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An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

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How a non-existent island became China’s southernmost territory – by Bill Hayton | The South China Morning Post

09 February 2013

Bill Hayton says records show that a translation error some 80 years ago may be to blame.

- by Bill Hayton | The South China Morning Post - Where is the “southernmost point of Chinese territory”? It’s a controversial question and the least controversial answer might be Hainan Island . More controversial options would be the Paracel (Xisha) islands or the Spratlys (Nansha). But officially the southernmost point is even further south – as far south as the James Shoal, about 100 kilometres from the coast of Borneo. What’s more surprising is that this piece of the motherland is actually invisible. There’s nothing there to see, unless you have diving equipment.

An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

An aerial view of the city of Sansha on an island in the disputed Paracel chain. Photo: AFP

The James Shoal lies 22 metres below sea. Yet this inconvenience doesn’t prevent PLA Navy ships visiting the shoal from time to time to demonstrate Chinese sovereignty over it. This ritual involves heaving a large piece of engraved stone over the side of the ship. There is now a small collection of Chinese stelae gathering organic encrustations on the sea floor, more than 1,000 kilometres from Hainan.

How did the Chinese state come to regard this obscure feature, so far from home, as its southernmost point? I’ve been researching the question for some time while writing a book on the South China Sea. The most likely answer seems to be that it was probably the result of a translation error.

In the 1930s, China was engulfed in waves of nationalist anxiety. The predation of the Western powers and imperial Japan, and the inability of the Republic of China to do anything meaningful to stop them, caused anger both in the streets and the corridors of power. In 1933, the republic created the “Inspection Committee for Land and Water Maps” to formally list, describe and map every part of Chinese territory. It was an attempt to assert sovereignty over the republic’s vast territory.

The major problem facing the committee, at least in the South China Sea, was that it had no means of actually surveying any of the features it wanted to claim. Instead, the committee simply copied the existing British charts and changed the names of the islands to make them sound Chinese. We know they did this because the committee’s map included about 20 mistakes that appeared on the British map – features that in later, better surveys were found not to actually exist.

The committee gave some of the Spratly islands Chinese names. North Danger Reef became Beixian (the Chinese translation of “north danger”), Antelope Reef became Lingyang (the Chinese word for antelope). Other names were just transliterated so, for example, Spratly Island became Sipulateli and James Shoal became Zengmu. And this seems to be where the mistakes crept in.

But how to translate “shoal”? It’s a nautical word meaning an area of shallow sea where waves “shoal” up. Sailors would see a strange area of choppy water in the middle of the ocean and know the area was shallow and therefore dangerous. James Shoal is one of many similar features in the Spratlys.

But the committee didn’t seem to understand this obscure English term because they translated “shoal” as “ tan” – the Chinese word for beach or sandbank – a feature which is usually above water. The committee, never having visited the area, seems to have declared James Shoal/Zengmu Tan to be a piece of land and therefore a piece of China.

In 1947, the republic’s cartographers revisited the question of China’s ocean frontier, drawing up what would become known as the “;U-shaped line”. It seems that they looked at the list of Chinese names, assumed that Zengmu Tan was above water and included it within the line. A non-existent island became the country’s southernmost territory.

But in a parallel process around the same time, the republic government gave new names to many of the sea features. Spratly Islands became Nanwei (the noble south), for example, and James Shoal was changed from a sandbank ( tan) into a reef ( ansha). Perhaps, by this time, the authorities had realised their mistake. Nonetheless Zengmu Ansha retained its official southernmost status.

By now, the translation error had become a fact, setting the region on course for conflict 80 years later.

This is more than a piece of historical trivia; James Shoal is a test of whether Beijing really is committed to the rule of international law in the South China Sea. Under the United Nations Convention on the Law of the Sea, no state can claim sovereignty over an underwater feature unless it lies within 12 nautical miles of its land. James Shoal is over 1,000 kilometres from undisputed Chinese territory.

Last month, the Philippines government announced it would seek a ruling from an international tribunal about whether China’s claims in the sea were compatible with the UN convention. James Shoal would be a clear example of a claim that is not compatible. Perhaps this might be a good moment for Beijing to review how it came to claim this obscure piece of submarine territory in the first place.

Bill Hayton is writing a book on the South China Sea for publication later this year

(This article was originally published at The South China Morning Post)

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Trouble outside the Gulf of Tonkin – by Huy Duong and Van Pham | CSIS Blog

14 December 2012

by Huy Duong and Van Pham | CSIS Blog – On November 30, 2012, two Chinese trawlers operating just outside the Gulf of Tonkin ran across the seismic cable being towed by a Vietnamese survey ship and severed it. Vietnam sent a diplomatic note to China’s embassy in Hanoi to protest. In response, China claimed that this concerns an area of overlapping claims and demanded that Vietnam stop unilateral oil and gas activities.

This incident took place at 17º26’N, 108º02’E—roughly 43 nautical miles from Vietnam’s Con Co Island, 54 nautical miles from Vietnam’s mainland coast, and 75 miles from China’s Hainan Island. It was 210 miles from the disputed Paracel Islands, and is therefore unrelated to the dispute over that archipelago.

Although China and Vietnam agreed to a boundary between their waters inside the Gulf of Tonkin in 2000, the two countries are still negotiating a boundary for the area outside its entrance.

If international law or international practice of maritime delimitation is applied, there is little doubt that the negotiated boundary will be at approximately equal distance from China’s Hainan Island and Vietnam’s mainland coast and coastal islands.

If the boundary were drawn in a way that is most favorable to Vietnam (i.e., halfway between Con Co Island and Hainan), then the location of this incident would be 13.5 nautical miles nearer to the Vietnamese mainland coast than this boundary.

Conversely, if the boundary were drawn in a way that is most favorable to China (i.e., halfway between Vietnam’s mainland coast and Hainan, disregarding Vietnam’s Con Co Island), then the location of this incident would still be 10.5 nautical miles nearer to the Vietnamese mainland coast than this boundary.

A reasonable compromise would be for the boundary to lie exactly between the two above-mentioned positions. The location of the cable-cutting incident is 12 nautical miles nearer to Vietnam than this compromise boundary.

In claiming that the cable-cutting incident had taken place in an area of overlapping claims, China is claiming at least 12 nautical miles past the compromise boundary above, and 10.5 nautical miles past even the boundary that is most favorable to itself.

Thus far, China has not indicated the basis for this claim, but it would be difficult to find a legal justification for why a maritime area 75 nautical miles from Hainan and 54 nautical miles from Vietnam’s mainland coast should belong to China. It is apparent that China is seeking to treat an area that it cannot reasonably dispute as a disputed area, and there are three possible explanations for this.

It might be China’s negotiating tactic to claim far beyond all possible equidistance lines, so that when a compromise is reached it will still end up with a part of the area beyond those lines.

