Читать книгу How Sentiment Matters in International Relations: China and the South China Sea Dispute - David Groten - Страница 37

Against the backdrop of this brief introduction into and overview of the SCS and a number of core developments in its recent history, this section sets out the PRC’s official position toward the SCS, with regard to both maritime and territorial rights. To start with, Chinese territorial sovereignty claims encompass all features within its so-called ‘u-shaped nine-dash-line’ (chapter 4.3). This basically comprises each of the SCS’s four major archipelagoes: the Spratlys, the Paracels, Macclesfield and Pratas (Table 13). These claims conflict and overlap with those by other SCS claimant parties.

Table 4: Features Claimed/Occupied by the PRC

Spratlys (occupied)	Paracels (occupied)	Claimed
Taiping Dao (Itu Aba) (by Taiwan) Zhongzhou-Riff (Central Reef) (by Taiwan) Yongshu Jiao (Fiery Cross Reef)Meiji Jiao (Mischief Reef)Zhubi Jiao (Subi Reef)Chigua Jiao (Johnson South Reef) Dongmen Jiao (Hughes Reef)Nanxun Jiao (Gaven Reefs)Huayang Jiao/Cuarteron Reef)Huangyan Dao (Scarborough Shoal)	All features	Entire Spratlys and Paracels and roughly 80 percent of the SCS waters

Source: Own representation

To be specific, the PRC stipulated its claims in numerous pieces of legislation and declarations. In its declaration ‘on China’s Territorial Sea’, issued September 4, 1958, the government in Beijing stated:

“1. The breadth of the territorial sea of the People’s Republic of China shall be twelve nautical miles. This provision applies to all territories of the People’s Republic of China, including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.

2. […] the water area extending twelve nautical miles outward from this baseline is China’s territorial sea. The water areas inside the baseline, including Bohai Bay and the Chiungchow Straits, are Chinese inland waters. The islands inside the baseline, including Tungyin Island, Kaoteng Island, the Matsu Islands, the Paichuan Islands, Wuchiu Island, the Greater and Lesser Quemoy Islands, Tatan Island, Erhtan Island and Tungting Island, are islands of the Chinese inland waters.

[75] 4. The principles provided in paragraphs (2) and (3) likewise apply to Taiwan and its surrounding Islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands, and all other islands belonging to China“ (PRC Gvt., 1958).

Accordingly, Art. 4 set out China’s sovereignty claims (‘islands of the Chinese inland waters’) over the Paracel Archipelago (Chinese: Xisha) and the Spratly Archipelago (Chinese: Nansha). A 12 nm mile territorial sea as measured from these features was derived. According to the official Chinese position, all SCS features mentioned qualify as islands. Subsequently, in 1992, China passed its law on the ‘Territorial Sea and the Contiguous Zone’ (PRC Gvt., 1992). The crucial paragraphs read as follows:

“Article 2: The territorial sea of the People’s Republic of China is the sea belt adjacent to the land territory and the internal waters of the People’s Republic of China. The land territory of the People’s Republic of China includes the mainland of the People’s Republic of China and its coastal islands; Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands belonging to the People’s Republic of China. The waters on the landward side of the baselines of the territorial sea of the People’s Republic of China constitute the internal waters of the People’s Republic of China.

Article 5: The sovereignty of the People’s Republic of China over its territorial sea extends to the air space over the territorial sea as well as to the bed and subsoil of the territorial sea“ (PRC Gvt., 1992).

This law further specified the 1958 declaration as its territorial claims were slightly adapted in that they now directly referred to the Diaoyu Islands, and its sovereignty claims were extended to include the seabed and subsoil of its territorial sea and respective air spaces. Subsequently, on June 7, 1996, the same day the PRC ratified UNCLOS, it lodged a claim to an exclusive economic zone (EEZ):

“1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.

2. The People’s Republic of China will effect, through consultations, the delimitation of boundary of the maritime jurisdiction with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principle” (PRC Gvt., 1996).

Two years later, on June 26, 1998, the PRC government proclaimed its ‘Law on the Exclusive Economic Zone and the Continental Shelf’ sketching the precise scope of China’s EEZ and continental shelf:

[76] “Article 2: The exclusive economic zone of the People’s Republic of China covers the area beyond and adjacent to the territorial sea of the People’s Republic of China, extending to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The continental shelf of the People’s Republic of China comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. The People’s Republic of China shall determine the delimitation of its exclusive economic zone and continental shelf in respect of the overlapping claims by agreement with the states with opposite or adjacent coasts, in accordance with the equitable principle and on the basis of international law.

Article 14: [t]he provisions in this Law shall not affect the rights that the People’s Republic of China has been enjoying ever since the days of the past“ (PRC Gvt., 1998).

This law illustrates that the PRC regards its EEZ as a complementation to its 1958 declaration and every other legal document it ever published on territorial and maritime rights. Particularly, Art. 14 of this law has established a link between China’s legal SCS claims and its history.

