What Now for China’s ‘Historic Rights’ in the South China Sea?

 
 

Perhaps the key finding in the South China Sea arbitral award concerned “historic rights” held by China over ocean space within the nine-dash line.  The tribunal found not only that any “historic rights” China possessed over ocean space were extinguished by the UN Convention on the Law of the Sea (UNCLOS) to the extent of incompatibility, but that there was no historical evidence that China ever exercised such rights of an exclusive sovereign nature. To understand how China’s response to the award will likely play out, it is important to grasp the concept of “historic rights” and what it means to Chinese leaders.

The Philippines’ legal team used this term to describe an aspect of China’s undefined sovereign claim to the waters within the nine-dash line. Before the award was released however, China itself never used the term “historic rights” (历史性权利) for its claim in this region; China’s 1998 law on the exclusive economic zone and continental shelf does refer to “historic rights,” but without specifying their geographical location. While the term was used by academics to speculate on the content of China’s rights within the nine-dash line pending their official clarification, government statements referred only to “historical facts” (历史事实) as a basis for China’s rights.

It is worth noting then that the two official documents released by China in response to the tribunal’s decision – a statement on China’s rights in the South China Sea and a white paper on settling disputes with the Philippines – both refer to China’s “historic rights,” as distinct from those reflecting the UNCLOS system of maritime zones. One possible interpretation is that this is designed to confine the implications of China’s “historical facts” to sovereignty over the terrestrial features, which would generate entitlements to the surrounding ocean space consistent with UNCLOS.  This would be a face-saving way of trimming China’s claim over the South China Sea’s waters, which is the main source of friction with other states, to conform to the arbitral award. But on a less optimistic reading, Beijing has elevated “historic rights” to the status of a legal category, to emphasize the irrelevance of the tribunal’s findings. This would be consistent with China’s long-standing position that its rights in the South China Sea are both compatible with UNCLOS and independent of that treaty.

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This “UNCLOS plus” approach made tactical sense so long as its legality was ambiguous; it gave China a veneer of legitimacy for actions beyond what the treaty expressly permits. Yet Beijing seems determined to maintain this position despite it being declared illegal by a tribunal with clear authority to assert jurisdiction (although the reasoning can be critiqued). While a stubborn defense of historic rights may no longer be useful as “lawfare,” however, the political logic behind it has not changed.  This political context gives cause to doubt that Beijing’s claim to rights “formed in the long course of history” was just legal sophistry designed to maximize China’s entitlements, which will be quietly abandoned now that it has been exposed to the harsh light of arbitration. For China’s leaders, there are fundamental political issues at stake.

The historicity of China’s rights in the South China Sea is integral to the Communist Party’s story about its role in restoring and defending China’s sovereignty, the key expression of which is territorial integrity. While Beijing’s claim in this area has never been directly labeled a “core interest” on par with Taiwan, Tibet, and Xinjiang, it has been situated in the same historical narrative, based on re-establishing rights held “since ancient times” – not through rules of sovereign acquisition imported into Asia by Western colonial powers in the 19th century, or for that matter a maritime law treaty concluded barely three decades past.

This narrative about the link between China’s past and present is embodied in the nine-dash line, which from its origin had more political than legal significance: it represented China’s political reassertion against an international system imposed by force during the “century of humiliation.”  Not by coincidence, the nine-dash line map was produced by the same (pre-Communist) government that negotiated the end of China’s “unequal treaties” with the Western powers. From the outset, the claim’s basis was the islands’ appearance in historical records of dynastic China, not legal principles imported with the Westphalian system.

So long as the relationship between China’s “historic rights” and contemporary international law was ambiguous, Beijing could obfuscate this tension between the two normative systems. This was despite calls in Chinese media and academia for express recognition of pre-Westphalian norms – for example, arguments in legal journals that vassal states had no rights opposable to China’s. But that now seems to be changing, in response to the arbitration. Apart from the two documents noted above, an article published on July 3 in the Party journal Qiushi, authored by China’s vice minister for foreign affairs, castigates the tribunal’s lack of schooling in the “international legal order of ancient East Asia” (古代东亚国际法秩序). That this appears to foreign eyes as equivalent to Portugal claiming rights in the South China Sea based on a 15th century Papal Bull does not change the domestic political imperative.