The second hypothesis is that China does not accept the use of equidistance lines for drawing the boundary for this area. In pursuing its various claims around the “U-shaped line”, China has been referring to “historic waters” and “historic rights”. It is possible that China wishes to apply these arguments to the demarcation of this area.

The third hypothesis is that China does not want to demarcate this area at all, preferring instead to “set aside the dispute and pursue joint development” even in an area where it does not have a reasonable claim.

Due to the asymmetry of power between the two countries, a negotiated boundary based on the use of equidistance lines, as per legal and international norms for the demarcation of similar areas, will best protect Vietnam’s rights. Joint development might be a temporary solution or might operate in conjunction with this boundary, but cannot be a viable long term substitute for it. Unfortunately, this asymmetry also means that Vietnam’s options might be limited should China choose one or a combination of the three above-mentioned scenarios.

Mr. Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet. Ms. Van Pham contributes articles on the South China Sea disputes to the BBC.

(Original version is available at CSIS Blog)

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China’s passport move stokes South China Sea dispute | by IISS Editorial Board

12 December 2012

by IISS Editorial Board - A new row over the South China Sea has erupted following Beijing’s issue of biometric passports containing a map showing the so-called ‘nine-dashed line’ that China has used to assert its sovereignty over disputed islands. By printing the passports, and inviting other states to stamp their visas in them, Beijing is attempting to gain recognition for its claims to sovereignty.

© Getty Images

A protest in the Philippines against China’s latest attempt at ‘administrative diplomacy’, 29 November 2012.

States in contention with China over territory have not responded kindly. Vietnam and the Philippines have issued separate visa forms rather than stamping the Chinese passports. Since the map also shows Chinese dominion over territories disputed with India, the Indian government has issued visas to Chinese citizens with its own map of the Sino-Indian border embossed on them. Taiwan has also objected to the new passports, which depict it as part of the People’s Republic and feature images of Taiwanese scenic spots.

The spat has highlighted China’s recent bolstering of its tactic of ‘administrative diplomacy’ in the complex South China Sea disputes, as it seeks to exert de facto sovereignty. However, recent events have also underlined the continued intransigence of all parties to the dispute, even while work is under way to establish a code of conduct intended to bind them to resolve the dispute peacefully.

Long-running arguments
Beijing’s administrative diplomacy is the latest in a series of increasingly bold actions and reactions by claimants over the past four years. The South China Sea dispute has existed for decades, with China and Taiwan having the most expansive claims over the waters. The area included within the nine-dashed line overlaps with exclusive economic zones, islands and territorial waters claimed by five other states: Vietnam, which claims sovereignty over all of the Paracel and Spratly islands; the Philippines, which claims a large area of the Spratly Islands and Scarborough Reef; Malaysia and Brunei, which claim a smaller area of the southern Spratlys; and Indonesia, which claims none of the disputed islands but whose exclusive economic zone overlaps the nine-dashed line.

There were bloody clashes between China and Vietnam in 1974, when China ousted the Vietnamese from half of the Paracel Islands so that it controlled the entire archipelago, and in 1988, when China for the first time established a physical presence in the Spratlys after watching other claimant states do the same. There was a period of relative calm between the mid-1990s and mid-2000s, when diplomacy came to the fore and the newly expanded Association of Southeast Asian Nations (ASEAN) managed to draw up a Declaration of Conduct in 2002 to manage tensions. However, since 2008 the disputes have come to be characterised by increasingly hostile rhetoric, maritime paramilitary deployments and perceptions of China’s growing assertiveness.

While Beijing would claim that it was simply reacting to the more aggressive and unilateral hydrocarbon exploration by claimant states such as Vietnam and the Philippines in the South China Sea, China has undoubtedly become more confident in the power of its own diplomacy and is more willing to use various forms of coercion, whether economic, paramilitary or proxy diplomacy.

Stop and search
The nine-dashed line, which has been used occasionally by China to assert its claims to the South China Sea, was drawn by the Kuomintang government of the Republic of China in 1946 and first published in early 1947. The line then had 11 dashes, but in 1953 China – by then the People’s Republic following the communist takeover– removed two dashes in the Gulf of Tonkin without explanation. Since then, the only use of the nine-dashed line in official communication was in 2009, when the map was submitted as an attachment to aNote Verbale presented to the UN. The note suggested that China had ‘indisputable sovereignty over the islands in the South China Sea and adjacent waters’.

The recent passport issuance, therefore, seems to represent a solidification of China’s nine-dashed line claim. This was done despite the fact that Beijing had agreed in the 2002 Declaration of Conduct to attempt to resolve the disputes in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). The nine-dashed line map, which was first published 35 years before the current UNCLOS was finalised, would be unlikely to stand up to scrutiny under international law.

The passports are not the only form of administrative diplomacy that China has undertaken in recent times. In July 2012, Beijing upgraded the county-level status of Sansha, on Hainan Island, to a prefecture-level city, with administrative responsibility for the disputed Paracel and Spratly islands, as well as Scarborough Reef and Macclesfield Bank. While the move was largely symbolic, it allowed the creation of a local government and military garrison. State-run media noted that the city would administer just 13 square kilometres of land but a total of more than two million square kilometres of maritime waters, without clarifying exactly which islands were included.

In a further step, Hainan’s People’s Congress, a provincial-level legislature in the southern island, stated on 29 November that revised regulations would come into effect on 1 January 2013 allowing Hainanese border police to board and search vessels ‘illegally entering’ Chinese territorial waters. Given that the Spratly and Paracel islands are, in China’s view, under the jurisdiction of Hainan (through the Sansha city administration), vessels passing within 12 nautical miles of disputed islands in the sea could be subject to inspections by Hainanese police. The Congress also specifically emphasised that patrols in the water around Sansha City should be strengthened and coordinated with the activities of China’s maritime paramilitaries.

It is unclear whether such constabulary activity will actually be undertaken near the disputed islands, as the seagoing capabilities of the Hainan border police are limited. Moreover, little international shipping passes so close to the shallow and treacherous waters of the Spratly Islands. Nonetheless, any such stop-and-search operation would be a significant escalation in enforcement activities undertaken by China and would increase the possibility of a stand-off or even limited clash between rival paramilitary or military forces.

Attempts by Chinese law-enforcement agencies to harass shipping would inevitably encourage other claimant states to respond by deploying their own constabulary forces, risking a repeat of the impasse over Scarborough Reef in April–May 2012, when a tense stand-off developed between Chinese and Philippine paramilitary vessels. Such incidents are relatively containable as they usually involve unarmed vessels, but aggressive manoeuvres by any of the ships involved, which would augment the probability of injury or death to sailors, might create tensions from which governments would find it hard to retreat without significant loss of face.

