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Unhappy Neighbors – by Ngo Vinh Long | The Cairo Review

10 February 2013

by Ngo Vinh Long | The Cairo Review - Speaking to diplomats, businessmen and journalists at the British Foreign Office in November, President Susilo Bambang Yudhoyono of Indonesia emphasized the need for “norms and principles” in resolving disputes in the South China Sea. Why did PresidentYudhoyono, who was spending a week in London at the invitation of Queen Elizabeth II as the first leader to visit Britain during the year of her Diamond Jubilee, feel that he had to bring up the South China Sea disputes at such a time?

 

Chinese marines in the South China Sea, near Nansha Islands, April 10, 2010. Zha Chunming/ Xinhua Press/Corbis

After a member of the audience asked what Indonesia, the leading nation in the Association of Southeast Asian Nations (ASEAN) could do if China did not share his views, President Yudhoyono recalled what he had said to Chinese Premier Wen Jiabao at a summit conference in Bali and again to Chinese President Hu Jintao at a meeting in Beijing: without forward movement on a Code of Conduct (CoC) for the South China Sea, the whole region could “easily become a flashpoint.” He added that the two Chinese leaders had concurred with his assessment.

President Yudhoyono added, however, that he had become quite concerned after ASEAN foreign ministers failed to reach a CoC agreement at a meeting in Cambodia in July 2012. He did not mention the role played by China in getting the Cambodian government to sabotage the pact. He only said that since then, Indonesia has done its utmost to bring about a consensus among ASEAN nations on the issue. He also did not mention the fact that at an international conference on “Peace and Stability in the South China Sea and the Asia Pacific Region” held in Jakarta in September, most of the participants expressed pessimism as long as China continued to exert military and economic power in area within the U-shape line demarcating its self-declared zone of sovereignty.

The U-Shape Line

What is the U-shape line and why is it seen as such a threat to peace and stability in the South China Sea area and the Asia Pacific Region?

On May 7, 2009, the People’s Republic of China (PRC) officially submitted—in two separate letters—to the secretary general of the United Nations a map with a nine-dotted, U-shape line with the following identical words: “China 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 thereof.”

This was the first time China sent the map, without any coordinates, to an intergovernmental body, principally in response to the Vietnamese-Malayan joint submission and Vietnamese individual submission to the Commission on the Limits of the Continental Shelf (CLCS) of the United Nations. Under the 1982 Convention on the Law of the Sea (UNCLOS), the littoral states of Southeast Asia are entitled to an Exclusive Economic Zone (EEZ) in waters up to 200 nautical miles from their coastlines. In order for coastal states to expand the outer limit up to 350 nautical miles, they have to obtain approval from the CLCS.

The origin of the U-shape line can be traced to a map published by the Department of the Interior of the Republic of China (ROC) in 1946. The map included a U-shape line consisting of eleven intermittent dashes enclosing most of the South China Sea, supposedly because Chinese had discovered the area during the Han Dynasty. Even though the dashes in the Gulf of Tonkin were erased from the map presented to the UN in 2009, partly because a bilateral agreement between China and Vietnam on the demarcation of the area had been reached, the U-shape in the latest map still cut deeply into the EEZs of Vietnam, the Philippines, Malaysia, and Brunei.

Vietnam, Indonesia, and the Philippines responded with their own notes to the CLCS to reject China’s claim and its map. Vietnam’s note maintained that China’s claim as represented by the U-shape line “has no legal, historical, or factual basis, therefore is null and void.” Indonesia’s note said that the map “clearly lacks international legal basis” and is tantamount to upsetting the UNCLOS. The Philippines’ note said that China’s claim to most of the South China Sea “would have no basis under international law, specifically UNCLOS.”

Under UNCLOS, the South China Sea is divided into three areas:

—The 200 nautical mile EEZs stretching out from the coastal lines of Vietnam, Chinese Hainan Island/Province, the Philippines, Malaysia, and Brunei.

—The islands, islets, rocks, and reefs in the Paracels and the Spratlys. According to Article 121 of UNCLOS: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” And islands cannot have maritime space beyond twelve nautical miles.

—The international waters area outside of the EEZs, the Paracels, and the Spratlys. Many of the islands, islets, rocks, and reefs in the Spratlys are actually situated inside the EEZs of the Philippines, Malaysia and Brunei.

In 1974, China used force to take over the entire Paracels, which at that time was under the administration of the Republic of Vietnam (South Vietnam), killing at least fifty-three Vietnamese sailors. Again, in 1988, China took possession of the Johnson Reef in the Spratlys from the Vietnamese. Chinese gunboats sank Vietnamese transport ships supporting a landing party of Vietnamese soldiers, killing sixty-four Vietnamese soldiers and injuring many others. In 1995, China also took over the Mischief Reef, which is 150 miles west of the Palawan, the Philippines’s nearest land mass, and proceeded immediately with the construction of military structures on the reef.

It is seemingly based on these and other occupations that China claims “indisputable” sovereignty over all the island groupings in the South China Sea and uses them to justify attempts to control maritime space 200 nautical miles beyond them. For example, in response to an official protest by the Philippines following China’s assertive activities in the region, especially in the Spratlys (called the Nansha Islands by China), China sent a note to the United Nations on April 14, 2011, that asserted: “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zones, and Continental Shelf.”

In June 2012, China’s State Council announced the establishment of the City of Sansha (Three Sands), a prefectural-level city to be headquartered on Woody Island in the disputed Paracels, to directly administer “the Xisha, Nansha, Zhongsha Islands and their adjacent islets and waters.” Xisha (Western Sands), Nansha (Southern Sands), and Zhongsha (Middle Sands) are Chinese names of three disputed archipelagos—otherwise known as the Paracels, the Spratlys, and the Macclesfield Banks—respectively. On July 24, 2012, Sansha officially announced that it had established a prefectural government; and the Chinese People’s Liberation Army (PLA) also said that it would soon establish a military garrison there to serve as the command headquarters for military units operating in the South China Sea area. The headquarters of China’s Southern Fleet—the most powerful of China’s three naval fleets—and China’s entire marine force with some 20,000 soldiers, are presently stationed on Hainan Island, China’s southernmost province.

Many countries in Southeast Asia—among them the Philippines and Vietnam—protested China’s provocative actions, especially the establishment of the new military garrison. In August, the U.S. State Department issued a statement saying that the move risked raising tensions and was “counter to collaborative diplomatic efforts to resolve differences.” On the same day, the Chinese foreign ministry called in a senior U.S. diplomat to protest the State Department’s remarks. Chinese Foreign Ministry
Spokesman Qin Gang also issued a statement, which repeated China’s contention that it has absolute sovereignty over the sea and islands in the South China Sea, and so has the right to set up a city to administer the region. In September, the Chinese foreign minister, Yang Jiechi, declared flatly during a four-hour appearance with U.S. Secretary of State Hillary Clinton in the Great Hall of the People on Tiananmen Square that “China has sovereignty over the islands of the South China Sea and the adjacent waters. There is plentiful historical and jurisprudential evidence for that.”

Even if China could rightfully claim sovereignty over the disputed islands in the South China Sea and exclusive zones as well as continental shelf rights around them, this would still not justify the U-shape line given that it cuts deeply into the EEZs and undisputed territories of other countries. Thus, China’s actions raise the question of whether its real intention is to turn undisputed territories into disputed ones in order to flex its muscles and force other countries to yield to its demands, and not only in the South China Sea but also in other domains.

In 2011, for example, Chinese ships twice cut the cables of oil exploration vessels well within Vietnam’s EEZ and drove off an oil exploration vessel in Philippine waters. Then in late June 2012 China’s National Offshore Oil Corporation (CNOOC) issued nine exploration leases in blocks that fall entirely within Vietnam’s EEZ. CNOOC executives and officials at China’s Ministry of Land and Resources have given estimates that there are approximately 40 billion tons of oil equivalent in the South China Sea, most of which is believed to be natural gas. According to the U.S. Energy Information Administration, one Chinese estimate puts the sea’s gas reserves at 2,000 trillion cubic feet. That would be enough to meet China’s gas needs for more than 400 years based on 2011 consumption levels. According to a May 2012 statement by Zhong Hua, CNOOC chief financial officer, the company aims to produce 500 million barrels of oil equivalent a day from the deepwater of the South China Sea by 2020—up from nothing today.

