The Asia-Pacific Journal | Japan Focus Volume 13 | Issue 43 | Number 2 | Article ID 4391 | Oct 26, 2015

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China, the Philippines, Vietnam, and International Arbitrationin the South China Sea

Alex Calvo

International Law, another weapon in the battle forthe South China Sea

Introduction: a moment to take stock ofthe ongoing legal battle

This summer, the Permanent Court ofArbitration (PAC) held the first oral hearings inthe case brought by the Philippines againstChina concerning the South China Sea. Beforeconsidering any substantive issues, the PAChas to decide whether it has jurisdiction toissue a ruling.1 Earlier, the closing weeks of2014 had seen three significant developments,with Hanoi making a submission to the PAC,Beijing publishing a position paper (while notsubmitting it to the Court), and the UnitedStates issuing a position paper of its own. Wecan also mention the continued interest in theSouth China Sea by other countries, includingIndia and Russia. Taken together, it means thatthe time may have arrived to take stock of thearbitration case, updating our previous summerof 2013 piece Manila, Beijing, and UNCLOS: ATest Case?". 2 At stake is not only thisarbitration case, or even the entire South ChinaSea, but the role of international law in

contributing to peaceful solutions to territorialconflicts, specifically whether it can helpaccommodate changes in relative powerwithout recourse to military conflict.

Beyond the Philippines and China:Vietnam Makes a Move

After constant speculation on whether Vietnamwould join forces with the Philippines and seekan international ruling on the South China Sea,Hanoi finally decided to make a submission3 tothe Permanent Court of Arbitration (PAC)without joining Manila as a co-plaintiff.4 In itssubmission, Vietnam asked the PAC to assertits jurisdiction, give due regard to thecountry's rights and interests in the Spratlysand Paracels, as well as in her EEZ andcontinental shelf, and declare China's nine-dashline without legal basis. Hanoi's submissioncould be seen as a response to Beijing'sposition paper5 of 7 December 2014, spellingout the Chinese position, but not submitting itto the PAC in the Hague concerning Manila'srequest for arbitration under UNCLOS (theUnited Nations Convention on the Law of theSea).6 At the time of writing, the court is stillconsidering whether it has the authority to ruleon the case. A third relevant development inthe last days of 2014 was a study7 by the USState Department, released on 5 December.Once again, it is clear that the legal battlelaunched by Manila is being closely followed byall the capitals concerned. In October 2015 USAssistant Secretary of State for East Asian andPacific Affairs Daniel Russel said that shouldthe PAC rule it had jurisdiction, both thePhilippines and China should abide by itsdecision, adding that this was what the United

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States and the international communityexpected.8

Manila sent a top level delegation to the oralhearings on jurisdiction this summer, which included(clockwise from top left) Senate President FranklinDrilon, Senior Associate Justice Antonio Carpio,House Speaker Feliciano Belmonte Jr., ForeignAffairs Secretary Albert Del Rosario, JusticeSecretary Leila De Lima, and former AFP Chief ofStaff Manny BautistaView of the Philippines' delegation at the PeacePalace, in The Hague (the Netherlands)

From day one, China has rejected thePhilippines' resort to international arbitration,arguing that the country had opted out ofcompulsory arbitration on sovereignty issuesand that the suit violates bilateral agreementsto solve disputes by negotiation. These wereamong the main arguments in Beijing'sstatement laying down its position, a paperwhose release some observers believe indicatesthat China cannot ignore international legal

proceedings despite the fact that it has notbeen submitted to the PAC. The reaction toChina's paper was not l imited to thePhilippines; it also seems to have finallyprompted Hanoi's decision to join the battle onits own terms. On 11 December 2014,Vietnamese Foreign Ministry Spokesman LeHai Binh made the following remarks9 inanswer to questions from the press:

Once again, Viet Nam reiteratesthat Viet Nam has full historicalevidence and legal foundation toreaffirm its sovereignty over theHoang Sa [Paracel Islands] andTruong Sa [Sprat ly Is lands]archipelagoes, as well as otherlegal rights and interests of VietNam in the East Sea [Bin ng]. Itis Vietnam's consistent position tofully reject Chinas claim over theH o a n g S a a n d T r u o n g S aarchipelagoes and the adjacentwaters, as well as China's claimingof 'historic rights' to the waters,sea-bed and subsoil within the'dotted line' unilaterally stated byChina. The spokesman alsoconfirmed that Hanoi hadexpressed its position to theTribunal regarding this case, andrequested the Tribunal to pay dueattention to the legal rights andinterests of Viet Nam.

It should be noted that Hanoi did not joinManila as co-plaintiff in the case, choosinginstead simply to lodge a statement with thePermanent Court of Arbitration. Someobservers took this as indicative of a desire notto alienate Beijing,10 while at the same timedefending the countrys position. Furthermore,an un-named regional source told the SouthChina Morning Post11 that Vietnam's action isas much to protect Vietnamese interests vis--vis the Philippines as it is directed against

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China, with another adding that There isreportedly no consensus in the VietnamesePolitburo on this subject. This is probably as faras the Politburo is prepared to go. The sameHK newspaper also quoted Rodman Bundy, alawyer who believes that Hanoi's statementshould be ignored by the tribunal given thatVietnam has no standing in the arbitration,adding that the move was a cat-and-mousegame going on outside the strict procedure ofthe arbitration. Australian Professor CarlyleThayer also spoke to theSouth China MorningPost, saying that Vietnam's move was a way forthe country to put forward her interests, addingthat this amounted to a cheap way of gettinginto the back door without joining thePhilippines' case. Gregory Poling, South EastAsia analyst at Washington-based think tankCenter for Strategic and International Studies,believes that Vietnam's statement had the samegoal as the Chinese position, namely toensure that the justices hearing the caseconsider the arguments contained in thedocument, but do so in a way that is lessprovocative than Vietnam actually joining.12

On 12 December 2014 Foreign MinistrySpokesperson Hong Lei responded to a mediaquestion on Hanoi's move. After repeatingBeijing's mantra about China's indisputablesovereignty over the Nansha Islands and theiradjacent waters and the indisputable factthat the Xisha Islands are an integral part ofChina's territory, he said that China will byno means accept Vietnam's illegal and invalidsovereignty claims over Nansha and XishaIslands. Hong called on Hanoi to work withChina to resolve relevant disputes over theNansha Islands through consultation on thebasis of respecting historical facts andinternational law so as to jointly safeguardpeace and stability in the South China Sea,insisting that Beijing would not take part in thearbitration proceedings for reasons previouslyexplained in detail in the 7 December positionpaper, and that Chinas position will notchange.13

Hanoi's decision to address the PAC may havebeen a compromise outcome directed not justat Beijing but also at Manila. The decision tookplace in parallel with high-level meetings withChina and others in the South China Sea.Perhaps a good starting point to look at thesecontacts would be the trip to Beijing in Augustlast year by Le Hong Anh, a special envoy ofthe Secretary General of the VietnamCommunist Party (VCP). As Carl Thayer notes,this marked an important inflection point inSino-Vietnamese relations following the HD981 oil rig crisis of the preceding threemonths.14 Anh met Xi Jinping, Liu Yunshan(secretary of the CCP Central Committee and amember of the Politburo Standing Committee),and Wang Jiarui (vice chairman of the NationalCommittee of the Chinese Peoples PoliticalConsultative Conference). These meetings ledto more concrete agreements, and in particularin the words of Vietnams Foreign AffairsMinistry three important points, namelyenhanced bilateral ties between parties andstates, boosting sound and stabilised relationsbetween the two countries, promotingbilateral visits, and working to restore andenhance bilateral relations in all fields and toseriously implement the agreement on thebasic principles guiding the settlement of searelated issues between Viet Nam and China; toeffectively implement government-levelnegotiations on Viet Nam-China borders andterritory; to seek basic and long-term solutionsacceptable to both sides; to effectively controlsea disputes and not act to complicate orexpand disputes; to maintain peace andstability in the East Sea; and to maintainoveral l Viet Nam-China relat ions. 1 5

Furthermore, the meetings led to theresumption of bilateral contacts, high-levelvisits and a meeting of government leaders. Inaddition to the 16-18 October Vietnamesesenior military delegations trip to China,discussed below, State Councilor Yang Jiechitraveled to Hanoi to co-host the 7th JointSteering Committee meeting on October 27plus the 10 November meeting, on the

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sidelines of the APEC Summit in Beijing,between Chinese President Xi Jinping and hisVietnamese counterpart.16

