South China Sea Disputes And The Us-china Contest, The: International Law And Geopolitics. James Chieh Hsiung
in the oceans. The United States’ self-appointed role in patrolling the SCS and its vocal threat to deny Chinese access to the artificial islands they built remains on shaky legal grounds. Much less can it be justified by alleging a (flimsy) prior Chinese breach of international law as a protective pretext, such as Secretary Hillary Clinton apparently attempted to do. Piracy or seaborne terrorism would be a totally different matter, as a legal ground justifying intervention by the United States, but neither crime can be empirically linked to China.
Here is a good cut-in point to get back to the second charge made by Secretary Hillary Clinton earlier, to the effect that in making its 9-dash-line claim to the SCS, China is violating international law. The answer is clear but will take a little explanation.
An absolute majority of the arguments against China in the legal debates about the competing SCS claims has been fixated on the islands, but not the waters surrounding them. By contrast, China’s claim, if examined from the standpoint of general international law, can be cast in an entirely different mode, that of a historic title over these waters. As we will see in later chapters, China’s recorded involvement in the SCS dated as far back as the second century BC, an era before the arrival of the legal concepts later developed in international law, following the Westphalia Conference of 1648, which ushered in the modern system of nation-states. Ancient Chinese annals showed that in the 2nd century BC, envoys dispatched by Emperor Wu of the Han Dynasty (漢武帝) sailed through the confines of the SCS, on their missions to establish contacts with foreign lands on the Sea’s periphery and beyond. And, in the year 110 BC, Emperor Wu established two prefectural governments (郡 jun) to administer the “vast reaches” (疆域 jiangyu) of the SCS.
Similar episodes were recorded in subsequent Chinese annals, including the celebrated seafaring missions headed by (Admiral) Zheng He (or Cheng Ho) during the early 15th century (1405–1433), sailing through the SCS onward to the Indian Ocean, until reaching East Africa after going through Hormuz Strait. Zheng’s sizable fleet of 250 mammoth ships and 27,000 men, including professional soldiers (sailors) and medical and other personnel, first passed from Vietnam and other points in Southeast Asia, then proceeded onward to points in South Asia, and so on.37
In the Guangdong tongzhi (廣東通志 Canton Gazette) published in 1512, it was recorded that the Xisha (now known as Paracels in English) and Nansha (Spratlys) were officially designated as within the national defense perimeter of China38 (more details with documentation in Chapter 2).
In short, one could implore the proverbial Professor at the legendary Hague Academy of International Law, mentioned earlier, to define the status of the SCS in its relations to the Chinese suzerain, using the language of traditional international law. His answer would, invariably, be that the SCS was China’s “historic waters” (more on “historic waters” in Chapter 3), although it is one of the things on which the 1982 Law of the Sea Convention (UNCLOS III) is totally silent. But, the preambular part of UNCLOS III proclaims, inter alia: “… matters not regulated by this Convention continue to be governed by the rules and principles of general international law” (emphasis added). As will be shown in Chapter 3, “historic waters” is a principle in general international law (as opposed to treaty law), and has been affirmed in judicial cases.
A working hypothesis of this book is that if “historic waters” as the basis of China’s claim can stand up to a rigid testing under general international law, then all the on-going disputes posed by its contenders will be elevated to a different plane, casting the competing claims in a different mode that may help in the search for a way out of the dead heat of the prevailing disputes.
The rest of the book, accordingly, will endeavor to ascertain if our stated hypothesis can be verified under general international law. The answer for now is that whether the abovementioned charge against China made by Secretary Hillary Clinton, and similar ones by others, can be sustained will by necessity depend on the ultimate answer whether our stated hypothesis proves verifiable.
1Robert D. Kaplan, “Why the South China Sea Is So Crucial,” http://www.businessin-sider.com.a/.
2Cf. Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven: Yale University Press, 2014), pp. 1–120; and the sources cited therein.
3“Zhongguo zhuzhang nanhai zhuquan di lishi yu fali yiju [The Historical and Legal Bases of China’s Sovereign Claim to the South China Sea],” zhongguoguoqingzhongguonet, April 11, 2014; retrieved February 1, 2016.
4“Nanhai guofang jingji yiyi jie zhongyao yucheng dier posiwan [The Defense and Economic Significance of South China Sea Made It a Second Persian Gulf],” news on the Tengxun Blog; retrieved October 1, 2015, online.
5See “China’s Maritime Disputes,” a Council on Foreign Relations presentation (January 2017).
6Cf. Timeline of Events in “Territorial Disputes in the South China Sea,” from Wikipedia, the free encyclopedia, retrieved February 26, 2017, online.
7“Presidential Decree No. 1596 — Declaring Certain Area Part of the Philippine Territory and Providing for Their Government and Administration.” Chan Robles Law Library, June 11, 1978.
8“China Face-Off in South China Sea,” DNA India Report, July 22, 2011.
9South China Analysis Group whitepaper, September 2, 2011.
10Vietnam-PRC Gulf of Tonkin Agreement, 2,000.
11“China Paper Warns India Off Vietnam Oil Deal,” Reuters Article, October 16, 2011.
12Leszek Buszynski, “The South China Sea: Oil, Maritime Claims, and U.S.–China Strategic Rivalry,” The Washington Quarterly, Spring 2012.
13“Vietnam Crude Oil Production, 1994–2016,” www.tgradingeconomics.com/vietnam/crude-oil-production; retrieved March 4, 2017, online.
14“南海钻井平台工人直升机上下班 [Workers Taking Helicopters to Go to Work and Back at the SCS Oil Platform],” NetEase News, May 11, 2012.
15A fact explicitly acknowledged by PRC’s foreign minister, Wang Yi, at a press conference jointly staged with his Australian counterpart, in Canberra, February 7, 2017, as reported in Qiao Bao (New York: The China Press, February 8, 2017), p. 4.
16Peter J. Brown, “Calculated Ambiguity in the South China Sea,” Asia Times, December 8, 2009; retrieved February 5, 2014, online.
17Cf. “Limits in the Seas” (PDF), Office of Ocean and Polar Affairs, U.S. State Department.
18“Taiwan Sticks to Its Guns, to U.S. Chagrin,” Asia Times (1999); STRATFOR’s Global Intelligence Update (July 14, 1999); retrieved May 1, 2014, online.
19Taken from Frank Ching, “Paracels Islands Dispute,” Far Eastern Economic Review (Hong Kong), February 10, 1994, which reproduced the original Pham Va Dong letter written in Vietnamese.
20“Vietnamese Mobs Torch Foreign Factories in Anti-Chinese Protests,” Los Angeles Times, May 14, 2014, online.
21Mark Landler, “Offering to Aid Talks, U.S. Challenge China on Disputed Islands,” New York Times, July 23, 2010, online.
22Tessa Jamandre, “China Fired at Filipino Fishermen in Jackson Atoll,” ABS-CBN News, June 3, 2011; Bill Gertz. “Inside the Ring: China warship grounded,” Washington Times, August 8, 2012.
23“China, Philippines Locked in Naval Standoff,” CNN, April 11, 2012.
24“Vietnam Accuses