese territory, not an inch of it can be lost.”
“We do not claim an inch of land that does not belong to us, but we won’t give up any patch that is ours,” proclaimed the front page The People’s Daily.
Many Chinese contend that this arbitration case was a plot by the US, Japan (the then President of the International Tribunal on the Law of the Sea who appointed four out of the five judges is Japanese) and the Philippines to rob China of its sovereign territory as well as “historic rights” over 80% of the South China Sea. China’s Vice Foreign Minister went as far as to accuse the judges of having been influenced by money.
However, a reading of the ruling shows that much of this sense of grievance is misguided.
Not a ruling on territory
First, on the question of territory, the Tribunal has not actually made any statement against a single inch of Chinese territory, or any territory belonging to any other country for that matter, which is consistent with the fact that it did not have the jurisdiction to resolve territorial disputes. The attribution that it made to the Philippines is regarding the 200 nautical mile Exclusive Economic Zone (EEZ), a concept defined in UNCLOS that’s distinct from territory. Although it also made decisions on reefs and cays that are below high tide, in international law these are not “islands” and hence not territory over which any country can claim sovereignty. In short, the Tribunal did not touch any part of the earth that can legally be any country’s territory. All the claimants, namely, Brunei, China, Malaysia, the Philippines and Vietnam, can still contest all the insular territories that they could before this legal case.
It is worth noting that Malaysia and Vietnam, which also claim sovereignty over whole or part of the Spratlys, are not up in arms and claiming that the Tribunal has somehow wronged their territorial sovereignties.
Why, then, is China up in arms about territorial sovereignty? The first reason is that it is making claims that are completely at odds with the norms of international law, specifically, claims to parts of the sea over which no country can legally declare sovereignty. The second reason is that its government is trying to misrepresent the ruling, which is about the EEZ, as being about territorial sovereignty - this is to both support its view that the Tribunal did not have the jurisdiction to rule on the case and to whip up nationalistic feelings, taking advantage of a pervasive belief that foreigners stole Chinese territory when the nation was weak.
Ruling is on EEZ and historic rights
And what exactly did the Tribunal decide about the EEZ? Two things. First, when a country signs up to UNCLOS, that extinguishes its claims to historic rights in other countries’ EEZs. Significantly, this extinction does not include claims to insular territories and the maritime zones belonging to them. Second, none of the territories in the Spratly archipelago satisfy the requirements of UNCLOS for being entitled to EEZs. These decisions apply to both the Philippines and China.
Regarding the Tribunal’s decision on historic rights in other countries’ EEZs, the Chinese venting nationalistic sentiments seem unaware of the fact that the Tribunal’s decision is actually consistent with China’s position on the Nine-dash Line from when that line was first drawn up until at least a few decades ago.
While some might believe that China has “historic rights” over the waters enclosed by that line, that is simply manufactured history, recently manufactured at that. While he was President of the Republic of China (Taiwan), Ma Ying-jeou stated that when China’s Kuomintang government first adopted that line in 1947, it was intended to be a claim to the islands it enclosed, and not a claim of rights over the waters and the seabed. The PRC then maintained that original position through its adoption of the Vienna conventions on the territorial sea and the continental shelf in the 1950s. Tellingly, when, in the 1960s and 1970s, Indonesia, Malaysia, the Philippines and South Vietnam staked their claims to various portions of the continental shelf in the Southern part of the South China Sea, portions that extend to well inside the Nine-dash line, neither the PRC nor the RoC protested.
Throughout the negotiations of UNCLOS III, which concluded in 1982, China was a strong supporter of the 200 nautical mile EEZ regime for coastal countries, and it never raised the notion of historic rights over the waters and the seabed inside the Nine-dash Line. Some Chinese scholars recognize this and suggest that by that period China had forgotten about its historic rights. Given that at its birth the Nine-dash Line was not a claim to rights over maritime space, and up to the UNCLOS III negotiations China had never asserted such rights, it would be more accurate to say that China had not yet invented them, rather than had forgotten about them.
It was not until 1992 that China made its first claim to the continental shelf in the southern part of the South China Sea, when it signed a contract authorizing Crestone, an American company, to explore for oil in the Vanguard Bank area. 1992 was thus the year that the notion of China’s “historic rights” to the seabed inside the Nine-dash Line was first conceived. Evidence purporting to show a “history that goes back to ancient times” of those rights was manufactured after that 1992 conception.
Simply put, these outpourings of nationalistic sentiments over “historic rights” over the maritime space inside the Nine-dash Line are a result of the popular but mistaken belief that China has been claiming and exercising those rights since at least 1947.
Apart from the fact that manufactured history bears no legal weight, once a country has voluntarily signed a treaty with most of the rest of the world, and has benefited from that treaty, it should not be able to tear it up and invent something else that it thinks is more commensurate with the growth of its navy.
With the Tribunal’s view on “historic rights”, its decision that none of the Spratlys features is entitled to an exclusive economic zone is crucial. Without this decision, even with the “historic rights” argument quashed, China would still be able to maintain a veneer of validity for its excessive maritime claims by arguing that the Spratlys belong to it AND they are entitled to 200 nautical miles EEZ. Ironically, the outpourings of nationalist sentiments latch on to “territory” and “history”, but ignore this decision completely.
International law in the back seat
It is interesting that very few of the scholars of the most populous country in the world have offered the Chinese public an alternative view. When Beijing's official line is so strident, it would be professional suicide for a scholar to buck it. Thus, most Chinese analysis only repeats the official narrative and further fans the flames of nationalism.
When a country so totally and so stridently pursues its own version of international law, its claim that its position and conducts are consistent with international law in the abstract is exposed as mere rhetoric. Considered together with a rising tide of Chinese power and nationalism, it is a serious worry that even China’s international lawyers show contempt for the ruling of an international arbitration tribunal.