In December 2014, the first visit to Vietnam bya leading Chinese official that year took place.Yu Zhengsheng (chairman of the NationalCommittee of the Chinese People's PoliticalConsultative Conference) traveled to thecountry, invited by the Communist Party ofVietnam Central Committee and the FatherlandFront of Vietnam. According to Xinhua, the tripwas designed to to further mend bilateral tiesafter recent tensions and the May 2014 anti-Chinese riots. The report stressed the commonborder, similar culture and high economiccomplementarity with China, Vietnam'slargest trade partner for nine years in a row,while Vietnam has become China's secondlargest trade partner in the Association ofSoutheast Asian Nations. The text concludedsaying that there is reason to believe that ifthe two nations, especially Vietnam, cast theireyes on improvement and development ofrelations instead of aggravating differences,benefits will not only be brought about tothemselves but also to the whole region.17 Thisis in line with many Chinese injunctions toneighbors to work together to improverelations, while not offering any concretesolution to the territorial disputes in the SouthChina Sea. Reporting on Yus meeting withVietnamese Prime Minister Nguyen Tan Dungin Hanoi on 26 December, Xinhua chose theheadline China, Vietnam agree to properlysettle maritime disputes.18 Here the wordproperly may perhaps be a thinly-disguisedcriticism of international arbitration and otherdispute resolution mechanisms not to Beijing'sliking. Yu described the maritime issue ashighly complicated and sensitive, whichrequires negotiations to manage and controldifferences, adding Megaphone diplomacycan only trigger volatility of public opinion,which should be avoided by both sides. 19

Commenting on the succession of high-level

meetings, last year, and in particular thesuccession of two joint Steering Committee forBilateral Relations meetings just a few monthsapart (in June and October), Thayer pointed outthat this was an indication that China's topleaders are willing to engage with Vietnam toreset their bilateral relations, which wereseverely strained by the oil rig crisis.20 Aftersome rumors, 2 1 i t was confirmed thatVietnamese Communist Party leader NguyenPhu Trong would be visiting China in earlyApril.22

At a lower level, but providing opportunities fordiscussion, was the 65 anniversary of Sino-Vietnamese diplomatic relations in January,23

where both countries' friendship associationheads stressed their wish for closer relations,chairman of the Viet Nam Union of FriendshipAssociations Vu Xuan Hong saying it'snecessary to have more friendly exchangesbetween Vietnam and China to improve trustand narrow differences. Lets work for moreappropriate cooperative measures for mutualbenefit and implement an action program forthe Vietnam-China strategic partnership.24

In addition, Vietnam and China regularly holdbilateral cooperation meetings on a number ofissues, including the fight against drugtrafficking.2526.27

In the military sphere, the last days of 2014brought news that the Chinese andVietnamese navies will continue their jointpatrol in the Beibu Gulf in 2015 to safeguard itssecurity and stability.28 Earlier in October2014, following an unexpected three-day visitto Beij ing by a 13-member high-levelVietnamese military delegation from October16-18, led by Minister of National DefenseGeneral Phung Quang Thanh the two DefenseMinistries agreed to set up a direct hot line.According to Thayer, This is an indication thatboth sides realized how quickly an incidentcould spiral out of control and lead to deadlyforce. He also noted that From Vietnams

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point of view, it was important to demonstratedomestic political unity by bringing such alarge delegation to Beijing, 2.29

In short, both China and Vietnam have engagedin major efforts to prevent tensions fromgetting out of hand. Yet no progress is apparentin the ultimate factor fanning the flames, that isthe maritime territorial dispute between thetwo countries. Some observers have noted thatHanoi may be split on how to deal with China,and more generally the direction of thecountrys foreign policy and military alliances.While this seems to be the case, we should becareful not to confuse disputes on how tomanage a complex set of relations in search forbalance and a maximization of national power,with disputes over ultimate goals. It is morelikely that Vietnamese leaders are split on howto deal with China, and other countries such asRussia, the US, and India, rather than on theultimate goal of embracing a wide range ofalliances in order to prevent falling prey to abigger neighbor. This is a traditional pillar ofthe country's foreign policy, hence Vietnamseeks to develop bilateral relations with a widerange of actors, playing one off against theother when necessary, including China andIndia.30 Stephen Blank notes that Vietnam notonly enjoys strong U.S., Russian, and Indiandiplomatic and military support, it is buyingweapons from Russia, Sweden, and Israel,among others.31 To this we must add activeparticipation in a large number of internationalorganizations. At a conference in August, PrimeMinister Dung described the country's foreignpolicy as resting on independence, self-reliance, multilateralism, diversification, andinternational integration.32

In addition to the already noted lack ofsubstance in many Sino-Vietnamesestatements, it is not clear to what extent eitherside has margin for compromise. Many voicesin both China and Vietnam stand ready tocriticize their respective governments for anyperceived softening and betrayal of the national

interest. For example, in August 2014, in thewake of the announcement of a trip to China byPolitburo member Le Hong Anh, Nguyen TrongVinh (former Vietnamese ambassador to China)said China will never compromise. Theirremoval of the oil rig was only temporary. Theywill never abandon their wicked ambitions oftaking a monopoly over the East Sea, whileNguyen Quang A (an economist opposed to thegovernment) said he welcomed the talks butwas concerned that Beijing might be trying topersuade Hanoi to drop its threat of takinginternational legal action against China'sterritorial claims.33 Vietnamese dissentersoften attack Hanoi for the alleged failure tostand up to Beijing, while not a few Chinesenetizens voice strong criticisms on foreignpolicy. There seems to be a recognition inleadership circles on both sides that domesticpublic opinion, if unchecked, may provedestabilizing, restricting room for maneuver. Asfreelance journalist Roberto Tofani noted in2013 Beijing and Hanoi must now also facerising nationalism among their citizens,including periodic anti-China street protests inVietnam and widespread anti-Vietnam rhetoricon Chinese citizens' private blogs andFacebook pages related to the South China Seadisputes.34

In support of Vietnamese claims in the SouthChina Sea, Hanoi has often employed Frenchmaps and French documentation to emphasizecontinuity of territorial boundaries from thecolonial to the post-colonial era. Vietnameseobservers have stressed the need to examinehistorical evidence, in a wide sense of the term,to counter similar efforts by Beijing, in a viewalso supported by some experts in othercountries. For example, following Bill Hayton'sThe Paracels: Historical evidence must beexamined and subsequent response by LiDexia and Tan Keng Tat (South China Seadisputes: China has evidence of historicalclaims)35, Vietnam's Nguyen Hong Thao wrotein support of Hayton, arguing that Chineseevidences should not be accepted without

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debating and examining, and defending theview that Song Dynasty maps unanimouslydescribed Hainan island as the Southernterminus of China.36

Nguyen Hong Thao refers to the 13thcenturySong Dynasty Chinese book Chu Fan Chi / ZhuFan Zhi (Notes for Foreigners or Records ofForeign Peoples) by Chao Ju-kuo (Zhao Ju Guo).He rejects Chinese claims that the book provesthat the Paracels were part of Chinas territoryat the time, noting that Chu Fan Chi wasabout vassal kingdoms or barbarous tribes Consequently, it is obvious that the landsrecorded in this book were not Chinese. Whilethe original text of the book has been lost,some commentators, writing in other contexts,such as Chinas contacts with Africa, havenoted that it addressed what were consideredforeign lands.37

Like their Chinese counterparts, Vietnameseauthors use public displays of maps anddocuments as another weapon in this struggle.For example in September 2015 one suchexhibition took place in Da Lat city, with thegoal of proving Vietnamese sovereignty overthe Hoang Sa (Paracel) and Truong Sa (Spratly)archipelagos and featuring UNESCO-recognized woodblocks from the NguyenDynasty, bibliographies and atlas collectionspublished by many countries in different times,notably an atlas issued by Chinas Qing dynastyin 1906 and subsequently used by the Republicof China, as well as documents from differentVietnamese dynasties, the Republic of Vietnam,the Socialist Republic of Vietnam, and Westerncountries.38

Vietnam relies on two kinds of Westernsources. On the one hand, records ofmissionaries and traders, and, as noted, onofficial documents from the French colonialadministration and other powers.

Duy Chien, in a 2014 article draws on thewrit ings of foreign missionaries and

navigators.39 For example, a French missionarytraveling to China onboard the ship Amphitritewrote in a 1701 diary: Paracel is anarchipelago belonging to the Kingdom ofAnnam. Its a terrible submerged reef,stretching hundreds of miles.40 More directlyrelated to sovereignty, or at least tosovereignty claims, are Notes on thegeography of Southern Vietnam, by PriestJean-Louis Taberd (former apostolic vicar ofCochinchina from 1824 to his death in 184041

and interpreter of King Gia Long). Published in1837, the Notes describe the 1816 flag-raisingceremony on the Paracels by King Gia Long:Paracel or Hoang Sa islands is an areacrisscrossed by small islands, reefs and sand,seems to be extended to 110 North latitude andaround 1070 longitude... Although this is anarchipelago covered by nothing else but islandsand reefs, and the depth of the sea promises[more] inconveniences than advantages, KingGia Long still thought that he had the right toexpand his territory by that pathetic merger. In1816, the King held a solemn flag hoistingceremony and formally took possession of thereefs, with a certain belief that no one wouldstruggle with him... J.B. Chaigneau alsomentions the 1816 ceremony.42

The Nguyen Dynasty's exercise of tax powersover foreign ships passing through the HoangSa (Paracels) area is perhaps among thestrongest pieces of historical evidence that theVietnamese advance, reinforced by the fact thatit was recorded in non-Vietnamese sources.Thus Gutzlaff , a member of the RoyalGeographic Society of London, in 1849 wrote inthe Society's Journal that Katvang lies 15 - 20nautical miles from Annam coast and spreadson 15 - 17 degrees north latitude, 111 - 113longitude, then the King of Annam claimsownership of these islands, including rocks andreefs dangerous to marine navigation... Annamgovernment benefits from setting up a patrolboat and a small garrison to collect taxes andprotect fishermen operating in their water.This source is interesting because Gutzlaff

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acknowledges both a long-standing presence byChinese fishermen in the area, as often insistedon by Beijing, and the exercise of state powerby the Vietnamese in the region: From timeimmemorial, junks coming largely from Hainanhave annually visited all these shoals, andproceeded in their excursions as far as thecoast of Borneo. .

