February 12, 2014
Book Review on South China Sea
Wu Shicun, Solving Disputes for Regional Cooperation and Development in the South China Sea: A Chinese perspective [Hardcover], 1st Edition, Chandos Asian Studies Series, Chandos Publishing,Oxford,2013,ISBN 978-1-84334-685-2.
Reviewed by BA Hamzah.
Writing a book on the complex subject of the South China Sea is a challenge. A bigger challenge is to attempt to address all the issues, which border geo-politics, law, economics and history under two hundred pages.
However, to his credit, the author has succeeded to present China’s official views of the disputes over the overlapping maritime claims in the South China. Where he fails to provide a balanced view on contemporary issues, he makes it up by a thorough treatment of the historical events that led to the present conflict, albeit from the Chinese perspective.
For the non –mandarin speaking researchers, getting an official Chinese position on the conflict in the South China Sea is always a guessing work. Dr Wu Shicun’s book fills in the much-needed void.
The title of the book is a bit misleading. The book focuses on the overlapping claims in the Spratly although the title says, “Resolving Disputes for Regional co-operation and Development in the South China Sea.” While no one should judge the book by its cover, the message is clear: that China wishes to resolve the overlapping claims via some forms of regional cooperation. There is a slight change in the nuances. In the past, China was rather reluctant to enter into any kind of Joint Development Projects. Recent events seem to suggest a policy change, a new appetite to reduce tensions in the Spratlys.
By training, the author is an historian. He has contributed significantly to the body of knowledge on the South China Sea. His current position as President of the National Institute of South China Sea Studies (NISCSS) gives him a rare insight into the thinking of policy planners at Beijing. The author’s special relationship with policy makers at Beijing makes this book a valuable contribution to the literature on China’s official position on the South China Sea.
Like all books, it is impossible to do justice to the subject matter, especially when the writer wishes to fill a wide canvass as he has attempted. In covering too wide a ground, the author inevitably misses some important details. For example, he gives only a glimpse examination on the Philippines’ decision in January 2013 to refer China to the United Nations Arbitration Tribunal.
Although China has refused to participate in the Arbitration process, the author should have, in my view, examined in some details the law and facts of the case from China’s vantage. A sneak preview of how China will deal with the issue should the Tribunal find the case, in absentia, against China. Leaving the matter hanging would invite all kinds of innuendoes.
The author has defended China’s “indisputable sovereignty over the entire South China Sea”. He claims that China’s position results from discovery, presence and history. In his view, China has demonstrated historic right over the South China Sea. He forgets to remind readers that in customary international law, mere discovery of a territory, gives the discoverer only an “inchoate title”. That is to say, it has only a temporary right to make an effective occupation. If, within a reasonable time, the area is not occupied, it is subject to appropriation.
The author has asserted that China has “exercised successive administration” (p50) over the features in the South China Sea since the Han dynasty (206 BC-9 AD). While the assertion could be historically correct, modern international law puts greater weight on an interrupted, peaceful and continuous display of state authority to satisfy the legal requirement of effective jurisdiction.
China has not been able to demonstrate that it has exercised continuous and effective display of state authority on all the features it claims in the South China Sea. For example, Great Britain and France occupied some major features in the South China Sea, when China was weak. Japan occupied the major features in the Spratlys during WW 11 including the Paracels, Pratas and Itu Aba.
The author has ignored another occupation. In 1878, for example, Great Britain occupied Amboyna Cay (presently occupied by Vietnam and claimed by Malaysia, Taiwan and the Philippines). The British gave permission to the Central Borneo Company Limited to extract phosphates (guano) and to fly the Union Jack on the island.
Intriguingly, the author acknowledges that between the 1930s and 1950s the ownership of the features in the South China Sea were claimed by “France, Japan and occasionally by a private Filipino (p 4). However, he fails to impute any legal result that accrues from such occupation. By dismissing these claims, the author is at odd with state practice with respect to the means of acquiring of territories under modern international law.
The book deals at great length with China’s controversial nine-dash line map. The author refers to this map as the “U-shaped line”. The Nationalist Government of China (under General Chiang Kai- shek), first published the nine-dash line map (originally eleven dash-lines) in 1947. This controversial map was given a semi-official status in May 2009, when it was appended to China’s Note Verbale to the United Nations Secretary General. The Note Verbale was China’s diplomatic response to a joint submission by Malaysia and Vietnam on their extended continental shelf to the UN Commission on the Limits of Continental Shelf (UNCLCS) in May 2009.
The author cited four different interpretations of the controversial “U -shaped line”. In his view, Judge Gao Zhiguo’s explanation of the line as being “synonymous with a claim of sovereignty over the island groups…” including claim to historical right of fishing, navigation, and other marine activities is more acceptable to the “international audience”. The author warns that the debate over the U-Shaped line will continue, “If China remains silent and keeps its claim ambiguous.”
China policy makers should heed this advice.
The map that shows “the U-shaped line” is one of many maps that China could use to defend its title, according to the author. The author has also cited many ancient Chinese maps that incorporated the South China Sea as China’s territory. The legal status of these ancient maps under temporal international law is questionable and uncertain at best. While official maps often play pivotal role in international boundary disputes, the international courts have tended in the past to give little evidentiary value to ancient maps, especially those bereft of coordinates. For example, in the Burkina Faso/Republic of Mali Case (ICJ Reports, 1986) the Court finds that “the IGN map is not an official document” and the Court observes that, in general, “whether in frontier limitations or in international territorial conflicts, maps merely constitute information which varies in accuracy from case to case.” (italics added).
