On South China Sea disputes, China stands on the side of history, logic and the law

Tung Chee-hwa lays out the legal and historical context in which China has declined to participate in international court proceedings on the disputed islands, and says Beijing’s actions have been anything but aggressive

PUBLISHED : Wednesday, 25 May, 2016, 4:13pm
UPDATED : Wednesday, 25 May, 2016, 4:13pm

The US-China relationship today is the most important international relationship in the world. For it to continue to improve, it is important that we make greater efforts to understand each other.

You may ask, what is China pursuing internationally? What is its long-term strategic intent? For China to realise its vision – to join the ranks of the developed countries of the world – it needs to pursue peace with its neighbours and countries around the world.

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During the last 100 years of the Qing dynasty, China lost one-third of its territory to foreign powers. Therefore, territorial integrity is an emotional and sensitive issue to the Chinese people.

China has no aspirations to colonise or conquer foreign lands

China shares a border with 14 neighbours, more than any other country. At the time of the establishment of the People’s Republic of China, its border demarcation with neighbouring countries was very often ambiguous. There were many complicated discussions to settle border disputes. But, as of today, the record shows that China has successfully concluded territorial disputes with 12 of its 14 neighbours. This is quite an accomplishment. Despite enormous difficulties, solving remaining territorial disputes continues to be pursued peacefully.

In fact, China has no aspirations to colonise or conquer foreign lands. Nor does it uphold any religious or ideological motives to influence other people or to take over foreign lands. At the height of the Ming dynasty, when China had 30 per cent of the world’s gross domestic product, it remained peaceful and did not make incursions into foreign lands. The purpose of modernising its military is to act as a deterrent to foreign aggression against China.

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Today’s US-China relationship began in 1972, when president Richard Nixon visited chairman Mao Zedong ( 毛澤東 ) in China. Since then, eight US presidents and five national leaders of China have worked tirelessly to nurture this important relationship. Despite ups and downs, the relationship has been moving forward positively – particularly on trade, direct investment, people-to-people exchanges and, increasingly, collaboration on the global front. This partnership has great potential to expand.

Unfortunately, in today’s world, differences between the two countries are inevitable. After all, we have different histories and cultures – and different needs.

Fortunately, with the determination of both governments, so far these differences have been managed. However, there may come a time when this is not the case. And, as a result, US-China relations will fray. With that in mind, it’s important to talk about the South China Sea.

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There is a question as to who has sovereignty over the Spratlys. The Chinese discovered the Spratlys (known as Nansha Island in China), with the earliest archaeological evidence of their use dating back hundreds of years. Navigation guides for fishery activity, compiled by fishermen from Hainan Island ( 海南 ) as early as the 18th century, not only designated specific names to most features in the Spratlys, but also provided detailed narratives on the direction and distances of the navigational routes. Chinese fishermen would live on these islands during the more favourable fishing seasons.

In addition, China exercised sovereignty over the Spratlys, going back to the Yuan dynasty (1271-1368), starting with an official survey of Chinese territories covering the Spratlys, followed later by the formal incorporation of the Spratlys as well as Hainan Island into the administration of Guangdong province during the Qing dynasty.

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In more recent history, towards the end of the second world war, there began ample, clear and convincing evidence that China has sovereignty over the Spratlys and that is recognised by the international community, including the US. These can be found in very important international treaties and declarations.

First is the Cairo Declaration of 1943. Second is the Potsdam Declaration of 1945. Third is the Treaty of Peace, also known as the Treaty of San Francisco, signed on September 8, 1951, between 48 nations and Japan. (Because of the onset of the cold war, neither the People’s Republic of China nor the Republic of China was invited to San Francisco). Fourth is the Sino-Japanese Peace Treaty, signed on April 28, 1952, between Japan and the Republic of China. Fifth is the UN General Assembly Resolution 2758, passed in 1971, recognising that the People’s Republic of China was the only lawful representative of China to the United Nations, in place of the Republic of China. And, lastly, the Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China, signed on September 29, 1972, which acknowledged that all territories stolen from the Chinese shall be restored.

