It is a pretty long article, but interesting read of a retired US ambassador recount of the history of SCS.
Diplomacy on the Rocks: China and Other Claimants in the South China Sea
Chas Freeman April 10, 2015
Remarks at a Seminar of the Watson Institute for International Studies, Brown University
Ambassador Chas W. Freeman, Jr. (USFS, Ret.)
Providence, Rhode Island, 10 April 2015
For centuries, the islands and other land features of the South China Sea were seen as places to be avoided – valueless hazards to navigation. The waters around them were treated by fishermen as an unregulated regional commons where everybody, regardless of nationality, could find and take what they wished. This changed in 1982 , when the United Nations Convention on the Law of the Sea conferred rights to exclusive economic zones (EEZs) on habitable islands. About the same time, advances in technology made seabed oil and gas resources increasingly accessible. Nationalism and economic interests in possession of these islands then aligned. Vague assertions of historic connections to islands, rocks, and reefs became adamant claims of ownership.
The Paracel (or Xi Sha / 西沙) Islands are now claimed with great passion by both China and Vietnam. Some or all of the Spratly (or Nan Sha / 南沙) Islands are similarly claimed by China, Malaysia, the Philippines, and Vietnam. Let me very briefly recount the tangled history of these claims. Listen closely. The facts belie the prevailing narratives.
It is hardly surprising that the claimants have reinterpreted their history to make it conform to the once-foreign Westphalian notion of sovereignty. They have produced reams of paper documenting close encounters with remote rocks by the sailors of long-vanished Chinese and Vietnamese dynasties. But whatever those sailors were doing, it had nothing to do with either asserting or violating sovereignty, which was not yet an operative concept in Asia.
China first asserted sovereignty in the modern sense to the South China Sea’s islands when it formally objected to France’s efforts to incorporate them into French Indochina during the 1884 – 1885 Sino-French war. Chinese maps since then have consistently shown China’s claims, first as a solid and then as a dotted line.
In 1932, France nonetheless formally claimed both the Paracel and Spratly Islands. China and Japan both protested. In 1933, France seized the Paracels and Spratlys, announced their annexation, formally included them in French Indochina, and built a couple of weather stations on them, but did not disturb the numerous Chinese fishermen it found there. In 1938 Japan took the islands from France, garrisoned them, and built a submarine base at Itu Aba (now Taiping / 太平) Island. In 1941, the Japanese Empire made the Paracel and Spratly islands part of Taiwan, then under its rule.
In 1945, in accordance with the Cairo and Potsdam Declarations and with American help, the armed forces of the Republic of China government at Nanjing accepted the surrender of the Japanese garrisons in Taiwan, including the Paracel and Spratly Islands. Nanjing then declared both archipelagoes to be part of Guangdong Province. In 1946 it established garrisons on both Woody (now Yongxing / 永兴) Island in the Paracels and Taiping Island in the Spratlys. France protested. The French tried but failed to dislodge Chinese nationalist troops from Yongxing Island (the only habitable island in the Paracels), but were able to establish a small camp on Pattle (now Shanhu / 珊瑚) Island in the southwestern part of the archipelago.
In 1950, after the Chinese nationalists were driven from Hainan by the People’s Liberation Army (PLA), they withdrew their garrisons in both the Paracels and Spratlys to Taiwan. In 1954 France ceased to be a factor when it accepted the independence of both south and north Vietnam and withdrew from Indochina.
In 1956 North Vietnam formally accepted that the Paracel and Spratly islands were historically Chinese. About the same time, the PLA reestablished a Chinese garrison on Yongxing Island in the Paracels, while the Republic of China (Taipei) put troops back on Taiping Island in the Spratlys. But, that same year, South Vietnam reopened the abandoned French camp on Shanhu Island and announced that it had annexed the Paracel archipelago as well as the Spratlys.
In 1974 South Vietnam attempted to enforce its claims to sovereignty by placing settlers in the Spratlys and expelling Chinese fishermen from the southwestern Paracels. In the ensuing naval battle at Shanhu Island, China defeated Vietnamese forces. This enabled Beijing to extend its control to the entire Paracel archipelago, where it has not been effectively challenged since.