Oil is but one factor in China’s strategy of roiling the troubled waters. Since 2009, China has also enforced an annual unilateral fishing ban in the South China Sea, confiscating fishing boats from other countries—mostly from Vietnam—as well as arresting and injuring many fishermen. In April 2012, when the Philippine navy prepared to arrest Chinese fishermen who were operating illegally in the Scarborough Shoal, China Marine Surveillance (CMS) vessels arrived on the scene and blocked the entrance to the lagoon thus preventing the arrest of the Chinese illegal fishing boats. During a two-month stand-off, China dispatched nearly one hundred fishing craft to occupy the shoal. In June, the Philippines announced that an agreement had been reached with China for a mutual withdrawal of ships. Later, however, Chinese ships returned and have maintained effective control of the shoal and the waters around it ever since. In addition to the occupation of the shoal, China also applied economic sanctions on the Philippines by banning the import of bananas and cancelling tourist charter flights.

China and Vietnam

For Vietnam, pressures from China have been multi-faceted and more heavy-handed than those applied on the Philippines and other countries in the region. And because of historical, ideological, geopolitical, economic, and cultural considerations, reactions from Vietnam have also been much more circumscribed compared to those from the Philippines. Here it is useful to consider some of the key periods in the history of Chinese-Vietnamese relations since the establishment of the Chinese Communist regime in 1949.

The Vietnamese resistance to the French colonial re-conquest of Vietnam after the Second World War had consistently been interpreted by the U.S. State Department as a case of “nationalist groundswell” under the leadership of Ho Chi Minh. But after the Communist victory in China, it came to be seen by top U.S. leaders as a Communist threat that had to be destroyed. Secretary of State Dean Acheson commented: “The question of whether Ho is as much a nationalist as a Communist is irrelevant.” Consequently, Acheson argued in 1949 that “no effort should be spared” to assure the success of a pro-French Vietnamese government. On the eve of the Korean War in March 1950, Acheson observed that French military success “depends, in the end, on overcoming [the] opposition of indigenous population” and that the U.S. must help the French protect Indochina from communist encroachment. Thereafter, the United States supplied the French with some 80 percent of the total cost of its colonial re-conquest.

In late 1950, Chinese economic and military aid also began to enter Vietnam. Though much more limited in scope than U.S. support for France, Chinese aid enabled China to increasingly exert influence and dictate demands on the anti-colonial front—the Vietnamese League for Independence, or Viet Minh—and provoke factional disputes among its leadership.

French military setbacks by the Viet Minh, such as the humiliating defeat at Dien Bien Phu in 1954, led to the Geneva Conference (held from May 8 to July 21 in that year) to provide France with a face-saving means of disengagement. On her part, France did not want anything more than a graceful exit from Indochina. But, after the United States attempted to sabotage the negotiations and create an opportunity for direct intervention in Vietnam, China and the Soviet Union forced the Hanoi delegation to make repeated and significant compromises so that a peaceful settlement could be concluded quickly. These powers were uneasy over the possibility that the United States might intervene massively, with consequences that would extend beyond Indochina. The Chinese and Russian leaders were also afraid that once the United States intervened, nuclear warfare that had begun in one corner of Asia would not be confined there. China’s leaders also wished to avoid giving the U.S. any pretext for introducing forces on her southern flank, especially after as many as one million Chinese “volunteers” had lost their lives in Korea.

As a result of the significant concessions made by Hanoi, the Geneva agreements on Vietnam were reached on July 20 and 21: the bilateral armistice agreement between France and the Viet Minh was signed on July 20, and the multilateral final declaration was signed by all participants—except the United States—the following day. Secretary of States John Foster Dulles had said however, two days before the signing of the agreement by the Democratic Republic of Vietnam (DRV) and France, that the United States “will not do anything to upset any reasonable accord sought by the French.” This promise was no doubt quite instrumental in encouraging the DRV delegation to make its final concessions in reaching the accords. Both accords spelled out in detail a temporary partition of the country, at the 17th Parallel, into “two military regroupment zones” with military forces of the Viet Minh regrouped to the north of those of the French to the south of the line. National elections under international supervision were to be held in two years to reunify the country.

Undersecretary of State Walter Bedell Smith, head of the American delegation, read an official unilateral declaration from the United States saying that it would not do anything to threaten the stipulations of the agreements and that it specifically endorsed the call for elections to reunify the country. In spite of the public promise, the United States immediately went about violating the agreements and promoted the country’s division into so-called “North Vietnam” and “South Vietnam” until 1975. The Second Indochina War fought over this decision would cost more than two million Vietnamese and 58,000 American lives. In a meeting with a group of U.S. scholars in 1971, Premier Zhou Enlai, the head of the Chinese delegation at Geneva, admitted that his “mistake and inexperience” at Geneva had contributed to the Vietnam tragedy.

In the meantime, however, China was able to use the northern half of Vietnam as a buffer zone to protect its territorial integrity from possible U.S. encroachments. Furthermore, in order to secure its “lips-and-teeth” relationship with the Hanoi leadership, China pushed its Maoist model on the northern regime with disastrous consequences for the economic, social, and political structures of the region. As a result, again, many innocent Vietnamese lives were lost.

The most grievous destruction during the mid-1950s was the land reform program carried out simultaneously with the rectification program applied against so-called rightists within the Vietnamese Workers Party and the state bureaucracy. Of course, this was done in the name of building socialism and creating a solid base for resisting imperialist aggression in the south. A report by the politburo to the tenth plenary session of the central committee of the party in October 1956 stated that thousands of lives had been lost as a result of the land reform program, and that “the land reform machine, in fact, became the institution that was placed both above the party and the government.”

The politburo report said that 2,876 village party branches or cells (out of 3,777) were subjected to the rectification program. These branches represented 150,000 out of the total of 178,000 party members. Of the party members who were forced to go through rectification, 84,000 (or 47.1 percent of the total number of party members) were purged. Many village party branches were summarily disbanded, and many good party members were arrested and executed.

The report went on to say that often the best village party branches and the best local cadres were the ones who were most severely punished. Many village party branches that made the biggest contributions during the resistance war against the French were regarded as reactionary and hence their party members and party secretaries were either jailed or killed. One of the aims of the rectification program was to replace party members with those with “property-less peasant background.” As a result, the percentage of members with this background in the village party branches rose to 97 percent.

The rectification program was also applied against sixty-six district party branches and seven provincial branches with similar damaging results. Yet, the land reform and rectification programs enabled China to exert increasing control over the economic, social, and political structures in the northern half of Vietnam. Partly because of their realization of China’s influence over Vietnam and of the China-Soviet split, President Richard M. Nixon and his national security advisor, Henry Kissinger, began to play the “China card” in the early 1970s to get China to apply pressures on Vietnam in favor of American objectives.

Nixon in China

In 1972, President Nixon undertook his historic trip to China, which to the Vietnamese conveyed the implication that the Vietnam question could be settled not via representatives of the Vietnamese people, but between these two great powers. In response to this, Nhan Dan (The People’s Daily), the central organ of the Vietnam Workers’ Party, wrote: “Nixon is heading in the wrong direction. The way out is open, yet he rushes headlong into a blind alley. The time when the great powers could decide the fate of small nations is past and gone.”

Although China was not able to force Vietnam to end the war on Washington’s terms, after the signing of the Paris agreement in late January of 1973 China began cutting all military aid and most economic aid to Hanoi while the United States gave the Saigon regime more than $1 billion a year from 1973 to 1975. After the fall of Saigon and the reunification of Vietnam in 1975, the United States immediately imposed the strictest possible trade embargo under the Trading with the Enemy Act.

Partly because Hanoi refused to heed China’s advice in sparing Saigon from a military takeover as suggested by France and some other countries, China lost face and decided to cut off all aid to Vietnam. Furthermore, while China began to mass several hundred thousand troops along Vietnam’s northern border, it increased both economic and military aid significantly to the Pol Pot regime in Cambodia, which also started to build up its forces along Vietnam’s southern border provinces. According to the scholar Damodar Sardesai, “between 1975 and 1978, China supplied Cambodia with 130-mm mortars, 107-mm bazookas, automatic rifles, transport vehicles, gasoline, and various small weapons, enough to equip thirty to forty regiments totaling about 200,000 troops… An estimated 10,000 Chinese military and technical personnel were sent to Cambodia to improve its military preparedness.” Beginning in January 1977, Khmer Rouge forces attacked civilian settlements in six out of seven of Vietnam’s border provinces. Khmer Rouge troops brutally murdered about 30,000 Vietnamese civilians during attacks in 1977 and 1978, and forced tens of thousands to flee the border provinces. Several hundred thousand Cambodian refugees also fled to Vietnam during those years.

