The South China Sea (21 page)

There is one other kind of feature that appears in Chinese territorial claims to the South China Sea but is conspicuously absent from the
text of UNCLOS: the underwater feature. Under UNCLOS there are no grounds at all for any state to claim ownership of a shoal or a bank that is under water at low tide: they are simply a part of the seabed. Article 5 of UNCLOS declares that the usual baseline for measuring a territorial sea is the low-tide mark. Underwater features, by definition, have no low-tide mark and therefore cannot have a territorial sea of their own. But that hasn't prevented the Chinese asserting a territorial claim based on ‘historic rights’ to the Macclesfield Bank and to the James Shoal (Zengmu Ansha) – both of which lie well below the surface.

As we saw in Chapter 2, the highest point of James Shoal is a full 22 metres below the sea and its status as the ‘southernmost point of Chinese territory’ is probably derived from a translation mistake by a Chinese government committee in 1935. It lies 107 kilometres off the coast of Borneo and more than 1,500 kilometres from the coast of Hainan Island. It's well beyond any possible Chinese territorial waters claimable under UNCLOS. The weight of nationalist sentiment, however, prevents Beijing from making a sensible retreat from this nonsensical position. Even now, Chinese naval ships en route to anti-piracy patrols off the coast of Somalia still make a diversion to the shoal to demonstrate Chinese sovereignty over it. But since there isn't any dry land there on which to erect official monuments, they have to drop them over the side of their ships instead. There's now a small collection of Chinese steles lying on the seabed below. In March 2013 and January 2014 Chinese naval ships held military exercises at the shoal and added yet more rubble to the mound.

Interestingly, in another maritime dispute Beijing has rejected the idea that underwater features can have territorial status. Socotra Rock, also known as Ieodo or Suyan Rock, lies about 5 metres below the surface in the Yellow Sea, about halfway between the coasts of China and Korea. The South Korean government has built an ocean research station upon it, provoking protests from Beijing, but on 12 March 2012 China's Foreign Ministry spokesman asserted that ‘China and the Republic of Korea have a consensus on the Suyan Rock, that is, the rock does not have territorial status and the two sides have no territorial disputes’. This consensus, however, doesn't seem to apply to the James Shoal or to another, much larger underwater feature: the Macclesfield Bank.

The Macclesfield Bank is much closer to China and considerably bigger than the James Shoal: about 140 kilometres long and 60 kilo-metres wide. It's also slightly closer to the surface: its shallowest point is only 9 metres below the waves. In the neat official nomenclature adopted in 1947, Macclesfield Bank is the ‘central sands archipelago’ – Zhongsha Qundao – to match the western sands (Xisha or Paracels), eastern sands (Dongsha or Pratas) and southern sands (Nansha or Spratly) archipelagos. But the Zhongsha ‘archipelago’ is a work of geographical fiction. In official Chinese parlance, it groups the Macclesfield Bank with several other underwater features between Helen Shoal in the north and Dreyer Shoal in the south. Most controversially it includes Scarborough Shoal to the east, the only part of the Zhongsha that protrudes above the surface. Maps of the seabed, however, make clear that there is no ‘archipelago’ in the accepted sense of the word: there is no chain of islands, just isolated underwater features separated by wide areas of some of the deepest sea on the planet. None of these underwater features can generate any EEZ whatsoever. Only Scarborough Shoal could generate, at best, a 12-nautical-mile territorial sea.

There are no grounds under UNCLOS for China to claim sovereignty over James Shoal, Macclesfield Bank or areas of water beyond 12 nautical miles from any land feature within the ‘U-shaped line’. There is simply no mention of historic rights in UNCLOS, except in relation to areas within the territorial waters of an ‘archipelagic state’ – which China is not. By ratifying UNCLOS – which it did in 1996 – China signed away its right to claim ‘historic rights’ in other countries’ EEZs – at least under UNCLOS. Instead, some Chinese state officials have been trying to argue a case based in the traditional form of international law: contending that Chinese explorers and fishermen have roamed the waters of the South China Sea for centuries and that those activities provide a basis to claim all the land – and all the sea – within the ‘U-shaped line’. In other words, they are attempting to use an older form of international law to try to negate any rulings based upon UNCLOS. At its most extreme, the mobilisation of this argument appears to be an attempt to rewrite international law in China's favour and legitimise a territorial claim on everything within the ‘U-shaped line’. Most scholars of the subject regard this argument as flawed on historical grounds and specious on legal ones but if the
Permanent Court of Arbitration rules in favour of the claim submitted by the Philippines in 2013, then it could become the mainstay of China's claim to the South China Sea. There is more on this in Chapter 9.

