The South China Sea (42 page)

Unlike his predecessors, Bensurto decided to tackle the second problem first. He proposed ‘enclaving’ the disputed area by first identifying which features might possibly generate a 12-nautical mile territorial sea and then drawing the relevant boundaries around them. He then tried to draw likely EEZ boundaries. Using the precedent set by the International Court of Justice (ICJ) in its 2012 ruling on the island dispute between Colombia and Nicaragua, he assumed that a court would be very unlikely to grant the disputed islands an EEZ ‘outwards’ – in other words, in the direction of the coasts of the surrounding countries. This would then narrow the ‘disputed area’ to just that part of the Sea near the islands. This could be ‘enclaved’ – set aside for further discussion – thus allowing the Philippines and all the other littoral countries to get on with developing the oil and gas fields off their coasts. The disputants could then try to reach some kind of settlement or cooperative arrangement in the ‘enclaved’ area. If, however, a tribunal ruled that any of the islands were entitled to a full EEZ, it would swallow up most of the enclaved area.

On the face of it, the the Zone of Peace, Freedom, Friendship and Cooperation presents an entirely reasonable and rational route forward. The only problem is that – it's proposed by the Philippines. The country's
relations with China gradually soured after Benigno Aquino became president, nose-dived during the Scarborough Shoal confrontation in mid-2012 and hit rock bottom on 22 January 2013 when Manila announced that it was, in effect, going to put Bensurto's plan to an international court. The Philippines has asked the Permanent Court of Arbitration in the Hague to rule on key elements of the plan: whether the ‘U-shaped line’ is compatible with UNCLOS; whether five of the eight features occupied by China should be considered ‘submerged’ and therefore unable to generate either territorial sea or EEZ; whether the remaining three features occupied by China are just rocks without claim to an EEZ; and whether the Philippines is entitled to a full 200-nautical-mile EEZ, regardless of the existence of other occupied features offshore.

China has refused to take part in the proceedings but the court has begun the legal process anyway and could issue a judgment as early as 2015. The court has no power to enforce its rulings, however. The Washington-based lawyer acting for the Philippines, Paul Reichler, knows this well. In 1986 he helped the government of Nicaragua win a case against the United States at the ICJ. The court ruled that US support for the Contra rebels fighting the left-wing government of Nicaragua, and the placing of anti-ship mines in its harbours, was illegal. The United States simply ignored the ruling. Instead, it funded the right-wing political alliance that won power in Nicaragua in 1990 and two years later cancelled the country's demand for compensation. A Philippines victory in the case could be equally pyrrhic, although Henry Bensurto would at least be able to wield a newly sharpened sword of righteousness in future discussions with his Chinese counterparts. However, even as the Philippines tries to clarify the international legal situation through its legal case, on the other side of the South China Sea Chinese thinkers are trying to change the questions.

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Some of those questions are being developed in a substantial campus of red-brick buildings on Hainan Island, about half an hour's drive east of the city of Haikou. The complex feels like a cross between a university and a beach resort and it's only a short walk from the real beach resorts that fringe the tree-lined shore of the South China Sea. The neighbourhood
could be a metaphor for China's approach to the Sea itself. Virgin territory has been surveyed and developed and turned into living space for a population with new aspirations and wider horizons. A landscape of luxury apartments, second homes for those with plenty of disposable income, has emerged from the sand dunes and paddy fields. And in the middle of this state-sponsored real estate boom stands the National Institute of South China Sea Studies and in one of its two towers sits the institute's president, Dr Wu Shicun.

In recent years Dr Wu has become the public face of China's South China Sea diplomacy. His immaculate coiffure and sunny smile grace workshops in Washington and seminars in Singapore. He presents a firm line in defence of China's ‘indisputable’ sovereignty in the Sea but his speeches also reveal nuances in official thinking. He has an immaculate political background for the job, having worked his way up the Communist Party system, from Deputy Secretary of the Youth Committee of Nanjing University, to the Hainan Provincial Party Committee and then News Director for the Hainan Provincial Foreign Affairs Office. He was clearly trusted to present the Party's official views to overseas audiences. In 1996 Hainan province created a new organisation, the Hainan Research Institute of the South China Sea, to promote its interests and Dr Wu became its first boss. In 2004 the Ministry of Foreign Affairs in Beijing decided it could also make use of Dr Wu's skills and provided the extra money and official sponsorship for the organisation to become the National Institute. In 2011 it moved from a grim office block in Haikou, to its new campus by the beach.

