Sharing a thoughtful analysis by Dr. Priscilla Tacujan, a member of USP4GG in Washington DC.
Posted on June 2, 2015 by
Journal of Political Risk, Vol. 3, No. 6, June 2015.
by Priscilla A. Tacujan, Ph.D
This photo taken April 12,
2015 shows Subi Reef in the South China Sea, where China has continued
reclamation work to build an airstrip. China is asserting sovereignty
over most of the South China Sea, which is also claimed in whole or in
part by Taiwan, Vietnam, Brunei, Malaysia and the Philippines. (Photo by
the Philippine military)(Kyodo)
By now, it should be clear
to everyone that China is not giving up its maritime claims in the South
China Sea. Despite pending international court decisions and worldwide
condemnations, China has aggressively reclaimed about 2,000 acres of
land in the South China Sea — proof of its intent to stay, defend, and
protect 90% of the sea that it claims it owns. Indeed, when State
Secretary John Kerry asked China to halt its reclamation activities
during his visit to Beijing last week, China’s Foreign Minister Wang
Yi’s response was as revealing as it was firm: China’s determination “to
safeguard its sovereignty and territorial integrity in the South China
Sea is as firm as a rock, and it is unshakable.”[i]
According to the Pentagon’s Annual Report to Congress (2015)
on China’s growing military presence on the high seas, China has
started infrastructure projects on four reclamation sites that “could
include harbors, communications and surveillance systems, logistics
support, and at least one airfield,” prompting most analysts to believe
that Beijing is attempting “to change facts on the ground.” In his remarks
during a US-Japan relations conference held in Washington DC last
month, Admiral Dennis Blair, Chairman of the Sasakawa Peace Foundation
(USA), described China’s current “gray zone strategy” as “an
administrative, civilian and sub-military strategy” that is intended to
create a new territorial jurisdiction, hence, de facto control, over the South China Sea.[ii]
With this strategy, China would be able to create “a defensive sea
barrier extending hundreds of miles from China’s coast to what it calls
‘the first island chain.”[iii]
All this has not escaped the
scrutiny of the global community. Recently, the foreign ministers of
G-7 (Canada, France, Germany, Italy, Japan, United Kingdom, and the US)
issued a “Declaration on Maritime Security,”
essentially expressing concerns over China’s “unilateral actions that
are changing the status quo and increasing tensions in the region.”
Likewise, at the recently-concluded ASEAN summit, ASEAN ministers issued
a statement urging self-restraint on activities that “may undermine
peace, security and stability in the South China Sea.”[iv]
The United States has also weighed in, with President Obama warning
China not to flex its muscle against smaller powers in the region. US
Pacific Fleet Commander Admiral Harry Harris, Jr., in an April gathering
in Australia, also warned that China’s building of a “great wall of
sand” on the sea is a provocative action that raises “serious questions
about Chinese intentions.”[v]
And during a congressional testimony before the House Armed Services
Committee last month, US Pacific Commander Admiral Locklear had called
on China “to clarify or adjust its maritime boundaries according to the
requirements of international law.”[vi]
Yet, China remains undeterred, even as it bolsters its military
spending by 10% this year. In the face of global denunciations, China
launches a carefully-crafted psychological warfare, accusing claimant
countries as trouble-makers and the United States as a Western
imperialist meddling in Asian affairs. It asserts with full convictions
that its maritime claims are “beyond reproach.” Responding to the
Pentagon report mentioned above, China’s Foreign Ministry spokeswoman
Hua Chunying admonished the US for defying the facts:
The U.S. report makes willful speculations and comments on China’s
military growth in defiance of the facts . . . It is hoped that the
American side would abandon the cold-war mentality, view China’s
military development with objectiveness and reason instead of
prejudices and stop issuing reports that jeopardize bilateral relations.[vii]
But what are the facts?