Moves to disrupt shipping would greatly concern the United States, which has stated that it has a ‘national interest’ in ensuring freedom of navigation through the South China Sea, and is engaged in a military and diplomatic ‘rebalance’ towards Asia. While Washington has said that it maintains an impartial view of the disputes (even though it is now engaged directly in the modernisation of the Philippine navy through the donation of former coast guard vessels, and Secretary of State Hillary Clinton reaffirmed the mutual defence treaty while in Manila in May this year), the principle of freedom of navigation is prized highly in the US.

ASEAN splits
Beijing’s latest attempts to demonstrate de facto sovereignty over the South China Sea are reinforced by regular patrols by China’s maritime paramilitary vessels through the region, as well as the annual and unilateral fishing ban China has enforced since 1999. In addition, Beijing has been attempting to scupper attempts by Southeast Asian countries to forge a unified diplomatic approach to the dispute.

The latest manifestation of this occurred in mid-November at ASEAN’s annual heads of state summit that took place in Phnom Penh, the Cambodian capital. At an ASEAN–Japan meeting, Philippine President Benigno Aquino III directly and vocally contradicted Cambodian Prime Minister Hun Sen, who claimed there was an ASEAN consensus to retain negotiations over the South China Sea within an ‘ASEAN–China framework’. At the ASEAN–US meeting, Aquino more clearly elucidated Philippine support for US engagement in regional security issues.

The Philippine–Cambodian spat recalled a diplomatic deadlock that had occurred in July at an ASEAN foreign ministers’ meeting which, for the first time in the organisation’s 45-year history, ended without a final communiqué being agreed (although frantic Indonesian diplomacy subsequently resulted in an ex post facto statement being drawn up). Cambodia, holding the ASEAN chairmanship for 2012, was adamant that Vietnamese and Philippine desires to have the South China Sea dispute – including the recent Scarborough Reef incident – mentioned in any joint statement could not be fulfilled.

The actions of Cambodia have raised serious concerns among other ASEAN members that Phnom Penh is essentially doing the bidding of its close ally, China, despite the negative consequences for Southeast Asian unity. Beijing is eager to prevent the internationalisation of the South China Sea dispute and prefers to deal with the disagreements on a bilateral rather than multilateral basis. As if to confirm China’s influence over its Southeast Asian ally, Cambodian Secretary of State for Finance Aun Porn Moniroth stated while visiting Beijing in September that: ‘The Chinese government also voiced high appreciation for the part played by Cambodia as the chair of ASEAN to maintain good co-operation between China and ASEAN.’ During that visit, Beijing agreed on soft loans worth $500m and a gift worth $24m for Cambodia.

The splits at the ASEAN summits have highlighted differences of opinion among member states as to how to proceed in negotiations over the South China Sea. Some states, such as Cambodia and Laos, which have a closer relationship with China and no overlapping exclusive economic zone claims in the disputed waters of the South China Sea, naturally have a different outlook from those littoral states in more direct competition with Beijing over maritime territory, such as Vietnam and the Philippines. The facade of unity within ASEAN has, therefore, fractured somewhat, just as some members of the organisation (particularly, Vietnam, the Philippines and Indonesia) are eager to press for a legally binding code of conduct for the South China Sea to be drawn up between China and ASEAN. (The 2002 Declaration of Conduct is a political rather than a legal instrument.)

Intractable dispute
The situation may change in 2013 as Brunei assumes the ASEAN chair. Although a disputant in the South China Sea and therefore eager to pursue diplomatic solutions, Brunei is less forthright in its claims than the Philippines and Vietnam. (Taiwan is stymied in its vocal claims by international isolation, and Malaysia and China have something of an unwritten understanding not to escalate the issue).

However, recent quarrels have underlined the challenge facing ASEAN not only in producing a united front towards China, but also in agreeing on the terms of a code of conduct even among its own members. The recent attempts by China to enforce its administration on the region are further evidence of the intractability of the dispute.

China is not the only party to pursue such a route: both Vietnam and the Philippines have delegated the administration of the disputed islands to the closest provinces. Vietnam has encouraged tourism to the Spratly Islands, something China is replicating with a leisure cruise to the Paracels that began operating in October. Yet, given China’s resources, its control over the Paracel Islands and the fact that its size means its actions often have greater effects, China’s administrative measures arguably carry greater weight.

Taken together with its posture in the South China Sea, China’s activities in its dispute with Japan over the Senkaku/Diaoyu islands indicate growing confidence in its maritime diplomacy. Since September, when Tokyo nationalised three of the disputed islands by purchasing them from a Japanese civilian, China has maintained near-constant deployments of unarmed maritime paramilitary vessels near the island group. Beijing alsoupdated its baselines – the lines drawn around a coast or island from which territorial or exclusive economic zones are measured – submitted to the UN to include the disputed islands for the first time. Both measures indicate the administrative diplomacy China is using to fulfil its goals in maritime disputes: by deploying regular paramilitary patrols and using legal recourse to reinforce its claim, Beijing is attempting to demonstrate de facto sovereignty over the islands.

This bodes ill for the prospects of resolving the disagreements. During his speech to the Chinese Communist Party National Party Congress in November, out-going President Hu Jintao noted his desire to ‘resolutely safeguard China’s maritime rights and interests’. While there is great uncertainty over the likely direction of foreign policy under the fifth generation of leaders set to take power under Xi Jinping, Hu’s language did not suggest much value was placed in the possibility of compromise over maritime disputes.

Discussions between China and ASEAN are likely to continue in 2013, but the result may not be the substantive code of conduct necessary to alleviate concerns over the effects of China’s rise and the possibility of a negotiated solution. The waters in the South China Sea are not likely to be calmed for some time.

 

(Original version is available at IISS Editorial Board)

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China’s “U-shaped Line” in the South China Sea – by Huy Duong | Asia Sentinel

19 September 2012

(C) Huy Duong | Asia Sentinel

China’s four possible positions

China’s claims to the disputed islands in the South China Sea and their inclusion on a map that depicts a U-shaped line that comes perilously close to the coastal waters of the countries that abut the sea, have given rise to concern and debate about the line’s meaning. At stake are billions of dollars in fishing and mineral rights that all of the parties to the debate each claim as their own.

Although the dispute over the Paracels started as long ago as 1909 between China and colonial Vietnam, then represented by France, and that over the Spratlys started in the 1930s between France and Japan, the arguments over the maritime space beyond 12 nautical miles from these islands are relatively recent.

In the 1960s Indonesia and Malaysia began to make claims to the continental shelf in the southern part of the South China Sea and in 1969 the two countries signed a demarcation agreement. In 1971 the then Republic of Vietnam, i.e., South Vietnam, declared a continental shelf claim that overlapped with those of Malaysia and Indonesia.