The author argues that the ambiguity of the United Nations Convention on the Law of the Sea (1982) has led to different interpretations of its provisions. This ambiguity has made it difficult to put the conflicting territorial claims in its proper perspective. According to the author, the failure of UNCLOS to give recognition to the concepts of “historic rights” and “historic waters” under international law has not done justice to China’s claim.
The author also discusses in some details the bases of claims by Vietnam, Malaysia, the Philippines and Brunei to the features in the Spratly. Dismissing all these claims as illegal, the author offers joint development as a way out. In his view, for the JDA to take off, it has to be premised on four principles:
· The ocean should be used only for peaceful purposes;
· Incremental approach. Regional cooperation should commence with the less sensitive topics like marine environmental protection;
· All inclusive approach. The projects must benefit all the stakeholders;
·Preservation of marine environment. The author has suggested that the exploitation of living and non-living resources in the South China Sea should not damage the marine environment.
Based on the above principles, the author has outlined the general areas for co- operation. They include:
· Joint development for oil and gas. He cited the Joint Marine Seismic Undertaking (JMSU) case (2004-2008) between the National Oil Companies of China, the Philippines and (later) Vietnam.
· Joint management and conservation of fishery resources. He cited the China -Vietnam Agreement on Fishery Cooperation in the Biebu Gulf (2004) as an example.
· Navigational Safety and Search and Rescue activities;
· Combating international maritime crimes, and
· Marine scientific research and marine environmental protection.
Interestingly, throughout the book, the author makes no mention of the claim by Taiwan. Although Taiwan claims the same area, as China’s and the bases of claims are similar, it deserves a fair treatment. After all, it has effectively occupied two large features in the South China Sea-the Pratas and Itu Aba.
The author’s discussion on Malaysia’s claim requires updating. Malaysia has relied on the 1958 Geneva Convention on the Continental Shelf to claim certain features in the Spratlys (known as Gugusan Terumbu Semarang since 2006). The area and the features claimed by Malaysia are contained in the 1979 Map on the Continental Shelf of Malaysia.
In 1978, Malaysia sent a team of officers from the National Mapping Directorate, the Royal Malaysian Navy and Army Engineers from the Line of Communication Unit to survey the area. The team found no trace of occupation of the features, except on Amboyna Cay. There, the team found a concrete structure with Vietnamese markings. However, at the material time, there were no Vietnamese soldiers or civilians on the island.
Soon after the Malaysian survey team returned to their home base, the Vietnamese troops went back to reclaim Amboyna Cay. Similarly, the Philippines, which also claim Amboyna Cay (Pulau Kechil Amboyna), made hasty return to Commodore Reef (Terumbu Laksamana) soon after the Malaysian survey team left the Reef in 1978. The Philippines still maintains a military outpost on Commodore Reef.
The Malaysian Government published the 1979 map only after the survey team has physically established that the features were located on its continental Shelf as defined under the 1958 Geneva Convention on the Continental Shelf. To suggest otherwise is quite inaccurate.
The author also examines China’s trade-based ancient tributary political patronage system (with a strong China at its apex), which in his words, became “the dominant international order in ancient East Asia”. Although the author does not draw any implication from this tributary system in the book, the message that a strong China had kept peace and order in the region in the past is quite instructive. Is a strong China trying to replicate the trade-based political patronage system in the current multi-polar international structure is not quite clear? However, this point is worth noting as the countries in the region continue to engage China.
In conclusion, it becomes obvious that China is desperate to reduce the tension in the South China Sea. Yet by continuing to insist that the entire South China Sea as its own sea and that it has indisputable sovereignty over the features within the nine-dash line map, gives little space and hope for other claimant parties to advance their claims. Compounding the jurisdictional problem in the contested- South China Sea, apart from China’s hard-line position, is the role of third parties, which China considers as unfriendly to its interest. Beijing views the presence of USA, Japan and India, who have no territorial claims in the South China Sea, as unhelpful.
China’ offer to consider joint development projects, with the claimant parties, as defined by China is an attempt to rebuild confidence. However, until such promises are met, they must be viewed with some circumspect. In my view, China is unlikely to negotiate its sovereignty claim. Nonetheless, it is prepared to co-exist by acknowledging the present status quo only if the claimant state makes no effort to undermine or belittle its claim. Taking China for arbitration over the territories in the South China Sea as the Philippines has done, for example, goes again the current modus operandi of China as a rising power. Similarly, China finds it odd why some claimant states have allied with the third parties, external to the region, against it.
Under the current geo-political circumstances, the challenge to China is to demonstrate to the region that it is a benign power with the capacity to keep peace in the Spratlys and the region beyond.
 Chinese Premier Li Keqiang said at the 8th East Asia Summit at Brunei (8-9 October 2013), “China and ASEAN [the Association of Southeast Asian Nations] have agreed that the disputes in the South China Sea should be resolved peacefully through consultations and negotiations between countries directly concerned.” Still, until a peaceful agreement is met, these are just words.