It was during these two years that officials from Vietnam and the United States met to negotiate the normalization of relations between the two countries. In meetings between Assistant Secretary of State Richard Holbrooke and Vietnamese Foreign Minister Nguyen Co Thach at the United Nations headquarters in New York in 1978, the two agreed on normalization without any preconditions. According to Zbigniew Brzezinski’s memoirs, Secretary of State Cyrus Vance sent a report on the details of the agreement to President Jimmy Carter and recommended that normalization should proceed immediately after the Congressional elections in early November. But Brzezinski succeeded in persuading Carter against it.

Fearing that the negative position of the United States would encourage Cambodia and China to stage a pincer attack on Vietnam, in November 1978 Vietnam signed a treaty of friendship and mutual assistance with the Soviet Union. On December 15, the United States announced the normalization of relations with China. On December 25, Vietnam invaded Cambodia in order to preempt a pincer attack, publicly saying, however, that it went into Cambodia to save the Cambodian people from the genocidal Pol Pot regime. In January 1979 China’s top leader, Deng Xiaoping, visiting the United States, announced that China would “teach Vietnam a lesson,” and asked President Carter for “moral support” for the forthcoming Chinese punitive war against Vietnam.

In February 1979, with the blessing of the United States, China launched its invasion of Vietnam, laying waste to six northern provinces and killing an estimated 30,000 Vietnamese (Chinese sources have claimed from 60
70,000 Vietnamese were killed.) Brzezinski called this a “proxy war” against the Soviet Union and was satisfied that it imposed “major costs on [the Vietnamese], produced a great deal of devastation, and above all, showed the limits of their reliance on the Soviets.”

For the next ten years, China and the United States exerted maximum economic and diplomatic pressures on Vietnam. China rejected all proposals by Vietnam Foreign Minister Nguyen Co Thach for a peaceful settlement to the Cambodian conflict under the auspices of the United Nations. The Tiananmen Square crisis of 1989 and Vietnam’s withdrawal of all its troops from Cambodia by September of the same year should have led to favorable international support for such a settlement.

Then came the collapse of communism in Europe. Vietnamese General Secretary Nguyen Van Linh had gone to East Germany to attend the fortieth anniversary of the Democratic Republic of Germany in early October 1989 just before the Eastern European communist regimes began to collapse one after another. Vietnamese Communist officials rushed to reestablish relations with China at all cost in order to defend socialism under the leadership of China. Linh even went so far as apologizing to Chinese leaders for all the mistakes that Vietnam had made in its the relations with China, while proposing a solution to the Cambodian situation that only involved the remaining communist countries in the region (known as the “Red Solution”).

In 1991, Nguyen Co Thach, the foreign minister who had pushed for a multilateral settlement to the Cambodian conflict, was evicted from the Vietnamese central committee and politburo. Later that year, Vietnam signed the UN-sponsored settlement for Cambodia, which represented the positions of China and the United States. In 1992, China and Vietnam established full diplomatic relations and the policy of cooperating closely with China for ideological reasons and for regime maintenance has been reinforced ever since between top Chinese and Vietnamese leaders.

For example, a joint declaration between Vietnamese General Secretary Nong Duc Manh and Chinese President Hu Jintao in 2008 spelled out the details of “total and effective cooperation” between central committee organizations of the two parties to “promote the mechanisms between the agencies of foreign relations, defense, public security, national security, and to expand practical cooperation in the economic, trade, scientific, technological, cultural, educational and other fields.”

It is difficult to know the real extent of Chinese-Vietnamese cooperation. But even official information publicly given by the two countries has shown that Chinese penetration in many sectors has been quite deep and detrimental to Vietnam’s interests. For example, although bilateral trade between the two countries has increased rapidly since 2000, Vietnam’s trade deficits with China have also accumulated to unprecedented levels. In fact, Vietnam’s trade deficits in the last decade have been principally with China. In 2011, Chinese and Vietnamese governments reported in glowing terms expanding bilateral trade of some $40 billion. This represented a 30 percent increase over the 2010 figure of $27 billion. But Vietnam’s trade deficits with China also grew significantly to over $11 billion in 2009 and $14 billion in 2011. In the first seven months of 2012, Vietnam’s trade deficit with China was over $8 billion. According to both governments, this bilateral trade will increase to $60 billion in 2015 when the ASEAN-China trade agreement goes into effect. This is when Vietnam will have to discard trade barriers over almost all items imported from China.

China’s trade surplus with Vietnam will certainly grow significantly after this date. Already, there are three principal reasons for China’s rapid increase in trade surplus with Vietnam in the last decade: 1) most of Chinese exports to Vietnam are manufactured goods while most of its imports from Vietnam have been agricultural products and raw materials; 2) China subsidizes its producers, manufacturers, and traders at all levels and hence the cost of products exported to Vietnam have been much lower than the production costs of most items produced in Vietnam; 3) Chinese exporters resort to a wide variety of questionable means including outright bribery—which are often reported even in the highly-censored Vietnamese press—to penetrate the Vietnamese market.

Bribery has also enabled Chinese corporations to win most of the bids for significant projects in Vietnam. According to many estimates, more than 50 percent of the total value of the all the contracts during the last ten years have been won by Chinese companies. In particular Chinese companies have won 90 percent of all the contracts in the sectors of electricity, oil and gas, telecommunications, metallurgy, machine tools, and chemicals and 100 percent of all contracts in the mining sector. Many of the contracts are worth several billion dollars each.

Vietnamese press reports have also disclosed that Chinese companies, armed with insider information, often tendered bids lower than those by Vietnam or other foreign countries, in order the win contracts. But after they have won the contracts, the companies jack up prices to levels much higher even than those tendered by Western companies whose technology and equipment are much more modern. The Vietnamese Ministry of Science and Technology disclosed this year that many “turn-key” projects with outdated technology and equipment have been imported from 1,800 dismantled Chinese industrial plants. The ministry added that it has come up with a policy to limit this kind of practice.

It remains to be seen how the ministry will be able to minimize these problems that will certainly grow by leaps and bounds. According to current plans, government outlays for infrastructure alone will be $117 billion by 2025 and many Vietnamese have wondered aloud how much of this money will again end up in Chinese hands. In the meantime, however, implementation of the projects that are already under contract with Chinese companies have been mostly been prolonged because of all kinds of excuses, causing huge cost overruns that the Vietnamese side has had to pay. Completed projects also have to depend on these Chinese contractors for maintenance and spare parts. In addition, tens of thousands of Chinese workers have been brought to projects in Vietnam and have, according to frequent reports in the Vietnamese press, caused many security problems in the surrounding areas.

Partly as a result of the outlays for such projects, the Vietnamese government budget deficit increased 31 percent in 2007, increased 29 percent in 2008, and 46 percent in 2009. Government borrowing from China increased tenfold during those years. In 2009 alone, official borrowing from China was $1.4 billion. Worse, the bad debts to Vietnamese banks from state sectors are threatening a series of bank collapses. According to sources in the financial sector and reports by the International Monetary Fund (IMF), Asian Development Bank (ADB), and Vietnamese press, the 2011 figures for the overall debt of the state sector is $52.2 billion, about 43 percent of GDP. The state sector debts to Vietnamese banks run to $24.5 billion, 47 percent of which is considered bad debt.

Both the IMF and the ADB have issued warnings to Vietnam about the danger of the collapse of its banking system. The IMF also stated in September 2012 that it might have to provide bail-out supports for Vietnam. However, Prime Minister Nguyen Tien Dung announced after a meeting with Chinese Vice Premier Xi Jinping in September 2012 that “we will not have to resort to help from the IMF.” Sources close to the prime minister have gloated that this was a meeting between bosom friends and that Chinese leaders were prepared to loan the Vietnamese government $10 billion to shore up its banking system should the crisis worsen.

Cleaning up the Neighborhood

Reporting on the meeting between the Chinese vice premier and the Vietnamese prime minister on September 20, the official Chinese news agency Xinhua quoted Xi Jinping as saying that the South China Sea issue will have a negative impact on bilateral relations if not handled properly. The Xinhua report also disclosed that the two sides reaffirmed the agreement reached between President Hu Jintao and General Secretary Nguyen Phu Trong in mid-October of the previous year on “finding solutions to maritime disputes based on negotiations and dialogues.”