China — that is, the pre-1949 Kuomintang government — advanced a claim to the Spratlys from the end of the Second World War, and published a map in 1948 showing the now-well-known U-shaped line. Although the area inside that line overlaps the continental shelf claims of Indonesia, Malaysia and South Vietnam, neither the People’s Republic of China in Beijing nor the Nationalists now camped in Taipei objected to these claims, nor to the 1969 Indonesia-Malaysia agreement, nor did they advance any claims of their own.
In the 1990s, however, the government in Beijing started to protest against Vietnam’s oil and gas activities in the Nam Con Son and Vanguard Bank areas, and in 1992 it awarded an area of 25,000 sq km in the Vanguard Bank area to a US company. Since then, China’s words and actions in claiming maritime space far beyond 12 nautical miles from the disputed islands have been increasingly assertive.

In this context, China’s inclusion of a map that depicts the U-shaped line in unsigned diplomatic notes sent to the Commission on The Limit of the Continental Shelf in 2009, without explanation of the line’s meaning, has given rise to much discussion. Experts and diplomats ponder what China intends to claim inside that line and how China might use that line to support its claims.

Four potential meanings of the U-shaped line have been advanced and will be considered here.

Interpretations:

  1. China’s Foreign Ministry has stated that China claims the islands inside the U-shaped line. By international law, this would include the 12-nautical-mile territorial sea and any EXCLUSIVE ZONE and continental shelf that these islands generate. If this is all what China is claiming, with no implication that this line represents a claim to rights over maritime space right up to it, then this would be the most reasonable and legally valid interpretation of the U-shaped line. If the U-shaped line represents such claims, it is no more controversial than the claims to islands by other states. However, China has not stated that this is all what the U-shaped line represents.
  2. The government of the Republic of China (i.e., the Taiwan authorities), which is not recognized as a sovereign state, has described the area inside the U-shaped line as historical waters. This view is shared by some mainland scholars. However, international law has never recognized claims of historical waters that extend so far out to sea and cover such a vast area. In any case, there is no evidence that China has historically exercised sovereignty over the area enclosed by the U-shaped line. Therefore the interpretation of the area inside the U-shaped line as historical waters is overwhelmingly rejected by international law and evidence. Furthermore, given that historical waters are normally enclosed by baselines rather than lie outside them, such interpretation would be inconsistent with baseline declarations made by the PRC.
  3. China’s diplomatic note to the CLCS in 2009 in relation to Vietnam and Malaysia’s unilateral and joint CLCS submissions claim sovereignty over the “adjacent waters” of the islands in the South China Sea and sovereign rights and jurisdiction over “relevant waters as well as the seabed and subsoil thereof”, referring to a map on which the U-shaped line is depicted, but without declaring that this line demarcates any of these areas. In 2011, China submitted a further asserting that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zones and Continental Shelf”. These notes seem to support a third interpretation: that China intends to claim the area inside the U-shaped line as an exclusive zone and continental shelf generated by the disputed Paracels, Spratlys and Scarborough Reef. However, while this is a possible speculation, there has been no official statement from China to confirm it. Further, given that the U-shaped line for the most part lies closer to undisputed territories than to the disputed Paracels, Spratlys and Scarborough Reef, it would be impossible for China to justify it as a boundary for the exclusive zone and continental shelf generated by these features.
  4. Since China is not ready to settle for the first interpretation, and since the second and third are clearly indefensible under international law, in recent years Chinese scholars have advanced a fourth interpretation. According to this interpretation, China’s claims in the South China Sea are composed of three layers. In the first, China claims the disputed islands. In the second, it claims the exclusive zone and continental shelf generated by those islands, which might not extend as far as the U-shaped line. In the third layer, China claims “historic rights” over maritime space beyond 12 nautical miles from the islands, with the U-shaped line being either the limit or both the basis and the limit for this claim.

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Secretary of State Hillary Rodham Clinton and Chinese Foreign Minister Yang Jiechi met last week in Beijing. The U.S. is trying to ease tensions in the South China Sea.

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Squabbles in the South China Sea – by Editorial | Chicago Tribune

11 September 2012

by the Editorial Board | Chicago Tribune - Commentory: Beijing is proving to be its own worst enemy.

Secretary of State Hillary Rodham Clinton and Chinese Foreign Minister Yang Jiechi met last week in Beijing. The U.S. is trying to ease tensions in the South China Sea.

The world has many trouble spots that have long posed a risk to peace and stability — the Persian Gulf, Israel and its neighbors, and the Afghanistan-Pakistan border, to name the most obvious. One looming danger is far from the usual arc of crisis. It’s the South China Sea, where territorial disputes and national ambitions are heightening tension and posing a small but not insignificant risk of escalation.

China has long been at odds with many of its neighbors over various islands in these waters. A few months ago, Chinese and Philippine naval vessels entered a tense standoff over the disputed Scarborough Shoal. In March, China detained Vietnamese it accused of fishing illegally near the Paracel Islands, which it occupies over the protests of other countries in the area.

This summer, Beijing announced it would install troops on one of the Spratly Islands, which are also claimed by Vietnam. Oh, and China has been quarreling noisily with Japan over islands in the East China Sea.

The general problem arises from Beijing’s growing assertiveness in the area, and its urge to restore what it sees as its historic sovereignty. Its neighbors, however, read history differently, and they regard China with a mix of age-old hostility and new concern about its rising power. The presence of oil and other valuable resources has raised the stakes.

But the disagreements have implications beyond the locals. As the dominant naval power in the Pacific and the world, the United States has an interest in preserving that position as well as maintaining unrestricted navigation in the region. It sees such freedom as crucial to worldwide trade, much of which is borne on merchant vessels. It also has ties with many of the countries currently at odds with Beijing, which see Washington as a vital counterweight to their giant neighbor.

These clashes are one reason the Obama administration announced a “pivot to Asia” earlier this year, which included the deployment of Marines to Australia. The goal is to provide support for friends as well as facilitate peaceful settlement of disagreements.

But the shift has evoked anger from the Chinese, who advise that the U.S. gracefully accept its inevitable decline. They insist the disputes should be resolved strictly by those countries that are “directly concerned,” which pointedly excludes America.

When Secretary of State Hillary Rodham Clinton visited Beijing last week, the Chinese rebuffed her call for regional negotiations — and canceled a scheduled meeting between her and Vice President Xi Jinping, who is expected to become China’s top leader later this year.

With its overbearing manner, though, China has done an excellent job of frustrating its own goals. The more it throws its weight around, the more its neighbors are motivated to coalesce in self-protection — and to seek shelter in the arms of the U.S., whose military capabilities dwarf those of China.

Over the years, the Americans have had their share of differences with Vietnam and the Philippines, among others. But these nations know Washington can be trusted more than Beijing because it has no territorial ambitions in the region. Its chief interests — free navigation and nonviolent settlement of disagreements — align well with theirs.

Maybe one of these days the Chinese government will come to see that these principles pose no threat to its position. As a huge country with growing wealth and military power, China has to tread gently to avoid provoking a backlash that will hinder its ambitions. It has much to gain from multilateral cooperation and much to lose from unilateral assertiveness.

