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South China Sea: The Positions and the Facts
South China Sea: The Positions and the Facts
Report 223 / Asia

南海翻波(一)

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中国各政府部门间权责相互冲突,缺乏协调,加之其中多个机构试图利用南海局势来扩张权力,扩大预算,从而对该海域的紧张局势起到了煽风点火的作用。不同机构或个人不断提议建立更集中的机制来管理南海事务,却都杳无下文。外交部是唯一授权具有协调职能的部门,却不具备管理其它各机构的权威或资源。中国海军利用海域紧张局势来推行部队现代化,而领土争端又煽起了民族主义情绪,这些因素使得问题更加错综复杂。而更可能引发冲突的当下之忧是不断增多的执法和准军事船只,它们在争议领土内日益活跃,但缺乏明确的法律框架作指导。在近期的多数事件中,包括2012年4月开始中国和菲律宾在黄岩岛的长时间对峙,都有它们的参与。若要解决任何未来的南海争端,中国政府必须制定一致政策,要求各级政府统一执行,并保证有强制实施政策的能力。

对有关管理南海所涉及到的中国各政府部门间缺乏协调的局面,中国海事政策圈用“九龙闹海”来形容。这些部门中的大多数一直以来都是内政机构,缺乏外交事务经验。其中一些部门为了争抢财政拨款互相竞争,而另一些部门(主要为地方政府)则一门心思发展经济,因此企图在争议地区扩张各自的经济活动。尽管这些动机均源自国内考量,但它们的活动造成的国际影响却愈发深远。造成紧张局势升级的还有其它因素,其中既有中国内部因素也有外部因素,但外部因素不在本报告的研究范围之内。在另一篇报告里,我们将集中讨论有关的地区动态,如军备升级、资源竞争和在其它声索国内日益上涨的民族主义情绪。

由于需要保卫的领土领海范围还未得到明确定义,各机构间的有效协调因而更加困难。中国目前尚未公开阐明所谓九段线的法律地位,在大多数中国地图上该九段线圈围着大部分南海。为了打消邻国疑虑,外交部已采取措施力图说服它们中国并未对整个南海提出声索,并曾援用《联合国海洋法公约》(UNCLOS)作为领土要求的部分依据,但对相当一部分南海地区,中国把过去在该地区有过历史活动作为声索主权的依据,在这些地区中国政府不可能轻易让步。地方政府机构在争议地区进行活动时,正是利用了这一法律不明确性。

中国政府一贯强调南海诸岛历史上为中国所有,从而刻意为该地区的领土争端渲染民族主义情绪。这一政策致使国内民众日益要求中国政府采取果断行动。虽然迄今为止当中国政府采取具体行动时都还能够约束民族主义情绪,但群情激愤的国内环境仍然制约了政府政策抉择及其应付问题的能力。

2011年中,由于海上紧张局势导致邻国寻求同美国加强军事关系,中国的态度有所缓和。虽然中国政府总体上依然强调以双边谈判来维持现状,但北京也正通过高层访问和多边接触(其中包括同东南亚国家联盟(ASEAN)签订了《南海各方行为宣言》(DOC)实施准则)来巩固地区关系。

对内,中国已经采取了措施平息民族主义情绪,并力图劝阻地方部门采取过激行动,但中国目前的行事特征仍然是数个部级机构和执法部门争相插手,同时既无有效协调机制,也无高层制定的长远政策。建立海事管理集中机制的努力屡次失败表明北京缺乏解决协调问题的政治意愿,而中国政府也可能从模棱两可的政策中看到了好处。然而,只要这一局面存在,中国政府新的和解策略将不太可能持久。中国处理南海各方关系及化解争端的能力将成为对中国和平崛起的重大考验。

北京/布鲁塞尔,2012年4月23日

Staff members of Hainan Maritime Safety Administration work on a seaplane during a patrol in south China Sea, 25 Sept. 2015. XINHUA
Commentary / Asia

South China Sea: The Positions and the Facts

On 12 July, the International Tribunal on the Law of the Sea under the Permanent Court of Arbitration in The Hague will deliver a ruling that will give new direction to one of Asia’s most contentious issues, the South China Sea. Tensions and military preparations have been steadily building up over recent years between six sides with competing claims on this strategic body of water. Superpower frictions have also risen as the U.S. and China have upped their naval and air force presence.

