A Quiet Revolution in the South China Sea

Is the PRC Ditching the Nine Dash Line?

Without any ambiguity, the People’s Republic of China has announced that it considers itself and not the United States the boss in the South China Sea.  Its most assertive statement of this principle was to send the HYSY 981 rig, escorted by a flotilla of dozens of ships, into waters that Vietnam claims as its Exclusive Economic Zone for some exploratory drilling, right after president Obama made a trip to Asia (but, tellingly and perhaps unwisely, not to the PRC) to talk up the US pivot.

In keeping with the PRC pattern of avoiding overtly military operations—those that would justify the invocation of existing or new U.S. security alliances with PRC neighbors—the flotilla apparently included no PLAN vessels, and the objectives and disputes surrounding the rig have been characterized in economic/bilateral terms.

In its attempts to present itself as a responsible and competent steward of the South China Sea—and in order to bring Vietnam to heel and isolate the Philippines for the next, much more complex and risky round of “salami slicing”--the PRC might be prepared to make a major shift in its South China Sea maritime claims.

Alert readers (admittedly, China Matters has no other kind) will immediately grasp the significance of this passage from the May 31 People’s Daily:

The truth is, so far China and Vietnam have not reached consensus on delimiting their exclusive economic zones and continental shelves, but the waters in which the oil rig is operated are only 17 nautical miles (31.5 kilometers) from Zhongjian Island of China’s Xisha Islands while about 150 nautical miles from Vietnam’s coast. In other words, the drilling site is located only five nautical miles from the outer limit of China’s territorial sea and is undeniably within China’s exclusive economic zone, regardless of whichever principle is applied in future delimitation.

The People’s Republic of China is claiming the right for its HYSY 981 drilling rig to operate at its current location based upon an EEZ justification, not by its position within the notorious “cow tongue”, the area enclosed by the “nine-dash-line”.

Over the last year there have been several informal indications that the PRC is planning to move beyond the anachronistic “nine-dash-line” as the basis for its South China Sea claims, and haggle with its neighbors on the basis of the UN Convention on the Law of the Sea, with its maritime claims based on sovereignty, territorial waters, and Exclusive Economic Zones or EEZs.

That is big news for the South China Sea and, perhaps, bad news for the United States, which has relied on the patent absurdity of the nine-dash-line claim to justify its role as the sensible adult in the SCS.

For clarification, the general principle is that a coastal state like Vietnam is accorded an EEZ of at least 200 nautical miles or even more if the continental shelf justifies—provided there is no conflict with the EEZ of an island held by another state.

In the case of a conflicting island claim, the coastal claim does not gain automatic precedence; nor is there a standard formula for drawing an EEZ boundary between the two claims.  For instance, there is no principle that the boundary be drawn at the midline between the coastal baseline and the island baseline.  UNCLOS calls for the boundary to be drawn on the basis of “equity”, taking factors like the populations of the immediate EEZ claimants into account.  

Vietnam would clearly get the lion’s share of EEZ in the direction of the Paracels, but its position that its continental shelf claim entitles it to the spot where the HYSY 981 is drilling—and any complicating claims to a Paracels EEZ can be ignored-- is less defensible. 

The PRC position (reflected in the reference to “regardless of whichever principle is applied in further delineation”) is that the Paracels is going to get something, at least something more than five miles beyond Zhongjian Island’s territorial waters, and the HYSY 981 is covered.  

Since we’re talking about the South China Sea, the situation is even more complicated.

In 1996, the PRC drew a single baseline around all the Paracels, essentially treating them as a single archipelagic group; Zhongjian Island, a.k.a. Triton Island is the basis for the southwestern corner of the claim.  The Chinese position is that the archipelagic grouping as a whole (or, per the PRC formulation, “territorial sea”) is, leaving aside for a moment the issue of conflict with a neighboring EEZ, entitled to a 200 nautical mile EEZ beyond the baseline, hence the invocation of the rig’s propinquity to Zhongjian Island as defense of its legality.

