How China can cement its territorial claims in the South China Sea
Mark Valencia says China can clarify its position on its territorial claims in the South China Seain a way that not only maintains the status quo and preserves its interests, but is also arguably fairer to its neighbours
China has painted itself into a diplomatic and legal corner regarding its claims in the South China Sea. Its infamous and ambiguous "historic" nine-dash line has been variously interpreted by rival claimants as a national boundary; a sovereignty claim to all water and land within it; and, more optimistically, as an indicator of a sovereignty claim only to the islands and reefs and some submerged features it encloses.
The first two interpretations and China's frequent and expanding naval exercises in the South China Sea frighten smaller and weaker Southeast Asian countries and serve as convenient targets for US and Japanese anti-China propaganda.
Indeed, China has been under withering political and legal attack for allegedly violating the 1982 UN Convention on the Law of the Sea, which it ratified in 1996.
The Philippines - with tacit US support - has filed a complaint against China with the International Tribunal for the Law of the Sea, established by the convention. However, China has refused to participate in the case and is taking a propaganda pounding for not doing so. The US Senate Foreign Relations Committee in July approved a resolution condemning China's behaviour in Asian seas, behaviour that China sees as defending its claims. Meanwhile, rival claimants as well as the US and other Western powers have criticised some of China's actions in its 200-nautical-mile exclusive economic zone as violating the freedom of navigation. And they and Vietnam say China's drawing of enclosing baselines around the disputed Paracel Islands is illegal.
Several policy analysts and I have suggested that China could turn the tables on its antagonists by making a statement that clarifies the nine-dash line as commensurate with the most optimistic interpretation - a claim to sovereignty only over all legal islands and rocks enclosed by the line.
According to the convention, legal islands are those features that are naturally formed areas of land and above water at high tide. They must be able to sustain human habitation or economic life. Otherwise, they are rocks which have no exclusive economic zone or continental shelf.
There are at least 13 features in the Spratlys that appear to qualify as islands. China could then state that it is claiming 200-nautical-mile exclusive economic zones and continental shelves from these features and that the boundary between its jurisdiction and that of other South China Sea littoral countries is the median line between the legal islands and their mainlands. China might want to consider drawing this line in a manner that is not seen as an abuse of rights. Regardless, the other claimants - the Philippines, Vietnam, Malaysia and Brunei - would strongly object and dispute both China's sovereignty claim over the islands and the drawing of a median line in this manner.
But such a claim would conform to the 1982 convention and could not be arbitrated by the International Tribunal for the Law of the Sea because boundary delimitation is excluded from its jurisdiction. Likewise, the conflicting claims to sovereignty over the islands could not be brought to the International Court of Justice without the consent of the parties. The result would be the status quo, minus any historic waters or title claim, and sovereignty and boundary disputes would have to be resolved by negotiations or non-binding conciliation.
Joint development might even be possible in some areas of overlapping exclusive economic zones and continental shelf claims. Issuing an official statement along these lines would clarify China's position without fundamentally sacrificing its claims or interests.
This would be important in explaining the move to its citizens. More importantly, it would bring the debate within the realm of international comity and parlance. And it should help mollify the public angst of naval powers regarding "freedom of navigation".
Meanwhile, because maritime boundaries within the nine-dash line have not been agreed and the area is in dispute, there should be no unilateral drilling for hydrocarbons according to precedents in international arbitrations.
Instead, in general in such situations, the courts have recommended that disputants enter into interim arrangements of a practical nature, such as joint development of resources.
By this simple but velvet manoeuvre, China could mollify its critics, render the Philippines case politically moot, demonstrate its willingness to abide by the convention and modern international law, and build confidence with its Southeast Asian maritime neighbours.
It won't be clear sailing from there in the South China Sea, but China will have resolved its dilemma, and taken the initiative as well as the "high ground".
Hopefully, China will see the wisdom of this option, which could reduce tensions and uncertainties in the South China Sea.
Mark J. Valencia is an adjunct research associate at the National Institute for South China Sea Studies