Many people in the Chinese government and military think the U.S. is essentially hostile and determined to prevent China from gaining its rightful place in the Pacific and the world. But in many ways, China is proving to be its own worst enemy.

(Original version is avaible at Chicago Tribune)

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The Neverending Story: Drama in the South China Sea – Trefor Moss | The Diplomat

07 September 2012

by Trefor Moss | The Diplomat - While many have put their faith in a Code of Conduct some wonder if China is stalling for time. A real solution may take years, if ever.

 

ASEAN

The South China Sea is often presented as one of the world’s thorniest territorial disputes. A group of objective, completely disinterested observers, however, would likely find this characterization peculiar. Indeed, to these hypothetical people, it would seem painfully obvious what needed to be done to at least significantly reduce the tensions in the South China Sea. Such a plan would likely start with four simple steps:

Step 1: Put sovereignty issues to one side. These are too complex and too emotive to be solved in the foreseeable future.

Step 2: Establish who claims what. China, for example, is extremely protective of its sovereignty, but it has never made a precise declaration about which areas of the South China Sea it actually owns (vaguely drawing dashes on a map doesn’t count). Claims should be filed with the UN’s International Court of Justice by a certain date – complete with latitude or longitude coordinates – or be considered frivolous by the rest of the world.

Step 3: Use UNCLOS wherever possible. Here’s a happy coincidence: all South China Sea claimants have ratified the United Nations Convention on the Law of the Sea. That should make this situation so much easier to handle. For areas that are not contested, UNCLOS clearly lays out the rights of the claimant state and also of non-claimant states in territorial waters and exclusive economic zones. Any problems and the Convention (Article 279 ff.) also has a detailed dispute-resolution mechanism.

Step 4: Neutralize the contested areas. If the disputants really want to maintain peace and stability in the South China Sea – and they all say that they do – then they obviously need to draw up a set of rules governing what is and is not allowed in disputed zones. They could call it a Code of Conduct, or some something of the sort. Likely rules would include: the demilitarization of disputed areas; refraining from any provocative rhetoric or action, such as new construction projects on contested islands; no exploration for, or exploitation of, marine resources, unless the claimants agree to do it jointly; and the establishment of a dispute resolution mechanism, probably under the auspices of the ICJ.

It all sounds so simple. But beyond the realms of this “Fantasy Dispute Resolution” and back in the messy world of international politics, this tidy plan is a complete non-starter. The underlying reason for this is that different countries diagnose the South China Sea problem differently. Some think the situation is dangerous and needs fixing. Others, notably China, are actually quite comfortable with the status-quo.

For many observers, the recent disputes over Scarborough Shoal and other island territories have become a matter of great concern. Beijing is less disturbed, however. In fact, China’s strategy is to maintain this sometimes messy status-quo, while making outward demonstrations of being cooperative about seeking a lasting solution so as to guard against accusations that it is the problem. It calculates that these tensions are unlikely to lead to conflict, and that they are an acceptable price to pay for its continued ability to act with relative impunity in disputed areas. At the same time, Beijing doesn’t want to overstep the mark, which would harm its standing in Southeast Asia (many parts of which are pro-China), and invite greater U.S. involvement in the region.

Beijing’s grandest cooperative gesture to date was its establishment of the 3 billion yuan ($473 billion USD) China-ASEAN Maritime Cooperation Fund in 2011. Discussions are now underway about how this money can be spent in order to help implement the 2002 Declaration of Conduct (DOC) in the South China Sea. According to Ian Storey, a senior fellow at the Institute of Southeast Asian Studies in Singapore, this is all building up to a tenth anniversary communiqué to mark the original signing of the DOC. But is this really anything to celebrate? The DOC is a failed protocol that was never properly implemented – which is why momentum has built up behind the formulation of a new Code of Conduct. “China’s view is that some ASEAN members have repeatedly violated the DOC; that’s also the view of some of the ASEAN countries about China,” Storey remarks.

“But is China serious about an effective Code of Conduct?” he asks. “I think the answer is no. A really effective code would constrain China’s freedom of manoeuver in the South China Sea, and big countries don’t like that.”

The Philippines, Vietnam, and other interested parties have doubtless reached the same conclusion about China’s commitment to crafting a meaningful COC. Filipino proposals backed by Hanoi for a robust COC have already been diluted by other ASEAN members, for fear of antagonizing China. More recently, the July ASEAN Foreign Ministers Meeting held in Phnom Penh descended into a farce, with Cambodia, the current Chair, blocking constructive debate about the South China Sea dispute in defense of China’s interests. Cambodia has sold ASEAN out: in doing so, it has facilitated a Chinese policy of extraterritorial interference in Southeast Asia’s key institution. For China, it’s been a foreign-policy coup.

Indonesia – doing the job that Cambodia failed to do – subsequently showed ASEAN some leadership after the Phnom Penh fiasco, cobbling together a common position called the “Six-Point Principles on the South China Sea”. Though better than the Cambodian no-show, it’s a lax document that goes no further than calling for “an early conclusion” to the COC drafting process.

That won’t happen. China has already begun soft-pedaling on talks, which are now unlikely to happen until 2013 (the upcoming leadership handover in Beijing all but rules out near-term movement on what has become such a contentious issue). A new code is therefore unlikely to emerge before 2014 at the earliest.

It would be worth the wait, of course, if it was a business-like code that really sought to regulate the behavior of claimant states. But nobody expects it to be. “China will not accept anything that is mandatory,” concludes Carlyle Thayer, an emeritus professor at the Australian Defence Force Academy.

Strangely enough, China could gain a great deal from backing the formulation of an effective COC. Its image in the region would receive a considerable boost; calls for greater U.S. involvement in the regionwould diminish; and the chances of conflict over some tiny island would recede.

However, these attractive aspects of cooperative diplomacy are outweighed by Beijing’s instinct not to give any ground where sovereignty issues are concerned. “When it comes to high-stake, high-politics issues, such as territorial disputes and strategic rivalries, international agreements have limited impact,” suggests Zhang Baohui, an associate professor at Lingnan University in Hong Kong. “Overall I think China is a status quo power on the South China Sea issues,” Zhang but observes that upholding the status quo cuts both ways: China won’t facilitate a lasting solution, but it won’t be the one to provoke a confrontation either. It will only react forcefully to perceived provocations on the part of others, as in its recent dispute with Manila. At the same time, it will not hold back from pushing the envelope of acceptable behavior, such as upgrading Sansha to city status, for example, or granting new drilling rights to Chinese oil companies.

But what is China’s ultimate objective in all of this? “They just want to play for time, and to drag it out as long as possible,” argues Storey. “What is China’s end game? I don’t think they know themselves.”

