The current rationale for Washington’s South China Sea policy continues to reference history and law as a justification for reinforcing U.S. military presence in the region. Further, Washington’s reliance on a decision by the Permanent Court of Arbitration, not only circumvents normative interpretations of the UN Convention on the Law of the Sea, but uses this ruling to build cooperation among partner States to overlook the details of both China’s claim and the U.S. policy that originally recognized China’s maritime boundary.
This article refutes Washington’s version of history as well as the legal claims it asserts, particularly as the US weaponizes history and law as justifications for regional military provocations that threaten the genuine security of the South China Sea, and the world.
For U.S. maritime policy there has been a long-held position called Freedom of Navigation, and not unlike the vague doctrine of expansionism we find in the Monroe Doctrine, the Freedom of Navigation is an equally vague policy growing out of President Wilson’s “Fourteen Points,” intersecting commercial maritime rights with what British Foreign Minister Viscount Grey of Fallodon called “belligerent rights” [1].
From the perspective of developing countries, Freedom of Navigation is often regarded as having simply been the basis for the domination of the seas by the great maritime powers [2].
The U.S. Freedom of Navigation program intersects commercial rights with belligerent rights.
As part of its Asia-Pacific Maritime Security Strategy, the 2015 NDAA report outlines what is at stake with its Freedom of Navigation objectives:
“Maritime Asia is a vital thruway for global commerce, and it will be a critical part of the region’s expected economic growth. The United States wants to ensure the Asia-Pacific region’s continued economic progress. The importance of Asia-Pacific sea-lanes for global trade cannot be overstated. Eight of the world’s 10 busiest container ports are in the Asia-Pacific region, and almost 30 percent of the world’s maritime trade transits the South China Sea annually, including approximately $1.2 trillion in ship-borne trade bound for the United States. Approximately two-thirds of the world’s oil shipments transit through the Indian Ocean to the Pacific, and in 2014, more than 15 million barrels of oil passed through the Malacca Strait per day.”
For the Freedom of Navigation, the objectives are not only meant to build plurilateral consensus for resolving territorial disputes in the South China Sea, but it was also to promote U.S. presence in the region while obstructing China’s maritime and regional trade priorities like the Belt and Road Initiative and the new China-ASEAN RCEP (Regional Comprehensive Economic Partnership). The Freedom of Navigation operation is a consensus-building platform for containing China’s influence in the region, removing the controversial maritime boundaries that defined China’s territorial boundary.
Secretary of State Pompeo’s public remarks on the U.S. Position on Maritime Claims in the South China Sea, reveal a complete disregard for both history and law, and his imposition of military provocations upon these manufactured claims are as bizarre as they are dangerous.
Pompeo says, “The PRC has no legal grounds to unilaterally impose its will on the region. Beijing has offered no coherent legal basis for its “Nine-Dashed Line” claim in the South China Sea since formally announcing it in 2009. In a unanimous decision on July 12, 2016, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention – to which the PRC is a state party – rejected the PRC’s maritime claims as having no basis in international law. The Tribunal sided squarely with the Philippines, which brought the arbitration case, on almost all claims.“
U.S. State Department Press Statement, July 13, 2020
Tensions in the region are not simply a byproduct of the Trump administration as this was part of Obama’s strategy with the U.S. Rebalance to the Asia-Pacific. In 2015, his Defense Secretary Ash Carter said that the Trans-Pacific Partnership was, “worth as much to him as a new aircraft carrier.” On the one hand, he was speaking about enhancing military cooperation in the Asia-Pacific region, while on the other he was speaking about building capacity for military defense among member nations and industries by targeting all the potential threats that could undermine the objectives for the TPP, the “crown jewel” of Obama’s trade and military rebalance.
And while Trump withdrew from the TPP on his first day as president, he did so not because he thought it prudent to withdraw from belligerent regional priorities, but simply because he did not want to promote any of Obama’s legacy policies. Shortly after, Trump pushed forward the militarized Quadrilateral Security Dialogue to obstruct China’s Maritime Belt and Road Initiative, China’s soft-power development and access initiative for developing countries.
