South China Sea Issue: A Dispute Over the Order in East Asia

China International Studies (English) - - Contents - Shi Yongming

The construction of the future East Asian order must return to the track of political dialogue, consultation, and step-by-step efforts. It is necessary to review the process of establishing the order of the South China Sea to understand this.

The dispute in the South China Sea between China and the Philippines has turned from one over rights and interests into one over order because of the international arbitration filed by the Philippines and the intervention of the United States. The US is taking advantage of the South China Sea issue to reshape East Asia, primarily by hijacking international law to justify its military deployment. Against this backdrop, the award by the Permanent Court of Arbitration in the Philippines’ arbitration case is astonishing, and shows obvious signs of political influence. The unfair arbitration award has increased the possibility of conflict in the South China Sea. The so-called process of establishing rule of law in the South China Sea has reached a dead end since the US and the Philippines have abused international law. The construction of the future East Asian order must return to the track of political dialogue, consultation, and step-by-step efforts. It is necessary to review the process of establishing the order of the South China Sea to understand this.

The Construction of Post-war Order in the South China Sea

First of all, the South China Sea dispute between China and the Philippines is a struggle over sovereignty. Is the China-philippines dispute

brought about by history? This is obviously not the case.

From the perspective of international order, the end of World War II marked the advent of the construction of contemporary international order. The core reason is that World War II was triggered by the contradictions among imperialists left by World War I and later turned into the global war against fascism. After World War II, the United Nations was founded for all the countries in the world to join and address common security issues. Therefore, the end of World War II means the end of the age when imperialists could partition the territories of other countries by means of war. In this regard, any new territorial claim after World War II is an act of illegal territorial expansion.

Under the circumstances of this new age, whether territorial disputes exist between two countries should be determined by their affirmation of territory activities after World War II. On the territorial issue of the South China Sea islands, both China and the Philippines made clear territorial affirmations, which have been widely recognized by the international community.

First, the Philippines got rid of American colonial rule and won independence after World War II. Its territory defined by its constitution is based on three treaties signed between the United States and Spain after the United States defeated Spain and took over the Philippines in 1898. The territory of the Philippines in all these treaties does not include the South China Sea islands claimed by China. Therefore, the territory of the independent Philippines naturally does not include these islands. In other words, all the territory outside these treaties is from illegal expansion after World War II and the newly gained territory of the Philippines is thus against international law.

Second, China’s original sovereignty over the South China Sea islands is indisputable. Since it is indisputable, China can legally regain the South China Sea islands occupied by Japan with no resistance after World War II. In accordance with the Cairo Declaration and the Potsdam Proclamation, the then Government of the Republic of China dispatched warships

to officially resume its sovereignty over the South China Sea islands in 1947. It also officially promulgated the location map of the South China Sea islands in February 1948 in the attached maps of the Administrative Area Map of the Republic of China openly published by the Department of National Areas of the Ministry of the Interior, using the dash line to identify China’s sovereignty over the South China Sea islands and its surrounding waters.1 It is an unequivocal expression of international law. The action was not questioned then and so was recognized by the international community.

The recognition of the international community can be found in several aspects.

First, although China wasn’t invited to the peace deal between the United States and Japan due to certain historical reasons, the San Francisco Peace Treaty adopts the solution of owned territory when dealing with

the sovereignty of the South China Sea islands. The San Francisco Peace Treaty in 1951 has two solutions over the territories occupied by Japan. The Treaty uses the expression “Japan renounces” regarding the status of owned territories. The Peace Treaty has a special explanation of unclaimed territories such as Ryukyu Islands, authorizing the United States to serve as trustee on behalf of the United Nations. The self-evident logic is why must Japan renounce the territories if they are not owned and not under the trusteeship of the United Nations. Hence all the territories renounced by Japan in the San Francisco Peace Treaty have their owners and the owners are clear. Article 2 of Chapter 2 of the Peace Treaty stipulates that the territories which Japan should renounce include the Nansha Islands (Spratly Islands) and the Xisha Islands (Paracel Islands). It should be underscored particularly that the Nansha Islands and Xisha Islands are stated as a whole. Since the Peace Treaty was signed after the Government of the Republic of China officially took back the South China Sea islands in 1947, the expression of the Peace Treaty implies the recognition of China’s sovereignty over the South China Sea islands. As a signatory of the San Francisco Peace Treaty, the Philippines then did not claim the South China Sea islands. Therefore, legally speaking, this means that the Philippines recognized China’s sovereignty over the South China Sea islands.