This is not kosher by UNCLOS standards; only essentially archipelagic states (like Philippines but not continental states like the PRC and Vietnam) are supposed to enjoy this treatment.  Furthermore, the above-water real estate inside the claim is miniscule, and doesn’t even come close to the UNCLOS standard that the ratio of watery realm to land features should not exceed 9:1.  Therefore, if the archipelagic claim is thrown out, the best the PRC could do would be to claim a 12 nautical mile territorial waters around Zhongjian/Triton Island itself.  Since the island is uninhabited and incapable of sustaining economic life, it gets no EEZ and apparently leaves the HYSY 981 hanging.

However, to further muddy the waters, several coastal states have ignored these restrictions on archipelagic claims when defining baselines for island groups (for instance, Denmark on the Faroes and Ecuador on the Galapagos).

And, in bad news for Vietnam, the PRC has been able to create a simulacrum of human habitation and economic life on Woody Island in the Paracels.  Woody Island is the designated seat of the Sansha Prefecture of Hainan Province, with a small town maintained by a monthly supply boat, an airstrip, and the prospect of patriotic tourism, thereby creating a plausible claim for itself to a 200 nautical mile EEZ …which would also cover the current position of HYSY 981, 103 nautical miles away.

Previously, Vietnamese representatives, perhaps unwisely assuming that the PRC would never abandon the nine-dash-line, had publicly acknowledged there is a case for allowing Woody Island an EEZ.

Therefore, Vietnam appears to be in something of a bind here.

According to an authoritative looking if officially unofficial paper from August 2013 by Hong Thao Nguyen of the Law Faculty of Vietnam National University, Vietnam’s position on the Paracels is based on three principles: sovereignty over the Paracels, rejection of the nine-dash-line, and the assertion that the issue should be addressed multi-laterally instead of bilaterally.

As yet, the world largely follows the U.S. lead and does not take positions on island sovereignty, so point 1 is out.  If the PRC is switching to an EEZ basis for its claims, then point 2 is out.  And if points 1 and 2 are out, there is no strong basis for taking a bilateral spat to a multilateral forum.

And on technical ground, if the PRC shifts the terms of debate for HYSY 981 away from the nine-dash-line to UNCLOS and EEZ, Vietnam’s claims to the spot the rig now occupies do not appear to be a slam dunk.

Adoption of an EEZ dispute formulation would also appear to create a major political problem for Vietnam.

For Vietnam to negotiate an EEZ settlement with the PRC would involve Vietnam acknowledging PRC sovereignty over the Paracels and China’s as yet undefined yet genuine rights to some EEZ treatment.

This, I imagine, is an impossibly bitter pill for the Vietnamese government to swallow at the present time, given the intensity of anti-Chinese anger that roils Vietnam.

And if Vietnam can’t accept PRC sovereignty over the Paracels, the dispute can’t go to UNCLOS arbitration, it’s a sovereignty dispute, and all those carefully parsed arguments about EEZs and penetrating legal critiques of the nine-dash-line are completely irrelevant.

If this is the case, the PRC has rather carefully and maliciously hoisted Vietnam on a cleft stick.

Indeed, beyond asserting the right to drill holes in Vietnam’s continental shelf, Vietnamese acknowledgement of PRC sovereignty over the Paracels may be the key concession that China is trying to extract from its unhappy neighbor.

And maybe that’s the deal the PRC is offering Vietnam and, by extension, ASEAN: an agreement to play by UNCLOS rules if its sovereignty claims in the SCS are accepted.

Beyond categorical declarations of its absolute superiority of its continental shelf claims, Vietnam appears to be trying to find a way out of its dilemma through the politics of outrage: using heated rhetoric and provocative approaches to the PRC flotilla by various vessels in the hope that the PRC will do something so stupid and outrageous that the arcane and fraught issue of conflicting EEZ and sovereignty claims will be superseded by the easier-to-understand and cathartic issue of battling Chinese aggression.

For Americans, this situation would conjure up ironic memories of another provocation in Vietnamese waters, the 1964 Gulf of Tonkin incident that the U.S. hyped as an excuse to sidetrack informed debate and escalate its intervention in the Vietnam War.

Remarkably, even though the global China-bashing machine is on hair trigger, there seems to be little appetite as yet for indulging Vietnam.  Even when a Vietnamese fishing boat flipped and sank in a dustup with the HYSY 981 flotilla—an incident that would have supplied ample grist for the anti-China media mill regardless of the inevitably disputed facts of the encounter-- the international response was remarkably muted.