Sadly, there is no Plan B for the South China Sea. China and ASEAN appear locked into the futile process of formulating a Code of Conduct that won’t address the types of conduct that actually need addressing. Pity the poor diplomats who will be spending the next two years working on it. The COC is another fantasy – only one that won’t sound good either in theory or in practice.

Photo Credit: Wikicommons

 (Original version is available at The Diplomat)

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South China Sea: Not Just About “Free Navigation” – by Denny Roy | Asia Pacific Bulletin

04 September 2012

by Denny Roy | Asia Pacific Bulletin - HONOLULU — The South China Sea territorial dispute increasingly looks like a point of strategic friction between the United States and China after a recent nasty exchange between the two governments. The U.S. Department of State criticized China for its plan to base a new military garrison in the Paracel Islands, saying this would increase international tensions. Beijing shot back that the United States should mind its own business.

Illustrated photo (C) ibtimes.com

Many observers wonder why Washington and Beijing are allowing a new irritant to emerge in the incalculably important U.S.-China relationship. Unfortunately, there is widespread misunderstanding about the U.S. rationale for America’s diplomatic intervention in a territorial dispute to which the United States is not a party.

Although U.S. officials have named several specific U.S. concerns about China’s policies and activities in the South China Sea, the U.S. concern most widely understood and repeated is the potential threat to “freedom of navigation”: the PRC might be moving toward imposing restrictions on foreign ships sailing in the South China Sea. This, however, is not the real issue. It is really about bullying.

To be sure, the United States is a strong proponent of freedom of navigation in international waters. This stance reflects not only America’s commitment to the general principle of liberty but also the interests of a trading nation with the world’s most capable navy. There should be no doubt that if freedom of navigation was in jeopardy in the South China Sea, the United States would spring to its defense. At present, however, freedom of navigation is not at issue.

The Chinese say they do not interfere with international navigation in the South China Sea and do not intend to in the future. Their position has some merit.

China has a particular beef with surveillance by U.S. ships and aircraft near the Chinese coast. This has resulted in Chinese harassment, with several incidents reported in the press. The UN Law of the Sea Treaty allows for spying in the region between a country’s internal waters limit—12 nautical miles—and its exclusive economic zone limit which is usually 200 nm.

The Chinese argue that spying is not “innocent passage” and should not be allowed within the EEZ. It is not an unreasonable argument. So this situation has resulted in some interference with the “free navigation” of the U.S. Navy, but this is a very limited and special case.

The other circumstance in which Chinese vessels have interfered with non-Chinese ships is when the latter are engaged in activities that involve taking resources—fishing or preparing to drill for hydrocarbons—or when foreigners are attempting to arrest Chinese fishermen. These, as well, are special cases. Otherwise, the Chinese have not interfered with the passage of cargo ships of any flag or of U.S. Navy vessels passing through the waterway.

Consequently, the Chinese assert that the freedom of navigation argument is bogus, and the assertion is persuasive to many neutral onlookers. From here the Chinese charge that the Americans are using freedom of the seas as a pretext to extend the alleged “containment” strategy to Southeast Asia, limiting Chinese influence and recruiting new allies to join in the military encirclement of China.

Instead of providing fodder for Chinese rhetoric, the freedom of navigation argument should remain in the background. Rather, what the U.S. government should be talking about is making the world safe from unlawful international coercion. Ironically, the Chinese have begun practicing what Beijing’s diplomats have for decades condemned as “hegemonism” or “power politics”—strong countries forcing their self-interested preferences onto smaller countries.

Six governments claim ownership of parts of the South China Sea. None has a slam-dunk case. China is not the only claimant that has moved unilaterally to strengthen its control over South China Sea territory and resources in recent years. China, however, has distinguished itself in two important and negative ways.

First, China’s claims are both unusually expansive and intentionally vague. Beijing has stubbornly refused to clarify its claims based on the guidelines in the international Law of the Sea treaty, to which the PRC is a signatory. This is part of a strategy of ambiguity by which the PRC tries to minimize global concern and to avoid being constrained by the Law of the Sea guidelines while taking actions aimed at intimidating individual rival claimants.

Second, the actions China has taken to assert ownership over the South China Sea and its tiny “islands” are stronger than those taken by the other claimants. These acts include threatening and damaging foreign ships, declaring a fishing ban for part of the year in half of the South China Sea and arresting foreign fisherman who do not comply. There is also the recent announcement of increased Chinese militarization of the region—not only the new garrison, but the statement by military spokesman Geng Yansheng in June that China has begun “regular, combat-ready patrols” in the South China Sea.

China’s actions are threatening because China is big. No other state in Southeast Asia can match the military power China is able to project into the South China Sea. China’s massive economic weight, rapid growth rate, and commitment to strengthening its military forces ensure that the gap will only grow larger in the future. To make the contest even more lopsided, the Chinese government recently announced plans to greatly increase the number of quasi-military patrol ships—operated by the PRC Coast Guard and other agencies—it will deploy in the South China Sea.

In effect, this is a struggle between two visions of international order for Asia. The U.S. vision includes a system of norms and international laws that ensure, among other things, that small states are protected from predation by larger states and that dispute resolution procedures should be fair. China, on the other hand, appears to favor restoring a Chinese sphere of influence in East and Southeast Asia such as the Middle Kingdom enjoyed anciently.

Under this arrangement, the rules of international interaction would reflect basic Chinese interests. Beijing would expect regional governments not to take major decisions that run contrary to Chinese preferences. Beijing’s current unwillingness to base Chinese claims in the Law of the Sea treaty may reflect the sentiment that this mostly Western-written body of law will not be needed when China resumes its historical position of regional dominance.

Some observers see the China-U.S. contention over the South China Sea as simply a squabble between two great powers that are both seeking regional domination, with each acting in its respective hegemonic self-interest rather than in defense of some higher principle. In this case, however, U.S. intervention is clearly aligned with the interests of the Southeast Asian countries, which seek to avoid domination by China or any other great power. China is trying to implement a might-makes-right order, while the United States is trying to ensure that smaller countries do not get steamrolled. This is the real issue, and U.S. officials should make it clear.

Denny Roy is a Senior Research Fellow at the East-West Center. He can be contacted via email at royd@eastwestcenter.org.

(Original version is available at Asia Pacific Bulletin)

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South China Sea conflict generates uncertainty and insecurity – by Tuong Nguyen | Global Post

24 August 2012

by Tuong Nguyen | Global PostPARIS, France — A recent article, ;China’s South China Sea jurisdictional claims: when politics and law collide,” published in the East Asia Forum, remarked that the uncertainty and insecurity generated by China’s claims in the South China Sea are reflected in headlines throughout Southeast Asia, even though the claims have no solid legal basis in international law.