Second, China’s Kuomintang government signed a peace treaty with Japan when the San Francisco Peace Treaty entered into force. In the treaty, Japan reaffirmed that it renounced its occupation of the South China Sea islands, which means that Japan recognizes the South China Sea islands are China’s territories. This explains the expression of Japan’s renunciation of the South China Sea islands in the San Francisco Peace Treaty.

Third, international practice demonstrates that the international community widely recognizes China’s sovereignty over the South China Sea islands. The 1947 edition of Collier’s World Atlas and Gazetteer rediscovered in Vancouver, Canada in 2015 uses the Chinese names to identify the islands and marks China’s territory on a number of them. This

exactly reflects the universal knowledge of the international community toward the South China Sea at that time.2 It is not an isolated atlas. In fact, it is not difficult to find similar atlases in the libraries of Western countries.

China and the Philippines did not have any territorial disputes in the South China Sea after World War II. Why has the territorial dispute come up now? The cause lies in the illegal expansionist activities conducted by the Philippines. On May 15th, 1956, Tomas Cloma, President of the Manila Navigation School, published the Declaration to the World, arguing the discovery and occupation of parts of the Nansha Islands. After this, the Philippine government first supported the private occupation of Mr. Cloma and then began resorting to official actions to occupy the Nansha Islands. Ironically, the reasons for the Philippines’ occupation of the islands are a series of baseless arguments such as proximity to the Philippines. The failure of territorial affirmation after World War II has resulted in the territorial disputes. Such kinds of territorial disputes did not exist before between China and the Philippines. The Philippines’ occupation of the Nansha Islands is overtly aggressive, and severely damages the post-war order. The post-war order should be restored first for there to be discussion of the South China Sea dispute between China and the Philippines.

The Legal Order of UNCLOS

The construction of the contemporary international order will gradually move toward the road of legalization, which seems an easy principle. The legal framework needs respect for the fundamental spirit of the law to solve existing conflicts instead of abusing the law to create conflicts. The appearance of the South China Sea issue shows that the emerging oil

crisis in the 1970s caused the surrounding countries to pay attention to the oil reserves beneath the South China Sea. Interests alone cannot lead to conflict, though. The evolution of the maritime system is a vital factor complicating the South China Sea issue. The United Nations Convention on the Law of the Sea (UNCLOS) was launched in 1982. The regulation of UNCLOS on the 200 nautical mile exclusive economic zone of the coastal countries brings two problems to “the big lake” of the South China Sea, which has very complicated geomorphology and maritime conditions and is surrounded by many countries. The first problem is the overlapping of the exclusive economic zones and their conflicts with traditional rights and interests. The second problem is that the status of islands in maritime rights is an uncertain factor. On the one hand, islands can possibly bring tremendous maritime rights and interests. On the other hand, the claim of maritime rights of 200 nautical miles can possibly cover some islands which don’t belong to the countries.

Due to these problems, countries such as the Philippines, Malaysia, and Vietnam sought to expand their maritime rights by seizing islands, while at the same time abusing UNCLOS to claim sovereignty over islands according to the 200 nautical mile exclusive economic zone. This kind of action began even before UNCLOS was adopted. On June 11th, 1978, the Philippines promulgated Presidential Decree No. 1596 signed by President Ferdinand Marcos, which claimed 33 islands, reefs, shoals, and cays of the Nansha Islands with a maritime area of 64,976 square nautical miles as a part of the Philippines. The Philippines imposed executive administration over that area, naming the islands as the “Kalayaan Islands.” Other Southeast Asian countries followed the example of the Philippines. Later, Malaysia and Vietnam started to seize islands in the South China Sea, which finally resulted in military conflict between China and Vietnam in 1988. It is very obvious that some countries have attempted to utilize UNCLOS to change the post World War II order due to the complexity of the topographic structure of the South China Sea. This adds maritime rights and interests disputes to the existing disputes over territory and

sovereignty between China and the Philippines.

The Senate of the Philippines passed Bill No. 2699 after a third reading on January 28th, 2009. The Bill is known as the Archipelagic Baselines Law of the Philippines. The Bill adopts the tactic of using maritime rights to grab land rights. It utilizes the 200 nautical mile exclusive economic zone to include some islands and reefs (including the Taiping Island) of the Nansha Islands and the Huangyan Island (Scarborough Shoal) of the Zhongsha Islands (Macclesfield Islands) among those already owned by the Philippines. The Philippines once again pursued territorial expansion through domestic legislation, which caused the rapid deterioration of relations between China and the Philippines over the South China Sea. Meanwhile, China’s capability and will to safeguard its rights and interests have been strengthened. The Reed Tablemount incident in 2011 and Huangyan Island standoff between China and the Philippines in 2012 made the Philippines realize that its route of expansion by force over the past several decades had come to an end. The alternative for the Philippines is either to confront China until the outbreak of military conflict or seek other solutions. The primary policy of the Philippines has been to lobby the United States to endorse its position. In 2015, the Obama administration advised the visiting Philippine President Aquino to turn to international arbitration.