The symbolism of these “historic rights” is so strong that it still resonates across the Taiwan Strait: Taipei not only joined Beijing’s rejection of the ruling, but made the point by sailing a warship through the area. President Tsai Ing-Wen – who is an Ivy-league educated professor of law – has since confirmed her position that Taiwan’s rights are both unaffected by the award and consistent with UNCLOS, a stance that is effectively identical to Beijing’s. The tribunal’s decision that Itu Aba is merely a rock is unlikely to cost Taiwan much in material terms; what is perceived to be at stake is the Republic of China’s sovereignty, as made clear last week from the KMT side of politics by former president Ma Ying-jeou.

For Beijing, there is an also a dimension of international politics at play. China’s leaders do not view the award as a matter of observing common rules, because they do not see the international system as rules-based to start with: they see it as anarchic, and rigged in favor of the Western powers as well as those states aligned with them. Those same powers are seen as constantly trying to undermine China’s ideological and territorial integrity. From this viewpoint, it is not hard to perceive the arbitration as a U.S.-conceived and Japanese-enabled conspiracy to hobble China’s rise and compromise the Party’s legitimacy.

Evidence has been mounting of renewed commitment by the Party to both extirpate foreign modes of thought within China’s borders and to contest ideological dominance on the global stage. U.S. commitment to the award as binding simply opens up a new front in this normative war. Similar to Beijing’s promotion of a Sinocentric “One Belt, One Road” and a “new Asian security concept,” asserting China’s claims over those of a tribunal backed by its rivals is shaping the international discursive playing field. To show that China’s narrative of legitimacy prevails will undermine Western “discourse hegemony,” just as the artificial islands undermine the U.S.-led military siege line that Beijing perceives all along its maritime frontier.

Unsurprisingly then, Chinese actions over the last fortnight seem to vindicate predictions that a tough award would empower hardline voices within China at the expense of moderates. Several observers noted that for the past year, China’s foreign ministry had been positioning itself to trim China’s claim into a form more acceptable to other states (for example, non-exclusive fishing rights). This reflects a large body of work by Chinese academics and think tanks promoting alternatives to maximalist interpretations of the nine-dash line. The bottom line carefully observed by all such proposals was that China’s rights had to be recognized as deriving from sovereignty based on the historical record, and not solely from UNCLOS.

Since the award’s rejection of such “historic rights,” however, the signals from China have all been against compromise. On July 18, the PLA Daily published an article, written at the Central Party School, that elaborates the content of China’s rights within the nine-dash line. It cites “historic rights” as the basis for claiming ocean space between the South China Sea archipelagos as China’s internal waters, and for asserting traditional fishing rights throughout other countries’ exclusive economic zones, contradicting the tribunal’s decision on both points. On the same day the PLA Navy chief told his U.S. counterpart that China will not stop construction activity on its occupied features, presumably including Mischief Reef, which the tribunal ruled belongs to Philippines jurisdiction. And China’s foreign minister has told his counterpart from Manila that the precondition for future bilateral talks is disregard for the tribunal’s decision, although pragmatism may water down such a hardline stance.

The tribunal averred that “the root of the disputes [lies in] different understandings of… respective rights under the Convention,” which now that those rights have been clarified can be resolved in good faith. This may have been well-intentioned, but it likely misreads how Chinese leaders view the matter. For them, China’s rights in the South China Sea involve basic questions of political order that trump the legal system within which the tribunal operates. Instead of resolving the issue of China’s “historic rights,” the award may unfortunately have increased the prospect of them vexing the region for years to come.

John Lee is a visiting Academic Fellow at the Mercator Institute for China Studies (MERICS) in Berlin.  

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