Patience and restraint needed to resolve South China Sea territorial disputes

Tung Chee-hwa says China rejects criticism that its activities have been aggressive, and furthermore is committed to working together with Southeast Asian countries to untangle the claims and counter-claims in the contested waters

PUBLISHED : Friday, 15 July, 2016, 7:55pm
UPDATED : Friday, 15 July, 2016, 8:13pm

In order to understand China’s objective with the Spratlys, I believe one must first understand China’s global strategic intent, particularly its strategic priorities today.

China’s recent history of nation building began on October 1, 1949, with the formal establishment of the People’s Republic of China. At that time, the country was bankrupt. Only very rudimentary infrastructure, housing, schools and health care facilities were available. The fact was, following years of chaos, civil war and Japanese invasion and occupation, the country suffered enormously from the destruction. But 1949 was a turning point in China’s history, for the fractious country was at last in peace and was at last united, and proper nation building could begin. Even so, it was Deng Xiaoping’s (鄧小平) decision in 1978 to launch the policy of reform and opening up that began the crucial step towards the country’s modernisation.

The result of this modernisation drive is truly astonishing. Today, in China, essential physical infrastructure is present throughout the country; education, health care and other social services have become widely available; urbanisation has progressed; and peoples’ livelihoods have improved dramatically. Furthermore, a market economy thrives.

Today China has become the second-largest economy in the world. China holds the world’s largest foreign exchange reserves, and is one of the two largest trading nations in the world. Throughout all this, 600 million people have been lifted out of poverty. Never before in the history of mankind has so much been achieved for so many people in such a short period of time.

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China’s strategic intent is in part a result of its past destitution, and economic development and better livelihoods for its people is its greatest priority. China’s vision is that, by 2049, when the People’s Republic marks its centennial, it will have joined the ranks of the developed countries of the world. What this means internationally is that China needs to continue to pursue peace and common prosperity with its neighbours and countries around the world for years to come.

Despite enormous difficulties to solve the disputes, China is determined to continue to pursue these discussions peacefully

If history is any proof, China has no desire to colonise or conquer foreign lands. Nor does it pursue any religious or ideological motives to influence other people or to acquire foreign lands. At the height of the Ming dynasty, when China had 30 per cent of the gross domestic product of the world, China remained peaceful and did not make incursions into foreign lands. China’s behaviour is very much influenced by the teachings of Buddhism and Confucius, in which peace is precious and peace stands above all. The modernisation of its military is to act as a deterrent to foreign aggression against China.

But while its strategic intent is to pursue peace above all, China will firmly and steadfastly pursue the protection of territorial integrity. During the last 100 years of the Qing dynasty, China lost one-third of its territory to foreign powers. Therefore, you can appreciate that territorial integrity is an emotional and sensitive issue to the Chinese people.

China shares a land border with 14 neighbours, more than any other country in the world. At the time of the establishment of the People’s Republic, its border demarcation with neighbouring countries was very often ambiguous. There were many complicated discussions to settle border disputes with many of these neighbours. But today, the record shows that China has successfully concluded territorial disputes with 12 of those 14 land neighbours. In order to reach these agreements, China surveyed and demarcated around 20,000km of boundaries, about 90 per cent of China’s land boundaries. Although many of these agreements took years and sometimes decades to complete, they are still quite an accomplishment. There were some skirmishes, but through patience, goodwill, restraint, give-and-take and the recognition of mutual benefits, these negotiations were eventually brought to a successful conclusion. Despite enormous difficulties to solve the remaining territorial disputes, China is determined to continue to pursue these discussions peacefully.

In sum, China would like to resolve territorial disputes peacefully, so that the countries of the region can live together in peace and prosperity. The Spratlys are no exception.

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China’s relationship with the Spratlys

China’s historical relationship with the Spratlys underpin its claims to sovereignty.

The Chinese discovered the Spratlys (known as Nansha Islands in China), with the earliest archaeological evidence of their use dating back hundreds and sometimes thousands of years. Navigation guides for fishery activity, compiled by fishermen from China’s Hainan Island 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 (expressed in the length of travel time) 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 from the Yuan dynasty, starting with a patrol over 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.

In more recent history towards the end of the second world war, there emerges ample, clear and convincing evidence that China has sovereignty over the Spratlys. This evidence has been recognised by the international community, including the United States. These can be found in the following international treaties and declarations.

While insisting on its sovereignty and rights, China suggested that peace can be maintained if the countries agreed to explore the resources jointly

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 in 1951, between 48 nations and Japan. Fourth, is the Sino-Japanese Peace Treaty, signed in 1952, between Japan and the Republic of China. Fifth, is the United Nations General Assembly Resolution 2758, passed in 1971, recognising the People’s Republic of China to be the only lawful representative of China to the United Nations, in place of the Republic of China. And lastly, the joint communiqué of Japan and China, signed in 1972, which acknowledged that all territories stolen from the Chinese shall be restored to China. Reading the six treaties and declarations separately, or reading them together, you will find definitive evidence supporting the legal position that the Spratly Islands belong to China.

By the 1970s, there was discovery that the South China Sea possessed a wealth of oil and gas reserves. This resulted in a dramatic escalation of interest in the region.

Since the 1970s, the Vietnamese have been actively and aggressively taking over many of these features in the Spratlys. The Philippines has also done the same. So today, of all the features in the Spratlys, Vietnam occupies 29, the Philippines occupies eight, China has nine, and there are still a few more being occupied by other countries.

China has urged restraint. While insisting on its sovereignty and rights, China 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 claimants.