China’s ownership claims of almost the entire South China Sea – the
centerpiece in its strategic defense initiative — have been repudiated
by both international legal experts and historians alike. They have
concluded long ago that China’s historic rights claims are invalid[viii] and its sovereignty claims based on the nine-dash line map illegal.[ix]
While Chinese officials and scholars are convinced that their country’s
claims are supported by both historical facts and international law,
legal analyses and historical findings show otherwise.
Challenging China’s historic rights and sovereignty claims
Chinese scholars contend that China’s historical claims have been
established “by ways of discovery, naming, mapping, patrol and control,
public and private use, administrative allocation of jurisdiction, and
other manifestations of authority throughout history.”[x]
Li Guoqiang, a research scholar at the Chinese Academy of Social
Sciences, argues that the islands in the South China Sea had been
discovered during the Qin and Han dynasties (circa 221 BC – 220 AD), and
that maritime boundary had been established during the Qing dynasty
(circa 1644-1911).[xi] In two notes verbales
submitted to the UN Secretary-General in May, 2009, China declared that
it “has indisputable sovereignty over the islands in the South China
Sea and the adjacent waters, and enjoys sovereign rights and
jurisdiction over the relevant waters as well as the seabed and subsoil
thereof.”[xii]
According to these scholars, China as a titleholder has the right to
decide “whether, when and how to utilize these island chains and natural
resources therein, to make and maintain physical presence there, and to
install military and non-military facilities for the purpose of
self-defense and/or protection of Chinese fishing and other economic and
non-economic activities.”[xiii]
However, other claimant countries could also present historical
evidence to support their own historic claims. For instance, Vietnam
could produce maps claiming historical sovereignty going back to the 17th
century. Likewise, the Philippines could produce old maps showing the
Scarborough Shoal, which China took two years ago, to belong to the
Philippines: the Carte Hydrographica y Chorographica de las Islas
Filipinas, dating back to 1734; a subsequent map published in Madrid in
1808, which includes Scarborough Shoal (known as Bajo de Masinloc) as
part of the Philippine territory; and another topographic map drawn in
1820 showing Bajo Scarburo as part of the province of Zambales.”[xiv]
The truth of the matter is the
South China Sea has provided transoceanic sea routes to everyone for a
very long time. Navigation on the high seas was a global common as
international waterways were unrestricted to traders, seafarers, and
fishermen alike. South China Sea’s busy maritime traffic made possible
the comings and goings of imperial powers, from the Chinese to the
Mongols who dominated the seas during the early centuries and to the
Europeans who actively engaged in trading during the medieval times. As
Hye Jin Lee, who studied the pre-19th century maritime
history of the South China Sea, puts it: “The South China Sea has been
an important maritime region for trade and interaction among different
peoples ever since, while displaying a frequent shift of the leading
maritime power to different peoples and to different ports or states in
different time periods. . .”[xv]
Professor Mohan Malik of the Asia-Pacific Center for Security
(Honolulu) argues that China’s historic assertions are based on
standards of pre-modern Asia when empires were characterized by
undefined and ever-changing frontiers, and did not exercise sovereignty.[xvi]
However, the Treaty of Westphalia of 1648 introduced the notion of
land-based sovereignty for nation-states, while the United Nations Law
of the Sea (UNCLOS) and the United States (through customary
international law and its Freedom of Navigation Rights) introduced the
notion of maritime sovereignty in the mid-twentieth century, thereby
laying down rules-based land and maritime arrangements with which modern
nation-states are expected to operate. With the modern period ushering
in a world order of nation-states with clearly-delineated national
boundaries, China seems stuck in ancient maritime traditions of
undemarcated jurisdictions.[xvii]
Moreover, in their legal analysis of China’s historic rights
claims, Professors Florian Dupuy and Pierre-Marie Dupuy indicate that
for historical factors to be considered in determining maritime claims,
they must be limited to “establishing whether a given state has
exercised and still exercises authority, a titre souverain, over
a defined area in an effective and continuing manner, and whether such
exercise of authority has been accompanied by acquiescence by the third
states concerned.”[xviii]
Since China has failed to establish any of these elements, it has
remained ambiguous in providing legal justifications for its claims.[xix]
The State Department, in its study, “Limits in the Seas,”
also indicates that China’s historic rights claims are not compatible
with historic claims that are recognized in Articles 10 and 15 of the
Law of the Sea Convention, especially in areas where littoral states
have entitlements to exclusive economic zone and continental shelf.[xx]
It adds that the primary purpose of the Convention is precisely “to
bring clarity and uniformity to the maritime zones to which coastal
States are entitled.”[xxi] But China insists that its historical interpretation of maritime history should supersede these laws and guidelines.
