History tells no lies about South China Sea disputes

History tells no lies about South China Sea disputes

A small outcropping of sand occasionally breaks the vast expanse of the South China Sea. These islands are modest, even diminutive, but they form the core of a fierce territorial dispute among six primary claimants: Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam. Over the last year, disputes in the South China Sea have dominated headlines, and they seem sure to continue to generate fresh national security issues. In the past weeks, Namibian newspapers including New Era had a few reports on this issue. In this article, I will lay out the history of the disputes and highlight key events necessary to understanding the crises of the day.

In any case, the issue was moot for most of the region’s history. The South China Sea is the largest marginal sea in the West Pacific region, covering an area of 3.5 million km2. It is located south of mainland China and the island of Taiwan, west of the Philippines, north of Kalimantan and Sumatra, and east of the Malay and Indo-China peninsulas.

China has sovereignty over four archipelagos in the South China Sea, namely, the Xisha, Nansha, Zhongsha and Dongsha islands, which are indicated by the dash lines on the map drawn in 1947. The Nansha Islands (or the Spratly Islands) were initially discovered and named by China as the Nansha Islands, over which China was the first to exercise sovereignty and that exercise has been ongoing. Before the 1930s, there was no dispute over China’s ownership of them, as reflected in many maps and encyclopedias published around the world.

Beginning the 20th century, western colonial powers, including the United Kingdom, Germany and France, followed by Asia’s emerging power Japan, kept coveting the Nansha Islands as they colonized Southeast Asia and invaded China. Most of their territorial ambitions ended in failure due to strong resistance from China’s Late Qing government, the succeeding Nationalist government and the general public. Japan was the first to have seized some of the islands in the South China Sea, including the Nansha Islands. In 1939, Japan occupied part of the Nansha Islands in an effort to control Southeast Asia and in preparations for an invasion of Australia.

Post-war arrangements, the Cairo Declaration of November 1943, signed by the heads of the governments of China, the United States and the United Kingdom, proclaimed “Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China.” The Potsdam Declaration of July 26, 1945 also stipulated in its eighth article that “the Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine, as had been announced in the Cairo Declaration in 1943.”

In December 1946, a year after the defeat of Japan, the Nationalist government of China sent warships to occupy Taiping Island (Itu Aba Island) and Zhongye Island (Thitu Island) and set up a base on Taiping Island. In 1947, the Ministry of the Interior of China’s Nationalist government renamed a total of 159 islands, islets and sandbanks, including those of the Nansha Islands, historically under China’s jurisdiction in the South China Sea. Meanwhile, the Nationalist government officially published a chart of its territorial waters that China had owned in the South China Sea demarcated by an eleven-dash line. For a long time afterwards, the US made no objections whatsoever. Given it being a long-term ally of Taiwan and its heavy presence in post-war Asia, the US had every reason to be aware of the existence of the chart.

The nine-dot line that was originally an “eleven-dot-line” was first indicated by the then Kuomintang government of the Republic of China in 1947 as its claims to the South China Sea. After forming of the People’s Republic of China in 1949, the line was adopted and revised to nine as endorsed. The legacy of the nine-dot line is viewed broadly as providing historical support for their claims to the South China Sea.

Since mid-1950s, the Philippines and South Vietnam started their encroachment of the Nansha Islands. In 1956, the Philippine government argued that these islands should belong to their country on the grounds of the “Cloma discovery”, and threatened to take over the islands immediately. However, being aware of the Taiwan authority’s position on the sovereignty over the islands, Manila even intended to send a delegation to Taiwan to discuss the matter. Since 1962, South Vietnam occupied Nanzi Cay (South West Cay), Dunqian Cay (Sandy Cay), Hongxiu Island (Namyit Island), Jinghong Island (Sin Cowe Island), Nanwei Island (Spratly Island), and Anbo Cay (Amboyna Cay), which was strongly objected and protested by both sides of the Taiwan Straits.

Once again, this phase of frenetic island occupation was cooled off by a longer period of inertia. But by the early 1970s, the claimants were at it once again. This time, though, the scramble was spurred by indications that oil lurked beneath the waters of the South China Sea. The Philippines was the first to move. Then followed by Vietnamese. The North Vietnamese regime had openly recognized China’s sovereignty over the South China Sea islands, but soon abandoned this policy after its unification of Vietnam. In 1975, North Vietnam, on the pretext of “liberation”, occupied 6 islands and reefs of the Nansha Islands which were formerly seized by South Vietnam. Later, it seized another 18 islands and reefs, including Ranqingsha Reef (Grierson Reef) and Wan’an Bank (Vanguard Bank).

The Philippines occupied 8 islands and reefs, including Feixin Island (Flat Island) and Zhongye Island (Thitu Island) and some other reefs were seized by other countries.

At the same time, the US clearly demonstrated its acknowledgment of China’s sovereignty over the Nansha Islands in its diplomatic inquiries, measurement requests and flight plan notifications. In addition, the Taiwan authorities have also received American military personnel on Nansha Island where it stationed forces. For a long period of time, the US remained silent to the encroachments by the Philippines and Vietnam, but it consulted the Taiwan authorities on many occasions related to the sovereignty issue over these islands and reefs.  From February 1957 to February 1961, the US Government made multiple application requests to the Taiwan authorities to allow the US Air Force based in the Philippines to conduct nautical chart measurement and meteorological surveys in the vicinity of Huangyan Island (Scarborough Reef) and the Nansha Islands, obviously acknowledging China’s sovereignty over these islands through the role of the Taiwan authorities. Such acknowledgment was confirmed in books and maps published around this time such as Columbia Lippincott Gazetteer of the World (1961), Worldmark Encyclopedia of  Nations (1963), and Constitutions of the Countries of the World (1971), all of which clearly state that the Nansha Islands belong to China.