The Vietnam News Agency’s report of the same meeting quoted Dung as saying that “the two sides need to properly implement the general understandings of the top leaders of the two countries and seriously abide by the agreements on the fundamental principles directing efforts at solving maritime issues and disputes… through friendly negotiations based on international laws, especially the United Nations Convention on the Law of the Sea of 1982, as well as on the spirit of the Declaration of Conduct in order to move forward to an effective Code of Conduct (CoC).”

The Declaration on the Conduct of Parties in the South China Sea was signed in 2002 by ASEAN countries and China, and committed them to respect freedom of navigation and overflight in the South China Sea in accordance with international laws and UNCLOS, and to resolve their disputes through peaceful means without resorting to the threat or use of force. The parties must also exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability in the region. But the declaration was non-binding, thus enabling activities that have heightened tensions and instability for the entire region. Hence, in 2009 the ASEAN countries decided to come up the idea of the Code of Conduct to create a rules-based framework for managing and regulating the conduct of the parties in the South China Sea. The aim of the CoC is to dampen conflicts and manage disputes, not to solve them. Even so, China has put up obstacles to such an agreement, including providing aid and loans to some ASEAN countries in order to get them to sabotage such an agreement.

A gathering of ASEAN and Chinese officials to discuss the CoC was held in October 2012 in Pattaya, Thailand, to work out the final details of the document so that it could be presented to the ASEAN summit meeting in November for ratification. On October 31, Vietnamese Foreign Minister Pham Binh Minh stated that ASEAN countries had already reached a consensus of the basic points of a CoC. After the meeting in Pattaya, however, First Deputy Foreign Minister Nopadol Gunavibool of Thailand, the coordinator of meetings between ASEAN and China, said that he did not have much hope for the passage of a CoC at the ASEAN. Then the spokesperson of the Cambodian foreign ministry announced flatly on November 3 that the CoC would not be adopted in 2012.

Recently, China made further moves that alarmed its neighbors. Perhaps the most serious was the announcement in late November by Hainan Province, which administers China’s South China Sea claims, that starting January 1, 2013, Chinese police and coast guard will board ships entering what China considers its territory in the South China Sea. According to a report by Jane Perlez of the New York Times on December 1, the announcement was made by Wu Shicun, the director general of the foreign affairs office of Hainan Province. The article stated: “Mr. Wu said the new regulations applied to all of the hundreds of islands scattered across the sea, and their surrounding waters. That includes islands claimed by several other countries, including Vietnam and the Philippines… The Chinese foreign ministry said last week that China was within its rights to allow the coast guard to board vessels in the South China Sea.”

On January 22, Philippines Foreign Secretary Albert del Rosario told reporters that his country had exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of maritime disputes with China and that his government would take the South China Sea issue to an UNCLOS tribunal. That was a direct challenge to China, whose deputy foreign minister, Fu Yuing, had asked del Rosario not to internationalize their dispute by going to the United Nations, raising it with third parties including allies or holding high-profile press conferences.

China has annexed Scarborough Shoal by maintaining a continuous deployment of surveillance ships there. If the Philippines took no action, it would appear to be acquiescing to the enforcement of Chinese jurisdiction by its civilian surveillance ships. The Philippines is trying to get a ruling on international law on specific matters involving maritime jurisdiction under UNCLOS. The Philippines is making four claims: 1) China’s U-shape line is illegal under international law; 2) China has occupied and built structures on submerged banks, reefs and low-tide elevations in the South China Sea and illegally claims that these are Chinese islands under international law: 3) China has illegally interfered with the Philippines’ exercise of sovereign jurisdiction within legal maritime zones; and 4) the Philippines is seeking a judgment in international law on matters that China has not excluded from consideration in its 2006 declaration exempting itself from compulsory arbitration by UNCLOS.

Although the Philippines has chosen to focus on highly specific legal aspects in its case, any favorable ruling would not only undermine China’s U-shape claim but would also represent a breakthrough for a peaceful resolution to the maritime disputes in the region.

China’s stonewalling and resistance with respect to addressing South China Sea issues come from the confidence that in bilateral negotiations with each of the far less powerful ASEAN countries she can impose her will on them. Vietnam is the most vulnerable to China’s pressures in part because Vietnam has the longest coastline in the region and has had the most maritime territories taken over by force by China. Hence compromises by the Vietnamese government in the face of further Chinese assertiveness inside Vietnam’s EEZs and around the areas of disputed islands would certainly invite further pressures from China as well as strong reactions from Vietnamese citizens.

In 2007, protests against China’s arrest and maltreatment of Vietnamese fishermen erupted at the PRC’s embassy and consulates in Vietnam, but were quashed by the Vietnamese government. In 2011, after Chinese Maritime Administration ships cut the sonar cables of Vietnamese oil prospecting boats, protest rallies were staged again, in Hanoi and Ho Chi Minh City simultaneously, every Sunday for nearly two months. But arrests and violence against the protestors by security forces again put an end to the rallies.

In September, before going to Nanning to meet with Xi Jinping, Prime Minister Dung ordered a crackdown on blogs that have attacked his leadership and opposed China. Subsequently at least five bloggers were put on trial, resulting in jail terms of up to thirteen years. One of the bloggers had composed a song in which he urged the citizens to rise up against invaders and “cowards who sell the country.” On October 14, ten policemen stormed into the dorm room of the female student, Nguyen Phuong Uyen, at the Ho Chi Minh City Food and Technology University and put her in a jail in Long An province. An open letter for her release, signed by her classmates and addressed to President Truong Tan Sang, stated that she had been arrested because she had been suspected of participating in anti-China activities and joining anti-corruption campaigns.

The Vietnamese government’s repressive activities in the face of pressures from China have exacerbated tensions with its own citizens and eroded its legitimacy. Furthermore, these activities might have soiled the Vietnamese government’s image regionally and internationally and hence weakened its effectiveness in dealing with China’s increasing assertive activities in a region through which 60 percent of the entire global sea-borne trade moves each year.

In order to promote peace and stability in the region, all countries that utilize the South China Sea for trade and other reasons should unambiguously support efforts to settle the disputes.

A Proposal

In the interest of regional peace and global development, this writer made the following proposal based on UNCLOS’s definition of three South China Sea areas at an international conference attended by specialists and officials from most Asian countries, the United States, and many European nations. The conference, “The South China Sea: Cooperation for Regional Security and Development,” was held in Ho Chi Minh City in November. The main idea of the proposal is to open up areas for cooperation among all parties involved:

1. Reaffirm the EEZ of each individual country and negotiate all overlapping claims. Form an international consensus on getting China to abandon its U-shape line.

2. Rally international support to bring all disputed claims in the island areas (islands, islets, rocks, and so on) to an international court for judgment if solutions could not be agreed upon by the claimants. In the meantime, occupants of undisputed areas should be willing to declare publicly that no island should have more than twelve nautical miles of territorial waters around it.

3. In the international area beyond the EEZs and the territorial waters of the islands all resources extracted therein (such as oil, gas, seafood) should be divided to each country in the region, after extractive expenses have been deducted, according to a formula to be negotiated.

Ngo Vinh Long is a professor of history at the University of Maine, where he has taught for more than twenty-five years. He is also a research associate at Duy Tan University, Da Nang City, Vietnam. He has contributed to the Journal of Contemporary Asia, American Historical Review, and other publications. He is a frequent commentator on Asian affairs on the Vietnamese-language broadcasts of Radio France Internationale, the BBC, and Radio Free Asia.

 

(Original version is available at The Cairo Review)

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An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

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How a non-existent island became China’s southernmost territory – by Bill Hayton | The South China Morning Post

09 February 2013

Bill Hayton says records show that a translation error some 80 years ago may be to blame.

- by Bill Hayton | The South China Morning Post - Where is the “southernmost point of Chinese territory”? It’s a controversial question and the least controversial answer might be Hainan Island . More controversial options would be the Paracel (Xisha) islands or the Spratlys (Nansha). But officially the southernmost point is even further south – as far south as the James Shoal, about 100 kilometres from the coast of Borneo. What’s more surprising is that this piece of the motherland is actually invisible. There’s nothing there to see, unless you have diving equipment.

An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

The James Shoal lies 22 metres below sea. Yet this inconvenience doesn’t prevent PLA Navy ships visiting the shoal from time to time to demonstrate Chinese sovereignty over it. This ritual involves heaving a large piece of engraved stone over the side of the ship. There is now a small collection of Chinese stelae gathering organic encrustations on the sea floor, more than 1,000 kilometres from Hainan.

