China’s Nine Dash line, sometimes called the 10 or 11-Dash line, is a demarcation line used by the Government of the People’s Republic of China to denote their claims in the South China Sea.
Summary
On 12 July 2016, the Permanent Court of Arbitration, The Hague clarified the legal status of the South China Sea and China’s claim to it. China’s ‘Nine Dash line’ was found to have no legal basis, on grounds that no country can lawfully claim historic rights to the South China Sea.[1] Although the tribunal ruled only on issues between the Philippines and China its decisions have wide ranging implications for those nations residing in this region. Notwithstanding this international ruling, China continues to pursue the building of artificial islands, and thus remains a serious regional and international threat to peace and stability in the region. [2]
BACKGROUND
China has, since the aftermath of World War II, argued that its historic claim to the South China Sea dates back to the Han Dynasty, which ruled from 206 B.C. to 220 A.D.[3] The Japanese Empire lost control of these waters, and China took the opportunity to claim virtually the entire South China Sea, as encompassed in their traditionally designated Nine Dash Line of 1947. [4] In 1973, the United Nations established exclusive economic zones or EEZ, and China reaffirmed its Nine Dash Line, concomitantly rejecting any other regional claims to these waters.
Since 2014 China has been building artificial islands, such as Fiery Cross Reef, as well as Mischief and Subi Reefs in the South China Sea, dramatically transforming shallow reefs and rock outcroppings into man-made islands, specifically designed to accommodate military bases, barracks, roads, and military grade airports. This includes the building of support facilities for military and civil aircraft, as well as the construction of emplacements and the deployment of large caliber guns and missile systems.[5] In a very short timeframe, through the creation of artificial islands, the Chinese now are capable of supporting and sustaining its South China Sea fleet consisting of fishing boats, coast guard and naval vessels throughout the area. These artificial islands and facilities enable Chinese maritime patrol vessels to dominate the claimed waters and provide an overt intimidation factor while subtly underlining Chinese ability to effect blockades against regional neighbors if and when necessary. Moreover, these installations counter the pledge made by China’s president Xi Jinping “not to militarize the disputed reefs in the South China Sea.”[6]
To dominate the South China Sea, Beijing utilized what was described as the cabbage tactic.[7] This tactic essentially secured or wrapped the targeted islands to be in multiple layers of Chinese military, para-military and fishing vessels. This brought about a seemingly permanent presence in anticipation of the physical transition – from what was a shallow reef or rock outcrop to a man-made designer island fitted for purpose.[8] Like the Chinese cabbage, the tactic consisted of three layers surrounding the targeted outcrop or reef, with privately owned civilian fishing boats making up the inner circle, followed by law enforcement vessels in the form of Chinese Coast Guard vessels, patrolling the outer ring. These concentric rings were reinforced by Chinese warships that patiently cruised just over the horizon,[9] should they be required to aggressively intimidate or fend off what they would perceive as foreign incursions or interference. This physical intimidation and aggressive confrontations on the high seas utilizing fishing boats, Chinese Coast Guard, as well as Chinese naval vessels, kept regional fishing fleets at bay and away from contested areas. As one Philippine defense official surmised, this Chinese initiative portends further militarization as well as the likely restrictions on air and sea traffic, thereby, posing a “clear and present danger to the present regional security balance.”[10]
While expediting the rapid and large-scale construction of man-made islands,[11] China maintained its traditional mantra to the international community regarding its historical and rightful territorial ownership of the South China Sea. This political stance was again publicly and unabashedly proclaimed during a 14 September 2015 international defense conference in London, England when the commander of the Chinese Navy’s North Sea Fleet Vice Admiral, Yuan Yubai, reiterated his government’s position that, “the South China Sea, as the name indicates, belongs to China.”[12] This simplistic perception, however would not stand the intense legal scrutiny undertaken by the members of the international tribunal at The Hague. These jurists would subsequently consider China’s so-called historic and rightful claims to the South China Sea in a much different light.
Infographic detailing the process of creating an artificial island as implemented by China
Decision Made at The Hague
In 2013, the Philippine government filed a complaint after China seized control of a reef some 140 miles off the Philippine coast which the Philippine government viewed as well within their respective exclusive economic zone[13] and subsequently sought international arbitration[14] in the dispute with China. With foresight, the Philippine government also requested the international tribunal to assess the legality of China’s historic claim to sovereignty over the waters encompassed within the Nine Dash Line that appears on Chinese maps, embracing 90 per cent of the South China Sea.[15]
After much consideration, on 12 July 2016, the Permanent Court of Arbitration at The Hague[16] ruled overwhelmingly in favour of the claims by the Philippine government focusing on the disputed waters.
