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The South China Sea: China Won’t Accept Cursory Judgement of its Inherent Rights

2016-06-20 14:11:11       source:IPP Review


By Wu Shicun

June 20,  2016 

The arbitration proceedings that the Philippines initiated against China more than three years ago regarding issues in the South China Sea should soon reach its end, and the arbitral tribunal is expected to rule shortly.

The US-led Western camp — all hoping for China to lose the case — are looking forward to the final piece to fall in place so that the plot is completed and China will be forced to submit to their pre-meditated outcomes and their set ways.

So skilfully staged by the Philippines and the champions of its cause (the US and Japan, etc.) and facilitated by prejudiced arbiters at The Hague, this episode ultimately aims to boot China out of the South China Sea arena.

Let’s look at the main plotlines that the US has helped the Philippines to fashion.

First, seek an arbitral ruling that Huangyan Island (also known as Scarborough Shoal) and the China-controlled Nansha Islands (also known as Spratly Islands) do not generate entitlement to territorial sea, exclusive economic zone and continental shelf, and that China had illegally interfered with the Philippines’ maritime rights.

Second, ask the arbitral tribunal to find that China’s assertions based on historical grounds lack legal basis, that the nine-dash line demarcation is inconsistent with UNCLOS, and that China’s activities in adjacent waters of Nansha islands and reefs violate UNCLOS. The Philippines wishfully believes that having the nine-dash line invalidated would automatically invalidate China’s sovereignty of the South China Sea islands. It also hopes that nullifying the island status of Nansha Islands (including Taiping Island, also known as Itu Aba) automatically deprives China of its right to claim exclusive economic zone and continental shelf based on the island regime.

Finally, it imagines that obtaining a ruling against regular activities that defend China’s sovereign rights and having such activities declared illegal would expel China from the South China Sea for good.

The above narrative describes the arbitration “trilogy” currently on show.

China’s sovereignty and sovereign rights over the South China Sea have evolved and are established over centuries. They are constituted of the strain of toil and fret of care, perpetuated by the exercise of effective jurisdiction, and defined by the struggle against imperialist aggression. They embody and epitomize the entire Chinese population’s common interests in the South China Sea, and should be protected by international laws and treaties. No country or international institution may lightly dismiss China’s sovereignty and sovereign rights.

China was the earliest country to explore, name, develop and administer the South China Sea islands. It is also the earliest country to govern the South China Sea islands over a continued period. Our historical record and official documents show that the Chinese discovered the South China Sea islands as early as in the Han Dynasty (2nd century BC), and Chinese governments since the Tang Dynasty (end of 4th century to early 5th century AD) have exercised continued jurisdiction over the islands through various ways such as creating administrative regions on the islands and deploying navy ships to patrol the adjacent waters.

As early as the early 20th century, China has exercised continued sovereignty and maintained complete and uninterrupted control of its sovereign rights over the South China Sea islands, particularly the Nansha Islands. As one of the Allies of World War II, China recovered sovereignty of the South China Sea islands under the Cairo Declaration and the Potsdam Proclamation. A landmark event occurred in December 1947, when the (then) Republic of China’s Ministry of Interior published a map entitled “Location Chart of the South China Sea Islands (‘Nanhai Zhudao Weizhi Tu’)”.

The map features a broken U-shaped line comprising eleven segments, starting from the China-Vietnam border at the Beilun River estuary in the west, down south to the Zengmu Shoal, and extending to the maritime zone off the north-eastern coast of Taiwan Island. Indicated within the demarcated region are the names of entire island groups, that is, the Dongsha Islands (also known as Pratas Islands), Xisha Islands (also known as Paracel Islands), Zhongsha Islands and Nansha Islands, and even the names of copious individual features, including islands, reefs, banks and cays. In February 1948, the Ministry of Interior officially published the Location Chart of South China Sea Islands as part of the “Atlas of Administrative Regions of the Republic of China (‘Zhonghua Minguo Xingzheng Quyu Tu’)”. The South China Sea dash-lines have prevailed to this day.