Whether this is owing to recognition of the fundamental ambiguity of the PRC-Vietnam dispute, the fact that ASEAN is thoroughly divided and cowed by the PRC, or because the US is distracted by its Ukraine adventure and is not ready to get a China crisis on at this particular moment remains to be seen.

Judging by President Obama’s security agenda speech at West Point (where he briefly cited the South China Sea issue but coupled it with a call for the Senate to ratify UNCLOS in order to give the US more standing in the disputes), America is not drawing any red lines in the South China Sea just yet.

As Secretary of Defense Hagel was communicating US resolve at the Shangri La forum, the New York Times treated the world to an astounding backgrounder on the Obama administration’s attitude toward Asia.

But even as Mr. Hagel and the United States have adopted a public posture that backs Japan — and, to a lesser extent, the Philippines, Vietnam and any other country that finds itself at odds with China — some administration officials have privately expressed frustration that the countries are all engaged in a game of chicken that could lead to war.

 “None of those countries are helping matters,” a senior administration official said…

Even if President Obama is suffering from lame duck fatigue and is disgusted with the hand that Hillary Clinton and her pivot dealt him in Asia, it seems counterintuitive that the United States will give a green light to the PRC in its South China Sea dispute with Vietnam.

If the U.S. isn’t ready to throw its weight around on behalf of its buddies, right, wrong, or nuance be damned, then the value of the U.S. deterrent and the pivot are significantly devalued.

Furthermore, Secretary of State John Kerry is the godfather of U.S.-Vietnamese rapprochement and I find it difficult to believe he—or his ally on the matter, John McCain--will let Vietnam take a whipping from China without some kind of riposte. 

The hope that the US cavalry will ride to the rescue, despite its current ambivalence, is probably one of the factors that is keeping Vietnam from sitting down with the PRC for the bilateral talks that Beijing is insisting upon.

But for the time being, the PRC seems to be cautiously enhancing its legal position—and relying on the expectation that the world will get tired of Vietnamese intransigence before it becomes sufficiently outraged by Chinese assertiveness—to gain further acceptance of its interests and rights in the South China Sea.

South China Sea: How Many Battalions Does the Passive Voice Have?

And...Island Games: Okinotorishima vs. Johnson South Reef

My Twitter feed contained the following ringing statement:

Claims disputes pervade maritime Asia. All parties must be prevented from use force/threat thereof to alter status quo.

To paraphrase Napoleon on the Pope, how many battalions does the frickin’ passive voice have?

“Must be prevented”.  That’s the problem with the pivot.

The "pivot to Asia" is an idea.  It's not a doctrine, like the Monroe Doctrine, the Truman Doctrine, the Eisenhower Doctrine, or the Bush Doctrine, all of which were based on the statement, "If you do X, It's War!"(Or, in the case of the immortal Bush doctrine, If you're thinking of doing X, or I think you're thinking of doing X, or if you're not thinking of doing X but I want to bomb you anyway, It's War!)

The pivot expresses the hope that the PRC will mistake a US preference for an national doctrine, construe the US desire to make mischief for the PRC in its near beyond as a matter of existential resolve, and do the United States the courtesy of dignifying Washington’s expressions of disapproval as a deterrent.

The PRC, on the other hand, has a genuine doctrine: its territorial integrity is an existential issue.  And it has openly applied it to the South China Sea.  

I might point out that the PRC tried to make its South China Sea priorities a matter of engagement with the United States (remember the “core interest” kerfuffle?), but Hillary Clinton instead, oh so cleverly, turned the issue on its head as a matter of Chinese aggression, and made support for the PRC’s South China Sea adversaries into the keystone of the pivot.

So those chickens have come home to roost.  As the United States committed fully to the pivot architecture, the PRC has decided to flout the US deterrent by moving the HYSY 981 into Vietnam’s claimed EEZ and so far the US response has been…extremely muted.

I expect that President Obama is loath to pile a PRC crisis on top of his Russian crisis.

I also suspect that the United States did not have a riposte ready in its well-financed, exhaustively think-tanked China strategy for a PRC provocation like this.

Perhaps the US was lazily assuming that the PRC, its military completely overmatched by the United States’, would never have the gumption to test the US deterrent.

In any case, there it is.  