The tribunal ruled that rocky outcrops claimed by China, some of which were exposed only at low tide, could not be used as a basis for territorial claims.[17] As to the Philippine government’s complaint, the tribunal deemed that the waters in question are within the Philippine exclusive economic zone and therefore do not overlap any possible claim or entitlement by China.[18] The tribunal found that China had violated Philippine sovereignty rights in those waters by interfering with fishing and petroleum exploration, as well as illegally constructing artificial islands.[19] More importantly, the international tribunal found no legal basis for China’s historic and expansive claim to sovereignty over the waters of the South China Sea.[20]
China reacted angrily to the tribunal’s decision, saying that the findings were ill-founded, and were null and void. Although the 1982 UN Convention on the Law of the Sea (UNCLOS) was ratified and signed by both China and the Philippines, the Chinese government had warned as early as 2013 that it would not recognize the tribunal’s ruling. [21] This was predicated upon China’s claims of “indisputable sovereignty” over the territory and rejected any “arbitration as ‘a political provocation in the guise of law.’”[22] In the wake of the decision, many analysts view China’s aggressive initiatives, including the illegal construction of airfields, docks and military installations, as indicative of China’s political stance – that possession is supreme to international law.[23]
It is important to appreciate that most countries base their territorial claims on the United Nations Convention on the Law of the Seas, to which China is a signatory. The convention clearly stipulates that a nation’s territory extends 200 miles off its respective shores, known as an exclusive economic zone (EEZ). Predicated on this international law, any trade or resources that reside in a country’s EEZ belong to that country and are regarded as falling within sovereign territory. Consequently, any area that is not an EEZ is considered international waters and subject to United Nations maritime law – meaning that it is shared by everyone. In that light, every country in this region, including the Philippines, Brunei, Vietnam and Malaysia base their respective claims to the South China Sea on the United Nations international definition of an EEZ – with the notable exception of China.
This multinational dispute has the distinct potential to pose a direct threat to the freedom of maritime navigation and ocean-going trade and commerce. The South China Sea has some of the globe’s busiest, and economically strategic, shipping lanes through which an estimated $5.3 trillion in ship-borne trade transits each year.[24] Moreover, these sea lanes are vital to the regional economies, conveying five times more oil traffic than the Panama Canal.[25] As of 2016, Canadian trade with China had an overall value of over $94 billion (Cdn),[26] much of it conveyed to and fro by ships plying these trade routes. This situation becomes more disconcerting when one considers that five of the world’s 10 busiest shipping ports are in this region. Should a situation arise where China would wish to seize control, it could easily disrupt the important sea trade and energy shipments of oil and gas upon which this region is strategically dependent. Such an eventuality would economically paralyze regional nations, likely leading to a dramatic rise in regional tensions that could cascade into open conflict.
International concern over China’s advances into the South China Sea regarding these vital lines of communication was reinforced in March 2015 when US Admiral Scott Swift addressed a Canberra security conference. He underlined that China’s behavior in these waters “was undermining global rules of behavior,” and could “cast a chill on commercial activities in the region.” He added, “the resulting climate of uncertainty not only threatens freedom of the seas and chips away at the rules-based system, it encourages nations to transfer ever-larger shares of national wealth to purchase naval weapons beyond what is needed merely for self – defense.”[27] This latter issue could spark further regional tensions through a potential regional arms race.[28]
The international concerns over China’s persistent and unabashed, yet internationally failed, claims combined with its unabated illegal construction and physical encroachment are multi-tracked. Some of the reasons for their aggressive occupation or annexation are obvious, some are less so.
