Politics

‘Freedom of Navigation’ and its Implication for the South China Sea: A Talk by Captian Tian Shichen

What is the Chinese view of the South China Sea island disputes?

A talk by Captian Tian Shichen of the Ministry of National Defence, China, Friday 15th April 2016

Captain Tian Shichen serves as Section Chief of the Chinese Ministry of Defence where he is in charge of crisis management and media relations. He has served in various operational, legal and academic positions with numerous units of the People’s Liberation Army and Navy. Captain Tian graduated from the PLA Foreign Language University in 1996 majoring in English. He obtained his first LLM in Military law from the PLA Xi’an Politics Academy in 2002 whilst achieving his second LLM in Public International Law from the University of Nottingham, UK in 2014. Captain Tian is also a 2013 Chevening Scholar sponsored by the UK FCO and a participant of the 2014 public international law summer course hosted by The Hague Academy of International Law. Captain Tian’s interests are centred on the international law of the sea, international humanitarian law and international criminal law.


The South China Sea (SCS) has, in recent years, been at the centre of numerous controversies, skirmishes and heightened tensions in the East and South East Asia region. States such as China, Vietnam, Brunei, Taiwan, Malaysia, the Philippines, Indonesia and Vietnam have all, in some capacity, laid dispute to one of a number of islands which, although usually small and uninhabitable, are edging the region into petty in-fighting. How does China, one of the most assertive backers of its territorial rights to islands in the South China Sea view this issue and what is its stance on the legal aspect to its controversial and assertive exchanges, occupations and construction on islands in the South China Sea?

Why the South China Sea: A Chinese Perspective

The islands of the South China Sea represent far more than just rich fishing areas, potential oil and natural gas reserves, or various other natural resources. China in particular takes a deep interest in these islands since, although occupying a long coastline (approximately 14,500 kilometres), its access to international waters are constrained by the local geography meaning that its only access to the Pacific Ocean is through relatively small straits in areas in or near the territorial waters of other nations including Japan, the Philippines and Indonesia. Additionally, the expansion of US Navy bases in Japan and the Philippines, for example, also pose particular problems for Beijing in regard to US regional hard power flexing in China’s back garden, potentially impacting on its  strategic economic and development goals. As a result, beyond their tangible assets, the true value of such disputed islands in fact centres on far more wide reaching strategic and geopolitical interests which could potentially alter the regional balance of power, both commercially and militarily.

Captain Tian Shichen begins his speech by focussing on what he views as the fundamental issues at stake in the South China Sea. He firstly underlines the importance of principles such as the ‘Freedom of Navigation’ in international maritime law and its implication for the South China Sea. Referencing Montesquieu from The Spirit of Laws, Tian affirms that “liberty is a right of doing whatever the law permits”. Within this idea, Tian continues to acknowledge that this indeed includes the right of passage by warships (via Article’s 18 and 19 of the UNCLOS) but notes how this has been controversial in China, not just due to the hard-power political implications of such manoeuvres but also because of the varying policy approaches by nations in the South China Sea. There exists a contention, Tian remarks, between two major groups of maritime powers. The first includes those states who want freedom (according to the fundamental principles of the Freedom of Navigation) and those who instead prioritise national sovereignty and security. Tian highlights that this contention is one of the basic tenets of contention in the region since “there is no absolute freedom without a degree of restriction, [and therefore] the issue is centred around balance rights and obligations”.


From a legalistic perspective, the South China Sea islands are somewhat of a ‘grey area’ depending, largely, on the interpretation, enforcement and arbitration of international maritime laws such as UNCLOS: the United Nations Convention on the Law of the Sea.

SCS
China’s claimed territorial waters (red line) in the South China Sea

China defines its territorial waters along the “nine stroke line” (nanhai jiuduan xian), a line originally drawn on December first, 1947 by the Republic of China government but later usurped by the PRC after 1949. A tenth dash was added in 2013 to include Taiwan within China’s territorial waters. Although the nine dash line clearly exceeds the UNCLOS two hundred nautical mile territorial limit, China continues to support UNCLOS (which it has ratified) whilst also insisting on the validity of the nine stroke territorial line.