The white paper published by the Republic ofVietnam in 1975 insisted on the actionsdescribed in French sources,43and the SocialistRepublic of Vietnam has followed the same line.Furthermore, Hanoi has been keen toemphasize that French domination overIndochina not only did not interrupt theexercise of sovereign powers but actuallyreinforced it, since the new authorities keptexercising sovereign rights After France andVietnam had signed the Protectorate Treatiesof March 15, 1874 and June 6, 1884, includingbuilding and operating lighthouses andmeteorological stations, establishingadministrative delegations responsible for thearchipelago attached to Thua Thien Province(Annam), and granting birth certificates toVietnamese citizens born in the archipelago.France went as far as requesting that Chinasolve the dispute by international arbitration(French Note Verbale dated February 18, 1937addressed to China), but the proposal wasrefused. Paris also protested in 1947 after theRepublic of China occupied the year before PhuLam (Woody) Island, in the Paracels, andalthough a request for negotiations and third-party adjudication was refused, ROC forceslater withdrew.44. Having said this, someVietnamese accounts of the colonial yearscomplain that French authorities were toopassive in light of Chinese, and later Japanese,attempts to encroach on islands considered tobe Vietnamese, and explain how it was onlyafter such attitude was denounced in the pressthat they firmed it up. From 1931 to 1933journalist Cucherousset published sevenarticles in Lveil conomique de LIndochine(issues 685, 688, 743, 744, 746, 777 and 790)

criticizing Governor Pasquier for his feebledefense of sovereignty over Hoang Sa. Hewrote Annams sovereignty over the ParacelIslands is undeniable, while asking thegovernor Which obstacles have preventedAnnam from claiming sovereignty over theParacel Islands, which they have owned forhundreds of years? Do we have to wait until theJapanese exploit the last tons of phosphate? Oris it true that the Japanese have paid areasonable commission?. Many othernewspapers, both in metropolitan France andIndochina (the latter in both French andVietnamese), regularly reported on thedisputed islands, listing the grounds to opposeChinese and Japanese designs.45

Vietnam's South China Sea narrative also relieson international treaties signed by Paris, suchas the 1887 Conventionon the land border,signed by France and theQing dynasty, andaccording to which islands located east of a redline (described on a map attached to the treaty)belonged to China. Duy Chien argues that Thisred line described on the map attached to theConvention was only 5 kilometers long,compatible with the width of the territorialwaters of 3 nautical miles at that time, andfunctioned to demarcate the onshore islandswithin Tonkin Gulf. If following the [Chinese]authors interpretation, this line could beextended boundlessly, crossing the Tonkin Gulf,and not only Paracels and Spratlys but alsoHue, Da Nang and even all the islands alongthe Central Coast of Vietnam or Con Daoisland, also belonged to China consequently. 46

Concerning the 1943 Cairo Declaration,Vietnam's position is that it did not imply anytransfer of disputed islands or other features inthe South China Sea to China, stressing thatno mention was made of Truong Sa (SpratlyIslands) and Hoang Sa (Paracel Islands) andthat the Republic of China a party to theConference ...did not have any reserve or anystatement of i ts own on the restoredterritories. 4 7

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As is clear in a recent documentary by Ho ChiMinh City TV, Vietnam sees the East Sea,including the recovery of lost islands andfeatures, as a matter of vital space (khnggian sinh tn) and struggle for existence(tranh u sinh tn), expressions that appearoften in the script. Commenting on thedocumentary, Franois Guillemot notes thatthe documentary film prioritizes the history ofthe Paracels (Hoang Sa), the Vietnamese isletslost in 1974, while people are aware that Chinahad effective control of that territory after thatdate, concluding that Vietnam has put its'struggle for existence' in a long-termperspective, which, in the past, has shown acertain efficacy.48

The Malaysian angle: Manila tempts KualaLumpur with a downgrade of its Sabahclaims

Another Filipino move connected to theinternational arbitration case is the offer toMalaysia, in a Note Verbale, to review itsprotest against the 6 May 2009 jointVietnamese-Malaysian submission to the UNCommission on the Limits of the ContinentalShelf (CLCS), containing a claim by KualaLumpur of an extended continental shelf (350nautical miles from the baselines) projectedfrom Sabah. In exchange for this, Manila isrequesting two actions that it believes wouldreinforce her case against China: First, toconfirm that the Malay claim of an extendedcontinental shelf is entirely from the mainlandcoast of Malaysia, and not from any of themaritime features in the Spratly islands.Second, to confirm that Malaysia does notclaim entitlement to maritime areas beyond 12nautical miles from any of the maritimefeatures in the Spratly islands it claims.According to former Philippine permanentrepresentative to the United Nations LauroBaja Jr., if Malaysia accepts the deal, thePh i l ipp ines ' c la im to Sabah wi l l beprejudiced, adding We are in effectwithdrawing our objection to Malaysias claim

of ownership to Sabah.49

Manila's proposal is important for severalreasons. First, because it illustrates how thePhilippines is trying to involve as manycountries as possible in its attempt to have the9-dash line declared to be incompatible withinternational law. Second, because in so doingit is ready to compromise one of their ownterritorial claims, thus showing they are awarethat they may have to sacrifice some of theirlong-standing policies in order to arrest whatthey consider to be the main threat to theirterritorial integrity. Third, given Malaysia'sreluctance to follow the road suggested by thePhilippines, this confirms the fact that SouthChina Sea coastal states remain reluctant toopenly coordinate to oppose Chinese claims.Finally, by appearing ready to drop or at leastdowngrade claims to Sabah, Manila is showingthat it is more confident in UNCLOS than inhistorical claims when it comes to defending itsterritorial claims over the Spratlys. The reasonis that, while Manila's claims are understood tobe grounded in post-WWII developments, analternative route for the Philippines would beto say that the features involved used to be partof the Sultanate of Sulu even before theSpanish conquest, a route which would demandthat Manila not only retains but reinforces theclaim to Sabah.

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LNG flows, one of the many reasons why the SouthChina Sea is widely considered to be strategic

Rearmament and widening alliances: thebackground to Manila's arbitration bid.

Manila's legal bid to cut short Chinas maritimeexpansion is part of a wider strategy involvingrearmament (among others, purchasing FA-50light fighters from South Korea)50 and closerdefense links with the US and regional powerslike Japan and Vietnam. In the case of relationswith Washington, the impact of rising tensionsin the South China Sea is twofold andseemingly to some extent contradictory. On theone hand, the Philippines and the United Stateshave grown tighter, while on the other Manilahas diversified and widened her alliances, nolonger relying almost exclusively onWashington. A l though th is para l le lreinforcement and diversification may not bewithout its contradictions in the future, for thetime being it seems to be fitting reasonablywell with the US dual Pacific policy ofreengagement and increasing reliance onregional allies for military support. We couldalso note that the need to upgrade externaldefense and invest more in the air force andthe navy may have provided Manila with anadditional reason to be flexible in continuingthe long and difficult path toward a peacefulsettlement with Muslim rebels in the country'ssouth. While there are many other reasons towish the peace process in Mindanao toconclude successfully, friction in the SouthChina Sea is clearly one, and this has not beenlost on regional allies like Japan, which retainsa discrete but clear interest in developments inthe island.