Why does the Philippines dare to take the so-called rule of “law” when it is disrupting the post-world War II order? The reason mainly lies in the existence of some features of UNCLOS. First, UNCLOS grants absolute authority to judges. The right of explanation of maritime law solely belongs to the tribunal with no appeal. Since the international legal system is different from the domestic legal system, different tribunals have no subordinate relationship. It is logically understandable this is in order to safeguard the authority of the law. Second, UNCLOS is quite loose in choosing tribunals under the circumstance of unlimited judicial authority. For instance, Article 287 of UNCLOS lists four means of dispute settlement: “(a) the International Tribunal for the Law of the Sea

established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.” Article 287 of UNCLOS also states that, “If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.” Third, UNCLOS leaves a big loophole in ensuring the impartiality of judges, as the judges of the UN organs can serve their respective governments. According to common sense, the impartiality of judges should be based on their political and economic independence. However, Shunji Yanai, President of the International Tribunal for the Law of the Sea, is not a professional judge. He previously served for many years as a Japanese diplomat and subsequently lectured in international law at post-secondary education institutions for only three years. More recently, he has served as Chairman of the Advisory Panel on Reconstruction of the Legal Basis for Security for Japanese Prime Minister Shinzo Abe. The arbitral tribunal constituted in accordance with Annex VII is not only a temporary body but also comprised judges who receive funding from the concerned parties to perform their duties. UNCLOS confers the right of compulsory arbitration on the temporary arbitral body, which is operated commercially. This actually weakens the authority of international law.

The South China Sea dispute between China and the Philippines is a hybrid dispute of two kinds of order. It can only be settled through negotiations since the two issues cannot be handled separately. The South China Sea Arbitral Tribunal from the very beginning completely disregarded the complexity of the case, which involves territorial

The South China Sea dispute between China and the Philippines is a hybrid dispute of two kinds of order. It can only be settled through negotiations since the two issues cannot be handled separately.

sovereignty and the post-world War II international order. It disregarded the attempts of the Philippines, which endeavored to legalize its illegal occupation through arbitration. It easily endorsed the deceit of the Philippines that it had exhausted negotiations with China. Its final award is also one-sided, lacking the legal attitude of impartiality, caution, and balance, which should be exercised in international legal arbitration. This is, at the very least, an overt radical inclination in law, forcing the UN International Court of Justice and International Tribunal for the Law of the Sea to declare that the Arbitral Tribunal has nothing to do with them.

When the arbitration award was released, we notice one peculiar phenomenon. The Arbitral Tribunal judged the Taiping Island (Itu Aba Island) as a reef. However Taiping Island can support nearly 100 residents, having fresh water and land. Japan on the one hand has urged China to abide by the arbitration on various diplomatic occasions, while on the other hand explaining to the international community that its Okinotori reef is an “island.” Actually the Okinotori reef is as big as one bed, being connected by cement. It reflects the power politics of Japan. Since power politics is manipulating international law, China’s refusal to accept the arbitral result is safeguarding the integrity of international law.

The Order Dominated by the United States

One very noticeable expression in post-cold War international politics is “the international order is dominated by the United States.” In terms of the South China Sea, the so called “order” is that everything should be dominated by the United States. The standard of judging right and wrong is whether it is in the strategic interests of the United States.

In fact, the Philippines started to disrupt the post-world War II international order and seek territorial expansion in the 1950s. This can be attributed to the United States “domination.” In 1954, the United States signed the Southeast Asia Collective Defense Treaty with the Philippines

and other Southeast Asian countries. The Treaty put the whole South China Sea under its jurisdiction.3 This means that the United States placed the South China Sea under its military control. Just after the signing of the treaty, the Philippines started its expansion in the South China Sea, taking advantage of the fact that China was still recovering from the civil war and the two sides across the Taiwan Strait could not pay adequate attention to the issue.

