October 17, 2011

Abusing History?

October 16, 2011

http://the-diplomat.com/2011/10/16/abusing-history/?all=true

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.

By Frank Ching

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.

For example, Li Guoqiang, a research scholar with the Research Center for Chinese Borderland History and Geography of the Chinese Academy of Social Sciences wrote in July in the China Daily: ‘Historical evidence shows that Chinese people discovered the islands in the South China Sea during the Qin (221-206 BC) and Han (206 BC-AD 220) dynasties.’ China’s maritime boundary, he asserts, was established by the Qing dynasty (1644-1911).

‘In contrast,’ he wrote, ‘Vietnam, Malaysia and the Philippines hardly knew anything about the islands in the South China Sea before China’s Qing Dynasty.’

Vietnam, in pressing its case, has cited maps and geography attesting to its ‘historical sovereignty’ over the Paracel and Spratly islands going back to the 17th century. This doesn’t match the antiquity of China’s claims, but, at the very least, it shows that Chinese claims have been contested for centuries, and that China didn’t enjoy exclusive and continuous jurisdiction over these islands.

And, if history is to be the criterion, which period of history should be decisive? After all, if the Qin or Han dynasty is to be taken as the benchmark, then China’s territory today would be much smaller, since at the time it had not yet acquired Tibet, Xinjiang or Manchuria, now known as the northeast.

One compromise that China has offered to its neighbours is to shelve the territorial disputes and engage in joint development of natural resources. This was proposed by President Hu Jintao as recently as August 31, when he met the Philippine President Benigno Aquino.

However, there are serious problems. Just what does China mean by this policy?

The Chinese Foreign Ministry website explains: ‘The concept of “setting aside dispute and pursuing joint development” has the following four elements:

‘1. The sovereignty of the territories concerned belongs to China.

‘2. When conditions are not ripe to bring about a thorough solution to territorial dispute, discussion on the issue of sovereignty may be postponed so that the dispute is set aside. To set aside dispute does not mean giving up sovereignty. It is just to leave the dispute aside for the time being.

‘3. The territories under dispute may be developed in a joint way.

‘4. The purpose of joint development is to enhance mutual understanding through cooperation and create conditions for the eventual resolution of territorial ownership.’

These four points make it clear that instead of shelving the territorial disputes, the idea of joint development is China’s way of imposing its claims of sovereignty over the other party. Chinese sovereignty is the stated desired outcome of any joint development. 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 review of the Law of the Sea.

Li Jinming, a professor at the Center for Southeast Asia Studies at Xiamen University, says that there are ‘shortcomings’ in UNCLOS and, as a result, ‘China should consider its own situation before enforcing UNCLOS.’ That is to say, even though China has ratified the treaty, which has been in effect for 17 years, Beijing shouldn’t abide by its provisions unless the convention is somehow revised to support China’s territorial claims.

Beijing, it appears, wants to be made an exception in international law. It wants to have its cake and eat it. But law is law. What is the point of having international law when it is no longer international, and when it is no longer law?

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