1949 saw the founding of the People’s Republic of China (PRC). Since then, the PRC government has continued to exercise China’s sovereign power and sovereign rights over the South China Sea islands. It has also further affirmed its sovereignty and enforced jurisdiction of the islands by issuing official statements and enacting legislation through the National People’s Congress, and by establishing organs of state power and launching military recovery operations.

We should neither expect an objective and impartial outcome nor remotely dream that China’s lawful and legitimate rights in the South China Sea will be safeguarded.

Notably, China’s recovery of the South China Sea islands after World War II and the dash-lines which it announced to the world to reinforce and demonstrate its territorial claim to the South China Sea islands were widely recognized or at least tacitly accepted by the international community, including the littoral states in the South China Sea. Thus, restoring sovereign control and resuming exercise of sovereign rights over the South China Sea islands are integral to the post-war international order. To challenge the China’s sovereignty of the South China Sea islands is tantamount to challenging the post-war international order and resisting the current international order.

The import of China’s claim with respect to its rights in the South China Sea consists of three main elements: sovereignty, maritime rights and historical title.

Sovereignty: China acquired title to the South China Sea islands through prior discovery and occupation. Although foreign aggression deprived its sovereignty for a while, the islands were recovered after the war following establishment of a series of post-war international treaties.

Maritime rights: The maritime rights in the South China Sea that China enjoys have progressively taken shape, following the birth and development of the modern law of the sea. Given that China has sovereignty of the South China Sea islands, and that it is a littoral state in the South China Sea and a UNCLOS signatory, to claim territorial waters under UNCLOS is to claim a sacred right granted by UNCLOS to every signatory.

Historical title: China’s historical title in the South China Sea has been accreted by several centuries of Chinese people living and laboring, and ploughing and producing on the islands. Historical title is the Chinese people’s inherent rights which exist before the genesis of the modern law of the sea. In this sense, China’s historical title in the South China Sea may only be altered or regulated by customary international law. Clearly, any attempt to deny China’s historical title in the South China Sea violates the basic principle of non-retroactivity in international law; it is also inequitable.

Article 9 under Annex VII of UNCLOS states that the tribunal should make an award only after it has satisfied itself that it has jurisdiction over the dispute, and that the claim is well founded in fact and law. However on October 29, 2015, the tribunal completely slanted award on the issue of jurisdiction has raised concerns about its wilful broadening of jurisdiction and partiality.

As for the impending final award, we should neither expect an objective and impartial outcome nor remotely dream that China’s lawful and legitimate rights in the South China Sea will be safeguarded. Despite the different speculations about the final decision, one can foresee the following outcomes:

First, the South China Sea dispute between China and the Philippines will not end with arbitration; instead, the situation will escalate, and may even spiral out of control.

Second, countries that love a good panic story or that are not quite keen to see China’s peaceful renaissance will sensationalize the case to inspire a new version of the “China Threat Theory” and to further besmirch China.

Third, despite a few countries colluding to concoct a hard time for China, China will not tolerate passively.

But refusing to execute the arbitral tribunal’s ruling does not mean that China will act wilfully and alienate itself from the international community. China is as ever committed to maintaining peace and stability in the South China Sea, and to resolving the South China Sea dispute through amicable deliberations and negotiations. China proposes and promotes a joint-development approach before the disputes are resolved, and will ensure that the international community enjoys freedom of navigation in the South China Sea in accordance with international law. This is the immutable and fundamental principle of China’s South China Sea policy.

(Editorial note: The ongoing disputes over the South China Sea are controversial, as is the arbitration initiated by the Philippines. The coming decision of the arbitration will lead to a new round of controversies and debates. IPP Review is a platform for all interested parties to express their opinions, and hence we welcome contributions which reflect these different viewpoints. This article reflects a perspective from China, and it should not be seen as representing IPP Review’s position.)

Wu Shicun is the President of the National Institute for South China Sea Studies, China.

The NISCSS is authorized to republish this article on its website.