The institute is not the only Chinese body looking at the South China Sea. The China Institute for Marine Affairs (sponsored by the State Oce--anic Administration, which oversees the China Coast Guard) also looks at legal and historical justifications for China's claims as well as maritime development more widely. The China Institute for Contemporary International Relations (affiliated with the Ministry of State Security) focuses on other countries’ approaches to the issue. Both organisations are relatively reclusive. The National Institute of South China Sea Studies, on the other hand, is hospitable in the extreme. The vast majority of its campus is dedicated to delivering China's message in generous comfort. It has a 200-seat auditorium and a 100-seat meeting room plus several
smaller seminar rooms, classrooms, VIP rooms, protocol rooms, a publications room and several exhibition rooms. The top floor has well-equipped offices for visiting academics (and writers). An annexe houses large and small dining rooms, 13 well-appointed bedrooms for guests (complete with flat-screen televisions, bathrobes and L'Occitane toiletries in the bathrooms) and, on the top floor, the Ambassadorial Suite with separate entrances for the wife and the mistress. The institute's 40 research staff, on the other hand, work in three large offices and journey to and from the campus in a shuttle bus.

Dr Wu's office is on the fourth floor but four is an unlucky number in Chinese culture (it sounds like the word for death) whereas six is auspicious (it sounds like the word for wealth). So there is no fourth or fifth floor in the building and Dr Wu works on the sixth. This card-carrying but superstitious Communist enjoys a semi-detached status. He has the ear of the Ministry of Foreign Affairs but he doesn't represent it. He has, in effect, a licence to test out new ideas and explore possible ways forward in the disputes without committing his government to anything. His may be only one voice in the discussion but it does give us some idea about the range of options that the Beijing leadership is considering. Dr Wu's smile rarely fades but his demeanour is more determined than optimistic. ‘There is no way to solve the sovereignty issue in the near future,’ he states baldly – an acknowledgement that other countries are not swayed by China's historical and legal arguments.

Ever since 7 May 2009, when the Chinese government appended a map of the ‘U-shaped line’ to its submission to the United Nations’ Commission on Limits of the Continental Shelf, it has come under pressure to clarify what it is the line represents exactly. Different parts of the Chinese state have treated it differently. In April 2011, the Chinese Foreign Ministry submitted another official letter to the UN referring to ‘indisputable sovereignty over the islands in the South China Sea and the adjacent waters’. It made no reference to the ‘U-shaped line’. However, the actions of the former China Marine Surveillance organisation and Fisheries Law Enforcement Command (which were merged into the China Coast Guard in 2013) in the waters off the Philippines, Vietnam, Malaysia and Indonesia's Natuna Islands in 2011, 2012 and 2013, and the decision by the China National Offshore Oil Company to offer exploration blocks
off the Vietnamese coast in June 2012 suggest that all these organisations interpret the line as a territorial claim on the whole area.

Public declarations by other parts of the Chinese state apparatus have made the situation more vexed: the line has taken on a life of its own. For example, every map published in China must be approved by the National Administration of Surveying, Mapping and Geoinformation. Even a small non-governmental organisation wanting to illustrate where in China it is working can't publish that map unless it includes the ‘U-shaped line’.
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A map of the line has been printed in every Chinese passport issued since April 2012. Although the exact meaning of the line has not been explicitly stated, many Chinese have simply assumed that it delineates a territorial claim. A retreat from that position could provoke furious domestic criticism. The institute, however, seems to be testing the waters with foreign organisations and governments to see what overseas reactions might be to different ways forward. The current starting point is to state China's claim firmly within the language of UNCLOS, just as Henry Bensurto is doing in the Philippines. ‘From my perspective, the nine-dash-line should be the line of the ownership over all the features inside the line and adjacent waters,’ says Dr Wu. ‘At international conferences I also explain that China never claims the whole South China Sea inside the line as its historic waters.’