* * * * * *

So what would be the impact on the Sea as a whole if, by some unexpected alignment of geopolitical forces, the historical claims were to be taken to the International Court of Justice and all sides agreed to respect the result? Clearly we can't know for sure, but an excellent guide to the likely outcome is Professor Robert Beckman of the Centre for International Law at the National University of Singapore. He's been watching the disputes for a quarter of a century from his office next to the city-state's Botanic Gardens and has come to some conclusions. His review of previous ICJ judgments suggests that the effect of all the past half-century's island-grabbing might actually be surprisingly small. The ICJ has been generally sceptical towards large EEZ claims put forward on the basis of small rocks and islands when they overlap with claims from a mainland coast or larger island. In Beckman's words, ‘it is not simply a question of drawing an equidistance line between the island and the mainland territory’. For example, in a 2009 judgment on a dispute between Romania and Ukraine over the alarmingly named ‘Serpent's Island’ in the Black Sea, the ICJ emphasised the relative lengths of the coastlines involved. In other words, they regarded the hundreds of kilometres of Romania's mainland coastline as much more significant than the 2-kilometre circumference of Serpent's Island. The resulting international boundary took no account of the island apart from giving it the standard 12-nautical-mile territorial sea. Another ICJ ruling, in November 2012, on a similar dispute over Colombian islands off the coast of Nicaragua, confirmed the principle that relative lengths of coastline are a key factor in judging maritime boundaries.
¹¹

The situation in the South China Sea is more complicated than in the Black Sea or the Caribbean because of the numbers of rocks, islands and claimants involved. However, it is entirely conceivable that the ICJ would take a similar approach. Even if we were to assume what, in the eyes of the Southeast Asian states, would be the worst-case scenario – that every rock and island in the sea is awarded to the Chinese – that wouldn't result
in great chunks of each country's coastal EEZ being awarded to Beijing. It's more likely, according to Beckman, that EEZs drawn from the islands would extend the other way – into the centre of the sea and therefore ‘reduce or completely eliminate the pocket of high seas in the middle of the South China Sea’. The result – in this ‘Beijing-takes-all’ scenario – would be a kite-shaped area of Chinese EEZ running southwest to northeast surrounded by the EEZs of all the other coastal states. A more limited ruling, awarding just Itu Aba in the Spratlys and the Paracel Islands to a ‘combined China’, would have a similar, though smaller effect.

However, taking the issue to the ICJ would require the consent of all disputing parties and since none could have confidence in the outcome, there's little incentive to agree. A government that ‘lost’ territory in an international judgment would formally cede the rights to the resources there and could expect to incur the wrath of angry sections of its population. The political risks are great. Nonetheless, there are signs of quiet compromise among the Southeast Asian claimants. In May 2009, Malaysia and Vietnam submitted to the UN a joint claim on their ‘extended continental shelves’ that ignored the question of which island belonged to which country and simply measured distances from their respective coastlines. Since 2009 the Philippines has modified its sweeping claim to a wide area of the Sea (the Kalayaan Island Group) into claims on specific islands (which are based on historic claims) and specific areas of sea measured from them according to the rules laid down in UNCLOS. But China has the most to lose from modifying its claim into one compatible with UNCLOS because the result would fragment the ‘U-shaped line’ into a series of smaller zones around particular islands. While the Chinese government as a whole continues to maintain ‘strategic ambiguity’ over what the line actually means, key elements within it (the military, the oil companies and southern coastal provinces) continue to act on the basis that China maintains a historic territorial claim to the whole Sea.