The U.S. has cited examples of China’s regional aggression, but these have been greatly exaggerated and misconstrued. For example, there have been flare-ups of overfishing, but these have to do with satellite tracking devices that fishing boats are required to have to monitor against piracy, illegal fishing, and maritime safety. Also, there is no evidence of China ever having impeded the passage of transport vessels through the SCS. As the U.S. has argued, there is only the “potential” of China doing something illegal, and the potential of being able to do something does not make it a crime.
Washington is looking for partners to provoke a war in order to undermine China’s long held maritime territory
Washington has been testing the waters of cooperation to see how the regional partners, particularly ASEAN members, would align themselves with Washington’s maritime security strategy. Malaysian defense minister Hishammuddin Hussein said, “I don’t welcome anything that can disrupt the stability of the region,” “This is our region. We cannot allow other parties to determine our future.” From Obama to Trump, the United States has been meeting with ASEAN leaders in both the US and abroad to build military capacity that seeks to undermine China’s long-held territorial administration over the South China Sea, and not as the US claims, stop China from advancing illegal territorial claims. In other words, Washington is looking for partners to provoke a war to undermine China’s long-held maritime territory in the SCS.
The dispute over China’s territorial boundaries in the South China Sea is central to how cooperation and capacity building can destabilize a region, something that ASEAN members recognize would not benefit trade and security, and reflects the difference of priorities between the United States, China, and ASEAN, despite statements suggesting otherwise.
While those in the United States may not know the history of the region, ASEAN knows very well that its very existence as independent states is a result of both China’s assistance during the anti-colonial struggles, and the Soviet Union’s pursuit to provide a pathway for decolonization at the United Nations.
South China Sea History
The United States often cites this map that the Republic of China drew in 1947, insinuating that the 11-dash line was drawn as a kind of arbitrary claim, the way that gold miners may have done to stake ownership of a region. But I would draw your attention to the following map from 1939 (republished from a 1905 map), which clearly delineates China’s State boundaries, maritime boundaries, and historical suzerain boundaries [3]. In the officially published 1939 map, it is evident what the maritime boundaries are, and what is most striking is that Taiwan is not included within the maritime boundaries as the islands in the South China Sea was, presumably because this map was published while Taiwan was under Japanese occupation. What remains within the bold red line is the historical suzerain relationship. When Chiang Kai Shek added Taiwan to his map in 1948, he did so under the presumption that Japan’s defeat would restore Taiwan to China. This comports with his claim that the Republic of China was simply a government-in-exile and that when communist rule ended Taiwan would be restored to mainland China.
What needs a backstory to this map are the suzerain boundaries (the red outline). Suzerain territories are regions that are under the protection of the state and pay tributaries for the protections. Unlike colonies which are administered by a metropolitan power, suzerain maintains their own kingdoms or governments. In the above map, these kingdoms were part of a long-held suzerain sphere that included much of Central Asia and Afghanistan, Mongolia, Korea, the Ryukyu Islands, Taiwan, and the continental southeast Asian countries.
To be clear, suzerain countries are different from colonies, which at the time of the 1905 mapping, showed that these various kingdoms and protectorates once governed by the Qing Dynasty had become territories of the Netherlands, France, Russia, England, and Japan. For context, it’s important to also note that the 19th and early 20th centuries was still a period when kingdoms and territories emerged as either independent States or remained colonies until the signing of the United Nations Charter formally put an end to colonialism.
After the fall of the dynasty and the emergence of the Republic of China in 1922, the Nine-Powers Treaty was signed in Washington between the colonial powers of Belgium, the British Empire, France, Italy, Japan, the Netherlands, Portugal, the United States, and the Republic of China.
In this treaty, the signed powers recognize the “territorial integrity of China and they declare, furthermore, that they always adhere to the principle of the so-called “open-door” or equal opportunity for commerce and industry in China” [4]. This is a direct quote from the treaty.
The problem with this treaty was that although Chiang Kai-Shek’s Republic of China government was recognized by foreign powers, they were not recognized in China as the legitimate government, and they were competing with the People’s Republic of China for legitimacy. The ROC could not constitute a State without the consent of China’s population. Alternatively, foreign powers could have sought to recognize Taiwan as a State, but both the ROC and the PRC claimed the One-China Policy, where they both claimed to be the authority of the State.