China’s Blue Water Navy in the South China Sea. (C) dinmerican.wordpress.com

The insecurity is a consequence of tension in the region and in international relations rising from China’s newly aggressive posture in the South China Sea. The claims are based on a so-called “9-dashed line” map, adapted by the Zhou Enlai government when it took control of China in 1949. It is taken from the original map, known as the “11-dashed line” that was drawn by Chiang Kai-shek’s nationalist government in 1947, a time when the islands of the South China Sea, once said to be a Japanese lake, were being returned to the countries that had possessed them before World War II.

The fundamental difference in the maps is that the Nationalist China map includes the Gulf of Tonkin, the Communist China map does not. The dashes on the maps refer to the demarcation lines used by China for its claim of the South China Sea area that includes the Paracels Island and the Spratly Islands. China occupies the Paracels, which are closest to China and Vietnam, but Vietnam and Taiwan are claiming them. Claims on some or all of the Spratly Islands, which are nearest Indonesia and the Philippines, are being made by the Philippines, China, Brunei, Malaysia, Taiwan and Vietnam. The Spratlys are believed to contain important mineral resources, including oil.

The confusion over the legality of claims to the territories begins with the San Francisco Peace Treaty, signed in 1951, that officially ended World War II and Japan’s position as an imperial power. Neither China nor Taiwan were present because countries attending the peace conference could not agree which was the legitimate government of China. The treaty, as signed by the parties, did not specify which countries could legally possess the former Japanese territories in the South China Sea.

Taiwan and China each wanted Japan to return the islands of Paracels and Spratlys to them. This resulted in Taiwan’s version, the “11-dashed line” map, and Communist China’s adaptation that became the “9-dashed line.” The 1952 Treaty of Taipei between Japan and the Republic of China, newly established on the island now known as Taiwan, did not assign possession of Paracels and Spratlys. Communist China unilaterally claimed the right to have the islands.

Thus, the current claims of both China and Taiwan have no basis in international accords and, in effect, are illegal. China is inconsistent in attempting to de-recognize Japan’s World War II territorial claims in the South China Sea while using those claims to assert its sovereignty on former Japanese territories.

Internationally, the political and legal status of Taiwan remains a contentious issue. Consequently, China’s claims to the territories, based on Taiwan’s sovereignty, are among many unresolved issues between the two countries.

Disputes on the sovereignty over the Paracels and Spratlys in the South China Sea existed before the World War II. All unilateral or bilateral agreements or claims on multilateral disputes are invalid.

The United Nations Law of the Sea Convention that concluded in 1982 defines the rights and responsibilities of nations in their use of the world’s oceans. Among its provisions are rules for establishing territorial limits and providing means for settling disputes over coastal claims. All of the countries boarding the South China Sea, except North Korea, are among the 162 nations to ratify the treaty. The U.S. Senate has not ratified the treaty.

Under international law, the current crisis should be presented to the Law of the Sea Convention to settle the Chinese challenge to Vietnam, the Philippines and others over claims to more than 40 islands in the South China Sea.

Among the territorial disputes the Law of the Sea Convention might address is to clarify which areas are disputed and which ones are not. In May 2009, for example, Malaysia and Vietnam submitted jointly to the UN Commission on the Limits of the Continental Shelf, which was established to implement the Law of the Sea Convention.

Also in May 2009, China submitted for the first time its “9-dashed line” map attached to a Note Verbale to Secretary-General of the United Nation seeking to refute the claims of Vietnam and Malaysia and to clarify its claims. Although the claim in China’s map was unclear, its submission was considered a major milestone in the South China Sea disputes.

Because that was the first time the international community knew officially of the Chinese claims designated on the map, Vietnam immediately sent a diplomatic note to the Secretary-General to refute China’s claims. These submissions did not identify clearly the disputed areas, but they are legal and valuable documents for the settlement procedure.

Philippines, a leading voice in the resolution of South China Sea issues, has recently proposed a solution based on a Zone of Peace, Freedom, Friendship and Cooperation. It requires a clear delimitation of disputed and undisputed areas in accordance with the UN Convention on the Law of the Sea before peacefully pursuing joint development as outlined in China’s proposal.

The Philippine proposal segregates the undisputed areas from disputed ones. Vietnam supports the Zone of Peace, Freedom, Friendship and Cooperation while China has rejected it and pressed others Association of South East Asian Nations not to participate in discussions about it.

Not surprisingly, since China has never made clear its claims by using the so-called “9-dashed line” covering virtually more than 90 percent of the South China Sea, this rule-based concept breaks through the imprecision of China’s approach. China’s assertive posture has raised concerns among the international community about the potential for conflict in the South China Sea area. Beijing’s steps in the South China Sea are more determined and aggressive than ever, creating the worrisome prospect of escalating tension in the area. The first step toward settling these disputes through peaceful negotiations based on international law would be for all to claimants to state their claims with clarity.

Tuong Nguyen is a computer science postdoctoral fellow in Paris, France and free commentator on maritime affairs. 

(Original version is available at Global Post

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Disputed waters are rising in the South China Sea – by Huy Duong | RSIS

11 July 2012

by Huy Duong | RSIS - Disputes over maritime space in the South China Sea appear intractable.

Since 2011 claimants have been unable to agree even over what constitutes a ‘disputed area’ — and this bodes poorly for attempts to settle questions of sovereign rights and jurisdiction.

On 23 June 2012, China’s National Offshore Oil Corporation invited bids for nine blocks of oil and gas exploration in the South China Sea. The blocks lie inside Vietnam’s declared Exclusive Economic Zone (EEZ), which prompted Vietnam’s Ministry of Foreign Affairs response of 26 June, that this area ‘is absolutely not a disputed area’. The Chinese Ministry of Foreign Affairs responded that its jurisdiction applies to this region and referred to the ‘proper settlement of maritime disputes’, thereby asserting that the area is disputed.

This controversy echoes a May 2011 incident, when Chinese marine surveillance ships cut a seismic cable being towed by a Vietnamese geological survey vessel. At the time, Vietnam asserted that the incident took place in undisputed waters, but China disagreed.

similar controversy exists between China and the Philippines over the EEZ in the Reed Bank area, which the Philippines considers to be under its own jurisdiction, while China maintains otherwise.

So where exactly are the disputed areas in the South China Sea?

Nobody knows for sure. No claimant to the disputed islands and rocks in the South China Sea has so far declared the limits of their claims, so the boundaries of the disputed areas are unknown. This makes managing disagreements extremely difficult and increases the risk of mismatched expectations — and resulting conflict.

The 2002 Declaration of Conduct of Parties in the South China Sea between ASEAN and China is a case in point, because it does not differentiate between disputed areas and undisputed ones. If the new Code of Conduct is to overcome the limitations of its predecessor, it needs to identify disputed and undisputed areas.

Another example is China’s proposal to sidestep the disputes and pursue joint development projects. While joint development is in principle a valid approach for managing the disputes, it cannot work in practice without the claimants agreeing on the boundaries of disputed areas.