Five years later, Hanoi (now the capital of a united Vietnam) repudiated its earlier deference to China’s claims, adopted South Vietnam’s position, and claimed sovereignty over all the islands in the South China Sea. In the early 1980s, as Beijing, Kuala Lumpur, Manila, and Taipei protested, Vietnam resumed vigorous settlement and garrisoning of the Spratlys.
From 1946 to 1950, Chinese nationalist forces maintained a garrison on Taiping Island, the only habitable island in the Spratlys. This military presence was reestablished by Taipei in 1956 in response to the activities of a Filipino lawyer and businessman, Tomás Cloma.
In 1956, Cloma proclaimed the establishment of a new country, “Freedomland” in the Spratly Islands. The sole function of Freedomland turned out to be issuing postage stamps to collectors. Cloma’s announcement of Freedomland caused both Beijing and Taipei to reiterate China’s claims to the Spratlys. Taipei sent troops to drive Cloma off Taiping Island. Its forces are still there.
Cloma’s proclamation of Freedomland was legal in the Philippines because, as Manila noted in its reply to protests of Cloma’s actions from Beijing, Paris, Saigon, and Taipei, the Philippines had made no claim of its own to the Spratlys. But in 1972 the Philippines did begin to make such claims. In 1974, President Ferdinand Marcos forced Cloma to convey all his rights (whatever, if anything, these were) to the Philippine government for one peso. That same year the Philippines occupied five islets in the Spratlys. By 1978 it had occupied two more, plus two reefs.
Spain and the United States exercised sovereignty in the Philippines consecutively for four centuries (1543-1946) but never annexed the Spratlys. Manila’s clam to them is based on the fact that, with the exception of Taiping Island, they were unoccupied and up for grabs. The Philippines’ other argument for owning the Spratlys is that they lie within the 200-nautical-mile Exclusive Economic Zone (EEZ) it unilaterally proclaimed in 1978 in anticipation of the 1982 Convention on the Law of the Sea, which authorized littoral states to create such EEZs off their coasts.
Malaysia also bases its claim to the southernmost Spratlys on their location within the EEZ it proclaimed in 1979. Malaysia seized Pulau Layang-Layang (Swallow Reef) in 1983 and established a military presence there. It has since reclaimed enough land to build an airfield and a small resort hotel on the atoll.
The Filipino and Malaysian cases are politically potent but legally weak. An EEZ does not determine the ownership of the islands it surrounds. Under the law of the sea, ownership of land features determines rights over the adjacent waters and seabeds. “The land dominates the sea,” not vice versa.
But Malaysia, the Philippines, Vietnam, and now China have correctly understood that the key to sovereignty is not legal arguments but physical possession and control – a continuous human presence. Whether an island generates an EEZ or simply a twelve-mile territorial sea is determined by whether or not it is able naturally to support human life. Hence the rush to seize and settle any and all land features in the South China Sea and to demonstrate that people can live on them.
In the late 1980s, China belatedly responded to the activities of other claimants in the Spratlys. After a bloody skirmish with Vietnamese forces at Johnson South (now Chigua / 赤瓜) Reef in March 1988, China seized seven land features and followed other claimants in building fortresses atop reefs and rocks.
Only two islands in the South China Sea were traditionally thought to meet the somewhat vague criterion of natural habitability. These were Yongxing Island in the Paracels and Taiping Island in the Spratlys, both claimed by China for at least 130 years and held for more than a half century by Chinese forces from Beijing and Taipei, respectively. But now there is a human encampment on every island, rock, and reef in the South China Sea where one can perch. There is nothing more for any claimant to occupy without dislodging another claimant.
This leaves claimants with few options for settling the question of who owns what. Altering the current pattern of possession would require either the expulsion or negotiated withdrawal of one or more of the parties. No party wants or sees any advantage in war. But no party’s nationalism will permit it to give up what it now has. And all want more.