After the end of the Cold War, the United States has always intervened in the South China Sea dispute between China and the Philippines. The United States’ partiality has been evident. During the Mischief Reef dispute between China and the Philippines in 1995, the US House of Representatives passed Resolution No. 114, using the word “aggression” to define Chinese activities in the South China Sea and stating the United States should express concern over the claims of any non-democratic countries in the South China Sea. The Resolution urged the US President to “assess the defense needs of the democratic countries among the claimants.”4 Because of the endorsement in the US House of Representatives, the Philippines sent its navy to destroy the survey marks erected by China in Wufang Jiao (Jackson Atoll), Banyue Jiao (Half Moon Shoal), Xian’e Jiao (Alicia Annie Reef), Xinyi Jiao (First Thomas Shoal), and Ren’ai Jiao (Second Thomas Shoal) using warships and planes to attack unarmed Chinese fishermen.

Since the United States has already included the South China Sea within its sphere of influence during the Cold War, its core policy is to ensure its dominance in the so-called issue of safeguarding the order in the South China Sea. Its basic approach is to encourage the Philippines and Vietnam to struggle with China for rights. It is the Philippines which built an airstrip at Zhongye Island (Thitu Island) yet the United States

has never made any comment on it. After China and the members of the Association of Southeast Asian Nations (ASEAN) signed the Declaration on the Code of Parties in the South China Sea in 2002, Vietnam violated the spirit of the DOC by carrying out massive construction of islands in the South China Sea and militarizing all the islands illegally occupied by it. The United States also remained silent over this, but continually criticized China’s actions to protect its rights instead. When China is forced to take counter-actions, the United States responds with a strongly confrontational attitude.

On the ways and means for settling the South China Sea issue, the United States is clearly against the Chinese policy of promoting bilateral negotiations and trying to carry out joint development with the Philippines and Vietnam. The United States has internationalized the South China Sea issue, attempting to turn the issue into one between China and ASEAN.

The US also seeks to mediate between China and ASEAN in an effort to obtain favor from the latter. As such, the policy of the United States is to drive China out of the South China Sea or use it as a tool to divide China and ASEAN and thus create conditions for the United States to gradually increase its military presence in the South China Sea.

During the South China Sea arbitration, the United States took center stage by using its military power to create momentum. Just before the release of the arbitration result, the United States even dispatched two aircraft carrier groups to the South China Sea. This is a typical action to influence the process of the Arbitral Tribunal. From the Middle East to the South China Sea, we can see that the so-called order dominated by the United States is one which exports disorder globally.

The East Asian Order of Win-win Cooperation

The South China Sea issue involves too many interests such as the socalled maritime lifeline of Japan, and the resource security of East Asian countries. The key to the problem, however, is what kind of East Asian security order should be built. East Asian order must reflect unity and cooperation instead of the division and confrontation dominated by a lone superpower.

The United States and Japan argue for ensuring the safety and freedom of navigation. This is a false statement, which only serves as an excuse for the United States and Japan to intervene in the South China Sea issue. The safety of international shipping lanes can only be realized if the situation in the South China Sea remains stable. Through their provocations, the United States and Japan are making the situation in the South China Sea more complicated, actually endangering navigation in the South China Sea.

Among the neighboring countries of the South China Sea, there is a conflict of interests instead of strategic contradictions. Strategically speaking, our sole choice is to peacefully coexist and pursue joint

development. On the basis of this strategic direction, we can solve the issue by pursuing shared interests. This is the origin of the proposal of “shelving disputes and seeking common development” put forward by Deng Xiaoping years ago.

In the past, China always followed a friendly route between itself and the Philippines. During the first oil crisis in the 1970s, China continuously supplied the Philippines with crude oil at a price much lower than the international market price for several years. In the 1990s, China showed restraint even when the Philippines used military violence against unarmed Chinese fishermen. At the beginning of this century, China, the Philippines, and Vietnam started to seek common development. However, when the United States pivoted to the Asia-pacific region and implemented its so-called rebalancing strategy, it deliberately sowed the seeds of antagonism between China and the Philippines as well as between China and Vietnam. It is even trying to make ASEAN one regional organization united against China. This situation is hindering regional development, essentially harming the common strategic interests of China and the ASEAN countries.

Therefore, regarding the future of the South China Sea issue, all regional countries should first consider the interests of the whole region, with an open mind to explore potential solutions. The only way to thoroughly settle the issue is political dialogue. During the process of settling the South China Sea issue, we should build a cooperative framework of lasting stability and development in East Asia through such dialogue. The South China Sea should be made the sea of regional cooperation, which becomes the bond for close connection among the neighboring countries.

China and ASEAN reaffirmed their efforts to "promote peace, stability, mutual trust and confidence" in the South China Sea, in Vientiane, capital of Laos, on July 25, 2016.

Cui Tiankai, Chinese Ambassador to the United States, reiterated that China has the firm will to safeguard its own interests and rights, and international justice, in his speech at the Center for Strategic and International Studies on July 13, 2016.

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