All the disputants assert a ‘historic claim’ to the reefs, rocks and islands they currently occupy and most of them (Vietnam, the Philippines and both Chinas – but not Malaysia or Brunei) claim all or some of the other features as well. These territorial claims are based upon the traditional norms of international law: occupation, prescription, cession and accretion. Before any resolution process could begin, the participants would
have to decide whether the court should hear historic arguments first and make a judgment upon which rocks and islands rightfully belong to which country or whether to postpone those arguments and just make UNCLOS-based rulings on maritime zones and resolve ownership later. While the outcome of the former is highly uncertain, the latter would generally favour the Southeast Asian claimants over China. Hence Beijing increasingly talks about ‘historic rights’ while Southeast Asia increasingly talks about UNCLOS.

The rules of international law have long favoured the conquerors and explorers of previous centuries. The United Nations Convention on the Law of the Sea was an attempt to redress the balance and give coastal states more control over the resources that surround them. But the earth's geography is not equal. The arrangements of the continents and national borders have left some coastal states with access to great expanses of sea and others with much less. Japan's EEZ, for example, stretches into the Pacific Ocean whereas China's is blocked by Japan and, further south, by the Philippines and Vietnam. This sense of geographical injustice, exacerbated by nationalist anger at the ‘century of humiliation’, explains China's dogged pursuit of ‘historic rights’ in the South China Sea. China's diplomats have become expert in the use of opaque language to satisfy the minimum of its international obligations while keeping its future options as open as possible. China gains minimal legal advantage from the reefs it occupies but without a physical position in the Spratlys its territorial arguments would be purely theoretical. The outposts have given Beijing a seat at the head of a table where realpolitik has always been more important than international law.

Richard Spratly was free 170 years ago to hunt in whichever patch of sea he thought would bring the best returns. The lights and lips of America and Europe burned brightly with the oil and cosmetic ingredients he and the other rich-country whalers harvested. The result was the catastrophic decimation of the whale population. The search for a different kind of oil and the fear of a similar free-for-all eventually led the world's governments to agree to rules on how to divide up the world's maritime resources. But in the South China Sea the hunt for oil has continued to be an enduring source of instability … as we shall see next.

CHAPTER 5

Something and Nothing

Oil and Gas in the South China Sea

I
N AUGUST
1990, Southeast Asia was getting very excited about the ‘return of China’. It had been a year since the massacre in Tiananmen Square and many influential people thought it was time to get back to business. To much fanfare, one of the men behind the massacre, Premier Li Peng, embarked on a nine-day regional tour. His second stop was Singapore and after the usual civilities and state dinners, on 13 August he gave a news conference. Most questions focused on whether the two countries would resume diplomatic ties and few journalists noticed Li's apparently friendly announcement that China is ‘ready to join efforts with Southeast Asian countries to develop the Nansha islands while putting aside, for the time being, the question of sovereignty’.
¹
It wasn't an idle remark. It was the first public declaration of a policy originally advocated by Deng Xiaoping in talks with Japan over the East China Sea in October 1978, and subsequently raised with Philippine leaders in private meetings in 1986 and 1988: ‘This generation is not wise enough to settle such a difficult issue. It would be an idea to count on the wisdom of following generations to settle it.’ The statement has been the basis of Chinese state policy towards both the East and South China seas ever since.

In 1990 the Chinese leadership was fretting about energy. After 30 years in which China had been self-sufficient in oil, thanks to its inland field at Daqing, it was clear that the growing demand unleashed by
Deng's economic reforms would soon outstrip production. The country needed new sources of supply. In April 1987 Chinese scientists surveyed parts of the South China Sea and rapidly afterwards declared the existence of ‘rich oil and gas reserves on the Zengmu [James] Shoal’ off the coast of Borneo.
²
In December 1989, the
China Daily
reported official calculations that the Spratly Islands contained 25 billion cubic metres of natural gas and 105 billion barrels of oil and the James Shoal area a further 91 billion barrels.
³
Deng and other political leaders began talking about the Sea as the answer to the looming crisis. That theme was amplified by key voices in the energy sector and the military.
Jiefangjun bao
, the newspaper of the People's Liberation Army, published a series of articles between 1987 and 1990
⁴
linking the ‘sacred’ importance of defending national territory with pragmatic arguments in favour of harvesting the Sea's resources.
⁵