Ever since China submitted the “nine dash line” map as an integral part of its claim in the South China Sea to the Commission on the Limits of the Continental Shelf (CLCS) in 2009 (CLCS, 2011), a trend is discernible that China intends to develop this “nine dash line” into a maritime boundary. In December 2014, a position paper issued by the Chinese government further demonstrated this development (Ministry of Foreign Affairs, 2014).
First, China has reiterated on several occasions two critical elements in its claim. One is that it has sovereignty upon all land features lying within the nine dash line. The second element is that its claim, “sovereign rights in the waters and sea bed” within the nine dash line limit is thus justified. Official statements of the Chinese government also uphold the importance of these two elements, such as the statement of the Foreign Affairs Ministry spokesperson in a press conference (Ministry of Foreign Affairs, 2012). Accordingly, patrols and law-enforcement actions conducted by the China Coast Guard1 are reasoned and reasonable, as they are vindications of China’s rights and interests in the said area. These contentions suggest one enduring aspiration to the “nine dash line” claim, however implicit, that it serves as a boundary line that entitles China to sovereign rights over all land features lying inside, and also a maritime boundary by which all waters inside the line are under the sovereign jurisdiction of China.
Second, echoing this aspiration, there emerge burgeoning scholarly efforts trying to provide reasoned deliberations that the claim would not defy the law of sea, while serving China’s interests as a maritime boundary. This intellectual brainstorming supports one observation, that the “nine dash line” claim should not be deemed a static concept, but a developing process, which evolves on the basis of not only incorporating contemporary norms and international practices, but also regional maritime customs and local traditions. Without doubt, Chinese scholars have already embarked on this mission (Gao and Jia, 2013).
Intractableness of the Issue
The intractableness of the South China Sea issue, in particular, the complexity of the “nine dash line” claim, indicates how the intertwining of law and politics has actually informed and shaped inter-state disputes.
One discernible phenomenon is that law and legal justifications have become one king clause that all claimants would embark on. In the decades since the South China Sea issue was brought back to the front burner in the 1990s, the law has penetrated the diplomatic and policy discourse of all claimants. The frequency is such that any resolution beyond international law becomes increasingly unlikely and unimaginable. A trend of overt judicialization is taking place, which in turn is shrinking the space for alternative dispute resolution (Song and Tønnesson, 2013).
This law factor has set in to reshape diplomatic practices and policy promulgation of the claimant states. Yet, questions remain: are the policy discourse and position arguments reflecting genuine legalistic thinking, or are they mere opportunistic political maneuvering under the disguise of a legal overture? Put simply, doing law and thinking about law are two things, with different reasons, distinctive outcomes and impacts.
On the other hand, the issue is becoming overtly politicized. By combining an account of legal developments with a chronology of geopolitical events since 1973, territorial quarrels among China and the ASEAN claimants have risen tensions in the South China Sea to levels that are actually dampening, or at least interrupting the amicability necessary for inter-state cooperation.
With heavy maneuvering of political narratives and sabre rattling in South China Sea issues, a grey zone has been created. In this grey zone, claimants tend to maintain certain degrees of vagueness in their positions, which allow them to more efficiently cap the risk of escalation. In other words, this “strategic uncertainty/ambiguity” in the South China Sea has allowed all involved or interested to maintain a certain status quo, managing to neither renounce their own claims nor engage others in direct military conflict. This deliberated vagueness is further sustained via a series of non-binding initiatives and forms of dialogue. In this sense, tensions are calculated, with implicit consensus negotiated among all stakeholder countries.
The real issue in the South China Sea is the wrestling between two agenda-setting powers that will shape the regional maritime order in the coming decades, in both political and legal scenarios.
The two trends of extra-judicialization and over-politicization are largely driven by an interactive dynamism between them. When ASEAN claimants show stronger preferences to legal solutions, China would exercise harsher resistance against them, which recursively pushes the issue further to the grey zone with even more vigorous intertwining between legal and extra-legal factors, such as politics and history. In this sense, the South China Sea has been further locked into a stalemate. The more legalistic these claimants’ approaches become, the stiffer the confrontation turns out to be. The more emphasis on political calculations, the narrower the space for mutually-beneficial solutions.
The real issue in the South China Sea is the wrestling between two agenda-setting powers that will shape the regional maritime order in the coming decades, in both political and legal scenarios. The tussle is between regional power, China, and the most influential global power in this region since the end of World War II, the US. In this context, the ASEAN claimants’ actions in the South China Sea is actually an extension of this China-US confrontation, with ASEAN claimants being US proxies to different extents.
Underlying this is a tug-of-war between the newly-established Asian countries — which after the end of World War II have begun searching for new national identities, leverage, and positions to better reflect their growing self-consciousness of their indigenous cultures and traditions, and Western powers — which have flourished and benefited for centuries from the global institutionalization of the Westphalian system and are seeking to cement and extend the privilege already garnered. Thus, the South China Sea tension has also revealed a prevalent trend, that of the transformation of the world order from a Westphalian system to one more inclusive of different cultures, values and discourses with diversified perspectives and varied justifications.