China’s sovereignty claims based on the nine-dash line map
The nine-dash line map, upon
which China is staking its sovereignty claims, was first published in
1948 by the Republic of China’s Interior Ministry in Taiwan. It
encompasses 2,000,000 square kilometers of maritime space equivalent to
about 22 percent of China’s land area.[xxii]
Legal experts say, however, that this map has no legal value since
cartographic materials do not constitute titles in international law:
“The principle that emerges from international jurisprudence and
doctrinal discussions is that cartographic materials do not by
themselves have any legal value.”[xxiii]
According to Professors
Florian and Pierre-Marie Dupuy, China’s 2009 and 2011 Declarations to
the UN did not meet at least two central requirements applied by
international courts in deciding whether maps can have a probative
value: (1) geographical accuracy and reliability, and (2) neutrality in
relation to the dispute and the parties involved.[xxiv]
That is, an international court can only consider whether a map is of
legal value if it “constitutes the true and accurate manifestation of
the will of a competent national authority or if it reflects an
agreement between the states potentially concerned (in this case, China
and its neighbors). . . ”[xxv]
Therefore, the authors conclude that China’s nine-dash line map was
not a product of a consensual agreement between two parties, nor was it
created and established by an unbiased, neutral party. As Charles
Cheney Hyde pointed out in his 1933 article, “Maps as Evidence in
International Boundary Disputes,” when a cartographer makes a map based
on requisite geographical data, “his trustworthiness as a witness must
depend upon the impartiality with which he paints his picture.”[xxvi]
Moreover, the nine-dash line map is unreliable because it does not
clearly provide the limits of China’s maritime sovereignty. As pointed
out by Professors Florian and Pierre-Marie Dupuy, “not only is the
meaning of the line indeterminate, but the line is drawn in the most
inaccurate possible way: the thickness of the line, its lack of
precision (due, in particular, to the empty spaces between the nine
dashes), and the absence of geographical coordinates make it impossible
to determine the precise area enclosed by it.”[xxvii]
The US State Department study also concludes that China’s nine-dash line map is inconsistent with international law:
. . . if the dashes on Chinese maps are intended to indicate national
boundary lines, then those lines would not have a proper legal basis
under the law of the sea. Under international law, maritime boundaries
are created by agreement between neighboring States; one country may not
unilaterally establish a maritime boundary with another country.
Further, such a boundary would not be consistent with State practice and
international jurisprudence, which have not accorded very small
isolated islands like those in the South China Sea more weight
in determining the position of a maritime boundary than opposing
coastlines that are long and continuous. Moreover, dashes 2, 3, and 8
that appear on China’s 2009 map are not only relatively close to the
mainland shores of other States, but all or part of them are also beyond
200 nm from any Chinese-claimed land feature.[xxviii]
Yet, China refuses to comply with the requirements of
international law. It has announced many times before that it would not
abide by arbitration decisions arrived at by international courts. It
seems also that the United Nations does not possess the authoritative
force by which to implement its laws. The Philippines has yet to
successfully contest its sovereignty claims over disputed islands filed
in the International Tribunal on the Law of the Sea against China
because China refuses to give its consent and warns that it will not
comply with the decisions of the court.
Resolving the South China Sea dispute: what needs to be done
Given China’s willful
intransigence that is destabilizing to the peace and security of the
region, it is imperative that claimant countries and the rest of the
international community come together and confront China’s aggressive
actions and assertive posturing. At stake are the territorial integrity
and ownership claims of claimant countries and freedom of navigation
for non-claimant countries as well as safe passage of about $5 trillion
worth of goods that ply through the sea routes annually through the
South China Sea.
