Andrew Chubb is currently conducting PhD research on the relationship between popular nationalism and China’s policy in the South China Sea. He presented a chapter of his thesis at the ILC’s Seminar Series in April. After travelling in China for two years, Andrew returned to UWA for further study. It was whilst looking for a thesis project that China’s presence in the South China Sea first made headlines around the world.
“I was very interested in understanding what the causes are of the changes that we’ve seen in China’s behaviour that have led to the tension in the South China Sea. In almost all the cases that I traced, the UN Convention on the Law of the Sea was very important factor in driving the changes in China’s policy.”
The standard understanding of the issue is that an over-ambitious China has suddenly overstepped its boundaries and made claims on islands that are not theirs. Realistically, the issue is more complex than that.
China famously demarcates this territorial claim of the South China Seas via the nine-dash line. Their presence in the region quickly inspired concern, with some predicting World War III being initiated with its expansionist behaviour. Andrew isn’t so quick to panic.
“Quite arguably, China is not being expansionist with this claim, though they certainly are from the perspective of the Philippines and Vietnam. The US Admiral has described the claim of the South China Seas as “preposterous”: this idea that China would claim waters stretching almost up to the doorstep of all these South-East Asian countries.
“The fact is that this claim is not a new thing. The current government inherited the claim from the Chiang Kai Shek Kuomintang regime that was chased off onto Taiwan. It was that regime who came up with this nine dash line business which goes through the South China Sea, and basically appears to claim the whole thing.”
What, then, has prompted the Chinese government to more firmly assert their claim in real-time? In his research, Andrew has found that many of China’s most provocative actions in this area can actually be traced back to international law; specifically, the Convention on the Law of the Sea.
“The UN International Convention on the Law of the Sea prompted all sides to make their claims that much more clear. This meant clearly defining them under domestic law, then creating the sort of enforcement capabilities that would be able to enforce them.
“The problem was that all of these claims are disputed, and so we had all sides increasing their abilities and their determination to prosecute their claims over the same sorts of areas.
“What I found was by tracing those particular cases of where China’s behaviour had changed, in each case the Convention on the Law of the Sea was intimately related to why China was doing what it was doing.”
International law is typically posed to help resolve conflict. In this case, it has possibly added to the tension in the region. Andrew traced four various representative cases, and in each case was able to trace back China’s behavioural change to the Law of the Sea.
“You have the Law of the Sea causing China to enact a new domestic law which claims a 200 nautical mile exclusive economic zone, the continental shelf and unspecified other “historic rights”. For that law, you need a force to enforce that claim, so China created the China Marine Surveillance Force (CMS). The CMS didn’t have many boats, and certainly not any good boats. As a result of these processes set in motion by the Law of the Sea, the CMS started building big new patrol boats. And these are scary patrol boats from the perspective of the other claiming countries.
“It took China about five years to actually build these boats, and they started being delivered in 2005. After that it took them a few years to develop the expertise to actually use them. It was in 2007 that they actually started to roll this out. If you trace it all back, you can see there’s a direct causal link coming into effect from the Convention on the Law of the Sea.
“The nine dash line system existed for a long time, but China didn’t have any capability of enforcing it. So there was this line on the map, but most Filipinos probably didn’t even know this line existed. And then, suddenly around 2007, China’s presence in this disputed area starts to increase rapidly. For China, this has been a long ongoing process years in the making. For everyone else, China has started being more aggressive now.”
It is common knowledge that China’s claim sits on shaky ground, but legally speaking, so too do the claims of the other countries.
“China’s claim might have been the earliest claim in terms of being on a map, if you think about it as a government announcing “these islands belong to us”. That being said, they were making that early claim to a bunch of islands when they didn’t even know where they were. They couldn’t pinpoint them on a map because they hadn’t done the surveys themselves. The early maps were using transliteration of English works. They hadn’t charted them themselves.
“It’s hard to describe that as exercising sovereignty.. But then by the same token, at this time, neither was any other country. This was no man’s land – nobody wanted it. It was a home for pirates and adventurous fishermen.
“The Philippines claim basically stems back to a tuna fisherman called Tomas Coloma who, in 1956, led a few dozen guys out there and planted a flag in the ground and founded his own country called “Freedomland, or Kalayaan. Later on, the Phlilippines government bought Freedomland from him. That’s a pretty leaky claim too.
“The Vietnamese also claim that these islands were marked on some of our early maps, so therefore they belong to us. They also say that the French annexed these islands during colonisation, and therefore because the French colonised those islands and us, the islands therefore belong to us. It’s a principle in international law under territorial acquisition.
“These territorial claims are all claims to sovereignty. Sovereignty means ‘exclusivity’, in that one is the paramount authority. All of these claims to being a paramount authority in the region just don’t hold water.
“All the countries are wrong when they claim that the islands belong exclusively to them, and all the countries are right when they say their fishermen traditionally fished there.”
Since Andrew’s presentation in April, a ruling has been handed down in the Philippines’ took a case against China under the Law of the Sea. The case states that various actions by China are in violation of this Convention which China is signatory to. China argued that the Philippines has not negotiated bilaterally in good faith. The Convention requires nations to exhaust bilateral negotiations before they resort to legal proceedings, and China argues that since the Philippines never exhausted this negotiation process, there should not be an arbitralry tribunal on this issue at all.
“The use of international law is essentially all the Philippines has at their disposal,” says Andrew. “Their military and maritime law enforcement capabilities are weak in comparison to China’s.”
I try to press Andrew on a clear answer as to whose claim is more legitimate, but he refuses to answer.
“I’m not an international law expert or a court judge, so I can’t really make that judgement. I can only respond by offending everyone.”
But he doesn’t have to. Only last week, the arbitration panel ruled in favour of the Philippines. It definitively stated that China has no legal claim to maritime rights in the South China Sea on the basis of the nine dash line. It has, however, not addressed the issue of sovreignty over the islands. Despite this, China has stated they will ignore the finding and continue activity within the area. The Philippines, as well as Japan, Australia and the US, have strongly urged China to abide by the international finding.
Although the court has no enforcement capabilities, it brings up an interesting benchmark under what is considered legal and what is considered illegal. Despite China’s statement that they will ignore the finding, they insist they are still open to negotiations, and so too does the Philippines. It is early days yet, China might persist in what have now been defined as illegal activities. Ordinarily the UN Security Council may have the authority to intervene, but with China’s approval from the P5 required for any action to be taken, it remains impossible for the UN to do anything.
Andrew remains optimistic that World War III is unlikely to be around the corner.
“Perhaps from a long term perspective the idea is not hysteria, but China would have to become a lot more powerful either on its own or with more allies. At this point it’s China against almost everyone else. If, hypothetically, for the region it was a case of “Who are you going to back? China, or the US?” It’s pretty obvious that most countries would back the US or stay neutral. Japan, Australia and the Philippines would back the US. Indonesia and Malaysia would stay out of it. India, with it’s aircraft carriers and it’s growing economy should not be underestimated. If it was concerning the South China Sea, Vietnam would do anything to oppose China.”
Kylie Mathews is a Communications/Media and Economics Major at UWA, and Social Media Director of the ILC. She spends her time transcribing the words of people smarter than her and passing it off as her own article.