How did the Chinese state come to regard this obscure feature, so far from home, as its southernmost point? I’ve been researching the question for some time while writing a book on the South China Sea. The most likely answer seems to be that it was probably the result of a translation error.

In the 1930s, China was engulfed in waves of nationalist anxiety. The predation of the Western powers and imperial Japan, and the inability of the Republic of China to do anything meaningful to stop them, caused anger both in the streets and the corridors of power. In 1933, the republic created the “Inspection Committee for Land and Water Maps” to formally list, describe and map every part of Chinese territory. It was an attempt to assert sovereignty over the republic’s vast territory.

The major problem facing the committee, at least in the South China Sea, was that it had no means of actually surveying any of the features it wanted to claim. Instead, the committee simply copied the existing British charts and changed the names of the islands to make them sound Chinese. We know they did this because the committee’s map included about 20 mistakes that appeared on the British map – features that in later, better surveys were found not to actually exist.

The committee gave some of the Spratly islands Chinese names. North Danger Reef became Beixian (the Chinese translation of “north danger”), Antelope Reef became Lingyang (the Chinese word for antelope). Other names were just transliterated so, for example, Spratly Island became Sipulateli and James Shoal became Zengmu. And this seems to be where the mistakes crept in.

But how to translate “shoal”? It’s a nautical word meaning an area of shallow sea where waves “shoal” up. Sailors would see a strange area of choppy water in the middle of the ocean and know the area was shallow and therefore dangerous. James Shoal is one of many similar features in the Spratlys.

But the committee didn’t seem to understand this obscure English term because they translated “shoal” as “ tan” – the Chinese word for beach or sandbank – a feature which is usually above water. The committee, never having visited the area, seems to have declared James Shoal/Zengmu Tan to be a piece of land and therefore a piece of China.

In 1947, the republic’s cartographers revisited the question of China’s ocean frontier, drawing up what would become known as the “;U-shaped line”. It seems that they looked at the list of Chinese names, assumed that Zengmu Tan was above water and included it within the line. A non-existent island became the country’s southernmost territory.

But in a parallel process around the same time, the republic government gave new names to many of the sea features. Spratly Islands became Nanwei (the noble south), for example, and James Shoal was changed from a sandbank ( tan) into a reef ( ansha). Perhaps, by this time, the authorities had realised their mistake. Nonetheless Zengmu Ansha retained its official southernmost status.

By now, the translation error had become a fact, setting the region on course for conflict 80 years later.

This is more than a piece of historical trivia; James Shoal is a test of whether Beijing really is committed to the rule of international law in the South China Sea. Under the United Nations Convention on the Law of the Sea, no state can claim sovereignty over an underwater feature unless it lies within 12 nautical miles of its land. James Shoal is over 1,000 kilometres from undisputed Chinese territory.

Last month, the Philippines government announced it would seek a ruling from an international tribunal about whether China’s claims in the sea were compatible with the UN convention. James Shoal would be a clear example of a claim that is not compatible. Perhaps this might be a good moment for Beijing to review how it came to claim this obscure piece of submarine territory in the first place.

Bill Hayton is writing a book on the South China Sea for publication later this year

(This article was originally published at The South China Morning Post)

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Trouble outside the Gulf of Tonkin – by Huy Duong and Van Pham | CSIS Blog

14 December 2012

by Huy Duong and Van Pham | CSIS Blog – On November 30, 2012, two Chinese trawlers operating just outside the Gulf of Tonkin ran across the seismic cable being towed by a Vietnamese survey ship and severed it. Vietnam sent a diplomatic note to China’s embassy in Hanoi to protest. In response, China claimed that this concerns an area of overlapping claims and demanded that Vietnam stop unilateral oil and gas activities.

This incident took place at 17º26’N, 108º02’E—roughly 43 nautical miles from Vietnam’s Con Co Island, 54 nautical miles from Vietnam’s mainland coast, and 75 miles from China’s Hainan Island. It was 210 miles from the disputed Paracel Islands, and is therefore unrelated to the dispute over that archipelago.

Although China and Vietnam agreed to a boundary between their waters inside the Gulf of Tonkin in 2000, the two countries are still negotiating a boundary for the area outside its entrance.

If international law or international practice of maritime delimitation is applied, there is little doubt that the negotiated boundary will be at approximately equal distance from China’s Hainan Island and Vietnam’s mainland coast and coastal islands.

If the boundary were drawn in a way that is most favorable to Vietnam (i.e., halfway between Con Co Island and Hainan), then the location of this incident would be 13.5 nautical miles nearer to the Vietnamese mainland coast than this boundary.

Conversely, if the boundary were drawn in a way that is most favorable to China (i.e., halfway between Vietnam’s mainland coast and Hainan, disregarding Vietnam’s Con Co Island), then the location of this incident would still be 10.5 nautical miles nearer to the Vietnamese mainland coast than this boundary.

A reasonable compromise would be for the boundary to lie exactly between the two above-mentioned positions. The location of the cable-cutting incident is 12 nautical miles nearer to Vietnam than this compromise boundary.

In claiming that the cable-cutting incident had taken place in an area of overlapping claims, China is claiming at least 12 nautical miles past the compromise boundary above, and 10.5 nautical miles past even the boundary that is most favorable to itself.

Thus far, China has not indicated the basis for this claim, but it would be difficult to find a legal justification for why a maritime area 75 nautical miles from Hainan and 54 nautical miles from Vietnam’s mainland coast should belong to China. It is apparent that China is seeking to treat an area that it cannot reasonably dispute as a disputed area, and there are three possible explanations for this.

It might be China’s negotiating tactic to claim far beyond all possible equidistance lines, so that when a compromise is reached it will still end up with a part of the area beyond those lines.

The second hypothesis is that China does not accept the use of equidistance lines for drawing the boundary for this area. In pursuing its various claims around the “U-shaped line”, China has been referring to “historic waters” and “historic rights”. It is possible that China wishes to apply these arguments to the demarcation of this area.

The third hypothesis is that China does not want to demarcate this area at all, preferring instead to “set aside the dispute and pursue joint development” even in an area where it does not have a reasonable claim.

Due to the asymmetry of power between the two countries, a negotiated boundary based on the use of equidistance lines, as per legal and international norms for the demarcation of similar areas, will best protect Vietnam’s rights. Joint development might be a temporary solution or might operate in conjunction with this boundary, but cannot be a viable long term substitute for it. Unfortunately, this asymmetry also means that Vietnam’s options might be limited should China choose one or a combination of the three above-mentioned scenarios.

Mr. Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet. Ms. Van Pham contributes articles on the South China Sea disputes to the BBC.

(Original version is available at CSIS Blog)

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China’s passport move stokes South China Sea dispute | by IISS Editorial Board

12 December 2012

by IISS Editorial Board - A new row over the South China Sea has erupted following Beijing’s issue of biometric passports containing a map showing the so-called ‘nine-dashed line’ that China has used to assert its sovereignty over disputed islands. By printing the passports, and inviting other states to stamp their visas in them, Beijing is attempting to gain recognition for its claims to sovereignty.

© Getty Images

A protest in the Philippines against China’s latest attempt at ‘administrative diplomacy’, 29 November 2012.

States in contention with China over territory have not responded kindly. Vietnam and the Philippines have issued separate visa forms rather than stamping the Chinese passports. Since the map also shows Chinese dominion over territories disputed with India, the Indian government has issued visas to Chinese citizens with its own map of the Sino-Indian border embossed on them. Taiwan has also objected to the new passports, which depict it as part of the People’s Republic and feature images of Taiwanese scenic spots.

The spat has highlighted China’s recent bolstering of its tactic of ‘administrative diplomacy’ in the complex South China Sea disputes, as it seeks to exert de facto sovereignty. However, recent events have also underlined the continued intransigence of all parties to the dispute, even while work is under way to establish a code of conduct intended to bind them to resolve the dispute peacefully.

Long-running arguments
Beijing’s administrative diplomacy is the latest in a series of increasingly bold actions and reactions by claimants over the past four years. The South China Sea dispute has existed for decades, with China and Taiwan having the most expansive claims over the waters. The area included within the nine-dashed line overlaps with exclusive economic zones, islands and territorial waters claimed by five other states: Vietnam, which claims sovereignty over all of the Paracel and Spratly islands; the Philippines, which claims a large area of the Spratly Islands and Scarborough Reef; Malaysia and Brunei, which claim a smaller area of the southern Spratlys; and Indonesia, which claims none of the disputed islands but whose exclusive economic zone overlaps the nine-dashed line.

