By Frank Ching
China’s mix of historical and legal claims in the South China Sea are inconsistent, says Frank Ching. Beijing can’t have its cake and eat it.
US scholar Lucian Pye once famously said that China was not a country but ‘a civilization pretending to be a state.’ That may have been apt at one time, but today’s China has been transformed into a modern state that plays an active role in international forums.
However, China also tries to capitalize on its long history when pressing its case in international disputes. Nowhere is this more clear than in the current South China Sea territorial dispute, which pits China against several of its neighbours. Also embroiled in the various rows are the United States, India and, increasingly, Japan. It’s a potent mix.
In 1996, Beijing ratified the UN Convention on the Law of the Sea (UNCLOS) and publicly embraced the treaty’s provision that ‘China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf’ – a hitherto unknown concept.
At the same time, however, it reaffirmed its claim over the islets, rocks and reefs in the South China Sea on historical grounds—grounds that aren’t recognized by the convention. That is to say, China claims all the rights granted under international law today and, in addition, claims rights that aren’t generally recognized because its civilization can be traced back several thousand years.
Historically, China was the dominant power in East Asia and considered lesser powers as its tributaries. By insisting now on territorial claims that reflect a historical relationship that vanished hundreds of years ago with the rise of the West, Beijing is, in a sense, attempting to revive and legitimize a situation where it was the unchallenged hegemon.
The ambiguity about what parts of international law China recognizes and which bits it doesn’t gives rise to the current dispute, which directly involves Vietnam, the Philippines, Malaysia and Brunei, and indirectly involves the interests of many other nations.
The claims made by Southeast Asian countries rest primarily on the provisions of the Law of the Sea. China, however, is taking the position that its sovereignty over the territories concerned precedes the enactment of the Law of the Sea, and so the law doesn’t apply. History trumps law.
In 2009, China submitted a map to the UN Commission on the Law of the Sea in support of its claims to ‘indisputable sovereignty over the islands of the South China Sea and the adjacent waters’ as well as ‘the seabed and subsoil thereof.’
The map featured a U-shaped dotted line that encompassed virtually the entire South China Sea and hugged the coasts of neighbouring countries including Vietnam, Malaysia and the Philippines. This was the first time China had submitted a map to the United Nations in support of its territorial claims, but there was no explanation given as to whether it claimed all the waters as well as the islands enclosed by the dotted line.
This was a radical departure from the position China took when it ratified the treaty. Back then, China said that it would hold consultations ‘with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.’
Significantly, especially for the United States, China’s position on UNCLOS has also shifted in another respect. In 1996, it took the position that foreign warships required its approval in order to pass through China’s territorial waters. Now, China says that foreign warships must obtain its approval before they can pass through its exclusive economic zone – a much wider area that isn’t part of its sovereign waters.
The United States disputes that position, maintaining that waters in a country’s EEZ are part of the high seas and that naval vessels are free to enter them and even conduct operations without any need for approval.
This difference in opinion between China and the United States (as well as most developed countries) has led to confrontations between the two countries, with US naval surveillance vessels carrying out information-gathering missions in China’s EEZ and being challenged by the Chinese.
China’s resort to history is a relatively new development in international law, although it isn’t completely unprecedented. For example, coastal states have been allowed to claim extended jurisdiction over waters, especially bays or islands, when those claims have been open and long-standing, exclusive, and widely accepted by other states.
In China’s case, however, its claims are evidently neither exclusive nor widely accepted by other states since they are being openly contested. Still, Chinese officials and scholars have attempted to buttress their arguments by appealing to historical records.