Similarly, Hanois decision to join theinternational arbitration case should not beseen in isolation, but rather as part of a multi-faceted strategy which like Manila's alsoinvolves rearming and developing closer ties toother countries, including Japan (which isproviding patrol boats to her coastguard), India

(a key partner in developing offshore oil andalso a patrol boat supplier),51 Russia (essentialweapons supplier and energy industry partner),and the United States (whose Pacific Fleetcommander visited Vietnam in December2014).52

Concerning bilateral relations between Vietnamand the Philippines, their respective territorialclaims are to some extent overlapping, hencethe two countries are not completely at one.However, there is some evidence for tighterlinks, not least of which the port visit inNovember 2014 by two Russian-builtVietnamese frigates to Manila, the countrysfirst ever.53 The 29-30 January 2015 trip to thePhilippines by Viet Nams Deputy PrimeMinister and Minister for Foreign Affairs PhamBinh Minh inaugurated discussions towardsthe establishment of a Strategic Partnershipand its elements with a view to elevating thelevel and intensity of bilateral exchangesbetween the two countries. According to thePhilippines' Government, concerning the SouthChina Sea, Minh and Secretary of ForeignAffairs Albert F. del Rosario agreed thatconcerned Parties should adhere to the ASEAN-China Declaration of Conduct of Parties in theSouth China Sea (DOC) and soon conclude aCode of Conduct (COC) and reaffirmed theircommitments to a peaceful resolution ofdisputes in the SCS in accordance withinternational law and the 1982 United NationsC o n v e n t i o n o n t h e L a w o f t h e S e a(UNCLOS).54 Commenting on this trip, CarlThayer wrote that it was likely that a formalstrategic partnership agreement could bereached this year, adding that negotiationsconstitute a determined diplomatic effort toshore up Vietnam's relations with fellowmembers of the Association of Southeast AsianNations (ASEAN), and underlining thatGrowing Chinese assertiveness in the SouthChina Sea in recent years has led to a growingconvergence of strategic interests betweenManila and Hanoi. Concerning the meaning ofthe term strategic partnership agreement, he

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cautions that Both sides, however, want tobroaden cooperation in order to avoid theappearance that the strategic partnership is amilitary pact by another name, adding thatexisting trade and investment links are weak.55

In more concrete terms, he mentions thatVietnam could seek to leverage off therecent ly inaugurated U.S. Poseidonsurveillance flights from the Philippines, forexample.56 As noted by Del Rosario, this wouldbe the third such agreement for Manila,following similar deals with Tokyo andWashington.

There are many obstacles to meaningfulcooperation between the Philippines andVietnam, going beyond generic statements ofsupport for the rule of law at sea. They includepoor interoperability and a weak record of pastmilitary cooperation. However, there is agrowing realization in both Hanoi and Manilathat closer links may allow them to reinforcethe credibility of their defense posture, andmore widely, their diplomatic stanceconcerning the South China Sea. ASEAN mayseem the perfect forum for this closercooperation to take place at the political level,while better interoperability would demand theregular holding of drills and exchanges,bilaterally or within a wider frameworkprobably including the United States andJapan. This regional cooperation could perhapstake the place of joint air patrols.57 In order toavoid being seen as squarely confrontingChina, such joint air patrols may focus onsearch and rescue, and environmentalmonitoring. The interoperability and jointoperational experience gained, however, couldthen be applied to other scenarios.

Beijing puts forward its own views of theconflict

Post-Mao China has followed a somewhatcontradictory approach to international law. Toa large extent, this mirrors the country'scomplex domestic relationship with the concept

of the rule of law. On the one hand, China'sreopening of her law schools after the CulturalRevolution and huge expansion of the legalprofession and the practical, day to day,presence of the law, has led to a similar movein the international arena. However, thisgreatly expanded role of the law bothdomestically and internationally has beenaccompanied, in the internal domain, by apersistent rejection of the concept of rule oflaw, authorities rather leaning towards ruleby law. In Chinese foreign relations,international law has had to contend with twoobstacles. First, there is a mistrust ofinternational tribunals, and the fear that theymay impinge on Chinese sovereignty.Moreover, the South China Sea has beendefined as a core national interest58, althoughthe exact meaning of this term may not becompletely clear .59 Second, with the notionthat public international law is a creature of theWestern nations and thus inextricably linked toa historical period of foreign domination thatonly began to be reversed after the 1949Communist victory.60 This applies particularlyto the law of the sea, seen as unfairlyconstraining the legitimate aspirations of anation that has grown increasingly dependenton maritime trade and which feels surroundedby a chain of islands in hostile hands.

Throughout the international arbitration saga,China has repeatedly proclaimed that it wouldnot accept the court's jurisdiction. However,China has finally deemed it necessary to issue aformal document stating her posture. Some seethis as a simple restatement of China's position,confirming that it will not take part in theproceedings. Others see it as a small victory forthe Philippines and international arbitration,since China has not been able to staycompletely aloof from the case. Regardless, it isusefull to examine the document,61 dated 7December 2014, some of whose main points aresummarized here, noting in brackets theparagraph quoted or commented on. A moredetailed analysis of Beijing's response can be

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found in Appendix I to this paper.

The paper opens making it clear that issuing itis not equivalent to taking part in the arbitralproceedings, and then lists (Paragraph 3) itsmain purposes, each covered in one section,numbered from II to V.

These goals are first of all (Section II,Paragraphs 4-29) to stress that the caseconcerns the territorial sovereignty overseveral maritime features in the South ChinaSea, which, contrary to Filipino assertions, isbeyond the scope of the Convention and doesnot concern the interpretation or application ofthe Convention. Next (Section III, Paragraphs30-56), to explain that China and thePhilippines have agreed, through bilateralinstruments and the Declaration on theConduct of Parties in the South China Sea, tosettle their relevant disputes throughnegotiations and the arbitration proceedingsare thus a breach by Manila of its obligationunder international law. Third (Section IV,Paragraphs 57-75), assuming, arguendo, thatthe subject-matter of the arbitration wasinterpreting or applying UNCLOS, the paperargues that it would still be an integral part ofmaritime delimitation thus falling squarelywithin China's derogation from compulsoryarbitration. Fourth (Section V, Paragraphs76-85), the text underlines that, in Beijing'sview, the Arbitral Tribunal manifestly has nojurisdiction over the present arbitration anddefends the view that China's refusal to takepart in the proceedings stands on solid groundin international law.

In Section II, the document (5) sums up thedifferent Filipino constitutional and legalprovisions defining her national territory,including references to all the territory cededto the United States by the Treaty of Parisconcluded between the United States andSpain in Article 1 of the 1935 Constitution.This is interesting because it implicitlycontradicts Washington's claim to take no sides

in territorial disputes in the South China Sea,stressing only peaceful resolution inaccordance with international law. The problemwith this posture, in the case of the Philippines,is that, given that they were under Americansovereignty, by saying it does not take anyposition on sovereignty the US is saying that itdoes not know the extent of its past territory.Therefore, we might ask what Beijing'smotivation in bringing up such treaties may be.At first glance it would seem better for China ifthe US sticks to this policy of not commentingon territorial claims themselves. On the otherhand, however, Beijing may perhaps hope toprompt Washington to publicly comment on thematter in a way that may be detrimental toManila, that is by stating that certain featuresclaimed by the Philippines were not under USsovereignty in the past.

Taiwan and the One-China Principle are notabsent from China's document either, the text(22) accusing Manila of committing a graveviolation of the principle for omitting TaipingDao (Island) from the list of maritimefeatures described as occupied or controlledby China. Instead, the text describes it asbeing currently controlled by the Taiwanauthorities of China. A reminder that theconflict over the South China Sea is connectedwith that over Taiwan, in a number of ways. Wemay ask ourselves whether Manila wasdeparting here from her One-China Policy.Was this a warning shot, or merely anotherexample of how state practice concerningTaiwan is moving (sometimes inadvertently)away from Beijing's strict position in manycountries.62

Section 28 stresses that China always respectsthe freedom of navigation and overflightenjoyed by all States in the South China Sea inaccordance with international law. While thisis in line with repeated assertions by Chineseauthorities, it prompts further doubts on theexact nature of Beijing's claims, for if all Chinawas demanding was an EEZ then freedom of

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navigation and overflight would simply flowfrom international law, without the need forany concession by the coastal state. The issueis made more complex by the fact that inBeijing's view the rights of coastal states aremore extensive than in the eyes of countriessuch as the United States, going as far asincluding the right to authorize or deny militaryactivities such as electronic intelligencegathering, which has been the source of anumber of incidents, some of them fatal. Thus,if what China is claiming is an EEZ, is Beijingmaking a concession and accepting a lesser setof coastal state rights in the particular case ofthe South China Sea? Alternatively, should weread freedom of navigation and overflight asbeing restricted to civilian ships and planes, orat least not including any activities such asELINT (electronic intelligence) gathering thatmight be prejudicial to the coastal state? Otherquestions may be prompted by China'sassertion. For example, does this also apply toterritorial waters around Chinese islands in theSouth China Sea? A question made morecomplex by the fact that there is no agreementover which islands are legally recognized asislands given the extensive reclamation worktaking place.