There were bloody clashes between China and Vietnam in 1974, when China ousted the Vietnamese from half of the Paracel Islands so that it controlled the entire archipelago, and in 1988, when China for the first time established a physical presence in the Spratlys after watching other claimant states do the same. There was a period of relative calm between the mid-1990s and mid-2000s, when diplomacy came to the fore and the newly expanded Association of Southeast Asian Nations (ASEAN) managed to draw up a Declaration of Conduct in 2002 to manage tensions. However, since 2008 the disputes have come to be characterised by increasingly hostile rhetoric, maritime paramilitary deployments and perceptions of China’s growing assertiveness.

While Beijing would claim that it was simply reacting to the more aggressive and unilateral hydrocarbon exploration by claimant states such as Vietnam and the Philippines in the South China Sea, China has undoubtedly become more confident in the power of its own diplomacy and is more willing to use various forms of coercion, whether economic, paramilitary or proxy diplomacy.

Stop and search
The nine-dashed line, which has been used occasionally by China to assert its claims to the South China Sea, was drawn by the Kuomintang government of the Republic of China in 1946 and first published in early 1947. The line then had 11 dashes, but in 1953 China – by then the People’s Republic following the communist takeover– removed two dashes in the Gulf of Tonkin without explanation. Since then, the only use of the nine-dashed line in official communication was in 2009, when the map was submitted as an attachment to aNote Verbale presented to the UN. The note suggested that China had ‘indisputable sovereignty over the islands in the South China Sea and adjacent waters’.

The recent passport issuance, therefore, seems to represent a solidification of China’s nine-dashed line claim. This was done despite the fact that Beijing had agreed in the 2002 Declaration of Conduct to attempt to resolve the disputes in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). The nine-dashed line map, which was first published 35 years before the current UNCLOS was finalised, would be unlikely to stand up to scrutiny under international law.

The passports are not the only form of administrative diplomacy that China has undertaken in recent times. In July 2012, Beijing upgraded the county-level status of Sansha, on Hainan Island, to a prefecture-level city, with administrative responsibility for the disputed Paracel and Spratly islands, as well as Scarborough Reef and Macclesfield Bank. While the move was largely symbolic, it allowed the creation of a local government and military garrison. State-run media noted that the city would administer just 13 square kilometres of land but a total of more than two million square kilometres of maritime waters, without clarifying exactly which islands were included.

In a further step, Hainan’s People’s Congress, a provincial-level legislature in the southern island, stated on 29 November that revised regulations would come into effect on 1 January 2013 allowing Hainanese border police to board and search vessels ‘illegally entering’ Chinese territorial waters. Given that the Spratly and Paracel islands are, in China’s view, under the jurisdiction of Hainan (through the Sansha city administration), vessels passing within 12 nautical miles of disputed islands in the sea could be subject to inspections by Hainanese police. The Congress also specifically emphasised that patrols in the water around Sansha City should be strengthened and coordinated with the activities of China’s maritime paramilitaries.

It is unclear whether such constabulary activity will actually be undertaken near the disputed islands, as the seagoing capabilities of the Hainan border police are limited. Moreover, little international shipping passes so close to the shallow and treacherous waters of the Spratly Islands. Nonetheless, any such stop-and-search operation would be a significant escalation in enforcement activities undertaken by China and would increase the possibility of a stand-off or even limited clash between rival paramilitary or military forces.

Attempts by Chinese law-enforcement agencies to harass shipping would inevitably encourage other claimant states to respond by deploying their own constabulary forces, risking a repeat of the impasse over Scarborough Reef in April–May 2012, when a tense stand-off developed between Chinese and Philippine paramilitary vessels. Such incidents are relatively containable as they usually involve unarmed vessels, but aggressive manoeuvres by any of the ships involved, which would augment the probability of injury or death to sailors, might create tensions from which governments would find it hard to retreat without significant loss of face.

Moves to disrupt shipping would greatly concern the United States, which has stated that it has a ‘national interest’ in ensuring freedom of navigation through the South China Sea, and is engaged in a military and diplomatic ‘rebalance’ towards Asia. While Washington has said that it maintains an impartial view of the disputes (even though it is now engaged directly in the modernisation of the Philippine navy through the donation of former coast guard vessels, and Secretary of State Hillary Clinton reaffirmed the mutual defence treaty while in Manila in May this year), the principle of freedom of navigation is prized highly in the US.

ASEAN splits
Beijing’s latest attempts to demonstrate de facto sovereignty over the South China Sea are reinforced by regular patrols by China’s maritime paramilitary vessels through the region, as well as the annual and unilateral fishing ban China has enforced since 1999. In addition, Beijing has been attempting to scupper attempts by Southeast Asian countries to forge a unified diplomatic approach to the dispute.

The latest manifestation of this occurred in mid-November at ASEAN’s annual heads of state summit that took place in Phnom Penh, the Cambodian capital. At an ASEAN–Japan meeting, Philippine President Benigno Aquino III directly and vocally contradicted Cambodian Prime Minister Hun Sen, who claimed there was an ASEAN consensus to retain negotiations over the South China Sea within an ‘ASEAN–China framework’. At the ASEAN–US meeting, Aquino more clearly elucidated Philippine support for US engagement in regional security issues.

The Philippine–Cambodian spat recalled a diplomatic deadlock that had occurred in July at an ASEAN foreign ministers’ meeting which, for the first time in the organisation’s 45-year history, ended without a final communiqué being agreed (although frantic Indonesian diplomacy subsequently resulted in an ex post facto statement being drawn up). Cambodia, holding the ASEAN chairmanship for 2012, was adamant that Vietnamese and Philippine desires to have the South China Sea dispute – including the recent Scarborough Reef incident – mentioned in any joint statement could not be fulfilled.

The actions of Cambodia have raised serious concerns among other ASEAN members that Phnom Penh is essentially doing the bidding of its close ally, China, despite the negative consequences for Southeast Asian unity. Beijing is eager to prevent the internationalisation of the South China Sea dispute and prefers to deal with the disagreements on a bilateral rather than multilateral basis. As if to confirm China’s influence over its Southeast Asian ally, Cambodian Secretary of State for Finance Aun Porn Moniroth stated while visiting Beijing in September that: ‘The Chinese government also voiced high appreciation for the part played by Cambodia as the chair of ASEAN to maintain good co-operation between China and ASEAN.’ During that visit, Beijing agreed on soft loans worth $500m and a gift worth $24m for Cambodia.

The splits at the ASEAN summits have highlighted differences of opinion among member states as to how to proceed in negotiations over the South China Sea. Some states, such as Cambodia and Laos, which have a closer relationship with China and no overlapping exclusive economic zone claims in the disputed waters of the South China Sea, naturally have a different outlook from those littoral states in more direct competition with Beijing over maritime territory, such as Vietnam and the Philippines. The facade of unity within ASEAN has, therefore, fractured somewhat, just as some members of the organisation (particularly, Vietnam, the Philippines and Indonesia) are eager to press for a legally binding code of conduct for the South China Sea to be drawn up between China and ASEAN. (The 2002 Declaration of Conduct is a political rather than a legal instrument.)

Intractable dispute
The situation may change in 2013 as Brunei assumes the ASEAN chair. Although a disputant in the South China Sea and therefore eager to pursue diplomatic solutions, Brunei is less forthright in its claims than the Philippines and Vietnam. (Taiwan is stymied in its vocal claims by international isolation, and Malaysia and China have something of an unwritten understanding not to escalate the issue).

However, recent quarrels have underlined the challenge facing ASEAN not only in producing a united front towards China, but also in agreeing on the terms of a code of conduct even among its own members. The recent attempts by China to enforce its administration on the region are further evidence of the intractability of the dispute.

China is not the only party to pursue such a route: both Vietnam and the Philippines have delegated the administration of the disputed islands to the closest provinces. Vietnam has encouraged tourism to the Spratly Islands, something China is replicating with a leisure cruise to the Paracels that began operating in October. Yet, given China’s resources, its control over the Paracel Islands and the fact that its size means its actions often have greater effects, China’s administrative measures arguably carry greater weight.