This region, in terms of raw resources, has oil, gas, fish and global geostrategic significance. There are substantial untapped energy resources in the form of vast oil and natural gas reserves,[29] estimated to be holding 11 billion barrels of oil and potentially 109 trillion cubic feet of natural gas.[30] In tandem, the South China Sea is known for its fisheries providing a vital protein source for the rapidly growing regional population, while also providing vital employment for millions of people who are dependent upon this sea-based industry.[31]
This latter issue was epitomized in the actions taken by the Indonesian government on 29 March 2016 when they seized and subsequently destroyed 23 Vietnamese and Malaysian fishing boats that were allegedly poaching in Indonesian waters. These activities in themselves underlined “how central fishing is to the simmering territorial disputes that are turning the South China Sea into a potential global flash-point and how far countries are willing to go to defend their turf, or at least what they claim is theirs.”[32]
Over the past few years, maritime disputes between China and its regional neighbours over who controls the waters of the South China Seas have become more aggressive. The large fishing fleets drawn from all countries that ring the South China Sea represent respective national interests, and in fact are the front-line for the countries engaged, as to who controls these once rocky outcrops-now man-made islands, including Fiery Cross Reef, Spratly Island[33] and Gaven Reef.[34] As one report noted, “seemingly innocent efforts by all parties to fish in traditional waters are sparking international showdowns, with potentially dangerous implications even for countries far away, including the United States.”[35]
Map expressing disputed land claims by nations surrounding the South China Sea
Threat of Escalation
Clashes over fishing rights occur daily and the situation could easily escalate and possibly trigger a regional crisis or an armed conflict.[36] Therefore, there exists a growing concern amongst regional players, including American and Western strategic interests, in terms of trade and freedom of navigation. As maritime expert Gregory Poling pointed out, these clashes “are the most likely factor to cause an escalation that nobody intended.”[37]
These issues are well reflected in military and intelligence circles in Washington and capitals throughout Southeast Asia tasked with closely monitoring and documenting Chinese activities as well as those of regional actors. Many of these regional governments have repeatedly appealed to the Chinese government to, “back off its coercive moves in the region” and warned China’s leadership against ‘militarization’ of these waters.[38]
As pointed out in a number of media and government reports, China continues to refute any notion that it is trying to expand its geographic and military reach throughout the South China Sea.[39] Notwithstanding, China’s brazen and unabated reclamation activities have created an estimated 2,000 acres of artificial islands[40] and continues at an unprecedented pace. As recently as 15 March 2017, it was reported that China had started new construction on the North Island in the Paracels group, which included land clearing and preparations for a harbour.[41] It must be appreciated that the Chinese view the Paracels as “a strategic way station south-east of China’s Hainan Island and its nuclear submarine fleet, in a wider seaway crucial to international trade.”[42] Moreover, the inclusion of military airfields on these man-made islands provides an aerial ring[43] of protection and security for China’s expanding strategic fleet of advanced nuclear submarines that are home based at the southern tip of Hainan Island.
Carl Thayer, a South China Sea expert at Australia’s Defense Force Academy, noted that, “The Paracels are going to be vital to any future Chinese attempt to dominate the South China Sea.” He furthered, “We can see they are committed to militarization, whatever the official rhetoric tells us, even if they are going to do it bit by bit.”[44]
One of China’s artificial islands on the Central Reef
These artificial islands were created through massive dredging efforts, are being fashioned into substantial artificial islands and home to well-constructed airfields, troop barracks, military facilities, radars and missile positions. Some incorporate deep harbors and docking structures able to accommodate large naval vessels. Furthermore, some artificial islands include long runways where military and civil aircraft can be secured, maintained and operationally sustained. This enables both commercial and military aircraft to operate throughout the region. China recently commenced civilian flights to and from Sansha City on Woody Island in the Paracel Islands and is their administrative centres for controlling their interests in these waters. The airport in Sansha City, and a newer one on Fiery Cross reef in the Spratly archipelago, will undoubtedly spark an expansion of air traffic services in the region, further enhancing China’s civilian control[45] while also parlaying their South China Sea initiatives to include a tourism foil. November 2016 saw the deployment of J-11 Chinese jet fighters on the airfield at Woody Island,[46] which is a part of the disputed holdings in the Paracel Islands off the coast of Vietnam. To add a degree of permanency, reinforced hangars have been added to secure military aircraft. [47] Moreover, Beijing reportedly deployed anti-ship cruise missiles to the island,[48] even as the Chinese authorities denied that these initiatives constituted militarization. The deployment of several HQ-9 anti-air missile batteries,[49] with a range of 200 km, enabled Chinese forces to cover much of the Paracel Islands claimed by Vietnam and Taiwan[50] and appears to be a part of an anti-access umbrella being created by China’s military. This and the reported firing of a YJ-62 cruise missile[51] from Woody Island, would seem to confirm this to the average observer. Chinese authorities argue that this deployment was in response to a US Navy initiated freedom of navigation operation conducted near the Chinese holdings of Triton Island.[52]