Undoubtedly, the US foreign policy apparatus is working up a portfolio of appropriately muscular options for President Obama, all the way from blasting the HYSY 981 out of the water to sailing the USSN Ronald Reagan et. al. through the Chinese flotilla, to joint patrols with the Philippine navy/coast guard, to drawing a red line in the waters of the South China Sea…

Anyway, I think the PRC is determined to show that its determination and staying power exceed that of the United States in South China Sea jostling up to the point of military confrontation.

And maybe even including war, if a feisty op-ed in Global Times is taken at face value:

It's a demanding and risky job to let other countries get used to China's rise and treat China as a major power. Vietnam and the Philippines, which haven't updated their knowledge about China, still cherish the illusion that China can simply be forced back by pressure.

China's interests are beyond the South China Sea. It must strike a balance between securing its territorial waters and maintaining a vibrant growth trend.

China faces a dilemma with its growing power. On the one hand, it will be confronted by neighbors like Vietnam, the Philippines and Japan, and other stakeholders like the US if it makes use of its power.

On the other, if China conceals its power, its determination to safeguard territorial integrity will be underestimated, which would further foster the unscrupulousness of countries like Vietnam, the Philippines and Japan.

…

China has taken the first assertive step in securing its territorial integrity in the South China Sea, and in the meantime faces strong protests from Hanoi and Manila, and obvious bias from the US. China's diplomatic risks are rising, but these are the costs that have to be borne as China becomes more powerful.

The South China Sea disputes should be settled in a peaceful manner, but that doesn't mean China can't resort to non-peaceful measures in the face of provocation from Vietnam and the Philippines. Many people believe that a forced war would convince some countries of China's sincerely peaceful intentions, but it is also highly likely that China's strategy would face more uncertainties.

There are some off ramps for the current crisis short of a direct mano-a-mano confrontation between the US and the PRC.

Vietnam, the United States, et. al. might simply suck it up and limit themselves to verbal castigation of the PRC until August 15, when the HYSY 981-zilla is due to lumber off.

Or Vietnam will decide that capitulation is the better part of valor, heed PRC calls for bilateral talks and, in bad news for the Philippines, contribute to the further fracturing of the shaky South China Sea anti-PRC United Front.  

I suspect that the PRC has put an attractive pile of economic carrots on the table together with the HSYS 981 stick, and Vietnam is currently weighing the psychic benefits of partnership in an anti-Chinese alliance with the economic benefits that might accrue from expanded PRC trade and investment.

I think in the medium term, Vietnam will come to the conclusion that existential, war-worthy interests for the United States are not identical with those of any other nation in Asia, including Japan, and the most credible deterrent is one that it is in the control of Vietnam.

I’m sure France would be interested in obliging Vietnam with the sale of a few ship (and platform)-killing missiles that might make the PRC think twice before it engages in tomfoolery in Vietnam’s offshore near beyond.

And that, I think, is how the PRC’s leadership sees the endgame playing out.  Asian powers become richer, stronger, and more independent of the United States.  And the United States, anxious for regional influence, eventually comes back to the PRC…

Anyway, moving from the general to the particular, there’s an apparent PRC building program on Johnson South Reef, a formation that the Philippines considers inside its 200 nm EEZ.

The Philippines released photos that appear to show a dredge pumping up sand to expand the above surface area of the reef.  The Philippine foreign ministry accused the PRC of violating the stand-still agreement negotiated with ASEAN.  According to AFP, the PRC for its part acknowledged work was going on but it was just “renovation” of facilities for Chinese troops stationed on the reef, presumably claiming that its work therefore doesn’t violate the standstill agreement.

Interestingly, the PRC had actually established itself at Johnson South Reef after a skirmish with Vietnam, not the Philippines, in 1988, at a time when both Vietnam and PRC were both racing to occupy the reef.  Vietnam, thanks to its “flying rectangle”—an EEZ claim only slightly less risible than the Chinese “cow tongue”—claims many of the islands that are also subject to PRC-Philippine wrangling.

As a reminder to readers of the folly of turning the South China Sea into an internationalized issue, here is the map of what I call the “salad bowl” of Spratly sovereignty claims, courtesy of Wikipedia.  Remember, EEZs can’t be defined until sovereignty is agreed—and there is no accepted multi-lateral mechanism for determining sovereignty.