I would argue that the heart of this dispute around the South China Sea is that both the PRC and the ROC recognize the SCS as being part of China. But unlike the ROC, the PRC adamantly opposes the foreign ownership of any State-owned industry or enterprise and the historic Nine-Power treaty is a dubious dead-in-the-water ambition that should only be seen for what it is– an imperialist extension of the Monroe Doctrine.
In the introduction of the 1923 seminal text on the “The Open Door Doctrine in relation to China,” Bau introduces the doctrine as “a commercial and political principle which, like the Monroe Doctrine, has become international law. Because it still remains a principle as well as a law, no declaration or legal definition is likely ever fully to contain its meaning” [5].
Historically, the nine-dash line was drawn as an 11-dash line by the U.S.-backed General Chiang Kai-Shek who helped lead the Nationalist Party against the Japanese occupation of China, along with–but apart from– Mao Zedong’s Communist Party.
At the end of the 19th century, President McKinley referred to China’s maritime provinces as, “subserving our large interests in that quarter by all means appropriate to the constant policy of our government” [6]. How the U.S. exerted its expansionist agenda to compete with Japan and the European colonial powers over their territorial ambitions over China was to create an “Open Door” policy that would give all nations with competing interests, access to China’s industries and resources.
By 1928, when the U.S, recognized the Kuomintang leadership of General Chiang Kai-Shek’s Nationalist Government, foreign powers had already gained control of ports, railways, and key industries. When the 1905 map was drawn, island reefs and atolls known as Dongsha, Xisha, Zhongsha, and Nansha were included and these archipelagos contained more than 170 islets, sandbars, and reefs [7].
In the 1945 pre-conference documents leading up to the Yalta conference, U.S. policy promoted reconciliation of Kuomintang-Communist differences, favoring “no political factions,” but supporting the “Government of China as the central authority recognized by the Chinese people.” The U.S. objective for the post-war peace meetings was to negotiate with China a “comprehensive treaty relating to commerce and navigation on the basis of unconditional most-favored-nation treatment”[8].
During the post-war planning, none of the allied Nine-Power Treaty nations formally opposed China’s maritime territory, ostensibly because the conditions for Open Door trade with the Kuomintang Nationalist government were so favorable [9]. Even after Japan forced their expansion into Manchuria in 1937, then Taiwan, the South China Sea islands, and other Pacific territories, no one challenged the 11-dash line.
The context of this is significant because when the map was published in 1935, there was clearly an overlap over the maritime boundaries of the 11-dash line and the Philippines, then a U.S. territory. No formal questioning over this territorial aberration between the U.S. administration and the Kuomintang Government had been lodged.
The U.S. recognized the Chiang Kai-Shek Nationalist government and I would surmise that Washington thought nothing of the 11-dash line, seeking to take advantage of the opportunity presented by the financial and industrial interests of the Nine-Power Treaty.
When the U.S. renegotiated the treaty with the Kuomintang government, it provided the U.S. tariff-free and extraterritorial privileges in both transport and trade throughout China [10].
Japan‘s Peace Treaty
After the war, Japan sought membership in the U.N. and submitted a Treaty of Peace formally renouncing all right, title, and claim to the territories that were annexed before and during the war. The territories were broken up into six divisions that should have fallen under different administrations, but because of the spurious and controversial way with which the U.S. oversaw Japan’s Peace treaty in 1951, the USSR rejected the treaty [11].
For example, Korea was to be self-determined; the Kurile and Sakhalin islands should have gone to the USSR; Taiwan and Penghu were unilaterally treated as separate from China; Pacific Islands fell under UN Trust Territories to be administered by the U.S.; while the question of who would administer the Spratly (Xisha) and Paracel Islands (Nansha) was left undecided.
Complicating matters, neither the PRC nor the ROC was permitted to participate at the UN peace signing due to anti-communist bias, and both refuted the claims by the French-backed Republic of Vietnam, which at that time was in the midst of a civil war when they opportunistically declared their sovereignty over the Spratly and Paracel islands, seeing that neither China was present [12].
