Dr. Renato de Castro, Trustee and Convenor of National Security and East Asian Affairs Program of the Stratbase ADR Institute
During US Secretary of Defense James Mattis’s three-day visit to China, President Xi Jinping bluntly told the visiting American defense official:
“Our stance is steadfast and clear-cut when it comes to China’s sovereignty and territorial integrity, we can’t lose even an inch of territory inherited from our ancestors, and China won`t take anything that belongs to others. Beijing has no colonial ambition but will never shy away from defending every each of its territory.”
President Xi’s straight-talking statement to Secretary Mattis was printed by influential and nationalist Chinese newspapers to emphasize that China under President Xi will not extend any concession with it comes to Taiwan and the islands in occupies in the South China Sea.
His assertion that China inherited the South China Sea from its ancestors is based on the belief that the Chinese people has always considered this maritime area as their “historic waters.” This is based on the national narrative that the South China Sea had been known to Chinese fishermen and seafarers from time immemorial. It tells various accounts of Chinese use of the South China Sea and its islands that included accounts of tributes made to Imperial Courts of ancient Chinese dynasties before the third century A.D. by the so-called barbarians from the southern seas. Accordingly, during this period, Chinese ships loaded with silk, porcelain, and other commodities sailed through the South China Sea and navigated the coasts of the Philippines, Vietnam, Malaysia, and Thailand, and through Malacca to India and as far as the Mediterranean Sea.
It will be naïve for the international society to accept China`s national narrative as a gospel truth. It is only fair to examine this national narrative on the bases of geography, history, and relevant international law.
HISTORY AND THE NATIONAL NARRATIVE?
Based on the 1951 International Court of Justice (ICJ) case between Norway and the United Kingdom, a country can only claim historic title to administer waters and territory if the three conditions are present: a) close geographical dependence of the territorial sea upon the land domain; b) the presence or absence of links between the land formations and the sea space sufficiently close to make the region susceptible to a fully sovereign regime of governance; c) and unique economic interest belonging to the coastal state as clearly evidenced by long (and exclusive) usage.
China cannot claim the South China Sea as its historic waters since it is a semi-enclosed sea surrounded not by one but by six littoral states. It has provided a fertile fishing ground for local fishermen not only from China but from other littoral states. It has also been a smooth and safe navigation route for all the states in the region and even the rest of the international community. Historically, the South China Sea forms parts of the vital route of maritime trade and transportation not only for China but for all East Asian and Southeast Asian states and their trading partners in Asia, Africa, and beyond. Historical records provide accounts of both Chinese and barbarian activities in the South China Sea. What history tells us is that the South China Sea evolved as regional commons as people used it as a common fishing ground and a trade route.
It is also interesting to note that Chinese records are candid about anti-maritime policies adopted by the late Ming Dynasty that limited the activities of its subjects in the South China Sea. This was because Chinese officials lost interests in the seas and even issued a ban on overseas trade from 1474 to 1551. As a result, construction of new ocean-going ships was banned, shipyards were closed, and ocean-going trade was discouraged. The imperial dynasties’ periodic interest on the maritime domain stemmed from the fact, that for most of its history, China was a continental power focused on land-based threats and opportunities. Furthermore, Imperial China never depended upon the sea for its economic livelihood. The consequences of China’s neglect of the sea led to its defeats during the First and Second Opium Wars and during the First Sino-Japanese War in the 19th century.
INTERNATIONAL LAW AND THE NATIONAL NARRATIVE?
In January 2013, the Philippines challenged China’s expansive claim in the South China Sea when it filed an arbitration case in the Permanent Court of Arbitration in the Hague, in the Netherlands. The 12 July 2016 United Nations Conventional on the Law of the Seas (UNCLOS) ruling on the South China Sea arbitration states that China`s claim to historic rights to the resources and waters to the South China sea ended when it joined the UNCLOS. This is because the notion of historic rights is incompatible with the exclusive economic zones (EEZ) as provided by the convention. This ruling was based on the assumption that the Convention was designed to be comprehensive in nature regarding rights within maritime zones means that rights of the other South China Sea coastal states within their EEZs and continental shelf areas leaves no space for an assertion of historic rights.
The tribunal also ruled that although Chinese navigators and fishermen had historically made use of the islands in the South China Sea, there was no evidence that China has historically exercised exclusive control over the waters and resources. Rather, historical records in all the littoral states (including China) point that people from the Philippines, Malaysia, and Indonesia have also fished and navigated the waters of the South China Sea and have also maintained contact with the rocks, shoals, and islets in support of traditional fishing and local trade.
Finally, the tribunal states, there was no way that any ancient community could have settled and survived in the South China Sea as none of the rocks, shoals, or islets can sustain human habitation or an economic life of their own. The tribunal observed that some of the Spratly Islands were used by small groups of fishermen, but such transient use does not constitute inhabitation by a stable community.
On the basis of these three findings, the tribunal concluded that there was no legal basis for China to claim historic rights to the waters and resources of the South China Sea.
On the bases of geography and history, China has not been able to exercise exclusive economic or navigational use of the South China Sea. Rather, it has always been regional commons. The July 2016 UNLCOS ruling affirmed what history and geography have uncovered. It is only fair to raise this question “What territory are you referring to President Xi?”