In this Q&A ahead of the judgment, Yanmei Xie, our China Senior Analyst, and Tim Johnston, our Asia Program Director, lay out the facts of the case and the positions of the parties.

What’s at stake in the South China Sea?

The South China Sea covers an area of some 4 million square kilometres. It has vital trade arteries, with $5 trillion or about one third of the world’s commerce passing through its waters, fisheries that account for 12 per cent of the global catch, and estimated reserves of eleven billion barrels of oil and 190 trillion cubic feet of natural gas.

Claims have been staked to parts of the South China Sea by five countries – Brunei, China, Malaysia, the Philippines and Vietnam – and Taiwan. Indonesia is not a formal claimant, but the Exclusive Economic Zone (EEZ) generated by its Natuna Islands overlaps with China’s “Nine-Dash Line”.

The Nine-Dash Line line first appeared as eleven dashes on a Chinese map in 1947 – China removed two dashes in the Gulf of Tonkin in 1953. Beijing has never clarified the coordinates of the Nine-Dash Line, nor articulated exactly what it is claiming within it.

What is being disputed between China and the Philippines in the South China Sea?

China claims all land features in the South China Sea. The Nine-Dash Line loops down from the coast to take in most of the South China Sea and slices into the Philippines’ claimed EEZ. The Philippines claims about 50 land features in the Spratly island chain and the Scarborough Shoal.

Prepared by I Made Andi Arsana, Department of Geodeting Engineering, Universitas Gadjah Mada, Indonesia. Reproduced with permission.

What did the Philippines ask the tribunal to rule on?

The Philippines asked the tribunal to rule on fifteen submissions across three groups of issues.

First, it argues that China’s Nine-Dash Line claim is contrary to United Nations Convention on the Law of the Sea (UNCLOS), to which both are parties.

Second, it requested the tribunal determine the statuses of land features occupied by China. It argues the features are “rocks” and “low-tide elevations”, not “islands”. UNCLOS defines low-tide elevations as natural land features that are submerged at high tide, and islands and rocks as those that remain above water. Islands are distinguished from rocks by their ability to “sustain human habitation or economic life of their own”. States may claim sovereignty over islands and rocks. Both are entitled to a twelve-nautical mile territorial sea. Only islands are entitled to a 200-nautical mile EEZ. Low-tide elevations may not be claimed, and do not normally generate any maritime entitlements on their own.

Third, the Philippines requested that the tribunal declare that China has violated UNCLOS through its enforcement, construction, and fishing activities. It argues that China has illegally interfered with the Philippines’ lawful exercise of sovereign rights and has failed to fulfil its obligations to protect the marine environment.

In October 2015, the tribunal ruled that it had jurisdiction on seven submissions. They involve the status of land features, and the lawfulness of China’s practices around the Scarborough Shoal and Second Thomas Shoal. The tribunal has reserved judgment on jurisdiction over seven other submissions and asked the Philippines to clarify and narrow one submission.

How has China responded?

China rejected the arbitration and has refused to participate in the proceedings. It has also repeatedly stated it will not accept the tribunal’s ruling. In December 2014, China issued a position paper arguing the tribunal does not have jurisdiction over the case.

First, China argues that the subject-matter of the arbitration is sovereignty over maritime features, and is thus beyond the scope of UNCLOS. Second, it argues that the subject-matter concerns maritime delimitation, which it has legally excluded from the tribunal’s jurisdiction. Third, it says that the two sides agreed to settle their disputes through negotiation, to the exclusion of any other means.

What are some of the key issues to watch for in the ruling?

The tribunal is expected to rule on the status of Chinese-occupied land features in the Spratly chain. If it determines the features are not natural islands, it would limit the legal rights China can claim around them. Since early 2014, China has reclaimed 3,200 acres of land around seven features, and built airstrips, ports, high-frequency radar facilities, solar arrays, lighthouses and support buildings on them.

Particularly important will be the expected tribunal ruling on the status of Itu Aba/Taiping. Itu Aba (the Philippines name that the tribunal has been using) is the largest natural land feature in the Spratly chain, and hosts a Taiwanese outpost with about two hundred people. It is claimed by the Philippines, China, Vietnam, and Taiwan. If the tribunal determines that Itu Aba is an island, the feature’s EEZ would overlap with that claimed by the Philippines. Such a ruling would undermine several claims by the Philippines. Therefore, though the Philippines did not directly request a ruling on its status, it has strongly argued that Itu Aba is not an “island” but a “rock”.