In Section III Beijing provides a long list ofbilateral agreements and statements, andASEAN documents, stipulating commitments tosettle disputes by negotiation and agreement,in order to prove Manila is therefore debarredfrom unilaterally initiating compulsoryarbitration. With regard to the absence of anexplicit exclusion of third-party settlement,which as pointed out the text acknowledges,China cites the Southern Bluefin Tuna Case,63

where the arbitration tribunal stated that theabsence of an express exclusion of anyprocedure ... is not decisive, that is the factthat a treaty commits parties to negotiaterather than resort to other, non-consensual,dispute settlement techniques prevents thelatter from coming into play, without the needto specifically list all the possibilities. In that

case, the applicable treaty required the partiesto consult among themselves with a view tohaving the dispute resolved by negotiation,inquiry, mediation, conciliation, arbitration,judicial settlement or other peaceful means oftheir own choice, and the ICJ determined thatThat express obligation equally imports, in theTribunal's view, that the intent of Article 16 isto remove proceedings under that Article fromthe reach of the compulsory procedures ofsection 2 of Part XV of UNCLOS, that is, toexclude the application to a specific dispute ofany procedure of dispute resolution that is notaccepted by all parties to the dispute. ForChina, bilateral agreements and statementswith the Philippines and the DOC are notseparate realities, but (39) mutually reinforceand form an agreement between China andthe Philippines, giving rise to a mutualobligation to settle their relevant disputesthrough negotiations. Beijing is very keen toinsist not only that it prefers bilateral (asopposed to multilateral, or arbitration)dealings, but that Manila has agreed to this.

We can thus see how the document, despitestressing that it is not a formal reply,systematically rejects all of Manila'sarguments, while summarizing China'sposition. While China emphasizes thePhilippines' alleged commitment to deal withthe issue bilaterally, the text refers to treatiesbetween the country's former colonial masters,and touches upon the sensitive issue of Taiwan.It is a reminder of how difficult it is to keepthings bilateral in this corner of the world.

US Interpretations of China's 9-Dash Line

Despite repeatedly stating that it will not takesides in territorial disputes in East Asia,Washington remains keenly interested in theultimate fate of the South China Sea. Inaddition to perennial calls to settle disputespeaceful ly, regular reminders of theimportance of freedom of navigation, militaryaid to regional actors like the Philippines, and

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support for a more active policy by non-littoralmaritime democracies like India and Japan, theUS Department of State took a further step latelast year by issuing a document64, part of itsLimits in the Seas series. The text seeks toexplain the different ways in which one mayinterpret Chinese maritime claims in the SouthChina Sea (that the dashes are (1) lines withinwhich China claims sovereignty over theislands, along with the maritime zones thoseislands would generate under the LOSConvention; (2) national boundary lines; or (3)the limits of so-called historic maritime claimsof varying types). It concludes that thedashed-line claim does not accord with theinternational law of the sea unless Chinaclarifies that it reflects only a claim to islandswithin that line and any maritime zones. Thetext explains that it includes supportingChinese official views, without attributing toChina the views of analysis of non-governmentsources, such as legal or other Chineseacademics.65 Concerning this latter restriction,although it is of course official sources whichmay be considered to be most authoritativewhen it comes to interpreting a government'spos i t ion , we shou ld not forget thatadministrations in different countries will oftenresort to two-track diplomacy or employ semior non-official back channels to test the watersand lay the groundwork for future formalnegotiations.

Nine-dash map attached to China's two 2009Notes Verbales

We should note that the American policy of nottaking sides concerning the ultimate issue ofsovereignty could be challenged givenWashington's past sovereignty over thePhilippine Archipelago. While this has not beenpublicly stressed by Manila to date, it couldenter the debate as a means of putting morepressure on Washington to adopt a more robustposture.

The 7 December 2014 paper by the Departmentof Statebegins by stressing that China has notclarified through legislation, proclamation, orother official statements the legal basis ornature of its claim associated with the dashed-line map, explains the origins and evolutionof the dashed-line maps, provides a summary of

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the different maritime zones recognized andregulated by UNCLOS, and then proceeds toexp la in and d i scuss three poss ib leinterpretations of that claim and the extent towhich those interpretations are consistent withthe international law of the sea.6 6 Thedocument contains a number of maps,including (Map 1) that was referred to inChina's two May 2009 notes verbales to the UNSecretary General,67 which stated that Chinahas indisputable sovereignty over the islands inthe South China Sea and the adjacent waters,and enjoys sovereign rights and jurisdictionover the relevant waters as well as the seabedand subsoil thereof . The above position isconsistently held by the Chinese government,and is widely known by the internationalcommunity.68

The text first outlines the history of China'smaps of the South China Sea containing dashedlines, starting with a 1947 map published bythe Nationalist government, noting that laterPRC maps appear to follow the old maps69

with two significant changes: the removal oftwo dashes inside the Gulf of Tonkin (in an areapartly delimited by Vietnam and the PRC in2000) and the addition of a tenth dash to theEast of Taiwan.70 These two changes can beinterpreted in different ways, to some degreecontradictory. On the one hand, the partialdelimitation agreement with Vietnam could beseen as evidence of Chinese pragmatism andflexibility, and proof that it is possible forcountries in the region to at least partly settletheir disputes by diplomacy. On the other,explicitly encompassing Taiwan with an extradash may be seen as a reinforcement ofChinese claims on the island not necessarilybased on the wi l l o f her populat ion.Alternatively, it could simply be a way to morecomprehensively encompass the waters andfeatures that Beijing (either directly or viaTaipei) wishes to master.

The paper then examines successive Chinesemaps from a cartographic perspective,

stressing that China has not publishedgeographic coordinates specifying the locationof the dashes. Therefore, all calculations in thisstudy relat ing to the dashed l ine areapproximate. This same criticism has beenmade of the San Francisco Treaty.71This sectionof the paper stresses that Nothing in thisstudy is intended to take a definitive positionregarding which features in the South ChinaSea are 'islands' under Article 121 of the LOSConvention or whether any such islands are'rocks' under Article 121(3). This is in line withWashington's refusal to take sides concerningthe ultimate sovereignty disputes in the region.The text notes that the dashes are located inrelatively close proximity to the mainlandcoasts and coastal islands of the littoral Statessurrounding the South China Sea, andexplains that, for example, Dash 4 is 24 nmfrom Borneo's coast, part of Malaysia.Generally speaking, the dashes are generallycloser to the surrounding coasts of neighboringStates than they are to the closest islandswithin the South China Sea, and as explainedlater this is significant when it comes tointerpreting the possible meaning of China'sdashed line, since one of the principles of theLaw of the Sea is that land dominates the sea,and thus maritime boundaries tend as a generalrule to be equidistant. That is, maritimeboundaries tend to be roughly half waybetween two shores belonging to differentstates. To hammer home this point, the studyincludes a set of six maps (Map 4) illustratingthis. The report criticizes the technical qualityof the PRC maps, saying that they areinconsistent, thus making it complicated todescribe the dashed line, whose dashes aredepicted in different maps in varying sizes andlocations. Again, this is important in light ofpossible interpretations of Chinese claims,since this lack of consistency and quality notonly obfuscates Chinese claims, introducing anadditional measure of ambiguity, but alsomakes it more difficult to ascertain whetherhistorical claims are being made and whetherthey are acceptable in light of international

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law. .72

11-dash map of the South China Sea issued by theKMT regime in 1947South China Sea map first published in January 2013by China's state mapping authority Sinomap Press,

featuring 10 dashes instead of the previous nine

The paper's second section basically consists ofa summary explanation of Maritime Zones,Maritime Boundaries, and 'Historic' Baysand Title according to UNCLOS. Three aspectsare of particular significance. First of all, thatthe interpretation provided is not necessarilythat considered correct by China. Although thisis not always squarely addressed, whendiscussing whether Chinese claims in the SouthChina Sea are or are not in accordance withinternational law we should first defineinternational law, and there is the possibilitythat as China returns to a posit ion ofpreeminence she may interpret some of its keyprovisions in a different way. Second, as thepaper itself notes, while China ratifiedUNCLOS in 1996, the United States has not,although she considers the substantiveprovisions of the LOS Convention cited in thisstudy to reflect customary international law, asdo international courts and tribunals. Not allvoices take such a straightforward view ofWashington's failure to ratify the conventionwhile claiming that it is mostly a restatement ofcustomary law and therefore applicableanyway.73 Some critical observers see theUnited States as being, together with Japan,among the largest beneficiaries of UNCLOS, inaddition to being the driving force behind it,even while refusing to ratify a convention fromwhich China has gained almost nothing.