Photo Credit: US Navy
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Amaya
Now if a war did break out it would probably be over Taiwan,… In which again China would sadly fail.. China tried to scare Taiwan with practice invasions of some island … tag teamed with Russia , they sent 1800 troops…. Taiwan probably laughed at this, Also in my opinion… Russia has no business with Taiwan… So China needs to stop arguing that USA has no business with them as well.. The whole practice was basically to show how Russia would fend off allies why’ll China did its business with the island. This would be a very dumb move for Russia as well.. Do you guys really need another war i mean seriously… Taiwan is by far safe in my opinion …. AS long as China and USA stay intertwined nothing will happen… however once this ends you can guarantee China will do what it wants and USA would slam China economy into the sea…. China would be back into the stone age and USA will be paying more for their products but will be in less debt with another economy boom thanks to products being made in USA… Especially if the war ended up being a cold one…
Amaya
I Like Chinese people, Just not their government… Who are these people to take everything from their own people and demand respect from the rest of the world. I hope Chinese people begin to up rise against their pathetic rulers… That would be the only way to keep the progression China has had and yet secure proper future development and also create an environment where the people are safe and allowed basic human rights. If war did break out the people of China will suffer greatly and then will be forced to learn a lesson the USSR learned a why’ll back, That is that a communist country with no allies cannot support a war. In democratic nations money flies around more freely and wont have that problem at least not as bad, Also USA has allies… And some of them are surrounding China… This is another thing China must learn from history.. Adolf Hitler had everything planned out perfectly and maybe would have succeeded if he had not had a two front war… such wars are nearly impossible to win. China would be forced to fight a four front war… Plus India Japan and Russia are just waiting for China to make a bad move and throw itself into war… These countries will see this as an opportunity to take back land and possibly more then they even wanted…. However China will probably not go into war, sadly I see it crippling itself ether slowly or one day will just have a fatal blow from inside corruption and uprising of its people, everyone else just waits… This is especially true for India and Japan… countries that would love to see its competitor make a final fatal drop from the charts…
Mark Cabigon
If china insists in expanding their territories, many people will enlist in their armies and fight against china. Really a bad move for the chinese people. Or maybe we can just gang up against china and protest not to buy goods and services from them….in that way they go down into economic free fall.
Observer
No nation is perfect and the US is far from it.
But can anyone tell me if the US ever declared Iraq and Afghan as its territories as china did with Tibet, Xinjiang, Inner Mongolia?
Can anyone tell me any other countries are behaving like china is doing now? Such as using faked maps and made up documents to declare ownership of the whole sea.
That’s abusing history right there, no doubt about it.
Matt
Everyone can argue one way or another on territorial disputes and international law. The real issue seems really not to be disputed. The issue is…WHO will be the dominant power in the region? Obviously China is attempting to replace the US. The US needs to do exactly what China is preparing to do with Vietnam and the Phillipines and that is set up a naval skirmish where the US humbles China for the entire world to see. This is exactly what any gang member or Alpha Wolf does to obtain order in their societies…diplomats often cannot understand this most basic natural process. By avoiding the issue of WHO will be the Alpha we convey that we are indeed not an Alpha and current Chinese strategy will be reinforced. We are all human therefore the natural way applies today as it has always. The Chinese smell weakness and this smell is unmistakeable to a wolf. A big stick deterence strategy is only feasible with a man CLEARLY willing and able to swing it without hesitation. When have we proved our willingness to hit China?
yang zi
@Matt, even though you are trying to hit China, but I totally agree with your logic. we see eye to eye, but on the opposite side. However, even if Chinese Navy is better than US’s, I don’t want to them to fight each other.
Your strategy doesn’t work well in Vietnam’s case though. China has a big leverage on the land. it may not even be a navy involvement.
It is one thing to teach China a lesson, it is another to get involved in a land war. Navy wars are short, limited and effective, land wars are not. My guess is US will just protest, may even provide supplies, but that’s all it is.
Matt
China would be crazy to start a land war with Vietnam. They would fight the same way they did with us…asymetric all the way. I would bet there would be more than one country willing to supply as the Soviets did. So I do believe China will focus on short and sweet Naval fights.
I definately do not want a clash but it is most apparent to me that China is spoiling for a fight. Surely they do not understand the nature of Americans. As is being proven in the region we are forward deployed and ever watchful of unfolding events. We are ready.
John Chan
@Matt,
VN is a nation with no industry, without China it will still be under the thumb of French backed by the American. If VN does not listen to China it has to fight a war without outside help. USA and Russia will not help VN no matter what.
yang zi
Matt, I don’t think China will ever fight US Navy ship to ship. it is foolish to do so. However, it is conceivable that a navy conflict in the coastal areas gives China a winning chance. if US loses there, imagine the impact. but again, US and China will not have a military conflict. mark my words.
Vietnam has fortified the border area with China. this area is mountainous and very dangerous to outsiders. So China will take a different approach. it will precision bomb Vietnam’s strategic targets. a kosovo style war.
China may be 30 years behind US in military power, but it can use its geography win a local war on land and near its coast.