During WWII, when the Ministry of Interior of the Republic of China announced to the world the formal names of the islands, reefs, and banks of the four archipelagos of Dongsha, Xisha, Zhongsha, and Nansha, no country presented any objection and rather, saw it as an extension of China’s history.
Later, when Japan transferred the administration of Taiwan and Penghu to the Government of the Republic of China, they explicitly excluded the Spratly and Paracel islands, recognizing them to be part of China’s territory. Hence, since the PRC won China, the islands were generally accepted to be administered by the People’s Republic of China, and not the Republic of China.
The contradictions over the U.S. backing of the ROC’s government of Taiwan and Penghu while it was under U.S. military occupation had been justified as a security measure for its involvement with the Korean War, and later the Vietnam War. The PRC understood early on, that any U.S. claims to “maintain security in the Pacific,” meaning that its occupation of Taiwan and Penghu was to shatter the security of the Pacific when it came to Communist China [13].
Later, during the Anti-French Resistance in Vietnam, Premiere Zhou Enlai reduced the 11-dash line to the nine-dash line, erasing the boundary between the coast of Vietnam and Hainan Island. It was a sign of goodwill and solidarity between Vietnam and China. But in 1979, the Vietnamese government under PM Pham Van Dong produced the infamous “White Paper” that launched a smear campaign against China, and this happened just a few months after Vietnam and the Soviet Union signed the now-infamous Treaty of Friendship and Co-operation.
Why Dong ruptured the Vietnam-China relationship is complicated, but Vietnam wanted Laos and Cambodia to be federally inter-dependent with Vietnam, while China supported the independence revolutionary forces of Laos and Cambodia. The Soviet Union now supported Vietnam, after barely supporting them during the US occupation [14].
The promotion of this White Book was a slap in the face for China after they supported Vietnam during the war, but it also highlights the territorial ambitions of Vietnam, particularly how this story is framed today with Vietnam as a TPP member manufacturing and pursuing belligerent justifications in the South China Sea.
Philippines 1898 and 1946 territory
After the 1898 Spanish-American War, the United States purchased the Philippines and the boundaries of the territory were clearly delineated and part of the Scarborough Shoal sat within the Philippines territorial boundary.
When the Philippines gained its independence in 1946, the boundaries that were transferred from the U.S. were unchanged. In other words, the territorial boundary of the Philippines was unchanged from Spanish colonization through U.S. occupation to independence.
With the admission of more States to the United Nations, there needed to be new international rules over ocean boundaries, exploitation, conservancy, and governance and in 1982, the United Nations signed the Convention on the Law of the Sea (UNCLOS), of which 168 parties have since ratified, with one notable exception: the United States.
What UNCLOS offered coastal States was the right to “establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines” determined in accordance with the convention. Additionally, exclusive economic zones (EEZ) extending up to 200 nautical miles from the territorial seas were provided for economic activities that were in accordance to the Convention [15].
When the Philippines ratified UNCLOS in 1984, they expanded their territorial jurisdiction by adding a clause of sovereignty over part of the Spratly Islands that were not included as their territorial boundary.
When China signed UNCLOS in 1996, there were exemptions to those territorial definitions that reaffirmed China’s “sovereignty over all its archipelagos and islands” as listed in article 2 of the Law of the People’s Republic of China [16].
These exemptions would exclude China from any binding interpretation of its territorial boundaries. This included “Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands belonging to the People’s Republic of China” [17].
Two other maps of interest that unequivocally contradicts the current geopolitical narrative are two maps from Japan and Vietnam that acknowledge China’s sovereignty over the Xisha and Nansha islands. One is from 1952, just before the signing of Japan’s Peace Treaty. The Japanese National Education Books Company published their 15th Standard World Atlas acknowledging China’s sovereignty over the Xisha and Nansha Islands. The other is theWorld Atlas printed by the Bureau of Survey and Cartography Under the Office of the Premiere of Vietnam in 1972 [18].