Speaking about China’s firm commitment to upholding the UNCLOS and the on-going state of tension in the region, Tian further affirms that the existence of disputes should not necessarily affect the exercise of the Freedom of Navigation in the South China Sea. In regard to the allegations against China in relation to this, Tian argues that it is the inherent right of China to construct civilian construction works on the islands, pointing out that it is not just China but also the Philippines and Vietnam which have begun illegal construction work on Chinese islands, such as Zhongyedao. China’s own construction, he states, has been in order to facilitate its national security and only arisen as a reactive measure in response to other nations’ actions in the South China Sea, including, but not limited to, Japan’s announcement of its plan to nationalise the Diaoyu/Senkaku islands. In a further capacity, Tian states that the change in US military operational patterns after its ‘Pivot to Asia’ has been regionally “provocative, hostile and aggressive” and its so-called ‘Freedom of Navigation’ operations in China’s territorial waters have been in blatant violation of Chinese national law.

Addressing the conflict of interpretation between China’s claimed nine-dash line (see above image) and the UNCLOS territorial exclusion zone, Tian agrees that the Chinese boundaries have never been distinctly clarified. Indeed, he adds, if such boundaries are not clarified then how can the Chinese government assume a legal position as to its exact (claimed) territorial waters. According to the UNCLOS, a state must first delineate its territorial waters before putting forth a claim. China, he continues, is prevented from doing this because in order to clarify the territorial waters a number of geographical surveys must be completed on each island which, in this case, has not yet been possible because many of China’s disputed islands are illegally occupied by foreign nations. Without conducting the geographical surveys, therefore, it is impossible to make a claim to its territorial waters, thusly enabling a process of legal arbitration between China’s claimed territorial waters and its territorial waters as delineated by the UNCLOS.

Commenting on the reason why China denies UNCLOS jurisdiction in the South China Sea as well as why it has failed to attend UN hearings on UNCLOS disputes with The Philippines (October 2015), Tian seeks to underscore that denying the role of arbitration (with The Philippines) does not equate to rejecting the principles of the UNCLOS as a whole.

SCS1

Overall it is difficult to concretely ascertain the Chinese position on the South China Sea islands, and, more specifically, the contradiction between its support for the UNCLOS whilst denying the role of arbitration and its continuing insistence on the validity of its nine dash line. Certain analysts instead suggest that the rejection of arbitration instead demonstrates the significance China attaches to retaining bilateral negotiating power in the island dispute issue. Resolving to accept arbitration forces, therefore, would devalue China’s bilateral bargaining power, a highly valuable tool in China’s regional foreign policy, particularly in regard to such a sensitive area of China’s backyard.

Whether such disputes can ever be resolved institutionally thus remains to be seen. The role of regional power-politics, however, will certainly continue to play a large role in China’s regional foreign policy and strategic decision making in years to come. This is particularly importance considering the re-entry of the US into the region after its ‘pivot to Asia’. Indeed Hillary Clinton, speaking on an official visit to Bangkok in July 2009, declared that “the United States is back [in Asia]” and, on an official visit to Australia the following year, she added that the US “can provide resources and facilitate co-operation in ways that other regional actors cannot replicate or, in some cases, are not trusted to do. No country, however – including our own – should seek to dominate these institutions. But an active and engaged US is critical to the success of these”.

For China, a country whose territorial land is at its smallest since the Qing Dynasty in 1892, such statements are worrying. At home economic growth is declining and domestic nationalism is exerting pressure on the government to take assertive stances. Combined with uncomfortable neighbourhood issues, such as sovereignty disputes in Tibet, Xinjiang, and Taiwan as well as increasing military presences by the US, Japan and Vietnam, this issue will remain a key priority on Beijing’s agenda in years to come.


Captain Shichen’s presentation was prepared in his personal capacity. The views and opinions expressed are of his own an do not reflect the official policy or position of the Middle Kingdom Review nor any agency of the Chinese government.

25 April 2016


Benjamin Griffin is a scholar and researcher at the Yenching Academy of Peking University specialised in China and north-east Asia politics and security.

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