As to the motive for the Chinese jiggery-pokery on Johnson Second Reef, the Philippines raised the specter of airfield construction and, by implication, enhancement of the PRC military threat to adjacent Philippine claims.

It is apparently unlikely that an airfield that could contribute significantly to the PRC military presence in the islands could be constructed on the reef.

For a more likely explanation of PRC intentions, let us turn to…Okinotorishima Island!

Long story short, Okoritorishima Island was the occasion for an exercise of EEZ aggrandizement by Japan, abetted for some reason by the complaisant solons of the UNCLOS Commission on the Limits of the Continental Shelf.

The PRC has cast a stern and disapproving eye on the Okinotorishima exercise.  The information and illustrations below, unless otherwise acknowledged, are from a presentation by Julia Xue of Qingdao Ocean University at a conference in Washington, D.C. in 2010.

The two Okinotorishima islands, 1700 km SSW from Tokyo and a good 700 km from the nearest inhabited Japanese territory, were not impressive in their original form.  One lump was 4.7 meters across, the other 2.6 meters across.  And they were clearly eroding and not long for the above-surface world unless steps were taken:

Through an intensive application of resources i.e. $600 million dollars to build a protective cofferdam around the islands, sheath the islands itself, and construct a platform, the rocks were transformed into this:

Here is Shintaro Ishihara, everybody’s favorite advocate of island restraint, standing on one of the islands of Okinotorishima.

And kneeling on the island to kiss the sacred territory:

Except he’s not standing/kneeling/kissing the rocks themselves.  He’s standing on an erosion-prevention cap over the rocks.

Here’s the rocks, under the cap:

And Japan, over the objections of the PRC and South Korea, proclaimed a radial 200 nm EEZ around Okinotorishima.  The Japanese government leaned on the argument that, although UNCLOS denied an EEZ to “rocks” that could not support “human habitation or economic life on their own”, Okinotorishima was not “rocks”; it was an “island” that could not support “human habitation or economic life on their own,” UNCLOS was talking about a totally different thing, so problem solved.

Anyway, Japan took this less-than-impressive, less-than-natural feature to UNCLOS and was able to get an extension of the Japanese continental shelf to Okinotorishima Island.  (Thanks to the creation of the Okinotorishima EEZ, the “Shikoku Basin Region” was a non-EEZ zone surrounded on all sides by Japanese EEZs, so I imagine that UNCLOS committee was relatively cavalier in assigning it to Japan).

Image from Yomiuri Shimbun. 

Okinotorishima plus “Shikoku Basin Region” add about 400,000 sq km to Japan’s already impressive EEZ endowment.

And Japan further used Okinotorishima to apply to UNCLOS for another southward extension of its continental shelf to the boundaries of Palau (the application is pending).

An article for a Japanese think tank, the Ocean Policy Research Council, by an admiral in the JMSDF declared that Japan’s EEZ grab was related to security: that it wanted to be able to “constrain” Chinese military vessels.   If this was indeed the intent, that dog may no longer hunt.  The United States has strongly asserted its right to send military vessels through the PRC EEZ to track PLAN submarines, and the PRC has apparently grudgingly accepted that point, so it would be difficult to exclude PRC military vessels from the Okinotorishima EEZ.  On the other hand, if PRC decides to get chesty again about US military vessels operating inside its EEZ, Japan’s massive EEZ holdings could be used to bottle up the Chinese inside the oft-invoked “first island chain”.

As to where this all leads, it appears that UNCLOS has been rather feckless in alienating ocean areas on the basis of dubious exercises in “islandisation”.  It is difficult—though of course not impossible—for China’s adversaries to criticize the PRC for adopting the Japanese precedent of jacking up an island and claiming an EEZ.  

Perhaps at Johnson Second Reef, the PRC is cloning the Japanese “lilypad” approach displayed at Okinotorishima, not for military purposes but to assert rights to an EEZ.

As to the motive for doing this in the cluttered confines of the South China Sea, I would speculate that the PRC is looking forward to the day when it finally retreats from the anachronistic and ahistoric “nine dash line” (which has never even been surveyed; it’s literally just lines drawn on a map), turns on a dime, and presents a portfolio of territorial sovereignty and EEZ claims…that pretty much cover the same area.