The contradictions over the U.S. backing of the ROC’s government of Taiwan and Penghu while it was under U.S. military occupation had been justified as a security measure for its involvement with the Korean War, and later the Vietnam War. The PRC understood early on, that any U.S. claim to “maintain security in the Pacific,” meaning that its occupation of Taiwan and Penghu was to shatter the security of the Pacific when it came to Communist China [19].
Additionally in stark contrast with U.S. claims of China’s “illegal island building,” China is within its right to expand and build structures within its EEZ, under UNCLOS. China– to be clear– is abiding by the rules it signed when ratifying UNCLOS– what the Philippines had done is apply a narrow reading of only the 12-nautical mile baseline, excluding an entire Chapter of UNCLOS on the EEZ, which Article 46 1(b) gives China the right to the “establishment and use of artificial islands, installations, and structures.” within the EEZ. Clearly, these competing territorial claims were only going to create conflict within the region and when you mix in the competing claims by Vietnam and Malaysia, it created a flurry of territorial scuffles in the region.
In a 1996 Strait baseline document, the U.S. State Department wrote:
“The PRC is hardly alone in violating the spirit, if not the letter, of the 1982 UN Convention. Excessive baseline claims are all too common in Asia and elsewhere. Those of Burma, Cambodia, Malaysia, North Korea, Russia, Thailand, and Vietnam are as extreme as that of the PRC.” In terms of the US using diplomatic or military options for challenging China’s claim, the State Department concludes that in order to resolve these disputes, “We must now wait for the proverbial other shoe to drop” [20].
The shoe that dropped may have been the Philippine’s notification and statements of claim that they filed against the PRC in 2013 [21]. Upon receiving notification, China made it very clear that they were not participating in arbitration proceedings, because the proper jurisdiction for this territorial dispute was within ASEAN, under the 2002, ASEAN-China Declaration on Conduct of Parties in the South China Sea. This Declaration contained a dispute mechanism signed by all parties and recognized by UNCLOS (XV) as the appropriate venue for resolving disputes.
The Philippines broke this 2002 Declaration when it submitted its case to the Permanent Court of Arbitrations in 2012 despite objections from some of the other ASEAN members who in the end reaffirmed the 2002 Declaration as the proper jurisdiction for settling these disputes [22].
Since May 2016, when President Rodrigo Duterte took office, Philippine policy moved away from Washington and pledged to cancel bilateral agreements with the U.S., while moving closer to China on issues over security and trade.
This directly contrasts with policies of previous President Benigno Aquino, who expressed interest in joining the TPP but was unable to congressionally liberalize its constitution to meet TPP membership [23].
The Philippines, it was argued, already had a Trade and Investment Framework Agreement, and the Enhanced Defense Cooperation Agreement came under tremendous public criticism due to its secrecy, unconstitutionality, and the precariousness of committing the Philippines to the front lines in the event of a military conflict with China.
Further, many questioned why Aquino filed this case with the Permanent Court of Arbitrations knowing that the outcome would produce only a stalemate and terrible mess.
The historic tension in the law of the sea has been a struggle between the freedom of the seas and coastal state sovereignty over the seas. The two are, in their purest forms, directly contradictory.
As much as Washington tries to say that the US is not provoking China, how is it not provocative interference when the Brookings Institute promotes, “The U.S. government should make clear to the other claimants, and to other ASEAN countries like Singapore and Thailand, that we expect them to be public in their rejection of the nine-dash line under international law.”
It should be clear that the US has not yet ratified UNCLOS, in part because as Professor Bernard Oxman testified before the Senate Foreign Relations Committee, “ the historic tension in the law of the sea has been a struggle between the freedom of the seas and coastal state sovereignty over the seas. The two are, in their purest forms, directly contradictory”[24].
As a final note, the Permanent Court of Arbitration is not a United Nations venue. It rents its space from the International Court of Justice at the Hague and is a private court hired to make determinations with its own rules and judges.