The international community cannot afford to be neutral in this
dispute. The current narrative on neutrality by some non-claimant
countries, including the US, only contributes to policy uncertainty and
confusion. Fortunately, this is not the case with ASEAN’s
Secretary-General Le Luong Minh whom China criticized for saying that
China’s maritime claims are unacceptable and its nine-dash line map
incompatible with international law. When China demanded that ASEAN
maintain a position of neutrality in this conflict, Mr. Minh replied:
“’What kind of neutrality [are they] talking about? Can I be neutral to
[Asean] interests?’ he said. ‘How can I be neutral to truth?’”[xxix] Such moral clarity and political courage are what international leaders should exhibit towards China.
For an effective, speedy, and successful resolution of this
conflict, claimant countries and the rest of the international community
should consider the following courses of action:
- Each claimant country in the South China Sea dispute should issue an official declaration of its claims ownership based on the requirements of international law, to be endorsed by the global community, international organizations, including the UN and ASEAN, and international military alliances.
An official declaration of
ownership spelling out maritime boundary lines for each of the claimant
countries based on the provisions of the UN Convention on the Laws of
the Sea should not be difficult to do. For international laws that can
legitimize and justify such action are already in existence. The laws
of the sea so state that countries have the right to exercise maritime
sovereignty over waters within 12 nautical miles from their coastlines
and an exclusive economic zone of 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured. Since the US
is not a signatory to the UNCLOS, it can cite its navigational rights
to international waters based on customary international law and its
Freedom of Navigation Program which contests excessive maritime claims
made by other countries in contravention of customary international law.
For claimant countries with overlapping claims, common ownership and
joint development efforts should be explored.
With this official declaration
of ownership, claimant countries should come up with an official map,
vetted by independent parties, spelling out which maritime territory
belongs to what country. With this official map, claimant countries can
start staking out their claims. They should invest in laser-powered virtual fences
or other infrastructure installations that can mark the scope and
limits of their maritime claims. Outposts or watchtowers, such as the
ones being built for Philippine coast guards can also help determine and
protect boundary lines.
The importance of a rules-based approach is it levels the playing
field. The laws of the sea aim to bring about clarity and uniformity to
the maritime zones to which littoral states are entitled. Without
these rules-based boundaries, nations can do what they want to do
against other nations, and, in the case of the South China Sea dispute,
even “manufacture sovereignty.”
- Effective enforcement capabilities and concrete courses of action should be immediately put in place to counter China’s aggression.
To have teeth, the above must
be accompanied by effective enforcement capabilities. This is nothing
new. But China’s increasingly aggressive actions should pressure
policy-makers and stakeholders to take the South China Sea dispute more
seriously, and come up with concrete plans of action in countering
China’s aggression. The Pentagon’s recent effort in looking into the
possibility of flying Navy surveillance aircraft over the islands and
even deploying US naval ships to within 12 nautical miles of reefs on
islands built by China near the Spratlys is a big step towards making
real the possibility of confronting China through concrete and effective
courses of actions.[xxx]
As has been suggested by a
number of experts before, enforcement capabilities should include
sharing of military resources, training, and operations among claimant
countries in the region and with the United States, Japan, India, and
Australia. These joint efforts should include joint patrols, sharing of
surveillance and intelligence resources among claimant countries and
other stakeholders in the region, with the US, Japan, and Australia
acting as security guarantors.
Professor Richard Javad
Heydarian of the De La Salle University (Manila) proposed a “maritime
coalition of the willing,” which can lead to peacekeeping patrols in the
South China Sea, an idea that was proposed by Vice Admiral Robert
Thomas, commander of the US 7th Fleet who also indicated that the US Navy is willing to provide support for such efforts.[xxxi]
On the part of the Philippines, which is a treaty ally of the US,
it can invoke provisions of the 1951 Mutual Defense Treaty entered into
by the Philippines and the US, which provide military support and
assistance in the event that one of the two parties comes under attack.
