10/19/2011

Abusing History? | The Diplomat

Abusing History?
EAST ASIA

| SECURITY | CHINA Oc tober 1 6, 2011 By Frank Ching

Chinas m ix of historical and legal claim s in the South China Sea are inconsistent, say s Frank Ching. Beijing cant hav e its cake and eat it.

Image credit:US Navy

US scholar Lucian Py e onc e famously said that China was not a country but a civ ilization pretending to be a state. That may hav e been apt at one time, but today s China has been transformed into a modern state that play s an ac tiv e role in international forums. Howev er, 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 sev eral of its neighbours. A lso embroiled in the v arious rows are the United States, India and, increasingly , Japan. Its a potent mix. In 1 996, Beijing ratified the UN Conv ention on the Law of the Sea (UNCLOS) and publicly embraced the treaty s prov ision that China shall enjoy sov ereign rights and jurisdiction ov er an ex clusiv e econo mic zone of 200 nautical miles and the c ontinental shelf a hitherto unknown concept. A t the same time, howev er, it reaffirmed its claim ov er the islets, rocks and reefs in the South China Sea on historic al groundsgrounds that arent recognized by the conv ention. That is to say , China claims all the rights granted under international law today and, in addition, claims rights that arent generally rec ognized because its c iv ilization can be trac ed back sev eral thousand y ears. 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 v anished hundreds of y ears ago with the rise of the West, Beijing is, in a sense, attempting to rev iv e and legitimize a situation where it was the unchallenged hegemon. The ambiguity about what parts of international law China recognizes and which bits it doesnt giv es rise to the current dispute, which directly inv olv es V ietnam, the Philippines, Malay sia and Brunei, and indirectly inv olv es the interests of many other nations. The claims made by Southeast Asian countries rest primarily on the prov isions of the Law of the Sea. China, howev er, is taking the position that its sov ereignty ov er the territories concerned precedes the enac tment of the Law of the Sea, and so the law doesnt 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 sov ereignty ov er 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 v irtually the entire South China Sea and hugged the coasts of neighbouring c ountries inc luding Vietnam, Malay sia and the Philippines. This was the first
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10/19/2011 Abusing History? | The Diplomat time China had submitted a map to the United Nations in support of its territorial claims, but there was no ex planation giv en 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 respectiv ely on the basis of international law and in acc ordance with the principle of equitability . Significantly , especially for the United States, Chinas position on UNCLOS has also shifted in another respect. In 1 996, it took the position that foreign warships required its approv al in order to pass through Chinas territorial waters. Now, China say s that foreign warships must obtain its approv al before they can pass through its ex clusiv e economic zone a much wider area that isnt part of its sov ereign waters. The United States disputes that position, maintaining that waters in a country s EEZ are part of the high seas and that nav al v essels are free to enter them and ev en conduct operations without any need for approv al. This differenc e in opinion between China and the United States (as well as most dev eloped countries) has led to confrontations between the two c ountries, with US nav al surv eillance v essels carry ing out informationgathering missions in Chinas EEZ and being challenged by the Chinese. Chinas resort to history is a relativ ely new dev elopment in international law, although it isnt co mpletely unprecedented. For example, coastal states hav e been allowed to claim extended jurisdiction ov er waters, especially bay s or islands, when those claims hav e been open and long-standing, ex clusiv e, and widely acc epted by other states. In Chinas case, howev er, its c laims are ev idently neither ex clusiv e nor widely accepted by other states since they are being openly c ontested. Still, Chinese officials and scholars hav e attempted to buttress their arguments by appealing to historical records. For example, Li Guoqiang, a researc h scholar with the Research Center for Chinese Borderland History and Geography of the Chinese A cademy of Social Sciences wrote in July in the China Daily: Historical ev idence shows that Chinese people disc ov ered the islands in the South China Sea during the Qin (221 -206 BC) and Han (206 BC-A D 220) dy nasties. Chinas maritime boundary , he asserts, was established by the Qing dy nasty (1 644-1 91 1 ). In contrast, he wrote, V ietnam, Malay sia and the Philippines hardly knew any thing about the islands in the South China Sea before Chinas Qing Dy nasty . V ietnam, in pressing its case, has cited maps and geography attesting to its historical sov ereignty ov er the Paracel and Spratly islands going back to the 1 7 th century . This doesnt match the antiquity of Chinas claims, but, at the v ery least, it shows that Chinese claims hav e been contested for centuries, and that China didnt enjoy exclusiv e and continuous jurisdiction ov er these islands. A nd, if history is to be the c riterion, whic h period of history should be decisiv e? After all, if the Qin or Han dy nasty is to be taken as the benc hmark, then Chinas territory today would be much smaller, since at the time it had not y et acquired Tibet, Xinjiang or Manchuria, now known as the northeast. One compromise that China has offered to its neighbours is to shelv e the territorial disputes and engage in joint dev elopment of natural resources. This was proposed by President Hu Jintao as recently as A ugust 31 , when he met the Philippine President Benigno Aquino. Howev er, there are serious problems. Just what does China mean by this policy ? The Chinese Foreign Ministry website ex plains: The concept of setting aside dispute and pursuing joint dev elopment has the following four elements:

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10/19/2011

Abusing History? | The Diplomat

1 . The sov ereignty of the territories c oncerned belongs to China. 2. When c onditions are not ripe to bring about a thorough solution to territorial dispute, discussion on the issue of sov ereignty may be postponed so that the dispute is set aside. To set aside dispute does not mean giv ing up sov ereignty . It is just to leav e the dispute aside for the time being. 3. The territories under dispute may be dev eloped in a joint way . 4. The purpose of joint dev elopment is to enhance mutual understanding through cooperation and create conditions for the ev entual resolution of territorial ownership. These four points make it clear that instead of shelv ing the territorial disputes, the idea of joint dev elopment is Chinas way of imposing its claims of sov ereignty ov er the other party . Chinese sov ereignty is the stated desired outcome of any joint dev elopment. No wonder that no country has taken China up on its proposal. Perhaps because of the conflict between historical claims and the UNCLOS, other Chinese scholars are now calling for a rev iew of the Law of the Sea. Li Jinming, a professor at the Center for Southeast Asia Studies at Xiamen Univ ersity , say s that there are shortcomings in UNCLOS and, as a result, China should consider its own situation before enforcing UNCLOS. That is to say , ev en though China has ratified the treaty , which has been in effect for 1 7 y ears, Beijing shouldnt abide by its prov isions unless the conv ention is somehow rev ised to support Chinas territorial claims. Beijing, it appears, wants to be made an exception in international law. It wants to hav e its cake and eat it. But law is law. What is the point of hav ing international law when it is no longer international, and when it is no longer law?

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