The maritime confrontation between China and Vietnam over the placement of oil rig HYSY 981 in disputed waters in the South China Sea that began in early May is now entering its seventh week.
On June 9 China unexpectedly opened a new front when Wang Min, Deputy Ambassador to the United Nations, presented Secretary General Ban Ki-moon a formal position paper on the dispute with a request that he circulate it to all 193 UN members.
China’s action in internationalizing its dispute with Vietnam does not represent a change in its long-standing policy that maritime disputes can only be settled bilaterally through direct consultations and negotiation of the parties directly concerned. A day after China submitted its position paper, Hua Chunying, a spokesperson for the Ministry of Foreign Affairs, stated that China rejected United Nations arbitration of its dispute with Vietnam.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Why then did China take its dispute with Vietnam to the United Nations?
In 2003 the Chinese Communist Party Central Committee and Central Military Commission formally adopted the doctrine of “three warfares” (san zhong zhanfa). The three warfares doctrine is an essential element of information warfare.
According to “China’s Three Warfares,” a 2012 study written by Timothy A. Walton for Delex Consulting, Studies and Analysis, China’s “three warfares” comprises three components: psychological warfare, media warfare, and legal warfare. It is the latter two components that shaped China’s position paper.
Media warfare, according to Walton, is a strategy designed to influence international public opinion to build support for China and to dissuade an adversary from pursuing actions contrary to China’s interests.
China’s position paper was sent to the United Nations in order to outflank Vietnam’s own propaganda effort and to isolate Vietnam. The vast majority of UN members have no direct interest in territorial disputes in the South China Sea. Many Southeast Asian states that hold concerns about China’s actions would shirk at being forced to take a public stand on the issue.
Legal warfare, according to Walton, is a strategy to use China’s domestic and international law to claim the legal high ground to assert Chinese interests. China’s position paper is replete with selected references to international law to support China’s stance.
Initially, China defended its placement of the oil rig by arguing that it was within China’s territorial waters. China noted that the HYSY 981 was located 17 nautical miles from Triton islet, the western most feature of the Paracel Islands. Under the UN Convention of the Law of the Sea (UNCLOS), territorial waters only extend 12 nautical miles from a state’s coastal baselines.
China’s June 6 statement amended this error by claiming that the HYSY 981 was within China’s contiguous zone. This new claim, however, lacks legal foundation.
According to UNCLOS the sole purpose of the contiguous zone is to enable a coastal state to “exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.”
China has also attempted to obfuscate its dispute with Vietnam by advancing the argument that the location of HYSY 981 is closer to the Paracel Islands than to the Vietnamese coastline. China’s position paper argues, for example, that HYSY 981 was operating 17 nautical miles from both Triton islet and the baselines drawn around the Paracels and 133 to 156 nautical miles from Vietnam’s coastline.
At the same time, China claims sovereignty over Scarborough Shoal, which is located closer to the Philippines than to the nearest Chinese land feature. Under international law, mere proximity is not sufficient to demonstrate sovereignty.
China’s position paper to the UN actually undermines its use of legal warfare to advance its case. For example, China’s position paper states:
The waters between China’s Xisha (Paracel) Islands and the coast of Vietnamese mainland are yet to be delimited. The two sides have not yet conducted delimitation of the Exclusive Economic Zone (EEZ) and continental shelf in these waters. Both sides are entitled to claim EEZ and continental shelf in accordance with the UNCLOS
If this is the case, China should have followed the provisions of UNCLOS to deal with overlapping claims. Both China and Vietnam should have entered into provisional arrangements over the disputed area until agreement was reached on delimitation. During this period each side was enjoined from altering the status quo and from the threat or use of force. Clearly China’s placement of the oil rig in disputed waters violated international legal principles.
But China’s position paper undermines its legal case by arguing that international law is irrelevant. The position paper states:
However, these waters will never become Vietnam’s EEZ and continental shelf no matter which principle (on international law) is applied in the delimitation.
China’s Ambassador to Australia, Ma Zhaozu, contributed to Beijing’s information warfare campaign by repeating the same argument in an op-ed article in The Australian on June 13. Ma argued that the disputed area has never been delimited and “no matter which principle [of international law] is applied these waters concerned will never become Vietnam’s part of EEZ and continental shelf.”
China’s formal tabling of a position paper with the UN Secretary General should be taken up by members of the international community that are concerned about escalating tensions between China and Vietnam and their possible impact on regional security. These states should argue that the matter be taken up by the Security Council.
China should not be permitted to pursue information warfare in order to have it both ways – circulating a position paper to the UN in order to demonstrate the serious nature of its dispute with Vietnam and rejecting UN arbitration. The United States and Australia should press for a UN Security Council debate. Japan and other maritime powers with a stake in stability in the South China Sea should join in.
China should be forced into the uncomfortable position of opposing any Security Council debate and thus scuttling its attempt to use UN for propaganda purposes, or to veto any resolution arising from a debate in the Security Council critical of China’s action in the South China Sea.