One of China’s artificial islands on the West Reef
To counter these Chinese initiatives, some regional countries are taking defensive and cooperative measures. The Indonesian government, for example, deployed air defense systems on its Natuna Islands in the South China Sea.[53]
Meanwhile, during April 2016, the American military deployed 5,000 troops to undertake a 12 day joint US and Philippine exercise that included the conduct of amphibious operations, as well as an exercise to retake an oil rig located near Palawan, the province closest to the Spratly chain where artificial islands have been created.[54] American regional concerns were highlighted during this period when then US Defense Secretary Ash Carter visited to discuss security issues with Philippine officials and subsequently had the opportunity to observe the ongoing Philippine American joint exercise.[55]
Strategic Importance of Commercial Fishing
As alluded to previously in this paper, regional powers are seeking positional advantage in their respective quest to provide fish for their ever-growing populations. Commercial fishing plays a major role in economic development, as well as providing jobs. It is estimated that China will by 2030 account for almost 40% of global fish consumption.[56] The unrestricted over-fishing that has gone on decades in the Western Central Pacific, has resulted in a serious decline in fish and Chinese fishermen have had to expand their commercial fishing grounds to meet consumer demands. (It is important to note that China is also looking at Canada’s Arctic as a future fishery.) Similarly, the Philippines, Vietnam, Thailand and Indonesia have bolstered their respective fishing fleets to meet commercial demands. Interestingly, the waters that encompass the boundaries of the South China Sea are among the few areas of the world where commercial fish catches have increased since 1950[57] leading to the serious concerns of over fishing.[58]
One report noted that, “Indonesia’s more than 460,000 fishing boats account for 3 percent of GDP and help bring in the bulk of the country’s animal protein, critical to fighting malnutrition.”[59] Fisheries play a similarly important role in the economies of the Philippines, Malaysia, Thailand and Vietnam. Hence, as the Vietnamese Foreign Ministry has stated, “maintaining peace, stability, security, and maritime safety in the eastern sea is the common interest of the countries inside and outside the region… Every effort by the international community in maintaining peace and stability in the eastern sea is welcome.”[60]
The Indonesian government’s strategy to mitigate illegal fishing includes convincing neighboring countries to look at this activity as a form of organized crime. Indonesia’s initiative resonated with the former Obama Administration, which had largely supported Indonesian efforts aimed at curtailing illegal fishing activities.[61]
The continued illegal fishing by the Chinese, combined with their aggressive encroachments upon disputed waters, have had unintended consequences. China’s relentless dredging of the seafloor to create artificial islands, has, according to a number of scientists, “decimated the coral reefs that birthed the South China Sea’s diverse marine population.”[62] The situation combined with intense commercial fishing[63], not only by China but all regional nations, will only heighten the already smoldering regional tensions. Hence, commercial fishing remains a strategically important issue for the nations concerned and must be considered of vital importance to the sustainment of the ever-growing indigenous populations. This situation becomes more problematic considering that fish stocks have dropped dramatically in recent years because of unrestricted fishing.[64]
China’s Naval Auxiliary – the Commercial Fishing Fleet
An interesting adjunct to the expansion of China’s fishing fleet to feed its massive and growing population of 1.3 billion, is that the fleet also provides a number of subtle and not so subtle uses. China’s commercial fishing fleet is constantly employed to assert presence and control over disputed waters, including the tiny reefs and atolls that are sprinkled throughout the South China Sea. The presence of Chinese commercial fishermen bolsters their presence and physically demonstrates their territorial claims.[65] For example, Chinese fishermen have been helping to deliver supplies and maintain Chinese presence in the Spratly chain. In one reported case, Chinese fishermen admitted that, “the government paid the boat owner 180,000 yuan ($37,500) to go to the Spratlys.” He further stated, “we were there for two weeks. They didn’t care whether we fished or not, they just wanted us there.”[66]
Recently, Beijing began operating a lighthouse on the man-made island on Subi Reef in the Spratlys.[67] The mere presence of such facilities in contested waters can by itself be intimidating when it is considered that such artificial islands could rapidly be reinforced by various Chinese civil, paramilitary as well as naval vessels in violation of international law. Richard Javad Heydarian, an assistant professor at the De La Salle University in Manila stated that, “strategically, China is trying to create a civilian veneer for its illegal reclamation activities and occupation of contested features in high seas”[68] China hopes that it can eventually garner acquiescence from the “international community on its de facto occupation of contested features.”[69] Possession it seems is 9/10s of the law!