Today, of all the features in the Spratlys, Vietnam has 29, the Philippines has eight and China has nine

In each one of these treaties or declarations, reading them separately, or reading the six together, you will find definitive evidence supporting the legal position that the Spratly Islands belong to China.

Since the 1950s, the Vietnamese have been actively and aggressively taking over many of these features in the Spratlys. The Philippines has also done the same, starting in the 1970s. So, today, of all the features in the Spratlys, Vietnam has 29, the Philippines has eight and China has nine.

In the 1970s, it was discovered that the South China Sea possessed a wealth of oil and gas reserves. This resulted in a dramatic escalation of interest in the region, particularly by Vietnam and the Philippines. As a result, increased tension ensued.

The situation was further exacerbated in 1982, when the United Nations Convention on the Law of the Sea was promulgated, establishing a 12-mile-from-shore territorial water, and a 200-nautical-mile economic zone. This has further complicated the claims and counterclaims, and enticed more Asean countries to make claims in the South China Sea.

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Since the 1970s, China urged restraint. And while insisting on its sovereignty rights, Beijing suggested that peace can be maintained if the countries agreed to explore the resources jointly, sharing the resources together, and leaving the sovereignty dispute for future generations to resolve. China began bilateral negotiations with the other claimants.

Unfortunately, there has been no progress in those negotiations, but since that time, more than 1,000 oil wells have been drilled, mostly for the accounts of the Vietnamese and the Filipinos. But, up to now, China has not drilled a single well in the area.

China’s activities in the South China Sea have not been aggressive, or assertive, but rather have been restrained

Over this period, Vietnam built an airstrip on one of its features. Last year, China decided to proceed with the construction of an airport on one of its features. China has also built four lighthouses in the Spratlys to support international navigation.

By 2002, because of intensive efforts of members of the Association of Southeast Asian Nations and China, a Declaration on the Conduct of Parties in the South China Sea was agreed, promoting bilateral negotiation among the disputing nations over sovereignty issues, and calling for the unfettered freedom of navigation in the South China Sea for all nations of the world. A code of conduct between the Asean countries and China to reflect the above is now being pursued.

China believes that this process, although at times fraught with difficulty, continues to be the best way to resolve the dispute. Thus, China’s activities in the South China Sea have not been aggressive, or assertive, but rather have been restrained, and aimed at promoting peace and common prosperity.

It has been claimed that China does not follow legal norms on the settlement of sovereignty disputes in the South China Sea. It is not commonly known that the UN conference on the Law of the Sea successfully produced a convention only after nine years of marathon discussions and negotiations. The stalemate was broken because the convention provided the parties with an option to make an exception in cases concerning national sovereignty and boundary delimitations.

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China ratified the convention on June 7, 1996 and made a declaration upon ratification reaffirming its sovereignty over all its archipelagos and islands, including those of the Spratlys. On August 25, 2006, China made a declaration under Article 298 of the convention that any sovereignty and maritime boundary delimitation issues are excluded from the jurisdiction of any dispute resolution mechanism under the convention. A similar position is taken by more than 30 other countries.

China cannot understand why America takes a different view and is oblivious to the historical facts

This is the legal ground under which China has declined to participate in the Permanent Court of Arbitration proceedings at The Hague, called for by the Philippines. Legal experts consider that China’s position in this regard is proper and legal.

The South China Sea issue is now on the front pages, almost daily. While the Americans feel that the Chinese are being assertive, aggressive, unreasonable and have failed to adhere to international legal norms, the Chinese people feel strongly that history, logic and the law are on their side, and despite this, China is still patiently and constructively seeking peaceful solutions. China cannot understand why America takes a different view and is oblivious to the historical facts, and even goes so far as to frequently carry out military exercises in the South China Sea to make its point.

US-China relations are important for the people of the two nations and for the world at large. At this time, protecting this relationship must be the first priority for all of us. It is time to rethink and re-evaluate, with urgency, the issues involved.

Former chief executive Tung Chee-hwa is chairman of the China-US Exchange Foundation and of Our Hong Kong Foundation