China's territorial line lacks legal foundation, says expert
“China’s nine-dash (territorial) line is ambiguous and is open to various interpretations. It is in China’s interest to keep matters this way. Historical evidence and international law support the view that the nine-dash line is unsustainable and has no legal foundation”.
So says Professor Carl Thayer, a leading expert on Southeast Asia at the Australian Defence Forces Academy, who was talking to reporters about maritime disputes in the South China Sea at the International Centre for Journalists (ICFJ) last week.
Professor Carl Thayer. Photo by The Diplomat
Here are some of the questions posed to him by Vietnamese journalists and his answers, as selected by DTI:
Vietnam has shown historical evidence to support for its territorial claim for the Paracel and Spratly islands, but China has occupied the Paracels and is reaching to the Spratlys. What's your opinion about the so-called nine-dash line?
The Paracel and Spratly archipelagos present two sets of different issues. Under contemporary international law great weight is given to evidence of continuous occupation and administration in territorial and sovereignty claims. Vietnam’s claims to the Paracels are strong because of the Hoang Sa Brigade (Doi Hoang Sa) and French rule when the Kingdom of An Nam was a protectorate. Vietnam’s claims to several of the islands and features are even stronger because they were acquired by China by aggressive force in January 1974.
Vietnam’s claim to the Spratlys has a sound historical basis and Vietnam’s occupation and administration has been established.
China’s nine-dash line is ambiguous and open to various interpretations. It is in China’s interest to keep matters this way. Historical evidence and international law support the view that the nine-dash line is unsustainable and has no legal foundation. The People’s Republic of China modified the Republic of China’s original 11-dash line map of 1947/1948. China has also published maps showing the nine-dash line that are inconsistent. Finally, China’s claim that James Shoal near Malaysia is China’s most distant land is absurd. James Shoal is 20 or more metres underwater. China’s claims is based on a translation error.
You said in late November that tensions in the East and South China Sea should remain low for perhaps six months. Do you think China is now satisfied with the situation in South China Sea?
It is clear that China reassessed its tactics last year in the South China Sea. China suffered damage to its prestige and witnessed a rise in concern by regional states. China is now quietly consolidating its presence in the South China Sea through land reclamation, an increased presence of fishing fleets and larger mother ships, larger Coast Guard vessels and more military exercises by the People’s Liberation Army Navy. At the same time, China is advancing a larger agenda through its proposals for land and maritime “Silk Roads”. Time appears to be on China’s side. China must “neutralise” Asean; that is, keep it from aligning with the United States and Japan. China has close relations with Malaysia, this year’s Asean Chair.
Malaysia prefers to keep South China Sea disputes quiet. This will suit China. China will react when it perceives that its interests are threatened. So far, the Philippines has adopted a low-key approach to its dispute with China so as not to jeopardise its claim to the Arbitral Tribunal. This also suits China.
This leads me to believe that all will be quiet on the South China Sea front this year.
What do you think China’s next move will be?
China will keep on with land reclamation. It will continue to urge its fishermen to push south in to the EEZs (exclusive economic zones) of other littoral states. China maritime enforcement ships will intervene to protect the fishermen. China will conduct more frequent and larger military exercises. In short, it will be business as usual for China.
How likely is it that China will establish an air defense identification zone in the South China Sea to support its sovereignty claims, and what would such a move mean for nations with interests in the sea, including Vietnam and the United States?
China does not yet possess the means to enforce an Air Defence Identification Zone (ADIZ) over the South China Sea. It could do so over the Paracel Islands because it has air force planes based on Hainan Island. At present and in the near-term future China cannot enforce an ADIZ over the southern reaches of the South China Sea, even with its present land reclamation and construction activities. If China’s ADIZ interfered with internationally recognised air routes, the United States would deliberately fly through the zone to uphold international law. China has not interfered with US planes that pass through its ADIZ in Northeast Asia.
What are the chances for the Asean bloc and China to achieve a code of conduct this year under Malaysia’s chairmanship to defuse sea tensions and ensure peace, stability and freedom of navigation in the South China Sea?
There is little prospect for Asean and China reaching final agreement on a binding code of conduct (COC) for the South China Sea this year. China has insisted that the implementation of the Declaration on Conduct of Parties in the South China Sea (DOC) be implemented first. Although a number of working groups have been set up under the DOC, and China has made funding available, not one confidence-building project has been approved. So far the Asean-China consultations have agreed only on the structure and general form of the COC. Specific details remain to be worked out. Thailand, as Asean’s country co-ordinator for relations with China, increased the number of working group meetings last year. This is a positive development. However, ASEAN wants a binding COC. It is unlikely that China will agree to a COC with treaty status.
People say the role and the voice of Asean doesn't have much power against China's claims of the nine-dash line. What's your opinion?
Last year, during the HD 981 crisis, Asean foreign ministers issued a stand-alone statement expressing their concern. Although this statement did not mention China, it was the first time that Asean has expressed a view on tensions arising from the China-Vietnam dispute over the Paracels and surrounding waters. In this case, this had an impact on China for two reasons. It indicated Asean unity, and because (of that) it provided a basis for the US, Japan, Australia and other countries to support Asean. Having said this, Asean as a body is not a direct party to the South China Sea disputes. Asean has its limitations. It must function by consensus. Asean is, at best, a diplomatic community and can only exert political influence on China. This is a necessary condition to resolve the South China Sea disputes, but it is not sufficient.
In the escalation of territorial disputes in the East Sea (South China Sea), Asean wants to speed up the code of conduct with China to make it an effective tool to maintain peace in the East Sea. However, China has tried to delay and hinder the realisation of the COC and push the negotiation to a stalemate. What is the solution to breaking this stalemate?
Asean and China agreed to move forward on the basis of consensus. This provision was included in the 2002 Declaration on Conduct of Parties in the South China Sea (DOC). This makes is very difficult for Asean to speed up consultations on a code of conduct if China is unwilling. China, however, has shown a willingness to respond to Asean’s concerns. Asean must maintain unity and the current Asean Chair must continually press China to hurry up the speed of talks. Asean foreign ministers and government leaders can also use their annual ministerial and summit meetings to add pressure. Asean needs to set out a road map and a check list showing what progress has been made.
What are your comments on the role and statement of Vietnamese scholars in international conferences and forums on topics related to the East Sea dispute? What are the strengths and weaknesses of their research?
Over the last four years I have attended an average of 16 international conferences each year; most focus on the South China Sea. The Vietnamese participants invariably hail from the Diplomatic Academy of Vietnam. They are the elite of the elite. They are well trained and fluent in English. They conduct primary research and are well informed. I hold them in highest respect. There are also Vietnamese scholars who are studying abroad who participate. They are committed to legal and historical research on the South China Sea and they are collectively an impressive group. One great strength of Vietnamese scholars is their originality when writing opinion editorial pieces in the foreign press. I value highly their responses to Chinese opinion writers.
If I detect any weaknesses it is that Vietnam needs more scholars fluent in Chinese language who have access to Chinese language sources. Vietnam should issues a comprehensive White Paper on the South China Sea setting out the legal argument for Vietnam’s claims to both the Paracel and Spratly archipelagos.