Third, the page devoted to 'Historic' Bays andTitle. The text stresses that The burden ofestablishing the existence of a historic bay orhistoric title is on the claimant, adding thatthe US position is that in order to do this thecountry in question must demonstrate (1)open, notorious, and effective exercise ofauthority over the body of water in question;(2) continuous exercise of that authority; and(3) acquiescence by foreign States in theexercise of that authority.74 The text explainsthat this traditional American perspective is inline with the International Court of Justice75

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and the 1962 study on the 'Juridical Regime ofHistoric Waters, Including Historic Bays,'commissioned by the Conference that adoptedthe 1958 Geneva Conventions on the law of thesea.76 It then turns its attention to theregulation of historic claims in Articles 10 and15 of UNCLOS,77 saying that they are strictlylimited geographically and substantively andapply only with respect to bays and similarnear-shore coastal configurations, not in areasof EEZ, continental shelf, or high seas.78 Justlike, when examining China's posture we musttake into account, as discussed later, thecountry's history, and in particular the OpiumWars and their aftermath, American history hasalso shaped Washington's perceptions andprinciples. The Barbary Wars79 were widelyseen as laying down fundamental principles ofnational policy such as rejection of blackmail,freedom of navigation, and the right and dutyto intervene far from American shoreswhenever the country's interests, principles,and prestige were at stake.80 Thus, whileChina's position concerning the South ChinaSea may end up resting at least in part, on theconcept of historic waters, even if this is notthe case history and perceptions of history willsurely st i l l play an important role indetermining Beijing's policy. This, however, isnot something only taking place within China,since no regional or extra-regional actor isimmune to the phenomenon, adding to thealready tense situation in South East Asia. Inparticular, a couple of centuries later, both theBarbary Wars and the Opium Wars remainpowerful factors projecting their shadow onAmerican and Chinese foreign and defensepolicy.

Let us move to the three interpretations putforward by the US Department of State.

1.- Dashed Line as Claim to Islands81

This would mean that all Beijing was claimingwere the islands within the dashed lines, andthat any resulting maritime spaces would be

restricted to those recognized under UNCLOSand arising from Chinese sovereignty overthese islands.

As possible evidence for this interpretation, thestudy cites some Chinese legislation,cartography, and statements. The formerincludes Article 2 of the 1992 territorial sealaw, which claims a 12-nm territorial sea beltaround the Dongsha [Pratas] Islands, Xisha[Paracel] Islands, Nansha (Spratly) Islands andother islands that belong to the PeoplesRepublic of China.82 The Department of Statealso stresses that China's 2011 Note Verbalestates that Chinas Nansha Islands is fullyentitled to Territorial Sea, Exclusive EconomicZone (EEZ), and Continental Shelf,83 withoutlaying down any other maritime claim.Concerning cartography, the study cites as anexample the title of the original 1930s dashed-line map, on which subsequent dashed-linemaps were based, which reads, Map of theChinese Islands in the South China Sea(emphasis in the DOS study). With regard toChinese statements, the study cites thecountry's 1958 declaration on her territorialsea, which reads and all other islandsbelonging to China which are separated fromthe mainland and its coastal islands by the highseas84 (emphasis in the DOS study). The textargues that this reference to high seas meansthat China could not be claiming the entirety ofthe South China Sea, since should that havebeen the case there would have been nointernational waters between the Chinesemainland and her different islands in theregion. This is a conclusion with which it isdifficult to disagree, although we should notforget that it was 1958, with China havingbarely more than a coastal force rather thanthe present growing navy. Therefore, while thestudy's conclusion seems correct, andprecedent is indeed important in internationallaw, it is also common to see countries changetheir stance as their relative power andcapabilities evolve. Thus, if China had declaredthe whole of the South China Sea to be her

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national territory in 1958 this would haveamounted to little more than wishful thinking,given among others the soon to be expandedUS naval presence in the region and extensivebasing arrangements. Now, 50 years later, withChina developing a blue water navy, and theregional balance of power having evolveddespite the US retaining a significant presence,Beijing can harbor greater ambitions.85

2.- Dashed Line as a National Boundary86

This would mean that Beijing's intention withthe dashed line was to indicate a nationalboundary between China and neighboringStates. As supporting evidence for thisinterpretation, the DOS report explains thatmodern Chinese maps and atlases use aboundary symbol to depict the dashed line inthe South China Sea, adding that thesymbology on Chinese maps for landboundaries is the same as the symbology usedfor the dashes. Map legends translateboundary symbols as either 'nationalboundary' or 'international boundary' (,romanized as guojie). Chinese maps alsoemploy another boundary symbol, which istranslated as 'undefined' national orinternational boundary (, weidingguojie) but this is never employed for thedashed line.

The report stresses that, under internationallaw, maritime boundaries must be laid downby agreement (or judicial decision) betweenneighboring States, unilateral determinationnot being acceptable. The text also notes thatthe dashes also lack other important hallmarksof a maritime boundary, such as a published listof geographic coordinates and a continuous,unbroken line that separates the maritimespace of two countries. The latter is indeed anoteworthy point, since border lines wouldindeed seem to need to be continuous by theirvery nature, rather than just be made up of anumber of dashes. This is one of the aspectsmaking it difficult to fit Beijing's claims with

existing categories in the law of the sea.Moving beyond the law, however, and this issomething that the DOS report does notaddress, a certain degree of ambiguity may beseen as beneficial by a state seeking togradually secure a given maritime territory.Some voices have noted this may have been theUS calculus in the San Francisco Treaty. Thus,the technical faults, from an international legalperspective, in China's dotted line are notnecessarily an obstacle to Beijing's claims, froma practical perspective.

3.- Dashed Line as a Historic Claim87

The third way to see the dashed-line, accordingto the Limits in the Seas series paper, would beas a historic claim.

Concerning evidence for the possibleinterpretation of Beijing's claims as historic,the report cites as most notable China's1998 EEZ and continental shelf law88, whichstates without further elaboration that '[t]heprovisions of this Act shall not affect thehistorical rights of the Peoples Republic ofChina' (emphasis added in the DOS report).China's 2011 Note Verbale89 says that Beijing'sclaims are supported by historical and legalevidence, but while the DOS report addsemphasis to historical, one should be carefulnot to confuse a historical claim with a claimsupported by history. A country may putforward historical evidence in both negotiationsand arbitration or adjudication in areas whereUNCLOS refers to equitable solutions. Thetext also notes how many Chinese institutionsand commentators have considered that thedashed-line maps depict China's historic title orhistoric rights.

The DOS reports explains that some ChineseGovernment actions and statements which areinconsistent with UNCLOS, while notamounting to express assertions of a historicclaim, they may indicate that China considersthat it has an alternative basis such ashistoric title or historic rights for its maritime

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claims in the South China Sea, and providessome examples, such as the assertion by a MFAspokesperson that the Second Thomas Shoal(Ren'ai Reef) is under Chinese sovereignty.90

This mantra about sovereignty, together withrepeated appeals to history, could indeed beconsidered as evidence that what Beijing has inmind is a historic claim. Furthermore, it maywell be a claim going beyond the provisions forsuch term in UNCLOS.

Next the DOS report examines two issues:whether China has actually Made a HistoricClaim, and whether it would have Validity.Concerning the former, the text states thatChina has not actually made a cognizableclaim to either 'historic waters' or 'historicr ights ' , the reasons being a lack ofinternational notoriety and the statement inher 1958 Territorial Sea Declaration that highseas separate the Chinese mainland andcoastal islands from all other islandsbelonging to China. The text admits that theexpression historic waters appears in someChinese legislation and statements, andactually cites some of them, but believes thatthis does not amount to notoriety to a degreesufficient to at the very least allow otherstates to have the opportunity to deny anyacquiescence with the claim by protest etc.91

s ince no Chinese law, declarat ion,proclamation, or other official statement existsdescribing and putting the internationalcommunity on notice of a historic claim.

Whereas the assertion that China has notactually made a claim may not be shared byeverybody, in particular given the languageflowing from Beijing which the DOS reportitself cites, the reference to the high seasbetween mainland China and some islandsseems stronger proof that Beijing was notmaking a historic claim. However, we mustagain stress that this would be the case if wefollowed the prevailing interpretation of thelaw of the sea, but there is no reason whyChina should adhere strictly to it, and even less

that Beijing should not have changed her mindsince 1958, when she had little more than acoastal navy and her economy was closed andin tatters. It may be true, as the report notes,that the 1958 Declaration only made a historicclaim to the Bohai (Po-hai) gulf in northeasternChina, but again this should perhaps be judgedfrom a wider historical perspective. After 1949the PRC took a much more uncompromisingstance concerning its North-East than itsSouth-East (and wider maritime) borders. Witha pragmatic arrangement in place with theUnited Kingdom concerning Hong Kong, and astrong economic and political relation with theSoviet Union, it was at the other end of thecountry where, in 1950, Beijing (not without anintense internal debate given the state of thecountry), decided to resort to force to preventthe presence of hostile forces close to herborder, intervening in the Korean War, pushingback the advancing Allied forces and reversingthe impact of the Inchon landing, ultimatelyforcing a stalemate on the ground. In 1958, justfive years after the Korean armistice, nearbywaters may have thus been much more presentin Chinese leaders' minds. In addition, thesewere also the waters directly leading to Tianjinand Beijing, the venue for foreign interventionsin both the Opium Wars and the TaipingRebellion. It would not be until the late 1970sthat China's South-Eastern flank would begin toreceive more attention, in part thanks to therapprochement with the United States and inparticular once economic growth and thecountry's move to become a net energy andcommodity importer turned the waters of theSouth China Sea into a vital venue andpotential choke point. It is true that inDecember 1941 the loss of HMS Prince ofWales and HMS Repulse in the South ChinaSea had enabled the Japanese to land in Malayaand ultimately conquer Burma, closing the lastland route to besieged Nationalist China, butthis did not result in a comparable imprint onChina's historical consciousness, among otherreasons because the episode did not involveChinese naval forces and was subsumed into a

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much larger, dramatic, and quickly-developingpicture.