For some time there has been a concern among outside observers that Chinese policy-makers might reach the conclusion that if China could not successfully defend its claims within the norms of international law it might opt out of UNCLOS altogether. But the idea of China ‘going rogue’ alarms Chinese policy-makers too. It would destroy decades of careful diplomacy based around the rhetoric of ‘peaceful rise’. The institute appears to be part of a concerted national effort to try to square the South China Sea claims with international law. Certainly that is now the language that Dr Wu uses when he speaks publicly. It is a tough task and now there is a considerable risk that, if the Philippines case at the Permanent Court of Arbitration succeeds and China's UNCLOS-based claims are ruled minuscule or non-existent, that strategy could be completely undermined.

So the institute has begun investigating more sophisticated but also more arcane legal alternatives. In October 2013 the institute convened an international conference investigating whether China could use the
legal concept of ‘historic rights’ to claim the resources within the line even without a claim of sovereignty. Dr Wu admits that it is contentious. ‘It's arguable. It's hard to reach a common consensus on this issue. Some scholars say that historic right is only the right of fishing activity in those areas. It needs to be further studied, this area: fishing rights, navigation rights, natural resources exploration. China should have sovereignty over the islands and also enjoy historic rights on a cumulative basis.’ There is no mention of ‘historic rights’ in UNCLOS at all. The concept was deliberately kept out of the text. In order to develop the case, the Chinese government will have to step into the wilder fringes of international law.

The institute is not alone in this effort. In January 2013 the Executive Director of the China Institute of Marine Affairs, Gao Zhiguo (who is also a judge at the International Tribunal on the Law of the Sea), and Jia Bing Bing, Professor of International Law at Tsinghua University, published a lengthy academic article arguing that the ‘U-shaped line’ does have a foundation in international law.
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Rather than focusing on the ‘historic rights’ that the institute is investigating, it used a different set of arguments to claim that China has ‘historic title’ to the waters. In the words of the authors, ‘the nine-dash line does not contradict the obligations undertaken by China under UNCLOS; rather, it supplements what is provided for in the Convention’ – in other words, even if the ‘U-shaped line’ is ruled incompatible with UNCLOS, it can still have a basis in other aspects of international law. One Chinese legal expert in Beijing, who preferred not to be named, explained the thinking. ‘The preamble to UNCLOS states that the convention is not intended to be exhaustive. Reference still has to be made to customary law and state practice.’ This could be a problem for the Philippines’ case. ‘The premise of the Philippines case is that the international law of the sea is only UNCLOS. But whatever the definition of an island, there is still a question of title – first.’ The expert's view is that the Permanent Court of Arbitration would need to decide whether a different court needed to rule on the question of sovereignty before it could rule on the status of the features. This would completely upend Henry Bensurto's strategy.

These arguments are, to say the least, controversial. They are also based upon an understanding of the history that owes more to nationalist feeling than historical evidence. For example, Judge Gao's article includes the
statement that ‘the South China Sea had been known to Chinese fishermen and seafarers from time immemorial’, without further explanation. Yet the efforts being expended are a sign of how seriously parts of the Chinese state are thinking about defending the country's interests in the Sea while simultaneously remaining inside the framework of current international law.

Broadly speaking, there are four main strands to China's interests: a sense of historic entitlement to the South China Sea combined with a desire for national prestige, the need for ‘strategic depth’ to protect China's coastal cities, the desire to guarantee strategic access to the open waters of the Indian and Pacific oceans, and the wish to have access to the resources of the Sea itself – particularly its fish and hydrocarbons. These four agendas are being sponsored by different power bases within China and while the Foreign Ministry, for example, might be willing to recognise the strength of the legal case against it, the military, the State Oceanic Administration, the Chinese National Offshore Oil Company (CNOOC) and provinces with large fishing industries are more likely to disagree. The Foreign Ministry does not sit at the top table in China's political system, but much lower down the hierarchy. One expert judged it to be only the 40th most important state body (out of 50).
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In practical terms the Foreign Ministry appears to have less influence at the highest levels of decision-making in Beijing than its bureaucratic rivals.