Even when upholding the banner of international law, legal overtures of the ASEAN claimants are still controversial. By relying heavily on legal discourses, flexibility and room for maneuvering, at times in extra- and non-legal scenarios, are quickly shrinking. Further, to resort to judicial resolution at the international level is time consuming and financially costly. By focusing attention on the credit, legitimacy, and political victories of the ruling elites, ASEAN claimant governments may run the risk of overlooking how the lives of people in the littoral communities may have been impacted. Therefore, they need to consider pragmatic approaches, while not rejecting legal channels, which can provide sustainable resolutions. Pragmatic thinking can not only meet the demands of people who live on the frontline and bear the direct costs of confrontation, but can also help to change people’s mindsets so as to facilitate a better environment for conflict management, risk-sharing, and eventually, dispute resolution.
The 21st Century Maritime Silk Road
The 21st Century Maritime Silk Road plan is inspired by the historical maritime trading routes from southeast coastal China through the South China Sea and beyond, by extending these routes to continents and countries where trade volumes are currently small but with potential for consistent growth, such as East Africa and the Mediterranean area.
With China’s neighborly relations in the South China Sea rapidly deteriorating, how would the proposal of a maritime trade route interact with the festering South China Sea disputes? In other words, how would the ongoing trend of territorialization of the “nine dash line” impact the Road plan? By territorializing the nine dash line, will China circle the waters falling within the line, around 80 percent of the sea, and exercise exclusive sovereign rights, thereafter monopolizing maritime resources and implementing national security measures?
A structural issue is thus looming behind the scene. If China fails to integrate its South China Sea claims and the Road plan — the integration being that the Road plan is able to attract and strengthen ASEAN claimants’ confidence, despite a territorialized South China Sea with Beijing at the helm — the implications can be serious. One least-desired scenario is that China would lose the credit it needs in due course in its role as a reliable regional power, with development potential and the capability to promote co-prosperity among neighboring countries. Thus, without a constructive management of the South China Sea situation, the benign intentions and political credits of the Road plan would be attenuated.
An Open-end Maritime Boundary
To accommodate China’s ambitious development plan, the Maritime Silk Road, and its sacrosanct territorial claims in South China Sea, China may consider the concept of an open-end maritime boundary. This concept is borrowed from the ancestors’ wisdom of how sovereignty and territorial rights had been understood and practised, before the imposition of the Westphalian international order on this part of the world. In a nutshell, this traditional understanding of territoriality and sovereignty in Asia may provide a way out of the quagmire of the South China Sea.
Of primary importance is to operate the nine dash line, even as a maritime boundary in the Chinese concept, in an open-end manner. In other words, sovereign rights and the entailed management of maritime spaces defined by this dash-line maritime boundary should be conducted in a flexible, open-ended, inclusive, yet efficient manner. The flexibility, openness, inclusiveness, and effectiveness should be comprised of the following constituents: non-exclusive spatial management; a goal of providing public goods, such as maritime security; adoption of a rationae personae jurisdiction as a complementary means to strengthen human security and protection of lives on the sea; and consistent negotiations on the joint development of maritime resources. And all components should be formulated and conducted in honour of the principles and goals stipulated in the law of sea and general international law.
The success of this approach relies on China’s capability in delivering substantial outcomes under this quadruple framework. It would thus be a performance with sophistication to accommodate incongruences between universal dominating norms and exceptional regional experiences, and the credibility of its policies would be accumulated via subtleties of regional management tactics.
In order for the nine dash line to not become a political burden and a legal hazard, the operation of the dash-line maritime boundary is to be informed with the concept of “border control,” not “border security” (Prescott, 2015; Lee, 1986; Acharya, 2013).
For fishing and other resource development activities, joint development may provide an alternative when stipulations prescribed in the law of sea and general international law are unable to deliver their intended outcomes.
Border control is of a broader nature, in which border security is incorporated. Border controls generate both effectiveness and efficiency via their management measures, with great potential to alleviate disputes and transform rivalries into co-prosperity. In practice, border control covers an array of measures, ranging from border security maintenance in the fore points, to negotiations and conversations in local communities and national capitals. Regular exchanges in border areas — such as maritime rescue assistance, disaster relief, and replenishment aid during peaceful times on the sea — also help achieve peace and stability in the South China Sea. In contrast, measures focusing on border security are shaped by a zero-sum mind-set, which could easily trigger devastating conflicts. Therefore, border control measures draw all involving parties into a symbiotic relationship and transform confrontation into mutual development.
To better facilitate this open-ended management approach, monitoring and surveillance measures should be allowed, in order to detect and deter dangers and threats to maritime security in the South China Sea. For fishing and other resource development activities, joint development may provide an alternative when stipulations prescribed in the law of sea and general international law are unable to deliver their intended outcomes. Besides, the concept of “joint development” should be seen as gaining a normative momentum after decades of international recognition and practice.2 Despite various manifestations in treaty texts, it is the spirit of cooperation and collegiality that breaks the stalemate and thaws the hostility. In the South China Sea, joint development serves a similar role, with which effective and pragmatic maritime resources development activities can be conducted.