Unfortunately, there has been no tangible progress in those negotiations, while since that time, more than a thousand oil wells have been drilled, mostly by Vietnamese and Filipinos. But up to now, to show its restraint, China has not drilled a single well in the area.

China’s approach to resolving the crisis

The situation was further exacerbated in 1982, when the United Nations Convention on the Law of the Sea was promulgated. Claims and counterclaims of overlapping exclusive economic zones complicated the dispute, and enticed even more members of the Association of Southeast Asian Nations to make claims in the Spratlys.

I would now like to address the allegations that China does not adhere to international legal norms on the settlement of sovereignty disputes in the South China Sea. It is not commonly known that the convention successfully produced an agreement only after nine years of marathon discussions and negotiations. The stalemate was broken partly because the convention provided the parties with an option to make an exception in cases concerning maritime boundary delimitation. You may also be interested to learn that, in addition to China, three other UN Security Council permanent members, Britain, France and Russia, as well as nine OECD countries, have taken the option. Indeed, in total, over 30 countries have done so.

On that basis, China ratified the convention on May 15, 1996. At that time, it made a declaration reaffirming its sovereignty over all its archipelagos and islands, including those of the Spratlys. Further, on August 25, 2006, China made another declaration, under Article 298 of the convention, that any maritime boundary delimitation issues are excluded from the jurisdiction of any dispute resolution mechanism under the convention.

Many of us hope that, with the inauguration of President Rodrigo Duterte, we can turn the page on this unfortunate chapter in Chinese-Philippine history

There is another reason why China refuses to participate. It should be noted that, in 2002, because of intensive efforts of Asean countries and China, a Declaration on the Conduct of Parties in the South China Sea was agreed on, promoting bilateral negotiation among the disputing nations over sovereignty issues, and calling for freedom of navigation in the South China Sea for all nations of the world in accordance with the UN convention. A code of conduct between the Asean countries and China to reflect the above is now being actively pursued. This exercise began in 2013, and is still continuing. China believes that this process, although at times fraught with difficulty, continues to be the best way to resolve the dispute. To have attended the arbitration proceedings at The Hague would undermine a process that has long been in place to resolve the dispute in a bilateral and peaceful manner. Furthermore, rules of the UN convention clearly provide that, until the bilateral discussions have been exhausted, a country should not approach the Permanent Court of Arbitration to adjudicate border disputes.

For the above reasons, China declined to attend the arbitration proceedings, and for obvious reasons rejected the ruling of the tribunal that was made on July 12.

I hope, from the above, you can appreciate that China’s activities in the South China Sea have not been aggressive, nor assertive, but rather has been restrained. Furthermore, it has indeed adhered to international legal norms.

China and the Philippines established diplomatic relations in 1975. Until the last few years, our relationship has been cordial and mutually beneficial. This is reflected in the trading relationship between the two countries. Trading volume in US dollar terms in 1975, when the diplomatic relations began, was US$72 million. By 2015, this number had risen to US$46 billion. The fact is this economic relationship can expand by leaps and bounds, as the two nations are at a stage of development where there is enormous mutually beneficial potential. All this will be affected if, as a result of the court case, tension rises, and confrontation ensues.

Resolving territorial disputes between any two nations is never easy. It takes patience, restraint, commitment, and a spirit of accommodation by both sides. Conflict is not the way to solve territorial problems. Working together, building trust and friendship, developing mutually beneficial economic activities in the meantime, is the way to move forward. Many of us hope that, with the inauguration of President Rodrigo Duterte, we can turn the page on this unfortunate chapter in Chinese-Philippine history, and begin a new relationship founded upon common prosperity for our people, and peace in the South China Sea.

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China-US relations

The other important player in the South China Sea since the second world war is the United States. It obviously has a role to play. Unfortunately, there is tension between the US and China on this issue. If not handled carefully, it will affect China-US relations.

While the Americans feel that the Chinese are being aggressive and unreasonable, the Chinese people feel strongly that history, logic and the law is on the Chinese side

The fact is, while the Americans feel that the Chinese are being assertive, aggressive, unreasonable, and fail to adhere to international legal norms, the Chinese people feel strongly that history, logic and the law is on the Chinese side, and despite this, China is still patiently and constructively seeking peaceful solutions through agreed channels with Asean.

US officials have publicly maintained that their wish is for the claimants to settle their disputes peacefully, and to ensure freedom of navigation through the South China Sea. This is also China’s wish. Therefore, Chinese people cannot understand, given what China has done, why America accuses China of being aggressive, assertive, and flouts international law. Additionally, they cannot understand why America goes so far as to frequently carry out military exercises in the South China Sea, sometimes in conjunction with the military of another claimant to the disputed region. This helps to consolidate suspicions of many Chinese people that America’s pivot to Asia is to contain China. If this suspicion persists, many of us are afraid that the positive sentiments of the Chinese people towards America will be affected.

In my view, the US can play a positive role at this moment. The best way to demonstrate this is for the US to persuade the Philippine government to positively engage with the Chinese government on resolving the territorial dispute.

It is well recognised that the China-US relationship today is the most important bilateral relationship in the world. A good China-US relationship is important to the economies of the two nations and to the world at large. It is also important for peace and prosperity all around the world. At this time, protecting China-US relations must be the first priority for all of us. Unfortunately, because of what is happening in the South China Sea, there is reason to be concerned about the current state of this relationship. It is time for us to rethink and re-evaluate, with urgency, what are the real differences that divide us in the South China Sea.

Former chief executive Tung Chee-hwa is chairman of the China-US Exchange Foundation. This article is based on his speech on Friday at the Public International Law Colloquium on Maritime Disputes Settlement