Under the current military agreement, both countries are engaged in
joint military exercises, some of them even taking place in Zambales
province near the Scarborough Shoal, which China seized in 2012.
With enforcement capabilities in place, this maritime coalition of
the willing can be in a position to demand that China abandon its
maritime claims. It will also have the power to pressure China to stop
reclamation activities and vacate reclaimed areas under an agreed-upon deadline.
China can call the whole thing off and be the indispensable superpower in the Asia-Pacific: cost-benefit incentives
For its part, China must examine its maritime claims against its
larger interests and role on the global stage. As a rising power,
China’s clout has expanded worldwide. But in Asia, in particular, it
plays a crucial role in the economies of its neighbors. It is the
biggest and most important player in the region
As an Asian superpower, China
should weigh the costs against the benefits of its aggression in the
region. It will do itself a favor by establishing a reputation as a
legitimate player on the world stage. Instead of saber-rattling, China
can rechannel its military resources on the high seas towards productive
and profitable activities and help eliminate tensions in the region.
It will win the goodwill and cooperative support of its neighbors. In
the absence of good neighborliness, China leaves everyone no choice but
to counter its aggression As Gregory Poling,
a Southeast Asia specialist at the Center for Strategic and
International Studies, puts it, “If the goal is to convince Beijing that
the costs — in lost soft power and growing hesitance of others to trust
its commitments and follow its lead — outweigh the benefits of this
aggression, then building such international consensus is the only way
to do so.”[xxxii]
As to contested marine and oil
resources in the disputed territories, China is wealthy enough to
invest in joint exploration and development projects, perhaps buy stocks
from the rightful owners, and make things profitable for both principal
owners and stockholders. Stock-holdings or stock-ownerships are
positive economic incentives that motivate all stakeholders to work hard
towards making the enterprise grow – certainly an attractive
alternative to the present status quo. China – economic savvy
that it is – understands this. The more profitable an enterprise is, the
better it is for those who have a stake in it. China also understands
that economic prosperity thrives in an environment of peace and
security.
By resolving the South China
Sea dispute, stability and prosperity can start taking place in the
region that is otherwise fraught with insecurity and economic tensions.
It is China’s call whether to start a war over its maritime claims or
contribute towards security, stability, and economic development in the
region. The conduct of nations is measured in terms of the choices they
make between prosperity or stagnation, civilization or ignorance, peace
or war.
Dr. Priscilla Tacujan is
an independent consultant and holds a PhD in Political Science from
Claremont Graduate University. She spent almost a year in Afghanistan
working as a social scientist. Dr. Anders Corr provided editorial
oversight for this article. JPR Status: Opinion piece. Archived
6/2/2015.
Endnotes:
[i] Matthew Lee, “Neither China nor US giving ground over projects dispute,” Associated Press, May 17, 2015, http://news.yahoo.com/kerry-urges-china-reduce-tensions-south-china-sea-071331994.html.
[ii]
Sasakawa USA US-Japan Security Forum 2015, “Remarks by Admiral Dennis
Blair, US Navy (retired) Chairman and CEO, Sasakawa Peace Foundation,
USA,” April 29, 2015, http://spfusa.org/wp-content/uploads/2015/04/Blair-Security-Forum-Speech.pdf.
[iii] Ibid.
[iv]M. Jegathesan, “ASEAN warns Chinese actions may ‘undermine peace’ in S. China Sea,” Business Insider, April 27, 2015, http://www.businessinsider.com/afp-asean-warns-chinese-actions-may-undermine-peace-in-s.-china-sea-2015-4.
[v]Rob Taylor, “China’s ‘Great Wall of Sand’ Raises U.S. Concerns,” Wall Street Journal, March 31, 2015 http://www.wsj.com/articles/u-s-to-move-stealth-destroyers-to-pacific-region-1427784315
[vi] Jose Katigbak, “US to China: Clarify Your Boundary,” Philippine Star, April 17, 2015, http://www.philstar.com/headlines/2015/04/17/1444755/us-china-clarify-your-boundary.