The tribunal has deferred a decision on whether it has jurisdiction to rule on the legality of the Nine-Dash Line until it assesses the nature of China’s claimed rights. If it rules on the issue, it could be momentous. An adverse ruling on the line would significantly reduce the area that China can legally claim. But because China has offered no legal explanation on the line, the tribunal may lack a basis to directly repudiate it. The tribunal could instead state that Chinese claims have to strictly comply with UNCLOS, thus leaving China room to gradually bring its claims into compliance.

How have relevant and concerned parties responded?

Among the claimants, Vietnam and Malaysia sent observers to the proceedings. In December 2014, Vietnam submitted a “Statement of Interest” to the tribunal supporting the proceedings and the upcoming ruling, stating opposition to China’s Nine-Dash Line claim and reaffirming Vietnam’s claims.

Australia, Indonesia, Japan, Singapore and Thailand also sent observers to the proceedings. The U.S. said “the parties are obligated to respect and abide by” the arbitration ruling. The UK, Japan and Australia similarly called for parties to adhere to the ruling. New Zealand expressed support for the Philippines’s rights to seek arbitration. The EU and G7 called for respect for arbitration procedures.

Countries that have explicitly endorsed China’s position include Sudan, Gambia, Kenya, Russia, South Africa, Zimbabwe and Cambodia. Beijing says the number of countries that support its position is growing, but has declined to provide a specific figure or a list. A few countries, including Fiji, Poland, Slovenia and Bosnia and Herzegovina, have denied claims that they side with China.

What will be the impact of the tribunal’s ruling?

The ruling can reduce the scope of the South China Sea disputes, but will not solve them. The tribunal was not requested to and will not rule on sovereignty: it is beyond its jurisdiction to decide on which nation owns the land features. It will not determine maritime boundary delimitation, on which China has exempted itself from compulsory resolution. There are three other claimants who are not parties to the arbitration.

The ruling will be binding on the Philippines and China, but Beijing is unlikely to comply with it in the short term. The process, however, could set an example for other claimants to follow and thus provide incentive for China to negotiate. By providing greater legal clarity and generating international attention, it could reduce the asymmetry between China and other claimants in negotiations. It could even encourage Beijing to reexamine the diplomatic and political cost of its expansive claims.

The ruling is likely to escalate the war of words. Both China and the U.S. are likely to intensify diplomatic manoeuvres to win support for their respective positions. If China declares an air defence identification zone in the South China Sea, the U.S. is likely to challenge it with military fly-bys. If the U.S. conducts more frequent and higher-profile freedom of navigation patrols near Chinese-held reefs, Beijing may feel compelled to intercept or even evict U.S. vessels. The risk of military clashes is small, but cannot be ruled out.

What does Crisis Group recommend?

Escalation to military standoffs is not inevitable. The ruling could present an opportunity to reverse the collision course.

There are face-saving ways for Beijing to demonstrate respect for international law, beginning with incrementally backing away from the Nine-Dash Line and bringing its claims closer to principles of the UNCLOS. China can, for example, refrain from taking enforcement actions at the fringes of the Nine-Dash Line. China can also move to conclude its boundary delimitation negotiations with Vietnam outside the mouth of the Gulf of Tonkin. Success there would show Beijing’s sincerity in negotiations. Beijing can help make substantive progress on formulating a Code of Conduct. This would commit all parties to binding norms of behaviour and help restore South East Asia’s faith in China’s pledge for peace and cooperation.

As long as the U.S. does not itself ratify UNCLOS, it will remain a flawed spokesperson for a rules-based order. Washington’s unilateral display of naval power can send a message of deterrence, but it will take painstaking multilateral diplomacy to persuade China to commit to negotiations with the Association of Southeast Asian Nations (ASEAN) to find a rules-based solution. Washington’s military manoeuvres and bilateral security arrangements have to be matched by efforts to shore up ASEAN’s capacity.

ASEAN, with support from its partners, has to step up and meet China as a firm and coherent negotiating partner. Acquiescing to Beijing’s pressure or overreliance on Washington’s deterrence will unravel decades of progress in regional self-governance by consensus and turn South East Asia’s nightmare of getting caught between two scuffling giants into reality.