Posted on March 22, 2018
The South China Sea Disputes: A clash of international law and historical claims
The United Nations Convention on the Law of the Sea (UNCLOS), whose most recent charter came into force in November of 1994, constitutes the current basis of international law in the South China Sea disputes (UNCLOS, 2016). Long before the inception of recognized international maritime law, and throughout much of pre-modern history the South China Sea played a pivotal role as an “intersection of history” as the primary route for the vital trade connection between China and India, Europe, and the Middle East (Swanson, 1982). Many of the claims to the South China Sea are derived from this pre-modern era on the basis that traders and admirals settled on or stopped at the Spratly and Paracel islands while traversing the South China Sea on trading trips.
All claimants in the South China Sea disputes, including China, are signatories to UNCLOS, which sets forth clear laws for the waters surrounding the territories of nation-states (Poling, 2013). All regulations are established from the baseline of sovereign and inhabited islands, making the law’s application to the South China Sea particularly challenging. Legal maritime rights in terms of UNCLOS are derived from the status of land features, which are the focal point of claims made to islands in the South China Sea by Taiwan, the Philippines, Malaysia, Vietnam, and other ASEAN claimants.
Table 1: UNCLOS Provisions and Regulation Areas (UNCLOS, 2013)
In contrast, the Chinese government’s claim – which is often referred to as the nine-dashed line claim because of the number of lines on the original map that were used to mark the boundaries of China’s maritime claims to the region – is not based on a claim to land features and therefore does not fall within the legal maritime framework of UNCLOS (Beckman, 2011). Rather, China’s nine-dashed line claim (see figure 1) is derived from a 1947 map drawn by Yang Huairen, a geographer for the Nationalist Government that fell in 1949 (see figure 2) (Beech, 2013). Yang’s work consisted of 11 dashes that were located in slightly altered locations. One notable exclusion from the renewed 2009 claim is the Gulf of Tonkin, which Mao Zedong ceded to Vietnam in 1952 (CSIS, 2012).
In comparing the two maps, scholars (see Fravel, Gao, and Dutton) – in addition to the U.S. State Department (2014) – have noted that the 2009 dashes come far closer to the shores of nations in the region than did the 1947 map. Figure 1 depicts the nine-dashed line in relation to China’s 200 nm EEZ (as defined by UNCLOS) with the artificial islands that were constructed inside the EEZs of the Philippines and Malaysia. In this map, the aggressiveness of the Chinese claim and the seriousness of the conflict becomes obvious. To make matters worse, the current legal structure for governing maritime disputes is not equipped to resolve such varying definitions and claims to the sovereignty of what are, in most cases, uninhabitable atolls and reefs.
Figure 1: China’s South China Sea Claims (2009)
Figure 2: China’s South China Sea Claim: 1949
Chinese Historical Claims
The South China Sea’s delineation as “international water” dates back to the late Ming period (1403 – 1644) and the introduction of European trade companies in East Asia. With an increased European presence in Asia, European ideals of free passage and trade policies clashed with the tributary system of the Chinese Empire. The understanding of the South China Sea as “international water” is derived from the European understanding of the freedom of navigation rather than from the Chinese understanding of the South Sea (南海). For China, the South Sea was a part of the Chinese Empire and a critical economic thruway for trade and exploration.
China’s legal claim rests in an assertion of first discovery in the second century CE (Tang, 1991). China also asserts that the South China Sea was mapped by Chinese scholars in the third century CE and that archeological evidence from several islands match Han Dynasty era artifacts (placing them in the early second century CE) (Kompas, 1991). If true, these assertions would be the earliest historical basis of any claimants, as the claims of the Philippines, Vietnam, and Malaysia are derived from later events, including European colonization. Incorporated into China’s claim is the assertion that many of those subsequent events, including the French colonization of the habitable South China Sea in the Spratly and Paracel Islands, were illegitimate and do not negate China’s historical claims (Catley, 1997).
It is easily verifiable that China had continuous trade contact with what was called the South Sea Region (南洋), which referred to the nations in South and Southeast Asia from a China-centric perspective. The known trade routes with this region were predominant during the Kingdom of Wu (222 CE – 279 CE) and continued to expand during the subsequent Liang Dynasty (502-587 CE), with Funan (present-day part of Thailand, Cambodia, and Vietnam) acting as a major entrepot for South Sea Region trade in the Mekong River Basin by the sixth century CE (Leonard, 1984). By the thirteenth century, continued trade with the South Sea Region relied on the shipping capacities of Malay city-states in the absence of Chinese naval power (Rockhill, 1911).
While the International Court of Arbitration governing maritime disputes has made it clear that (in legal terms) historical claims are wholly irrelevant to territorial and maritime disputes in the case of the South China Sea, the People’s Republic of China continues to assert the relevance of its historical claims. Despite the clear legal discourse on the subject of historical claims, the narrative of China – the largest actor in the region – must be considered and understood when analyzing the disputes. So long as actors are operating within different frameworks – with China continuing to call attention to historical claims and the international community continuing to focus on unenforceable international law, meaningful discussion and eventual resolution of the South China Sea disputes will be out of reach.
The existing debate over Chinese historical claims is whether they are relevant to the present-day territorial and international waters in the South China Sea. The International Court of Arbitration and ASEAN have said no, but the Chinese government continues to argue that they are indeed relevant and constitute a valid present-day claim. It is not the validity of China’s presence in the South China Sea that is in question. Rather, it is whether a trading presence (in which shipping lanes circumvented the open ocean and dangerous rocks of the South China Sea islands) can be considered a legitimate present-day claim of sovereignty to the various islands in the South China Sea.
It is possible that historical claims are not about attachment to a specific piece of land, as evidenced by the sweeping nature of the nine-dashed line. Rather, China’s concern may be in recalling the traditional hierarchical Asian paradigm in which the “middle kingdom” acted as the center of a tributary system of various levy-paying states. In exchange, the Chinese Emperor would offer protection to a series of states whose relative power was starkly inferior to China’s (Percival, 2007). This system, which was in use throughout most of China’s history, ended with European colonialism in Asia, particularly with the French colonization of Vietnam in 1885, during which China failed to protect its tributary client state (Brocheux, 2009). While the nature of this tributary arrangement changed throughout China’s history, such as the privatization of trade and establishment of a customs system by the Kangxi Emperor in the late 17th century, the Sino-centric nature of such a system heralds many of the underlying assumptions to the present-day Chinese historical claims in the South China Sea (Zhao, 2013). Alongside claims to the South China Sea, Xi Jinping’s Belt and Road Initiative is seen to be a resurrection of these tributary ideals.
Regardless of the motivations or rationale behind the resurgent employment of historical claims in the South China Sea, those histories have become increasingly relevant to the debate over sovereignty and the occupation of uninhabitable islands in the region. The lack of legally legitimate historical claims to South China Sea islands (beyond the trade routes argument) leaves the Chinese perspective with no legal standing under international law. With each state using its own narrative to support their claims, there is little chance for historical and factual reconciliation – making the historical realities and claims of China crucial to the understanding of the current status of the region. As China continues to advance its activities in the South China Sea, it is crucial to reach a better understanding of why Beijing is in pursuit of a larger military and diplomatic presence in southeast Asia.
About the Author: Benjamin Black is an School of International Affairs student at the Pennsylvania State University.
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