[vii]David Tweed, “China Says U.S. ‘Hyping Up’ Its Military Threat, Damaging Trust,” Bloomberg, May 11, 2015, http://www.bloomberg.com/news/articles/2015-05-11/china-says-u-s-hyping-up-its-military-threat-damaging-trust.
[viii] Erik FRANCKX and Marco BENATAR (2012), “Dots and Lines in the South China Sea: Insights from the Law of Map Evidence,” Asian Journal of International Law, 2, pp 89-118, http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8467148&fileId=S2044251311000117.
[ix] Dupuy Florian and Pierre-Marie Dupuy. “A Legal Analysis of China’s Historic Rights Claim in the South China Se.” The American Journal of International Law, vol. 107, no. 1 (January 2013). http://www.jstor.org/stable/10.5305/amerjintelaw.107.1.0124.
[x] Jianmin Sheng, “China’s Sovereignty over the South China Sea Islands: A Historical Perspective,” Chinese Journal of International Law, 2002, p. 157, http://chinesejil.oxfordjournals.org/content/1/1/94.full.pdf.
[xi] Li Goqiang, “Claims over islands legitimate,” China Daily, July 22, 2011, http://www.china.org.cn/opinion/2011-07/22/content_23044991.htm.
[xii] Dupuy and Dupuy, p. 124.
[xiii] Ibid.
[xiv] Jarius Bondoc, “China needs to undo its pseudo-history,” Philippine Star, June 19, 2013, http://www.philstar.com/opinion/2013/06/19/955583/china-needs-undo-its-pseudo-history
[xv] Hye Jin Lee, “Maritime History: The South China Sea until the later 19th Century,” Korean Minjok Leadership Academy, International Program, June 2012, http://www.zum.de/whkmla/sp/1314/hyejin/lhj1.html.
[xvi] Mohan Malik, “History the Weak Link in Beijing’s Maritime Claims, The Diplomat, August 30, 2013, http://thediplomat.com/2013/08/history-the-weak-link-in-beijings-maritime-claims/4/.
[xvii] Ibid.
[xviii] Dupuy and Dupuy, p. 141.
[xix] Ibid.
[xx]
Office of Ocean and Polar Affairs Bureau of Oceans and International
Environmental and Scientific Affairs, “Limits in the Seas,” State Department, No. 143, December 5, 2014, p.23, http://www.state.gov/documents/organization/234936.pdf.
[xxi] Ibid.
[xxii]“Limits in the Seas,” p. 4.
[xxiii] Dupuy and Dupuy, p. 133.
[xxiv] Ibid., p. 134.
[xxv] Ibid.
[xxvi] Ibid.
[xxvii] Ibid.
[xxviii] “Limits in the Seas, p. 23.
[xxix]Ben Otto and Jason Ng, “Southeast Asia Divided on Response to Chinese Reclamation in South China Sea,” Wall Street Journal, April 26, 2015, http://www.wsj.com/articles/asean-chief-says-cant-accept-beijings-south-china-sea-claims-1430022922.
[xxx]Adam Entous, Gordon Lubold, and Julian Barnes, “U.S. Military Proposes Challenge to China Sea Claims,” Wall Street Journal, May 12, 2015, http://www.wsj.com/articles/u-s-military-proposes-challenge-to-china-sea-claims-1431463920.
[xxxi] Richard Javad Heydarian, “South China Sea: Forging a Maritime Coalition of the Willing,” Asia Maritime Transparency Initiative, CSIS, May 7, 2015, http://amti.csis.org/south-china-sea-forging-a-maritime-coalition-of-the-willing/.
[xxxii] David Tweed and Chris Blake, “China Reserves Right to Air Zone Over South China Sea,” Bloomberg, May 8, 2015, http://www.bloomberg.com/news/articles/2015-05-08/china-reserves-right-to-declare-air-zone-over-south-china-sea.
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