The Nine-Dash-Line and Historic Rights

Until the mid-1980s, the PRC had not been physically present in the SCS in any permanent and official manner, especially not in and around the Spratly archipelago, while other SCS stakeholders had already been occupying various features by then. Moreover, as also reconfirmed by the Arbitral Tribunal in its Philippines v. China case (chapter 4.3), the PRC has never clearly communicated the specific nature or scope of its historic rights in the past but only based its claims on historical usage of the area, particularly in the form of naval expeditions back in 110 AD and throughout the Ming Dynasty (1368–1644 AD). Apart from these historical references, the matter of historic rights can only be approached in a more indirect way by means of official statements and historic maps. First and foremost, the Chinese ‘Map Showing the Location of the Various Islands in the South Sea’ dating back to 1948 is the first publicly known map picturing the so-called nine-dash-line (cf. Figure 3), even though a similar line was already depicted in a private map in 1933. The nine-dash-line, as the name already suggests, refers to a U-shaped line with nine undefined dots depicting China’s maritime and territorial SCS claims¹⁰³. In [77] 1992, a Chinese law once again confirmed and codified the PRC’s territorial claims. Subsequently, on May 7, 2009, the PRC government submitted two notes verbales to the United Nations (U.N.) in response to both the Philippine ‘2009 law’ and a joint submission by Vietnam and Malaysia on May 6, 2009, to the Commission on the Limits of the Continental Shelf (CLCS)¹⁰⁴. In its 2009 notes verbales the PRC asserted “indisputable sovereignty over the islands in the South China Sea and its adjacent waters” and attached a map depicting a ‘nine-dashed-line’ (also known as the U-shaped line) as a reference to its claims. This map, depicted below, has been referred to by experts on the subject and government officials ever since. However, while these notes verbales once again specified, yet in a slightly modified manner, the PRC’s territorial claims in the SCS, namely all features located within its U-shaped line, it did not define the exact scope of its maritime claims. Adopted terms such as ‘surrounding’ or ‘adjacent’ waters remained rather vague and only suggested that China does not claim all waters within its nine-dash-line but only an estimate of around 80 percent thereof:

“China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf. China has repeated variations on this formula in its diplomatic correspondence and in the public statements of its official spokespersons, and has expressly linked the ‘nine-dash line’ to China’s claim to rights ‘formed over a long course of history’. […]. China has indisputable sovereignty over the Nansha Islands and their adjacent waters. And it is an indisputable fact that the Xisha Islands are an integral part of China’s territory. As early as 1948, the Chinese government published an official map which displayed ‘the dotted line’ in the South China Sea. China’s sovereignty over the South China Sea and its claims to the relevant rights have been formed over a long course of history” (PRC Gvt., 2009a).

In doing so, the PRC invoked past international agreements that had been established prior to UNCLOS, instead of relying on UNCLOS, which has not at any point acknowledged historic rights. The PRC continues to do so irrespectively of the Arbitral Tribunal’s final verdict’s rejection of historic rights¹⁰⁵. In the immediate aftermath of the verdict, the PRC government restated its previous position with regard to SCS entitlements in a White Paper designated ‘China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea’.

[78] Figure 3: Nine-Dash-Line (as Attached to Note Verbale CML18/2009) PRC, 2009, May 7

[79] In doing so, it literally articulated its historic rights claims for the first time:

“China’s sovereignty over Nanhai Zhudao and relevant rights and interests in the South China Sea have been established in the long course of history, and are solidly grounded in history and law“ (PRC Gvt., 2016h).

In an official statement, called ’on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea’, the PRC government, reiterated this claim:

“i. China has sovereignty over Nanhai Zhudao, consisting of Dongsha Qundao, Xisha Qundao, Zhongsha Qundao and Nansha Qundao;

ii. China has internal waters, territorial sea and contiguous zone, based on Nanhai Zhudao;

iii. China has exclusive economic zone and continental shelf, based on Nanhai Zhudao;

iv. China has historic rights in the South China Sea“ (PRC Gvt., 2016e).

Interestingly, just like the previous White Paper, this statement did no longer refer to the nine-dash-line, even though the PRC’s maritime and territorial claims are closely associated with it¹⁰⁶. The nine-dash-line had been utilized as a means to express the PRC’s historic rights in the SCS in an indirect manner until the publication of the Tribunal’s final verdict. Ever since the PRC literally has been articulating its historical rights claims, yet the precise scope and nature thereof continue to remain rather ambiguous. Moreover, the PRC started to assert its overall maritime and territorial SCS claims in a much more direct, frequent and blunt manner, thereby attaching a much greater significance to the (pro)active protection thereof than it used to be the case in pre-award times. As a result, the PRC constitutes the key SCS claimant party. It lays down the largest territorial and maritime claims by far, and its capacities to assert those claims undoubtedly exceed those of any other SCS claimant party. Hence, any progress in terms of conflict management, let alone conflict resolution, can only be achieved with Chinese active support and approval.