The rules that the PCA relied upon for its decision was “OTHER,” and not UNCLOS or UNCITRAL (UN Convention on the Law of the Sea or the United Nations Commission on International Trade Law, respectively), which would at least have been the relevant rules to approach the territorial dispute. Without China’s participation in the proceedings, no award should have been given to the Philippines. Similarly, just as the U.S. was not a party to the proceedings and had not consented to the Hawaiian Kingdom v. Larsen case (proceeding under UNCITRAL) that would rule upon the legitimacy of US laws over the Kingdom of Hawaii, the PCA ruled “not maintainable.” China too was not party to the South China Sea proceedings and had certainly not consented to the mysterious and undefined “Other” rule, so why all the double standards?
endnotes:
[1] Viscount Grey of Fallodon. “Freedom of the Seas.” Foreign Affairs Magazine. April 1930.
[2] Greenfield, Jeanette. “China and the Law of the Sea, Air, and Environment,” (Netherlands, Sijthoff & Noordhoff, 1979).
[3] Zhongguo Fensheng Xin Tu, New Chinese Provincial Atlas Map Book, 4th ed. 1939. P.45.
[4] United States Department of State, United States Relations with China “Nine-Power Treaty, Signed at Washington, February 6, 1922″ (Washington: US GPO, 1949) 440.
[5] Bau, Joshua Mingchien, PhD. The Open Door Doctrine in Relation to China,” (New York: The Macmillan Company, 1923). xi
[6] Shutaro Tomimas, A.M., “The Open-Door Policy and the Territorial Integrity of China,” (New York: A.G. Seiler, 1919) 24.
[7] Bai Shouyi, An Outline History of China (Beijing: Foreign Language Press 1982, original 1980) 7.
[8] Foreign Relations of the United States Diplomatic Papers. The Conferences at Malta and Yalta. 1945 (Washington: GP 1955) 356-7.
[9] United States Department of State, United States Relations with China “Secretary Stimson to Senator Borah, Chairman of the Committee on Foreign Relations of the Senate, February 23, 1932″ (Washington: US GPO, 1949) 447.
[10] United States Department of State, United States Relations with China ” Treaty between the United States and China Regulating Tariff Relations, Signed at Peiping, July 25, 1928″ (Washington: US GPO, 1949) 446.
[11] Gromyko, A.A. “On Japanese Peace Treaty.” (Soviet New, London 1951)
[12] “Conference for the Conclusion and Signature of the Treaty of Peace with Japan.” Record of Proceedings, Dept. of State. Sept 4-8, 1951.
[13] Teh-Kuang Chang, China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective, Vol. 23 Issue 3, (Cleveland, Ohio: Case Western Reserve Journal of International Law, 1991) 401.
[14] ] “On the Vietnamese Foreign Ministry’s White Book Concerning Viet Nam-China Relations,” People’s Daily and Xinhua News Agency. Foreign Language Press, (Beijing, China 1979).
[15] United Nations Convention on the Law of the Sea, 10 December 1982, 27.
[16] Ibid, 131-4.
[17] Government of the People’s Republic of China, Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone. February 25, 1992.
[18] “On the Vietnamese Foreign Ministry’s White Book Concerning Viet Nam-China Relations,” People’s Daily and Xinhua News Agency. Foreign Language Press, (Beijing, China 1979).
[19] “China’s Indisputable Sovereignty over the Xisha and Nansha Islands,” People’s Daily and Xinhua News Agency. Foreign Language Press, (Beijing, China. January 30, 1980).
[20] Daniel J. Dzurek, “The People’s Republic of China Staight Baseline Claim,” Boundary and Security Bulletin, 1996, Vol.4 no.2. 86
[21] Republic of the Philippines, Department of Foreign Affairs, “Notification and Statement of Claims against the People’s Republic of China,” January 22. 2013.
[22] ASEAN, “Joint statement of the foreign ministers of ASEAN Member States and China on the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea.”
[23] USAID, “The Philippines and the Trans-Pacific Partnership: A Readiness Assessment” March 2016. 1.
[24] U.S. Congress, Senate, Committee on Foreign Relations, United Nations Convention on the Law of the Sea, 108th Cong., 2nd sess., March 11, 2004, 35.
This article is revised and updated from an earlier 2015 posting of the same name on Imipono.org.