Sovereignty could theoretically be bypassed as an issue through cooperative exploitation of natural resources, as China has repeatedly proposed, but generations of Chinese, Vietnamese, and Filipino schoolchildren have grown in classrooms with maps on their walls showing that all or most of the South China Sea is part of their country. The peoples of the littoral states seem determined to possess whatever’s off their shores, not just profit from it. By contrast with Brunei, Malaysia, and Thailand – which are jointly developing areas in dispute between them – in China, the Philippines, and Vietnam economic interest has so far been unable to make a dent in, still less overpower, possessive patriotism.
With neither war, negotiated compromise, nor joint development in prospect, there is impasse. And, in the South China Sea, impasse entails the entrenching of popular hostility, arms races, and the impairment of other relationships between claimants and their security partners amidst the constant danger of war by inadvertence. This is not a situation any party should find acceptable. But it is the inevitable outcome of an approach aimed at preventing conflict by managing contention rather than resolving the disputes that produced it. Instead of deterring conflict, the claimants need to remove its proximate causes and justifications.
The point of departure for doing this must be recognition that, with no land features left unoccupied, there is nothing more to be had without pushing other claimants off what they now possess. It is realistic to accept that the status quo is preferable to attempts to upend it. The requirement for setting aside specific claims so as to exploit resources jointly is no different. The prerequisite for any sort of resolution is a common understanding of who claims what and how the law of the sea might extrapolate additional rights from it.
In the end, whatever the proposed solution, there is no alternative to the well-known doctrine of international law known as
uti possidetis. This is a Latin abbreviation of the phrase
uti possidetis, ita possidetis, meaning “what you have, you may continue to hold,” regardless of how you acquired it. This understanding is the legal justification both for the retention of territory acquired in war and for peaceful coexistence and acquiescence in inherited frontiers between newly independent states. It replaces quarrels and controversies with peace, which diplomats define as “restrained tolerance of the status quo by those with the capability to alter it by violence.”
Uti possidetis allows claimants to acknowledge and live with the status quo without having to agree that its establishment was right or proper. Its application to the land features in the South China Sea would clear the way for the clarification of boundaries on the basis of the law of the sea, supplemented by the demarcation of these boundaries through bilateral negotiations as required to draw median lines.
A total of forty-four features in the Spratlys are currently settled, occupied, or garrisoned: twenty-five by Hanoi, eight by Manila, seven by Beijing, three by Kuala Lumpur, and one by Taipei. The political difficulty for the claimants of accepting this outcome should not be underestimated. All sides feel cheated by it. None is without passion on the subject.
The numbers of features occupied reflect which countries were quickest and most vigorous in seizing them. So
uti possidetis would give Hanoi by far the largest share, with Manila second. Kuala Lumpur’s claims are already limited to what it actually possesses, so
uti possidetis would represent no sacrifice on its part. But Beijing – which was late in asserting itself – would be left with very little. That is a particularly difficult political problem for the Chinese Communist Party.
Since 1949, when Mao Zedong proclaimed the People’s Republic, the Party has staked the legitimacy of its rule in China on its having ended foreign disrespect for Chinese sovereignty, territorial integrity, and national dignity. Yet, on the Party’s watch over the past forty years, almost all of the land features China long claimed in the Spratlys have been seized, occupied, and garrisoned by other countries. This outcome is the direct result of policies of strategic forbearance imposed by Deng Xiaoping and linked to restraint by Beijing on other even more important challenges to China’s sovereignty and territorial integrity, such as how to deal with Taiwan. Accepting that China has permanently lost territory risks stimulating nationalists in both the China mainland and Taiwan to charge that the Communist Party’s recent foreign policies have undercut rather than served the mandate of Chinese nationalism.
But the alternative to a modus vivendi that accepts a status quo largely defined by other, smaller claimants is not just continuing friction and rancor in Chinese relations with these neighbors but ongoing Chinese military tension with the United States and the constant danger of war by inadvertence. China is in no danger of being driven from its holds in the Spratlys and Paracels. Its island-building activities are intended to establish that it’s not just there to stay but entitled to a strong role in the management of the area. Once this is clear, will Xi Jinping have the vision and courage to say no to impatient nationalists, as Deng Xiaoping did in the interest of conciliating and avoiding conflict with China’s neighbors and the United States?
