Saturday, May 31, 2014

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.


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Unknown said...

Wow. What an article. Really enjoy myself reading it. Still, there are more things that I am wondering, and I want to ask you:
1) If China ditch 9DL, how about Spratly, because if they insist on EEZ justification, they will certainly lose out to Vietnam or even Philippines because the other two are currently possessing many more islands (with people and economy, not just reefs with a few guards).
2) What do you anticipate to be China's next move? Will they bring the oil rig to Spratlys? Or create ADIZ in SCS? Fishing ban in all of SCS, not just 2/3 of it? Or something else? From what I see China don't make the same move twice in a row.

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