One approach to determining disputed areas is to say simply that any area claimed by two or more countries is disputed. But this would set a very low bar because it would allow any country to make any area a disputed one by making a conflicting claim there. China could declare that its U-shaped line represents a boundary for maritime space, making the whole area inside it disputed. The Philippines could do the same with a C-shaped line and Vietnam could use a D-shaped one. This would make it impossible to contain or manage disputes between the claimants.

Instead, the definition of ‘disputed area’ should be based on the United Nations Convention on the Law of the Sea, or UNCLOS, which regulates specific maritime zones. This convention is based on the principle that economic zones must be drawn with reference to land and insular territories.

It is clear that the 12-nautical-mile territorial sea around the islands and rocks of the Scarborough Shoal and the Paracel and Spratly Islands are disputed. Beyond this, the picture becomes more complicated, though opinion seems to be arranged in a clear spectrum.

At one end of the spectrum is the view that none of the disputed rocks or islands deserves an EEZ or continental shelf. This would mean that the disputed areas are confined exclusively to the 12-nautical-mile territorial sea generated from valid baselines and base points around these features.

At the other end of the spectrum is the counterfactual hypothesis that every feature in the Paracels, Spratlys and Scarborough Shoal is an island entitled to an EEZ and deserves full effect in EEZ delimitation. Under this hypothesis the boundaries would be equidistant lines between uncontested territories and the closest features of these three groups.

In reality, not every one of these outermost features is entitled to an EEZ and even those that are so not deserve full effect in EEZ delimitation.  This is because in areas where overlaps occur the international law of maritime delineation gives priority to the EEZs of larger landmasses. Therefore, in areas of overlapping entitlements, the EEZs of outlying features of the Paracels, Spratlys and Scarborough Shoal would fall short of the equidistance lines.

A criterion for drawing boundaries for disputed areas that is consistent with international law would be closer to the views near the first end of the spectrum. This solution may still give rise to disputes as to exactly where the boundaries lie, but adopting UNCLOS would allow the interested parties to negotiate to a specific standard, or submit the question to an international court.

Agreeing on boundaries for the disputed areas is the necessary basis for adopting effective dispute management measures. Boundaries that limit potential claims are consistent with international law and would also keep disputed areas small. Agreeing on how to define a disputed area would thus significantly improve the likelihood that claimants will agree on dispute resolution measures for the South China Sea.

Huy Duong is a UK-based IT consultant and commentator on maritime affairs.

(Original version is available at RSIS)

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China’s Invented History – by Philip Bowring | The Wall Street Journal

04 June 2012

by Philip Bowring | The Wall Street Journal - The conflict between the Philippines and China over the Scarborough Shoal may seem to be a minor dispute over an uninhabitable rock and the surrounding waters. But it is hugely important for future relations in the region because it showcases China’s stubborn view that the histories of the non-Han peoples whose lands border two-thirds of the South China Sea are irrelevant. The only history that matters is that written by the Chinese and interpreted by Beijing.

The Philippine case for Scarborough is mostly presented as one of geography. The feature, known in Filipino as the Panatag Shoal and in Chinese as Huangyan Island, is some 130 nautical miles off the coast of Luzon, the largest island in the Philippine archipelago. It’s well within the Philippines’ Exclusive Economic Zone, which, as per the U.N. Law of the Sea Convention, extends 200 nautical miles off the coast. On the other hand, the shoal is roughly 350 miles from the mainland of China and 300 miles from the tip of Taiwan.

China avoids these inconvenient geographical facts and relies on historical half-truths that it applies to every feature it claims in the South China Sea. That’s why it’s now feuding with not just the Philippines, but other nations too. Beijing’s famous U-shaped dotted line on its maps of the South China Sea defines territorial claims within the 200-mile limits of Malaysia, Vietnam, the Philippines and Brunei, and close to Indonesia’s gas-rich Natuna Islands.

In the case of the Scarborough Shoal, China’s Ministry of Foreign Affairs gives the historical justification that the feature is mentioned in a Chinese map from the 13th century—when China itself was under alien Mongol rule—resulting from the visit of a vessel from China. This “we were there first” argument is nonsense. Chinese sailors were latecomers to the South China Sea, to say nothing of onward trade to the Indian Ocean. The seafaring history of the region at least for the first millennium of the current era was dominated by the ancestors of today’s Indonesians, Malaysians, Filipinos and (less directly) Vietnamese.

As China’s own records reveal, when Chinese traveled from China to Sumatra and then on to Sri Lanka, they did so in Malay ships. This was not the least surprising given that during this era, Malay people from what is now Indonesia were the first colonizers of the world’s third largest island, Madagascar, some 4,000 miles away. (The Madagascan language and 50% of its human gene pool are of Malay origin). They were crossing the Indian Ocean 1,000 years before the much-vaunted voyages of Chinese admiral Zheng He in the 15th century.

bowringfhk

Malay seafaring prowess was later overtaken by south Indians and Arabs, but they remained the premier seafarers in Southeast Asia until the Europeans dominated the region. The Malay-speaking, Hindu-ized Cham seagoing empire of central Vietnam dominated South China Sea trade until it was conquered by the Vietnamese about the time the European traders began to arrive in Asia, while trade between Champa (present-day southern Vietnam) and Luzon was well established long before the Chinese drew their 13th century map.

The Scarborough Shoal, which lies not only close to the Luzon coast but on the direct route from Manila Bay to the ancient Cham ports of Hoi An and Qui Nhon, had to be known to Malay sailors. The Chinese claim to have “been there first” is then like arguing that Europeans got to Australia before its aboriginal inhabitants.

Another unsteady pillar in China’s claim to the Scarborough Shoal is its reliance on the Treaty of Paris of 1898. This yielded Spanish sovereignty over the Philippine archipelago to the U.S. and drew straight lines on the map which left the shoal a few miles outside the longitudinal line defined by the treaty. China now conveniently uses this accord, which these two foreign powers arrived at without any input from the Philippine people, to argue that Manila has no claim.

The irony is that the Communist Party otherwise rejects “unequal treaties” imposed by Western imperialists, such as the McMahon line dividing India and Tibet. Does this mean Vietnam can claim all the Spratly Islands, because the French claimed them all and Hanoi has arguably inherited this claim?

China also asserts that because its case for ownership dates back to 1932, subsequent Philippine claims are invalid. In other words, it uses the fact that the Philippines was under foreign rule as a basis for its own claims.

Manila wants to resolve the matter under the U.N. Law of the Sea Convention, but Beijing argues that its 1932 claim isn’t bound by the Convention, which came into effect in 1994 since it preceded it. That’s a handy evasion, most probably because China knows its case for ownership is weak by the Convention’s yardsticks.

China is making brazen assertions that rewrite history and take no account of geography. Today’s naval arguments won’t come to an end until the region’s largest disputant stops rewriting the past.

Mr. Bowring is a Hong Kong-based journalist.

(This article was originally published at The Wall Street Journal)

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