China knows its limits and it is not a pushover.
ca
Thank for china ’s support! If china just promised to be vietnam’s ally in 1954; history would have no such called vn ’s war! We are not an industrial nation like china at that time, but we are warriors. China was on its knee, confronting Mongolia, Manchria; but vn defeated their invasion quickly. China today is just an assembly house, even the most advanced products recently: rocket, the circuit board from Europe; atomic submarine, engine from Germany; aircraft carrier, frame from Russia; J10 a copy from Russia. Your country needs more time to develope and it is still a long time to compete with Western civilization. If chinese civilization disappears, the world doesn’t lose much.
Cam
again and again, Matt, you see Chinese bloggers john chan and yang zi is talking big and because talking big cost them nothing. We can sum up about China military – just a tiger paper. No more no less. All they can do is to bully smaller nations but wait, how many times the smaller nations like Japan, Korea, or Vietnam taught them lessons? many to count for sure.
John Chan
@Matt,
Let me tell you a pure nature of things, in Africa there live the giant gorillas; their way of power transfer works this way. The old and fading muscular Alpha silverback will lead the whole group to the mountain peak as the final showdown with the next Alpha, this is the last trick the old Alpha has, to test the loyalty of the group and the competence of the next Alpha. The end is always the same, the new Alpha leads the way to new prosperity as the de factor Alpha, the old Alpha is frozen to death in misery on the cold peak as his last stance.
USA will end up in the same situation as the old stubborn silverback although it’s muscular.
Matt
The only thing is Countries are not single living beings…they are made up of generations of people. The next generation of Americans always has to fight a war somewhere. So your analogy just doesn’t stand up to the reality that has been and will always be the American Military. We tend to lose insurgencies but this will not be the case with a Chinese naval clash.
Even if I do take your analogy and apply it WHERE are the muscles of the PLAN? I see one carrier only and it is not operating. The US has 20 operational carriers. Economicly China will never surpass the US and our allies when combined. Even Britain has more carriers than China and they are a small ally. South Korea and Japan will be all we need to ensure a very long and hopefully peaceful presence. Americans alway renew, get back on the horse as we say and get back in the fight. China’s only chance at defeating the US would be in using nukes and that would only leave it totally destroyed…not going to happen.
John Chan
@Matt,
That’s what the old Alpha thought; it thought it had everything under control, if the challenger follows the old Alpha’s way, then it is not a worthy new Alpha.
Matt, nowadays American have their fixation on bombing and killing, they do not renew. All pro-American bloggers reflect that reality; such inflexibility even is affecting its surrounding areas.
Matt
Inflexibility???…like China’s brazen claim to the South China Sea?…Neighbors getting worried…like the Philipines of all? Singapore?…Vietnam…Malaysia??? What country is causing more neighbors to worry? Can you add them up for me?
You prove my point…
a_canadian_observer
If you replace “USA” in the last sentence with “china”, you would have a better fit.
Cyrus
Let the Chinese have his little wet dream of defeating the United States even though we all know that’s impossible.
Favell Brohgi
How equally nice to see another power, perhaps Russia or China be an alpha wolf in the U.S.’s backyard! Commentators like Matt see things only one-sided.
Anon
History alone does not supercede international law, or else international law is no longer international, and no longer law.
Those who claim China’s history supercedes international law call for treading a dangerous path that leads to a self fulfilled destruction not only on themselves, but on their families, friends, and country. This must be nipped at the bud!
Most importantly, China cannot claim history alone trumps the UNCLOS and still be a ratifying member of UNCLOS.
As Mr. Ching said, law is law. The US hasn’t ratified it but abides by it, especially when it comes to territorial claims. More than can be said for China at this time.
SCdad07
Laws are laws????
I remembered that Australia’s law in the 60s classified Japanese as white while the rest of Asians were colored people and therefore, banned from public areas like swimming in the beaches.
Hong Kong, under British occupation, in 1800s and early 1900s period openly hanged signs in public parks: ‘Dog and Chinese not allowed’. In a shot of Bruce Lee’s movie, he jumped kick to clash that sign!!
US withdrew from IC’s compulsory ruling in 1986 only after she lost her case, which she assumed to win. 14 of 15 jurists ruled against US. Without saying, you should have guessed the nationality of the one who voted in favor of US.