Taken together with its posture in the South China Sea, China’s activities in its dispute with Japan over the Senkaku/Diaoyu islands indicate growing confidence in its maritime diplomacy. Since September, when Tokyo nationalised three of the disputed islands by purchasing them from a Japanese civilian, China has maintained near-constant deployments of unarmed maritime paramilitary vessels near the island group. Beijing alsoupdated its baselines – the lines drawn around a coast or island from which territorial or exclusive economic zones are measured – submitted to the UN to include the disputed islands for the first time. Both measures indicate the administrative diplomacy China is using to fulfil its goals in maritime disputes: by deploying regular paramilitary patrols and using legal recourse to reinforce its claim, Beijing is attempting to demonstrate de facto sovereignty over the islands.

This bodes ill for the prospects of resolving the disagreements. During his speech to the Chinese Communist Party National Party Congress in November, out-going President Hu Jintao noted his desire to ‘resolutely safeguard China’s maritime rights and interests’. While there is great uncertainty over the likely direction of foreign policy under the fifth generation of leaders set to take power under Xi Jinping, Hu’s language did not suggest much value was placed in the possibility of compromise over maritime disputes.

Discussions between China and ASEAN are likely to continue in 2013, but the result may not be the substantive code of conduct necessary to alleviate concerns over the effects of China’s rise and the possibility of a negotiated solution. The waters in the South China Sea are not likely to be calmed for some time.

 

(Original version is available at IISS Editorial Board)

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China’s “U-shaped Line” in the South China Sea – by Huy Duong | Asia Sentinel

19 September 2012

(C) Huy Duong | Asia Sentinel

China’s four possible positions

China’s claims to the disputed islands in the South China Sea and their inclusion on a map that depicts a U-shaped line that comes perilously close to the coastal waters of the countries that abut the sea, have given rise to concern and debate about the line’s meaning. At stake are billions of dollars in fishing and mineral rights that all of the parties to the debate each claim as their own.

Although the dispute over the Paracels started as long ago as 1909 between China and colonial Vietnam, then represented by France, and that over the Spratlys started in the 1930s between France and Japan, the arguments over the maritime space beyond 12 nautical miles from these islands are relatively recent.

In the 1960s Indonesia and Malaysia began to make claims to the continental shelf in the southern part of the South China Sea and in 1969 the two countries signed a demarcation agreement. In 1971 the then Republic of Vietnam, i.e., South Vietnam, declared a continental shelf claim that overlapped with those of Malaysia and Indonesia.

China — that is, the pre-1949 Kuomintang government — advanced a claim to the Spratlys from the end of the Second World War, and published a map in 1948 showing the now-well-known U-shaped line. Although the area inside that line overlaps the continental shelf claims of Indonesia, Malaysia and South Vietnam, neither the People’s Republic of China in Beijing nor the Nationalists now camped in Taipei objected to these claims, nor to the 1969 Indonesia-Malaysia agreement, nor did they advance any claims of their own.
In the 1990s, however, the government in Beijing started to protest against Vietnam’s oil and gas activities in the Nam Con Son and Vanguard Bank areas, and in 1992 it awarded an area of 25,000 sq km in the Vanguard Bank area to a US company. Since then, China’s words and actions in claiming maritime space far beyond 12 nautical miles from the disputed islands have been increasingly assertive.

In this context, China’s inclusion of a map that depicts the U-shaped line in unsigned diplomatic notes sent to the Commission on The Limit of the Continental Shelf in 2009, without explanation of the line’s meaning, has given rise to much discussion. Experts and diplomats ponder what China intends to claim inside that line and how China might use that line to support its claims.

Four potential meanings of the U-shaped line have been advanced and will be considered here.

Interpretations:

  1. China’s Foreign Ministry has stated that China claims the islands inside the U-shaped line. By international law, this would include the 12-nautical-mile territorial sea and any EXCLUSIVE ZONE and continental shelf that these islands generate. If this is all what China is claiming, with no implication that this line represents a claim to rights over maritime space right up to it, then this would be the most reasonable and legally valid interpretation of the U-shaped line. If the U-shaped line represents such claims, it is no more controversial than the claims to islands by other states. However, China has not stated that this is all what the U-shaped line represents.
  2. The government of the Republic of China (i.e., the Taiwan authorities), which is not recognized as a sovereign state, has described the area inside the U-shaped line as historical waters. This view is shared by some mainland scholars. However, international law has never recognized claims of historical waters that extend so far out to sea and cover such a vast area. In any case, there is no evidence that China has historically exercised sovereignty over the area enclosed by the U-shaped line. Therefore the interpretation of the area inside the U-shaped line as historical waters is overwhelmingly rejected by international law and evidence. Furthermore, given that historical waters are normally enclosed by baselines rather than lie outside them, such interpretation would be inconsistent with baseline declarations made by the PRC.
  3. China’s diplomatic note to the CLCS in 2009 in relation to Vietnam and Malaysia’s unilateral and joint CLCS submissions claim sovereignty over the “adjacent waters” of the islands in the South China Sea and sovereign rights and jurisdiction over “relevant waters as well as the seabed and subsoil thereof”, referring to a map on which the U-shaped line is depicted, but without declaring that this line demarcates any of these areas. In 2011, China submitted a further asserting that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zones and Continental Shelf”. These notes seem to support a third interpretation: that China intends to claim the area inside the U-shaped line as an exclusive zone and continental shelf generated by the disputed Paracels, Spratlys and Scarborough Reef. However, while this is a possible speculation, there has been no official statement from China to confirm it. Further, given that the U-shaped line for the most part lies closer to undisputed territories than to the disputed Paracels, Spratlys and Scarborough Reef, it would be impossible for China to justify it as a boundary for the exclusive zone and continental shelf generated by these features.
  4. Since China is not ready to settle for the first interpretation, and since the second and third are clearly indefensible under international law, in recent years Chinese scholars have advanced a fourth interpretation. According to this interpretation, China’s claims in the South China Sea are composed of three layers. In the first, China claims the disputed islands. In the second, it claims the exclusive zone and continental shelf generated by those islands, which might not extend as far as the U-shaped line. In the third layer, China claims “historic rights” over maritime space beyond 12 nautical miles from the islands, with the U-shaped line being either the limit or both the basis and the limit for this claim.

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China’s Invented History – by Philip Bowring | The Wall Street Journal

04 June 2012

by Philip Bowring | The Wall Street Journal - The conflict between the Philippines and China over the Scarborough Shoal may seem to be a minor dispute over an uninhabitable rock and the surrounding waters. But it is hugely important for future relations in the region because it showcases China’s stubborn view that the histories of the non-Han peoples whose lands border two-thirds of the South China Sea are irrelevant. The only history that matters is that written by the Chinese and interpreted by Beijing.

The Philippine case for Scarborough is mostly presented as one of geography. The feature, known in Filipino as the Panatag Shoal and in Chinese as Huangyan Island, is some 130 nautical miles off the coast of Luzon, the largest island in the Philippine archipelago. It’s well within the Philippines’ Exclusive Economic Zone, which, as per the U.N. Law of the Sea Convention, extends 200 nautical miles off the coast. On the other hand, the shoal is roughly 350 miles from the mainland of China and 300 miles from the tip of Taiwan.

China avoids these inconvenient geographical facts and relies on historical half-truths that it applies to every feature it claims in the South China Sea. That’s why it’s now feuding with not just the Philippines, but other nations too. Beijing’s famous U-shaped dotted line on its maps of the South China Sea defines territorial claims within the 200-mile limits of Malaysia, Vietnam, the Philippines and Brunei, and close to Indonesia’s gas-rich Natuna Islands.

In the case of the Scarborough Shoal, China’s Ministry of Foreign Affairs gives the historical justification that the feature is mentioned in a Chinese map from the 13th century—when China itself was under alien Mongol rule—resulting from the visit of a vessel from China. This “we were there first” argument is nonsense. Chinese sailors were latecomers to the South China Sea, to say nothing of onward trade to the Indian Ocean. The seafaring history of the region at least for the first millennium of the current era was dominated by the ancestors of today’s Indonesians, Malaysians, Filipinos and (less directly) Vietnamese.