Another critical constituent is a rationae personae jurisdiction in foreign Exclusive Economic Zones (EEZs). The law of the sea regime adopts a ratione materiae jurisdiction — prescribing prohibitions and allowable activities based on the regulated subject, the activity — in areas beyond territorial waters. In foreign EEZs, the right to marine resource development is attributed solely to coastal countries. Yet, regarding activities that come under EEZ regulations (under the initiative of coastal countries), the system is silent on whether activities, which have a non-resource-relevant or non-resource-oriented purpose, yet causing inadvertent and un-intended impacts on the marine environment, should also be subjected to coastal countries’ regulations. In other words, a loophole beyond the reach of this raitone materiae jurisdiction exists, namely maritime activities causing inadvertent and un-intended damaging impact on the marine environment.
This issue of jurisdictional incompetence sends an alarming message, signalling that the law of the sea, actually, serves more the interest of coastal countries. In an era when increasing maritime activities in foreign waters and explosive actors on the sea becomes more common, this ratione materiae jurisdiction is becoming more incapable of due management of a variety of issues on the sea. In this aspect, one alternative is to adopt the ratione personae jurisdiction as a complementary means. Better management outcomes would be possible, in foreign waters, when jurisdiction can be exercised on both regulated activities, ratione materiae, and the people conducting them, ratione personae. It is in this sense that when activities are not intended for resource purposes, but have caused considerable harm on the marine environment, coastal countries would have more tools to redress these wrongs, including asking the foreign countries responsible for regulating these people to share due management responsibilities and correct the environmental harms.
The South China Sea dispute has become highly politicized. Yet, institutionalization efforts for conflict management and eventually, dispute resolution, remain relatively underdeveloped. The threat is imminent and pressing. Put simply, the more politicized and judicialized the South China Sea issue becomes, the more difficult it is to tackle it effectively and efficiently. Yet, the Maritime Silk Road plan, along with subtle management tactics and reconsideration of regional customs, sheds light on how the South China Sea issue can be redressed, by providing an alternative that goes beyond these over-politicized and overtly-judicialized hurdles. In other words, it points to a direction where disputes can be resolved, eventually if not immediately, via a developmental plan that prioritizes cooperation and mutual prospects, by respecting a spirit of collaboration and collegiality that is long engrained in this region.
1. In March 2013, the National People’s Congress (NPC) passed legislation to re-constitute State Oceanic Administration (SOA), empowering it to oversee an entirely new maritime law enforcement entity, to be called the China Coast Guard Bureau. The new agency would be to integrate four of the five divisions operated on the sea, dragons: SOA’s own China Marine Surveillance (CMS); the Department of Agriculture’s China Fisheries Law Enforcement; the Ministry of Public Security’s Border Defense Coast Guard; and the Maritime Anti-Smuggling Police of the General Administration of Customs. On July 22, 2013, a new China Coast Guard Bureau sign was officially inaugurated in Beijing. Source: Central People’s Government (2013, July 22). Chongzu hou de Guojia Haiyangju guapai, Zhongguo Haijingju tongshi guapai. [The reconstituted SOA and the China Coast Guard have been set up]. Retrieved from http://www.gov.cn/jrzg/2013-07/22/content_2452257.htm
2. The concept “joint development” connotes cooperation between sovereign states, an international obligation which has been enshrined in international treaties, conventions and legal documents, such as United Nations Charter, Chapter VI (Pacific Settlement of Disputes, Article 33 to 38), and General Assembly Resolutions. Source: UN General Assembly Resolution. (1970, October 24 adopted). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. A/RES/25/2625. Retrieved from http://www.un-documents.net/a25r2625.htm.
Acharya, A. (2013). Imaging Southeast Asia. In The Making of Southeast Asia: International Relations of a Region. Ithaca, New York: Cornell University Press, pp. 51-104.
Commission on the Limits of the Continental Shelf (CLCS). (2011, May 3 updated). Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Joint submission by Malaysia and the Socialist Republic of Viet Nam. Retrieved from http://www.un.org/depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm
Gao, Z. and Jia, B. (2013). The nine-dash line in the South China Sea: History, status, and implications. The American Journal of International Law, 107(1), 98-124.
Lee, Y. L. (1986). The colonial legacy in Southeast Asia: Maritime boundary problems. Contemporary Southeast Asia, 8(2), 119-130.
Ministry of Foreign Affairs (2014, December 7). Position paper of the Government of the People's Republic of China on the matter of jurisdiction in the South China Sea arbitration initiated by the Republic of the Philippines. Retrieved from http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml
Ministry of Foreign Affairs (2012, February 29). People’s Republic of China Foreign Ministry spokesperson Hong Lei's regular press conference. Retrieved from http://www.fmcoprc.gov.mo/eng/gsxwfb/fyrth/t910855.htm
Prescott, J. R. V. (2015). The Geography of Frontiers and Boundaries. London and New York: Routledge, pp. 33-55.
Song, Y.-H. and Tønnesson, S. (2013). The Impact of the Law of the Sea Convention on conflict and conflict management in the South China Sea. Ocean Development and International Law Journal, 44(3), 235-269.