The chances of Xi and other Chinese leaders doing so would be enhanced by a less confrontational stand toward China by the United States.. The transformation of claims between the South China Sea’s littoral states into a test of wills between Washington and Beijing has added an unhelpful overlay of great power rivalry to an already complex mix of impassioned disputes. In 2010 the United States dramatically asserted to a regional meeting in Hanoi that it had a mandate to prevent violent changes in the status quo in the South China Sea. At the same time, it declared that it took no position on claims there. This was ahistorical. It was also disingenuous and unpersuasive.
In practice, as some in the region recall, long before the United States turned against them as part of its “pivot to Asia” in 2010, America had supported China’s claims in the Paracels and Spratlys. The U.S. Navy facilitated China’s replacement of Japan’s military presence in both island groups in 1945 because it considered that they were either part of Taiwan, as Japan had declared, or – in the words of the Cairo Declaration – among other “territories Japan [had] stolen from the Chinese” to “be restored to the Republic of China.” From 1969 to 1971, the United States operated a radar station in the Spratlys at Taiping Island, under the flag of the Republic of China..
Neither the Paracels nor the Spratlys ever mattered to the United States at all (except as hazards to navigation) until they became symbols of Washington’s determination to curtail the rise of China’s power along its periphery. No country with claims to the Spratlys interferes with shipping or peacetime naval transit in the South China Sea. Nor does any party in the region have an interest in threatening commerce transiting it. The South China Sea is every littoral nation’s jugular. China and the other countries on the South China Sea have a far greater stake in assuring freedom of navigation in and through it than the United States does.
It is not in the U.S. interest to perpetuate the antagonisms that now inflame relations between claimants in sections of the South China Sea. They poison Sino-American relations as well as other littoral states’ relations with China. China’s neighbors have to live with China, and China has to live with them.
The Cold War seemed to teach the United States that safety lay in deterring conflict rather than in attempting to address its causes. But applying this timid approach (derived from yesterday’s nuclear standoff and strategic stasis) to the dynamic situation in today’s Indo-Pacific and South China Sea perpetuates rather than controls risk and escalates rather than subdues tensions. U.S. interests would be far better served by a bold attempt to eliminate the causes of conflict than by continuing the futile pursuit of mechanisms for managing tensions. Having taken sides against China, the United States cannot now hope to mediate between the parties. But it can make it clear that it would welcome, accept, and support the negotiated settlement of their differences.
Arguing for the conclusion of a code of conduct to ban land grabs and their fortification makes no sense when all land that can support fortifications has already been seized and is being built on. Finding a way to apply
uti possidetis in ways that minimize claimants’ political difficulties does make sense. If the United States cannot be part of a solution, it should demonstrate its leadership by encouraging Asian nations to pursue diplomacy that promotes one. Often, when diplomacy cannot immediately solve a problem, it can create a negotiating process that gives a solution time to ripen and negotiators the opportunity to craft one.
China and its neighbors should see and use American power as backing for peaceful efforts to resolve their disputes, not as an excuse for deferring or avoiding settlement of their differences. The “rebalancing” of U.S. global strategy toward the Indo-Pacific known as the “pivot” is timely and appropriate. But it should
lower military tensions between the nations of the Indo-Pacific and thus between China and the United States, not lock these tensions in, still less escalate them. Mark Twain once advised: “If you see someone coming down the street with his arms open and a big smile on his face, turn and run like hell!” Washington should not prove him right about this in the Indo-Pacific.
The issues of the South China Sea are too trivial to be allowed to spark armed conflict or trans-Pacific confrontation. They are solvable, if those enmeshed in them are willing to make the effort to imagine and pursue solutions to them. The parties need urgently to get on with this. And they deserve American encouragement to do so.
Diplomacy on the Rocks: China and Other Claimants in the South China Sea
