Last update 6/27/2011 5:00:00 AM (GMT+7)

China’s ‘two no’s policy’ on East Sea disputes

VietNamNet Bridge - China has always insisted that the South China Sea (East Sea) disputes be dealt with through bilateral negotiations and has developed a “two nos” policy regarding the settlement of disputes in the East Sea: no multilateral negotiations and no “internationalization”.

Increasingly, the South East Asian claimants and the US are arguing for multilateral solutions. In response, China maintains that the disputes should be settled via bilateral negotiations, attacks what it sees as the “internationalization” of the issue, and has condemned the US stance.

Island disputes: Bilateral or multilateral negotiations?

Hoang Sa (Paracel) archipelago are claimed wholly or partly by Brunei, Malaysia, the Philippines, Vietnam and China (whose position is shared by Taiwan), so this dispute is multilateral by definition. As such, the Truong Sa (Spratlys) archipelago dispute requires a multilateral solution involving all the claimants.

Bilateral negotiations are not an appropriate mechanism for resolving multilateral disputes: if the Philippines and Vietnam were to negotiate and settle bilaterally the sovereignty over the Paracel, would China accept that as a solution?

So why does China insist on bilateral negotiations as the only mechanism to resolve the Spratlys dispute, despite the fact that this mechanism could not be expected to bring about a settlement? Behind this insistence is a two-pronged strategy.

First, if the South East Asian claimants deal with China individually, they will be more likely to succumb one by one to China’s superior strength than if they have a common strategy, a united stance and mutual support for each other.

Second, by insisting on an unsuitable approach, China is effectively blocking progress towards a negotiated settlement. The absence of a settlement gives China, as the strongest claimant by far, increasing opportunities to strengthen its position and weaken those of the others.

Maritime disputes: Internationalization or de-internationalization?

While the question of sovereignty over the islands is central to the East Sea dispute, in practice it is maritime disputes that are most likely to spark off conflicts. The events of Chinese naval ships threatening the Philippines’ seismic survey vessel at the Reed Bank and China’s unilateral fishing bans in the East Sea are but examples of this.

Maritime disputes should be resolved according to international law, especially the stipulations of the United Nations Convention on The Law of the Sea (UNCLOS) and the jurisprudence rendered by the International Court of Justice (ICJ).

According to UNCLOS, a coastal state has sovereignty only over territorial sea within 12 nautical miles wide adjacent to its baselines.

With respect to maritime zones beyond 12 nautical miles, that state does not have sovereignty, but only some specific rights under the regimes of exclusive economic zone (EEZ) and continental shelf. In addition, under judgments by the ICJ, small islands such as those in the East Sea are entitled to EEZs and continental shelves that are insignificant in comparison to those of neighboring territories that have longer coastlines.

If a nation claims either too large a maritime zone, or too many rights, or both, for an EEZ or a continental shelf, then that adversely affects the rights of all other nations in the world.

China’s maritime claim in the South China Sea involves an enigmatic U-shaped line that lies well beyond 12 nautical miles of the disputed islands and encircles most of this body of water. This claim adversely affects the rights of all other states.

The U-shaped line: a claim excessive in area

First, let’s consider whether this line can be consistent with the extent of an EEZ and continental shelf belonging to the Paracels and Spratlys.

That line lies beyond the equidistance line between the disputed islands and the territories around the East Sea. Jurisprudence by the International Court of Justice always gives such small islands EEZs or continental shelves that fall far short of the equidistance line, usually not much father than 12 nautical miles from the islands.

Pursuant to these rules, the U-shaped line is too excessive and arbitrary to be justified as the Paracels and Spratlys’ EEZ and continental shelf boundary. Consequently, the maritime zone around Reed Bank rightfully belongs to the Philippines; the area around James Shoal to Malaysia; the Natuna region to Indonesia; the maritime zones around Nam Con Son and the Vanguard Bank to Vietnam. These delimitations are incontestable regardless of the fact that the Paracels and Spratlys and Scarborough Shoals are disputed.

Furthermore, the U-shaped line covers an area in the middle of the East Sea where the international community might well have the right to exploit economically the column of water, for example, to fish.

Thus, that line encircles an excessive area, adversely affecting the rights of the nations entitled to EEZs and continental shelves in the East Sea, as well as those of the international community.

To justify such extensive claim, Beijing would have to adduce the status of historic sovereignty and rights over maritime space.

However, UNCLOS only recognizes historic sovereignty and rights over maritime space within 12 nautical miles of baselines, not over the area enclosed by the U-shaped line. As a signatory to UNCLOS, China must respect this rule and cannot allege historic sovereignty and rights over maritime space in order to justify the U-shaped line. In addition, there is no evidence that China has historical sovereignty over the maritime space enclosed by that line.

The U-shaped line: a claim opaque in legal status

Next, let’s consider the U-shaped line in terms of what rights, under international law, China intends to claim for it.

So far, China has been opaque about this claim. This “Middle State” [Editor’s note: Another translation of the ancient name for China are “the Middle Kingdom.”] has never stated exactly what rights it is claiming inside that line, even when it included a map showing the U-shaped line with its note verbale to the United Nations in 2009 to protest against continental shelf submissions by Vietnam and Malaysia.

Whether China claims the maritime space within the U-shaped line as EEZ and continental shelf, or as a maritime zone similar to “historic waters,” such claim is a threat to the Philippines, Malaysia, Brunei, Indonesia and Vietnam. In addition, it affects considerably the rights of the international community, because UNCLOS grants rights within this body of water to all nations in the world.

The U-shaped line: an international issue

The U-shaped line is like a dagger pointing at the heart of the East Sea without the holder giving any explanation or saying how he intends to use it. Supported by an increasingly powerful navy, it constitutes a threat to all nations in the world.

While the international community can be neutral on the disputes over the islands, it cannot afford to be neutral on China’s U-shaped line.

Both maritime history and UNCLOS show that the East Sea is an international sea, like the Mediterranean. The international community has an interest and the right to have a say in the maritime claims there. China’s opposition to the “internationalization” of the East Sea issue is tantamount to an attempt to de-internationalize an international sea. Once the East Sea has been de-internationalized, Beijing will be able to bring its strength to bear on the East Sea nations and impose its own rules on this body of water.

Phieu Le and Huy Duong

(Phieu Le is a doctoral candidate in International Law at the University of Montesquieu, France. Huy Duong is a freelance writer. They contribute articles on the East Sea disputes to the BBC and Vietnam’s online publication VietNamNet.)