Similar to the Soviet fishing fleet that operated globally during the Cold War, Chinese commercial fishermen provide on-site intelligence gathering to the Chinese Coast Guard, and navy. In doing so, these commercial ships arguably blur what has been described as the “line between peaceful, commercial activity and military muscle-flexing.”[70] As was duly noted by Professor of Strategy James Holmes, “it used to be [that] the flag followed trade, helping you acquire colonies; now, the [Chinese] flag follows fishing, helping you acquire indisputable sovereignty,”[71]
A less subtle manifestation of the growing tension is found in a report stating that, “countries around the region have begun seizing, ramming, or destroying each other’s fishing boats amid claims of poaching and territorial encroachment.”[72] Similarly, Australia destroyed Vietnamese clam boats found illegally pursuing their trade in 2014. Two years ago, Indonesia’s decision to destroy a Chinese fishing boat sparked the anger of Chinese authorities, and last year Indonesia’s government formally protested the presence of Chinese fishing boats and Coast Guard vessels in its waters.[73] In the spring of 2016, Malaysia summoned the Chinese ambassador over what it called the illegal encroachment by 100 Chinese-flagged fishing vessels. During the same time, the Chinese Coast Guard rammed a Philippine and a Vietnamese vessel, meanwhile Vietnamese authorities seized what it described as a ‘disguised’ Chinese fishing boat.”[74]
A spate of recent, and previous incidents strongly suggests that China’s large and increasingly aggressive commercial fishing fleets de facto represent the eyes and ears of the Chinese Navy and Coast Guard and must be considered no longer benign but rather a highly effective geopolitical weapon employed by Beijing’s leadership to intimidate and cow any high seas opposition. [75] An analysis of China’s fishing fleet activities clearly indicates that they serve as a surrogate for China’s Navy and, through their fishing activities, bolster China’s claims to disputed areas of the South China Sea, particularly with their regional neighbors Vietnam[76] and the Philippines.
Numerous observers have noted China’s employment of its fishing fleet “as a way of gradually imposing its maritime claims.”[77] China’s strategy is a simple but steady progression, an incremental step-by- step approach, to influence and subsequently effect dominance and control over those disputed areas while concomitantly avoiding any potential escalation to military conflict. The situation is reminiscent of the clash between China and Vietnam in the 1974 conflict over the Paracel Islands where the Chinese fishing fleet were the first responders, assisting the then underequipped Chinese Navy against Vietnamese forces. This script, albeit 43 years old, appears to have been dusted off and replayed in the present tensions between China and the Philippines over the Scarborough Shoal.[78]As one professor of strategy at the US Naval War College noted, “in contrast to a naval presence that could have conveyed belligerence, the trawlers gave China a low-profile means to back up its territorial claims.”[79]
The Less Salient Strategic Requirement for China’s Dominance
Strategic Context
Over the past decades, China has been developing an effective class of ballistic missile submarines to safeguard their national sovereignty and security as well as providing a flexible deterrent force. Moreover, China has consistently declared a no first use policy.[80] Therefore, its nuclear weapons must be secured in such a manner as to survive a first strike. China’s ballistic missile submarines augment their road mobile, solid fueled land-based intercontinental nuclear capability which can be readily secured throughout China’s vast territorial expanse.[81]
The basis for nuclear deterrence is the belief that an attack can be prevented by having a secure and reliable nuclear weapon system capable of retaliating at the behest of the political power.[82] A secure second strike capability therefore demands that a portion of the nation ‘s nuclear forces are capable of surviving a first strike. Nuclear armed submarines provide a secure second strike capability by their ability to operate in relative security thanks to the vastness and depths of the global maritime environment.[83]
To ensure a credible sea-based nuclear deterrent there are three issues that must be addressed. To be effective, Chinese nuclear armed submarines must be difficult to detect and track. This operational stealth is critical to survivability but also to providing assurance of a secure second strike capability. This latter issue demands a reliable long-range submarine launched ballistic missile that is robust and capable of striking their target at long-range with a nuclear payload sufficient to destroy the selected target. Lastly, submarines must be able to communicate with their respective headquarters and national command authority, necessitating an effective, survivable command, control and communication system.[84] The inherent ability of these nuclear armed submarines to silently glide through the depths of the globe’s oceans provides a cloak of security for these strategic assets. In step with Russia and the United States, both relying on a nuclear triad based upon land and sea-based nuclear missile systems, China aspires to follow. China reportedly has fifty H-6K bombers [85] with a range of approximately 2,000 miles, enabling these aircraft to deliver a nuclear payload to targets in the Indian subcontinent and Russia and even reach Guam.[86] The range of these bombers would only marginally be extended via aerial refuelin
