Nine Points of the Law: America in the South China Sea


The rapidly overheating South China Sea dispute confirms that the menace of a rising China has finally assumed palpable form. What Ian Storey of the Institute of Southeast Asian Studies described in 1999 as “creeping assertiveness” is now entering a gallop. China has amassed the necessary economic and military power to take what it wants by force, stoking conflict with the U.S. despite the latter’s efforts to abide by international rule of law. Or at least, this is the dominant Western perspective.

The real interloper here isn’t China, the Philippines, Malaysia, Taiwan, Vietnam or Brunei. It’s the U.S., whose role as legal intermediator is deeply undercut by its failure to sign the United Nations Convention on the Law of the Sea (UNCLOS), which China has signed. Fortunately for the U.S., this inconvenient truth hasn’t gotten in the way of its approach to the subject.

Admiral Harry B. Harris Jr., head of U.S. Pacific Command, commented last month on China’s “outrageous claim — preposterous claim, really — to 90% of the South China Sea.” China is indeed overstepping its legal reach and skiving the onerous work of diplomacy by simply making bold demands, but it’s useful to reflect on the historical origin of this “preposterous” claim.

The South China Sea contains two islands clusters: the Paracel Islands, southeast of Hainan, and the Spratly Islands, east of southern Vietnam. The Paracels are currently occupied by China and have been since about the 600s. The more distant Spratlys have been visited by Chinese fishermen since before the time of Caesar, and Chinese dynasties began patrolling them as early as the 400s.

This was all well and good until the arrival of British, Dutch and French merchants in the mid-1800s. Vietnamese fisherman were active around the Paracels as early as the 1400s and there were major operations for the collection of flotsam by the 1700s, but no Sino-Vietnamese territorial disputes like we see today.

After the British made inroads into China in the 1840s, the French countered by invading Vietnam under the pretext of protecting French missionaries there — in particular, Dominique Lefèbvre, arrested for illegally proselytizing in 1845, released by means of French gunboat diplomacy and arrested for the same crime about a year later, at which point the French sent two warships to Da Nang and settled the matter by killing 1,200 Vietnamese. A diplomat was then dispatched to Vietnam, essentially to force Catholicism down their throats, and when that failed the French invaded in 1858.

In 1930 the French sent the gunboat La Malicieuse to block Japanese claims on the islands, annexing the Spratlys in 1933 and then the Paracels in 1938. This was ostensibly done for the sake of the Vietnamese people, though it’s difficult to reconcile French support for the Vietnamese with its military aggression against them — witness the My Trach massacre of 1947 when French colonial forces burned houses, raped women and slaughtered half the town, including 157 children.

The Japanese took control of the islands during the war, though the Chinese did try to fend them off in 1946. When the war ended and representatives of 48 nations gathered to sign the Treaty of San Francisco, one of the issues tabled was what to do with the Spratly and Paracel islands now that Japanese occupation had ended.

The Soviet delegation, led by Deputy Foreign Minister Andrei Gromkyo, had opposed the treaty from the outset. Among his grievances were the fact that Japan was being turned into a U.S. military base, Japanese islands were being illegally ceded to the U.S. (the Mariana Islands, which along with Puerto Rico are the only U.S. territories today with “Commonwealth” status) and China’s claims to the islands were left ignored.

Vietnam’s claim, on the other hand, went unopposed — even by China since, despite being Japan’s greatest victim, Chinese representatives were barred from the conference by Secretary of State John Foster Dulles, who refused to consider China’s claim for fear of upsetting the South Vietnamese, who would soon be needed against the North Vietnamese communists.

All this is not to justify China’s claim to the South China Sea, which overlaps with the exclusive economic zones (EEZs) of several neighboring nations. It does however help to contextualize, if not entirely refute, the notion that China is simply out to take whatever it can lay its hands on. Rather, Chinese is protecting its strategic and economic interests in the region while securing territory that was long under its control before the invasion of European colonialists.