As China’s own records reveal, when Chinese traveled from China to Sumatra and then on to Sri Lanka, they did so in Malay ships. This was not the least surprising given that during this era, Malay people from what is now Indonesia were the first colonizers of the world’s third largest island, Madagascar, some 4,000 miles away. (The Madagascan language and 50% of its human gene pool are of Malay origin). They were crossing the Indian Ocean 1,000 years before the much-vaunted voyages of Chinese admiral Zheng He in the 15th century.

bowringfhk

Malay seafaring prowess was later overtaken by south Indians and Arabs, but they remained the premier seafarers in Southeast Asia until the Europeans dominated the region. The Malay-speaking, Hindu-ized Cham seagoing empire of central Vietnam dominated South China Sea trade until it was conquered by the Vietnamese about the time the European traders began to arrive in Asia, while trade between Champa (present-day southern Vietnam) and Luzon was well established long before the Chinese drew their 13th century map.

The Scarborough Shoal, which lies not only close to the Luzon coast but on the direct route from Manila Bay to the ancient Cham ports of Hoi An and Qui Nhon, had to be known to Malay sailors. The Chinese claim to have “been there first” is then like arguing that Europeans got to Australia before its aboriginal inhabitants.

Another unsteady pillar in China’s claim to the Scarborough Shoal is its reliance on the Treaty of Paris of 1898. This yielded Spanish sovereignty over the Philippine archipelago to the U.S. and drew straight lines on the map which left the shoal a few miles outside the longitudinal line defined by the treaty. China now conveniently uses this accord, which these two foreign powers arrived at without any input from the Philippine people, to argue that Manila has no claim.

The irony is that the Communist Party otherwise rejects “unequal treaties” imposed by Western imperialists, such as the McMahon line dividing India and Tibet. Does this mean Vietnam can claim all the Spratly Islands, because the French claimed them all and Hanoi has arguably inherited this claim?

China also asserts that because its case for ownership dates back to 1932, subsequent Philippine claims are invalid. In other words, it uses the fact that the Philippines was under foreign rule as a basis for its own claims.

Manila wants to resolve the matter under the U.N. Law of the Sea Convention, but Beijing argues that its 1932 claim isn’t bound by the Convention, which came into effect in 1994 since it preceded it. That’s a handy evasion, most probably because China knows its case for ownership is weak by the Convention’s yardsticks.

China is making brazen assertions that rewrite history and take no account of geography. Today’s naval arguments won’t come to an end until the region’s largest disputant stops rewriting the past.

Mr. Bowring is a Hong Kong-based journalist.

(This article was originally published at The Wall Street Journal)

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China’s U-Shaped Claims – by Huy Duong | The Diplomat Blog

09 June 2011

by Huy Duong | The Diplomat Blog – Late last month, tension in the South China Sea was ratcheted up a further when three Chinese marine surveillance ships threatened the Vietnamese seismic survey ship Binh Minh 02 and sabotaged its seismic equipment. The incident took place 120 nautical miles from Vietnam’s mainland coast and 340 nautical miles from China’s Hainan Island, well inside Vietnam’s 200-nautical-mile exclusive economic zone (EEZ).

China's U-Shaped ClaimsFor anyone wondering if this incident is somehow tied to the Paracels and Spratlys disputes, then the answer is no. The Binh Minh incident took place closer to the Vietnamese coast than the Paracels or the Spratlys. According to international law and state practice, the Spratlys and Paracels’ islands and rocks are only entitled to either a territorial sea of 12 nautical miles or, at most, a territorial sea plus an EEZ that doesn’t extend much beyond 12 nautical miles. By no stretch of the imagination, then, could their EEZs extend to or past the midlines between them and the coastlines surrounding the South China Sea.

With this in mind, it has been interesting to follow the ensuing war of words between Vietnam and China.

On May 27, Vietnam sent a diplomatic note to the Chinese Ambassador in Hanoi accusing China of violating the United Nations Convention on the Law of the Sea (UNCLOS) and Vietnam’s sovereign rights in its exclusive economic zone and continental shelf.

The following day, China retorted that what it did was ‘completely normal marine law enforcement and surveillance activities in China’s jurisdictional sea area.’

But as ‘jurisdictional sea area’ isn’t one of the maritime zones defined in the UNCLOS, it remains unclear what exactly China meant by that term, and what might be the legal basis for it.

The exchange of barbs continued on May 29, when Vietnam retaliated by saying that it was conducting its exploration entirely within its 200-nautical-mile EEZ and continental shelf, ‘in accordance with the 1982 United Nations Convention on the Law of the Sea. It is neither a disputed area nor is it an area “managed by China.” China has deliberately misled the public into thinking that it is a disputed area.’

Effectively, Vietnam was saying that the area wasn’t part of the Paracels and Spratlys disputes.

Two days later, China hit back, claiming that its action was, ‘law enforcement activities by Chinese maritime surveillance ships against Vietnam’s illegally operating ships are completely justified.’ It urged Vietnam to ‘immediately stop infringement activities and refrain from creating new troubles.’

Once again, China failed to state its claim in terms of UNCLOS maritime zones. Nor did it specify any limit or cite international law to support its claim.

This latest development bears a striking resemblance to the Reed Bank incident in March, when two Chinese patrol boats threatened a seismic survey ship operating on behalf of the Philippines. That incident also took place nearer to the Philippines’ Palawan coast than to the contested Spratlys. In both cases, China asserted its claims without any limit or justification based on the UNCLOS or international law. The Philippines’ riposte was that the Reed Bank isn’t part of the Spratlys and therefore isn’t subject to the Spratlys dispute.

In the past, China has made similar claims against Malaysia at James’ Shoal, against Indonesia over the waters near the Natuna Islands, and against Vietnam in the Vanguard Bank and Blue Dragon areas. These claims, together with the Reed Bank and Binh Minh incidents, should dispel any doubts that China is trying to expand its control well beyond the disputed Paracels, Spratlys and Scarborough Reef, and their associated waters.

A common feature with all these claims and clashes is that they all involve areas inside the mysterious ‘;U-shaped line’ that, some time during the last century, China started putting on its maps. Over the years, this U-shaped line gradually expanded until it covered most of the South China Sea, to within less than a hundred nautical miles of other countries’ coastlines, without any justification based on international law or customs.

Although the Philippines, Vietnam, Malaysia, Indonesia and Brunei are all directly affected by this expansionist policy, the first two, being the countries that are nearest to China, will bear the brunt of Chinese expansion, for a number of reasons.

First, these two nations’ maritime spaces will clearly be affected the most. Second, if China doesn’t try to claim the Philippines and Vietnam’s maritime spaces, its claims over Malaysia’s, Indonesia’s and Brunei’s will disintegrate. This means that while China might make compromises at the southern tip of its notorious U-shaped line to keep Malaysia, Indonesia and Brunei quiet while it deals with the Philippines and Vietnam first, it can’t do the reverse and give up its claims in the Philippines’ and Vietnam’s maritime spaces in order to gain the southern tip. Of course, if China is successful in getting its way against the Philippines and Vietnam, Malaysia’s, Indonesia’s and Brunei’s turns will come.

As a result, both the Philippines and Vietnam have been put in a situation where they need to resolutely protect their legitimate maritime spaces. At stake are more than economic interests: they also have reasons to fear that their security and national independence are threatened.

Although there remain differences between the Philippines and Vietnam over the Spratlys, there’s much more scope for the two nations to co-operate in defending their respective maritime spaces that don’t belong to the Spratlys. Given China’s extensive claims, these maritime spaces may be far more significant than those belonging to the disputed Spratlys.

The Philippines’ note verbale to the Commission on the Limits of the Continental Shelf after the Reed Bank incident highlights how the country is using UNCLOS to defend its rights in the South China Sea. With Vietnam relying on the same body of law, the two nations have a common framework for co-operation.

For example, if Vietnam and the Philippines could voice their diplomatic support for each other in incidents such as the Reed Bank and Binh Minh ones, it would benefit both nations. More fundamentally, though, analysts and diplomats from the two nations should get together with their counterparts from Malaysia, Brunei and Indonesia to decide what exactly the Spratlys consist of and how much maritime space can be attributed to them, which would lead to a collective agreement on the extent of the contested areas in the South China Sea. This will help these nations in individually and collectively opposing China’s attempts to expand the South China Sea dispute into previously uncontested areas. It will also help to convince the world of the merit of their case.

Another path that the Philippines and Vietnam could explore is making joint submissions of their continental shelf claims to the Commission on the Limits of the Continental Shelf, possibly with the participation of Malaysia and Brunei.

Either of these actions would be without prejudice to the question of sovereignty over the Spratlys, and would benefit the Philippines and Vietnam enormously in counteracting China’s expansive claims in the South China Sea.

Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet.

 

(Original version is available at The Diplomat Blog)

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