Concerning whether, if China Made a HistoricClaim, it would have Validity, the DOS paperinsists that such a claim would be contrary tointernational law. The text does not stop atarguing that it is not open to a state to makehistoric claims based not on UNCLOS but ongeneral international law, laying down a secondline of defense. It explains that, even assumingthat a Chinese historic claim in the South ChinaSea were governed by 'general internationallaw' rather than the Convention, it would stillbe invalid since it would not meet thenecessary requirements under generalinternational law, namely open, notorious, andeffective exercise of authority over the SouthChina Sea, plus continuous exercise ofauthority in those waters and acquiescenceby foreign States in such exercise of authority.Furthermore, it explains that the United States,which is active in protesting historic claimsaround the world that it deems excessive, hasnot protested the dashed line on thesegrounds, because it does not believe that sucha claim has been made by China, withWashington choosing instead to request aclarification of the claim. Whether this view isalso meant to avoid a frontal clash with Beijing,in line with the often state policy goal ofmanaging rather than containing China'srise, is something not discussed in the text.

The Spratly Islands, a bone of contention between

China and the Philippines

Two Further Aspects to the US Position

The Department of State's paper emphasizesthat The United States has repeatedlyreaffirmed that it takes no position as to whichcountry has sovereignty over the land featuresof the South China Sea92

The trouble with this view, apart from thepossibility that a measure of ambiguity in theSan Francisco Treaty may be in Washington'sinterest, is that the United States is no mereexternal power in the South China Sea, giventwo essential historical facts that theDepartment of State's paper never mentions.The first is the period of US sovereignty overthe Philippines following the Spanish-AmericanWar of 1892, and the resulting Treaties ofParis93 and Washington,94 which among othersdetermined the territorial extent of theArchipelago. The second is the SecondIndochina War, more often known as theVietnam War, when American forces togetherwith those from other Allied nations operatedin the region in support of the Republic ofVietnam.

The Treaties of Paris and Washington areimportant because they amount to the UnitedStates be ing, at least unt i l F i l ip inoindependence, a littoral state in the SouthChina Sea. Furthermore, the territory of theRepublic of the Philippines is inherited from theUnited States, precisely around the time whenChina, at that time the Republic of China, isbeginning to publicly assert its claims in theSouth China Sea. While this paper will notexamine this issue in depth, it seems clear thatAmerican authorities are in no position tosimply claim that they have nothing to say onthe ultimate issue of sovereignty, as if thePhil ippines had never been under USsovereignty and Washington had never signedany treaty dealing with the extent of itsterritory.

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The Second Indochina War is not as significant,but it still means that for years US forcesoperated in some of the regions under dispute,following agreements with the Republic ofVietnam and other states in the region,including the Philippines. Although again notthe purpose of this paper, any examination indepth of American policy concerning theterritorial dispute over the South China Seacannot ignore this episode. Instead, thediplomatic history of the period should beexamined in the search for evidence of anyevent or document of legal significance.

Map showing the location, within the South ChinaSea, of the Paracels, the Spratlys, and ScarboroughShoal

Russia: Just a Silent Observer?

A look at Russian policy towards the SouthChina Sea may begin with the observation that,while all other regional and extra-regionalactors seem to have growing geopoliticaltensions with China, Moscow appears to bestrengthening ties with Beijing at a time ofincreasing isolation and economic trouble, as inareas including energy, the Ukraine, and theArctic. However, it is necessary to examineRussian national interests and actual decisionson the ground, while being aware that Russiansources are most reluctant to deviate from the

official narrative of friendship with China. Thisreluctance was clear in last year's new militarydoctrine, which did not contemplate a possibleconflict with Beijing95 despite recognition ofmilitary imbalance in the Far East, one of thefactors behind the Russian military reforms.Russian military doctrine may not refer toChina, but counter-terrorism drills in the FarEast usually feature the simulated employmentof tactical nuclear weapons, hardly the first toolthat comes to mind when confronting aterrorist attack. Although Chinese leadersavoid referring to it in public, a significantportion of Russia's Far East remains an unfairlylost land in their eyes.96

Even before the current spike in tensions in theEuro-Atlantic Region, Russia had determined todiversify energy exports, increasing the shareof oil and natural gas exports going to the Asia-Pacific. While agreements with China haveattracted the most media and scholarlyattention, Moscow has been working on a widerange of projects, including a possible naturalgas pipeline to South Korea through the DPRK97

and civilian nuclear cooperation with Vietnam.Concerning Japan, Moscow was quick to offersupport through increased LNG exports in thewake of Fukushima,98 and while observersdiffer on the realistic prospects of a grandbargain, some cautioning that relations withRussia are the most difficult dossier on PrimeMinister Abe Shinzo's table, a strong rationaleremains for closer links between Russia andJapan. This does not mean that this rationalewill overcome bilateral obstacles such as theterritorial conflict over the Northern Territories/ Southern Kuriles and challenges associatedwith Japan's difficulties in maneuvering awayfrom American positions in the face of growingtensions with China, but it should at leastcaution against simplistic explanations.Furthermore, while Prime Minister DmitryMedvedev's latest visit to the Kurile Islands /Northern Territories in August 201599 againprompted criticism in Japan, this has notprevented Medvedev himself from signing into

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Russian law the extension of the countryscontinental shelf into the Okhotsk Sea, asagreed with Japan and in line with Moscow'sFebruary 2013 application to the UNCommission on continental shelves.100 Russiamay have traditionally looked Westward, fromPeter the Great101 to Lenin,102 but it is indeed aPacific power, and its diplomacy features awide range of relations with countries in theregion. Faced with the need to develop her FarEast, diversify away from Europe, avoid overreliance on China, and generally speakingmaximize national power and influence andeconomic exchanges, we could perhaps talkabout Russia's own Pivot or Rebalance tothe Pacific.103 According to Stephen Blank(Senior Fellow for Russia at the AmericanForeign Policy Council), Justified emphasis onthe current Ukraine crisis should not lead us tomake the mistake of overlooking Russiaspolicies in East Asia. This author points outhow Russia is using energy and weapons salesin the region, in line with Moscow's traditionaldiplomatic practice, adding that like otherpowers, Russia is pursuing what may be calleda hedging strategy against China in Asia. Onthe one hand it supports China against the USand on the other works to constrain Chinesepower in Asia. Blank concludes that Sino-Russian amity, at least in regard to the Asianregional security agenda, is something of afacade, meaning that Russo-Chinese ties maynot be as dangerous for the US as some havefeared, although there is no reason forcomplacency since the two governments willclearly collude to block numerous Americaninitiatives globally.104

Among other areas, Moscow may be seekinggreater influence on the Korean Peninsula,105

the participation of Asian powers other thanChina in the Russian Arctic,1 0 6 greatercooperation with Indonesia, and, althoughregularly denied, the sale of Russiansubmarines (or transfer of technology) toTaiwan.107 One of the most striking aspects ofthe Russian presence in the Pacific, and in

particular the South China Sea, is Moscow'scontinued support for Hanoi and sale ofadvanced weapons, chief among them Kilo-class submarines. Russia is not just an essentiallynchpin in Vietnam's asymmetrical warfarestrategy, it has avoided publicly supportingChina's stance in the region. This failure tospeak out in favor of Beijing is not restricted tothe South China Sea, as noted by Mu ChunshanEven on the Senkaku/Diaoyu dispute betweenChina and Japan, Russia has kept an ambiguousposition. Mu lists four reasons for this. First,China and Russia are not allies. There is noalliance treaty between them, so Moscow isnot bound to support Beijing politically ormilitarily, still less in The South China Sea,which is not a place where Russia can expandits interests, nor is it necessary for Russia tointerfere in this region absent a formal alliancewith China. Second, Russia enjoys goodrelations with countries bordering the SouthChina Sea and does not need to offendSoutheast Asia for the sake of China. This doesnot just apply to Vietnam, since for exampleRussia also enjoys a good relationship with thePhilippines. Third, with Moscow focused onEurope and the Ukrainian crisis, Russia hasneither the desire nor the ability to confrontthe U.S. in the South China Sea. Finally, thedevelopment of China has actually caused someworries within Russia, with concerns centeredon possible encroachment in the Russian FarEast. However, according to Mu Chunshan thisdoes not mean that there is a split betweenMoscow and Beijing, since the two countriesknow each other well and Russia's silence onthe South China Sea, like China's on theCrimea, does not mean they oppose each other.Beijing's abstention at the UNSC on Crimeadoesnt mean that China opposes Russiasposition. By the same logic, Russias neutralstance in the South China Sea disputes doesntmean that Russia doesnt support China.Generally speaking, China and Russia leaveeach other ample room for ambiguous policies,which is actually proof of an increasingly deeppartnership. This arrangement gives both