In the early 1990s as the Cold War came to an end, relations among countries began to reconcile and economic development became the primary focus in the APAC region, China switched to a fast track toward establishing rapport with Southeast Asian countries and the Association of Southeast Asian Nations (ASEAN).

Throughout the 1990s, the rapid development of China-ASEAN relations largely masked seething discontent in the South China Sea; nevertheless, disputes surfaced from time to time. From 1995 to 2011, there were at least six joint statements between China and the Philippines repeatedly reaffirming negotiations as the means for settling relevant disputes. However, the Philippines failed to honour its commitments.

In late April of 1997, the Philippine Navy landed on Huangyan Island, blew up the territory monument that China had erected, and planted a flag of the Philippines on the island. China reacted by sending marine surveillance ships to the waters of the island, which faced a standoff with Philippine warships that did not ease until a few days later on May 3. In subsequent years, the Philippines expelled, arrested and even shot at Chinese fishermen passing through the waters near Huangyan Island.

On May 9, 1999, the Philippine Navy deliberately ran its landing craft BRP Sierre Madre (LT-57) aground at Ren’ai Shoal, using hull leak repair as an excuse, and stayed there with regular rotated soldiers, refusing to withdraw ever since. China reacted with a series of strong diplomatic representations to no avail. On November 3 of the same year, the Philippine Navy repeated the behaviour by running another decommissioned warship aground at Huangyan Island on the pretext of cabin leakage, blocking the southeast entrance to its lagoon. Already immune to this old trick, China applied great diplomatic pressure on Manila. On November 29, the then Philippine President Joseph Estrada ordered the withdrawal of the vessel.

Following the incident, the Chinese government, with a view to stopping the dispute from boiling over and maintaining the sound China-ASEAN partnership, resorted to all-round diplomatic efforts on the consultations with countries like Vietnam, Malaysia and especially the Philippines. Then, the tension began to ease. A consultation on the Declaration on the Conduct of Parties in the South China Sea (DOC) was held in place of a consolation on “the code of conduct”, where both sides engaged in many rounds of difficult negotiations. At the 8th ASEAN Summit convened in Phnom Penh, Cambodia on November 4, 2002, Mr Wang Yi, then Vice Minister of Foreign Affairs, and foreign ministers of the ten ASEAN Member States jointly signed the DOC.

The focus throughout the negotiations was on the disputes over the sovereignty of the Nansha Islands and reefs. Much attention was directed to preventing escalation of disputes and the main purpose of the DOC was to prevent further acts of occupying and controlling islands. In the DOC, which contains ten provisions, the parties recognize the need to promote a peaceful, friendly and harmonious environment in the South China Sea.

Shortly after the Cold War, the US remained committed to its previous policy of not taking sides on the legitimacy of territorial claims, emphasizing that the disputes should be peacefully resolved, and that the freedom of navigation in the South China Sea should be maintained. As Asia was not the focal point of the US’s global policy at that time, the occasional heating up of disputes over the Nansha Islands did not move the US to change its neutral stance. But not anymore now.  The “wirepuller” behind the arbitration is self-evident. For years this country from outside the region has been stepping up its rebalancing strategy in the Asia Pacific.

But history tells no lies. Japanese scholar Taoka Shunji criticized Japanese Prime Minister Shinzo Abe for trying to falsely portray China as a threat to Japan and that it was invading its neighbours like the Philippines. He pointed out that the Spratly Islands were not part of the Philippines when the US acquired the Philippines from Spain in the Treaty of Paris in 1898, and the Japanese-ruled Taiwan itself had annexed the Spratly Islands in 1938, a move that was never challenged by the US-ruled Philippines, which never asserted that it was their territory. He also pointed out that other countries did not need to do full land reclamation since they already controlled islands and that the reason China engaged in extensive land reclamation is because they needed it to build airfields since China only has control over reefs.

However, tensions started to build up in 2009 again and have escalated since 2012. In response to this escalatory move, Manila filed an arbitration case against China on January 22, 2013, under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). The Philippine claims centre around maritime law issues, although China asserts that they cannot be resolved without deciding territorial issues first.

Yet the tribunal has no jurisdiction over the case at all. The submissions made by the Philippines appear to be related only to the classification of maritime features and fishery disputes, but are in essence inseparable from territorial sovereignty and maritime delimitation.

Territorial sovereignty is not within the scope of the UN Convention on the Law of the Sea (UNCLOS), whose preamble states that it establishes a legal order for the seas and oceans “with due regard for the sovereignty of all States”. China made a clear declaration in 2006 in accordance with UNCLOS to exclude maritime delimitation from compulsory arbitration. More than 30 other countries, including Britain, have made similar declarations. Judge Soons, a member of the tribunal co-wrote a paper years ago stating that “entitlement to maritime spaces forms an inherent part of boundary delimitation”.

Despite the fact that this tribunal has no jurisdiction over either territorial sovereignty or maritime delimitation, the Philippines has abused its right of action by knowingly initiating an unlawful case. The tribunal meanwhile has also abused its right of competency by knowingly accepting a case that is clearly beyond its jurisdiction. Tom Zwart, a law professor at Utrecht University, warned in a recent article that in East Asia “the [arbitration] award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support”.

Born in Confucius and Daoism culture, non-confrontation and non-extreme conflict style has been ingrained in Chinese psyche. China responded with maximum self-restraint, appealing for negotiations and consultations and calling for disputes to be shelved and for joint development, pending the ultimate solution of the issue. However, it appears that the Philippines sees China’s self-restraint as being weak, a wrong and misleading calculation. On the farce that the Philippines is playing, China’s position can be summarized as 4-NOs: No acceptance, No participation, No recognition and No implementation.

 

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