It took US over 100 years after civil war and countless law broken actions for the ‘American Blacks’ to get voting right, not to mention US women’s struggle for their voting rights.
UNCLOS applies to ’signee’ after established sovereignty.
Sovereignty is the dispute here by various countries, not UNCLOS.
Mr. Ching’s assertion of China being an absentee:
Chinese government in the 1930’s lodged protests to the French government time and again as the only means because of internal conflicts and Japanese aggression.
Mr. F. Ching would have dutifully avoided parks in Hong Kong, beaches in Australia and seated happily in the back seat of an Alabama bus.
After getting out to be sick man of Asia, here we go with ’sick mind of China’.
SCdad07
Who set international law? Who enforces international law?
UN? US? Russia? China?
If a new int’l law passed by the rest of the world to allow the ‘Red Indians’ or ‘Mexicans’ to reclaim their territories, will US comply?’
By the way, ‘Red Indians’, the locals could not exercise their historical claims per your reasoning.
Ngoa Long
Emulate the Monroe doctrine (200 years ago!!)or the German Nazis/ Japanese imperialism in the 1930s-40s is not the good way for China’s ‘peaceful rise’!! This is the 21st century where people think about how to maintain the world peace, security and prosperity rather than conquerring or enslaving other peoples just for the sake of ruling the world (to satisfy the evil ambitions of a few people)! China should always remember such bitter lessons!
John Chan
@Ngoa Long,
China only wants to mind its own business and protect its sovereignty.
John Chan
@Ngoa Long,
China only wants to mind its own business and protect its sovereignty. So far only Westpac has been bombing and killing since WWII. They are then nations do not care world peace and prosperity, they are the one wants to enslave other people for the sake of ruling the world and to satisfy the evil ambition. It is the Westpac should be reminded their behaviour is not acceptable.
John Chan
International laws are academic pastime; they are not laws that are enforceable like domestic laws. International laws are also tools to glorify the criminal activities of Westpac’s gangster behaviour.
All those so-called international laws, rules and regulations are actually guidelines that are observed by all nations voluntarily at goodwill. The only time international laws are enforceable is the time they are backed up by brutal forces. That’s why the Westpac claims their bombing and killing is carrying out international laws on behalf of the world.
It is surprised that the author did not know this simple fact and bash China like a legal professional based on those so-called international laws.
ca
Each country should have a law to exist; so is the international community. Refute such law, imply a rebellion and war is unavoidable. China also signed this international law itself! Believe me, the western countries learned painful lessons from world war II: didn’t let the Germans passed the Rhine river. Everyone need peace, but not at any cost. World war II brought down two colonial empires England and French; US will intervene early if china cross the south china sea. Winner will take it all. If war breaks out, china will have all enemies, no allies! No great power can win a war without allies from Roman to Britist empires.
Russia is waitting; it once occupied a half of your country in the boxing rebellion at the beginning of last century.
You may not know that US deploy two aircraft carriers to the west pacific; one of its most modern submarine also be here. This submarine have over 300 nuclear war head, each has multiple nuclear bombs. Within 5 minutes, each china’s city of 500,000 people can receive one like gift from Santa Claus; then chinese civilization will be forever in the history book. American are strong, they don’t talk loud but they do if it is needed! Don’t scare, it only occurs in the worst situation if your government knows how to behave.
Anon45
This is not a matter of regaining territories that China lost in the current generation, this is a matter of occupying territories China lost hundreds of years ago, If every country in the world held to their claims as stubbornly as China, mainland Europe would be a mess, and China would once again be a broken half country occupied by Japan, Britain, Russia, and what have you.
While Matt’s logic is distasteful, it is also correct. The world is a jungle, there are no laws by default, all the laws that for the most part maintain a global peace are backed by the implicit threat of force of arms. If that threat has no credibility, then international law becomes a sham. As long as China feels it is exempt, China will remain rebellious. The Wolf pack style of power transition was only averted by the US and Britain because it was much like an aging and recently wounded Alpha Wolf passing on succession to its full grown if still young pup. It is hoped that China will understand that its claims in Asia will cause more harm to the ‘wolf pack’ than benefit, or at least that China can be cowed by a show of prowess or embarassment in the future from the US and China respectively. If things continue, the US may be forced to make an example of China by giving it a light scratch and bite on the face, or in the worst case scenario, crippling it.