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China and Russia the maneuvering space theyneed to maximize their national interests.108

Vietnam has not only recently received herthird enhanced Kilo-class submarine, HQ 194Hai Phong,109 but is building four Tarantul-classorMolniyacorvettes at Ba Son Shipyards, underlicense from Russia's Almaz Central DesignBureau. Two corvettes were previouslydelivered in June 2014.110 Furthermore, CamRanh Bay remains of the utmost importance tothe Russian Navy, and in November 2014Hanoi and Moscow signed an agreement tofacilitate the use of the base by Russianwarships.111 According to this agreement, infuture Russian warships will only have to notifyport authorities immediately prior to theirarrival, the agreement privileging the RussianNavy and giving it special access, whereasother navies are restricted to one port visit peryear.112

Russia is also a nuclear energy partner forHanoi, and has ignored Chinese injunctions toabandon offshore oil cooperation with Vietnamin the South China Sea.113 Speaking to theVietnamese media in advance of his official tripin April this year, Russian Prime MinisterDmitry Medvedev confirmed plans for a freetrade area agreement. It will likely be the firstsuch agreement to be signed between theEurasian Economic Union and an individualcountry, while identifying Vietnamese tourismin Russia and trade settlement in theirrespective national currencies as areas forfurther work.114 While defense links with Russiaare a cornerstone of Vietnam's multi-vectordiplomacy, they go hand in hand with growinglinks with the United States. As often happenswith countries engaging a wide range ofpowers which may otherwise be at odds, such abalancing act is not always easy and may resultin pressure by one partner to restrictcooperation with the other. Recently, use ofCam Ranh Bay air facilities by Russian Il-78Midas tanker planes refueling Tu-95 Bearstrategic bombers, involved among others in

sorties to Guam, prompted a request byWashington to Hanoi to terminate suchaccess.115

We can conclude that Moscow is determinednot to become too dependent on Beijing, andthat despite many domestic and bilateralobstacles it wishes to become a major Pacificpower. This may offer some opportunities tothe United States in the event of a turn for theworse in Sino-American relations, but inaddition to the many challenges it would pose,right now this appears an unlikely scenariogiven the deep mistrust of Russia in Westernquarters in general and Washington inparticular.116 Together with the absence of anymention of sanctions when discussing policyoptions in the South China Sea, and theapparent disconnect between the USrebalance and the country's nuclear posture,this deep schism between Russia and the Westconstitutes a triad of factors objectivelyenhancing China's position when dealing withher neighbors. Unlike Moscow, Beijing seemsto be succeeding in preventing a regionalterritorial conflict from having a major impacton bilateral relations with Washington.

India: Looking East

As a quasi-island, vitally dependent on sealanes of communication, India cannot afford toignore developments in the South China Sea, abody of water connecting the country to,among others, Japan. In recent years NewDelhi has supported Hanoi in two crucial ways,first by cooperating in offshore oil explorationand production, and second in helping build thecountry's maritime security capabilities. Thismay be seen as part of New Delhi's Look Eastpolicy,117 and also as partially motivated by adesire to make it more difficult for China todominate the South China Sea and thus moreeasily access the Indian Ocean and increasepressure on India. However, while this maymake sense, and fit with other Indian policiessuch as improving border infrastructures118 in

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the Himalayas and developing key weaponssystems such as Brahmos,119 it does not meanthat it is necessarily part of any grand designto encircle China. While true that India hasgradually developed a wide range of relationswith other countries in the region, includingjoint military drills, the often grand-soundingwords employed to describe them rarely matchtheir actual contents. For example, whilerelations with Japan are important and benefitfrom the personal warmth between the twoprime ministers,120 New Delhi and Tokyo areyet to conclude a civil nuclear agreement,which would certify the end to India's nuclearapartheid. New Delhi remains cautiousconcerning China, and rather than engage in amultinational alliance against Beijing, BrahmaChellaney has more accurately described thecountry as having moved from nonaligned tomultialigned121 under a prime minister whoseforeign policy hallmark is pragmatism.122

Furthermore, suspicions of the United Statesand more widely of foreign entanglementsremain high among India's national securitycommunity. Three recent tweets by Saurav Jha,a commentator on energy and geopolitics, areindicative in this regard. On 24 January 2015he wrote All the 'pivot' posturing has alreadyserved its purpose. All this Asian NATO talk isonly for those who want to import expensiveplatforms and As usual Indian analystsmissed the significance of the Obama-Jinpingmaryland retreat when they agreed on Yuan-dollar dynamics., adding America has nodesire to fight China and even overtly theykeep saying that they do not seek to containChina or build alliances against it.123

While the January 2015 trip to India by USPresident Obama was widely considered tohave been successful, with Dhruva Jaishankar(a fellow with the German Marshall Fund)concluding that Anti-Americanism is dead,124

still more than a few Indian voices are reluctantto enter into any set of alliances that may led toentanglements or see the country used as a

pawn against China. Thus, while Jaishankarexplained that Modi has been unabashedabout deepening partnerships with countries inthe Indo-Pacific region with which India sharesboth interests and values, particularly Japanand Australia, seeking to manage China's riseby diversifying regional security partnershipsand establishing a closer relationship with theUS,125 Manimugdha Sharma, a journalistspecializing in military history, tweeted Fordecades, US propped up Pakistan to offset andupset its bigger neighbour. Let's hope we don'tbecome Pak in US' scheme against China,126

adding that India, so far, has very wiselystayed away from grand coalitions andalliances. Even in the aftermath of 9/11, whenthere was pressure on India to join the waragainst terror, we very wisely avoided sendingtroops. So logically speaking, India would avoidbeing used we must set boundaries on thisnew friendship with the Americans.127

The Joint Strategic Vision for the Asia-Pacific& Indian Ocean Region released on theoccasion of Obama's visit referred to the SouthChina Sea. Regional prosperity depends onsecurity. We affirm the importance ofsafeguarding maritime security and ensuringfreedom of navigation and over fl ightthroughout the region, especially in the SouthChina Sea. It called on all parties to avoid thethreat or use of force and pursue resolution ofterritorial and maritime disputes through allpeaceful means, in accordance with universallyrecognized principles of international law,including the United Nations Convention on theLaw of the Sea.128 Furthermore, the trip wasaccompanied by renewed commentary aboutquadrilateral (Australia-India-Japan-US)maritime cooperation, following Modi's wordsto that effect,129 with commentators such asDavid Lang (analyst at ASPI and an editor ofThe Strategist) stressing that India's Modi andJapan's Abe are both nat ional ist ic ,conservative leaders elected with mandatesto restart their economies and reclaim lostpride and playing for a greater role in

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underwriting peace and stability in theAsiaPacific and therefore seeking to engagemore with the US, regional partners andmultilateral security architectures.130

However, as noted above, wariness ofentanglements and loss of strategicautonomy still runs high in New Delhi andwhile democracies in the Pacific generallyagree on the need to at least manage the riseof China and defend the rule of law at sea, thiscoexists side by side with a desire not toprovoke China, and a degree of mistrustconcerning the real degree of commitment byother parties to any collective endeavor toprevent Chinese territorial expansion. It is adilemma well known by experts in game theory.Saurav Jha pulled no punches in this regard,tweeting Does anybody seriously think thatIndian participation in maritime coalition actionagainst China will not lead to a Sino-Pak landattack? and wondering Will Japan open anEastern front, during an Indian war with China.If not, what the hell is all this quadrilateralpappi-jhappi about? This led him to expressthe view that Unless India and Japan agree toa formal nuclear alliance, I really do not see thepoint of all this bakwaas quadrilateral pappi-jhappi.131

Concerning India-Philippines relations, whileManila has pointed out that New Delhiwelcomed her arbitration bid, India has done socautiously,132 and bilateral exchanges remainrelatively low key, while unimpeded by anysignificant dispute.133

Therefore, while we can expect India to keepsupporting Hanoi in the latter's quest todevelop offshore oi l and build up hercoastguard, it is likely that India will keep heroptions open and retain a prudent policytowards China, in a bid to prevent the latter'sexpansion while avoiding provocations. Whileboth sides see tighter India-Japan relations asnecessary, when envisioning an open SouthChina Sea, they recognize that overlapping

values and interests are not enough toguarantee real progress, although the politicalwill is clearly there and there is a widespreadperception that India's role in the region willgrow.

Reclamation: Changing Facts on theGround?

Another important development during theyear 2014 has been reclamation work ondifferent islands and reefs in the South ChinaSea, mostly although not solely by China, whichsome sources point out is also conductingsimilar activities in the Nanji Islands, located inthe East China Sea, 300 km from theSenkaku/Diaoyu/Diaoyutai Islands. 1 3 4

The