As for the other parties involved in the dispute, their claims are surprisingly modern. The Philippines made their claim to islands in the Spratlys in 1950, under President Quirino, and in 1971 the Filipino explorer Tomas Cloma named one of the islands Kalaya’an or “Freedomland.” China replied with a show of naval power. Malaysia’s claim, which was sparked by the Philippine’s claim, came in 1978. Indonesia became involved in 1995 when a Chinese map was released showing that the Chinese claim cut through Indonesia’s Natuna gas field, after which it paraded naval forces through the area that month, two months later and two months after that. As for Brunei, it modestly claims a share of its continental shelf, as guaranteed by UNCLOS.

UNCLOS provides every nation territorial waters extending 12 nautical miles from the shore and EEZs reaching 200 nautical miles from the shore. This should protect the claims made by most of China’s neighbors, however China has said that it finds U.N. arbitration in these matters inappropriate, even though it is a UNCLOS signatory. A specious argument, it is still more than one can say of the U.S., which is now conducting surveillance operations in the region under the pretext of preventing China from bullying its neighbors.

It would probably be more accurate to say that the U.S. is doing exactly what China is doing. That is, protecting its strategic and economic interests in the region. As John Mearsheimer argues in The Tragedy of Great Power Politics, “states can never be sure that other states do not have offensive intentions to go along with their offensive capabilities.”

The problem is, massive resources provide massive offensive capabilities and the South China Sea is bursting with resources. Not only is it the second busiest sea lane in the world, with over 50 percent of all commercial shipping passing through its waters every year, it also has vast oil and natural gas reserves. The World Bank estimates 7.7 billion barrels of proven oil reserves, while a 2013 U.S. Energy Information Administration report estimates up to 11 billion barrels, more than the current total reserves of Malaysia, the Philippines, Taiwan and Vietnam combined. Unconfirmed reports by the Chinese National Offshore Oil Company are even more optimistic, setting the figure at a mind-boggling 125 billion barrels.

Therefore, all nations involved have a great deal to gain. An important difference between China and the U.S., however, is that this dispute takes place in China’s backyard, far beyond the California coast, putting the U.S. in a situation not very different from the one in which France found itself 170 years ago, on the eve of its Vietnam invasion.

It also deserves to be mentioned that the U.S. has a military base in over 150 of the world’s countries, including an air base in Singapore, 47 facilities in South Korea and 100 facilities in Japan, whereas China prefers to keep its military bases in China.

Furthermore, Communist China has only invaded three countries since its inception in 1950: Tibet that same year, India in 1962 and Vietnam in 1979. If we look at every war involving the PRC, including the 1974 conflict in the Paracels and 1988 conflict in the Spratlys (which don’t truly qualify as wars), the vast majority (nine out of twelve, not including the Korean War, Vietnam War and Sino-Vietnamese War) were territorial disputes.

The U.S. cannot compete with these numbers. Its activities are usually aggressive, if not preemptive, rather than strictly territorial, and in the South China Sea it is often deliberately provocative. In July 2010 the aircraft carrier USS George Washington planned to conduct military exercises in the Yellow Sea, not far from Beijing. Chinese officials protested, and the exercises were held in the Sea of Japan, but further exercises were planned for the Yellow Sea “partly because China made an issue of it.”

Recent patrols right outside Chinese airspace or as close to the islands as possible reflect this kind of thinking; provoke China in order to justify retaliation. In his 1979 book Theory of International Politics, Kenneth Waltz argues that international containment policies are a direct result of the fact that there is more than one government in the world, thus governments become preoccupied with survival and “always try to maximize their security.”

The U.S. certainly wouldn’t put up with such behavior (Cuban Missile Crisis, anyone?) and neither should China. Beijing is overstating its claim, but in the face of an oppressive containment policy. A policy designed not to enforce rule of law, but to overrule the law, and it’s in the teeth of this sharp truth that we find the bigger bully.

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