BIG COUNTRIES AND SMALL COUNTRIES: HISTORY, INTERNATIONAL LAW, AND CHINA’S CLAIMS ON THE SOUTH CHINA SEA

Patrick Swire

On the 12th of July 2016, a Hague tribunal ruled in favour of the Philippines over a complaint regarding China’s claims to territorial sovereignty over 80% of the South China Sea, as demarcated by the so-called “nine-dash line.” Stating that ‘there was no evidence that China had historically exercised exclusive control over the waters or their resources,’ the tribunal asserted that attempts to exert such control ‘had no legal basis.’ Within hours, this ruling had created a global media storm. Xinhua and the People’s Daily, mouthpieces of the Chinese government, declared that it had “trampled” on international law and norms in contradiction of “basic truths,” whilst Western media outlets assumed a predictable tone of veiled mockery; chiding China’s inadequate comprehension of the letter and spirit of international conventions, and the absurdity of the historical reasoning behind its claims.

This condescension essentially misses the contextual implications hidden within the furious bluster of Chinese state pronouncements on the issue. The ‘historical rights’ that are invoked by the CCP as official basis for its claims of absolute sovereignty over the region, and which are so frequently ridiculed by the foreign press, are only designed to carry weight at a domestic level; the hollowness of these claims in terms of international law is intended to express disdain for that very institution, and the unequal and anachronistic world order that it underpins. This dissenting position reflects China’s desire to disrupt and destabilise the systematic restraints that prevent it from gaining geopolitical standing commensurate with its vision of itself as a newly ‘powerful nation’ (qiangguo).

The precise justifications for the Chinese state’s claims over the South China Sea range from the logically dubious to the downright bizarre. The key articulation of these aspirations is the much touted ‘nine-dash line’, which was first drawn up by the Nationalist government of Republican China in 1947. Reportedly arising from Chiang Kaishek’s fascination with Hitler’s taste for lebensraum, the line (initially eleven dashes long), originally stood as a loose articulation of the claims of the Chinese state over the region after the hegemonic grip of the Japanese Empire collapsed. The South China Sea is host to vast fisheries and oil reserves, and sees over 30% of global maritime trade pass through it, with a value to the tune of $5.3 trillion. These claims have naturally not gone uncontested. The Republic of China (Taiwan) echoes its founder’s ambitions to the entire region, while Brunei, Malaysia, Indonesia, the Philippines and Vietnam all view particular regions within the line as their sovereign territory - generally as defined by the Exclusive Economic Zones (EEZ) stipulated by the United Nations Convention on the Law of the Sea (UNCLOS).

China’s claims over the region can be divided into three main categories: sovereignty over the islands within the line; the corresponding rights and jurisdiction over water as defined by UNCLOS; and exclusive “historic rights” over fishing, navigation and resource development of the entire region. China has sought to shore up the first of these two claims by occupying disputed features and ‘modifying’ them in order to turn them from ‘rocks,’ which do not qualify for EEZ status, into habitable ‘islands,’ which do. Subsequently, attempts have been made by China to legitimise these claims within the legal framework of UNCLOS. By contrast, no formal clarification has been put forward with regard to the exact basis upon which ‘historic rights’ to sovereignty have been asserted, which the Chinese government maintains has existed ‘continuously, peacefully and effectively’ since ‘ancient times’. Scholarly and popular justifications for this range from pottery shard finds and navigational handbooks to the mythical adventures of 4th century itinerant monks. Regardless, historic rights as justifications for sovereignty are almost without exception invalid under UNCLOS, which was in part designed to resolve the ambiguities arising from such claims.

The lines of reasoning employed by China in staking these claims appear at best insincere and at worst simply facetious. Arriving at contested features and occupying them by any means necessary, dumping sand on them to give the impression of habitability, and then claiming that they and the adjacent waters have always been ‘Chinese’ with vague gesticulations towards ‘history’, do not represent sincere attempts to play by the rules of international law. They are in fact expressions of contempt for this very system, rendering almost laughable The Hague’s conclusion that ‘the root of the disputes lie in different understandings of… respective rights under the Convention,’ and its hope that the clarification of these rights would lead to their resolution.

What, then, is the source of this recalcitrance? Not, as it might at first seem, a dissenting view of one particular strut of international law, but rather a dissenting view of the very edifice itself. Whereas the officially stated purpose of the international legal system is to preserve peace and stability via the observation of clearly demarcated regulations, the Chinese government (along with various other post-colonial states) views it as a preservative for a world order built by force, in which Japan and the West elevated themselves to a position of superiority via strength of arms, and to this martial superiority added that of the moral kind as a further bulwark to their position. To China the international community does not appear as a fraternity of nations, but rather an anachronistic muddle of competing states seeking to gain and preserve advantage over others by any means necessary.

Jia Qinguo, of Peking University’s School of International Studies, suggests in fact that China’s attitude towards South China Sea is not one of dissent, but rather one of compliance with international norms. “The United States has Guam in Asia which is very far away from the U.S. and the French have islands in the South Pacific, so it is nothing new.” The fact that these geopolitical privileges were gained in what is generally considered ‘a different era’ by most of the West is of little consolation to China; a nation that was in no position to gain such privileges for itself at that particular time – a fact that the Chinese people, thanks to the narrative of ‘a century of national humiliation’, are frequently reminded of. According to this narrative, China’s entry into the international system – beginning with the Opium War debacle in 1839 – came at a time when China had been brought low by a series of domestic crises. Over the next century, predatory foreign forces exploited this continuing weakness, to the effect that China was unable to stake any real claim in the post-War international order. Over the course of the Cold War, the US policy of ‘containment’ compounded this, and the legacy of this state of affairs – chiefly the ‘steel circle’ of American military bases dotted along rim of the South China Sea – continues to this day to prevent China from reaching its full ‘potential’. This ‘potential’ essentially reduces to regional hegemony and great-power status, arising as the natural consequence of China’s latent economic, territorial – and in the eyes of some, cultural – strength and superiority. The institutions of international law are viewed as the tools by which China’s historic enemies seek to prevent it from actualizing this state of affairs.

The ‘historic rights’ that China asserts, therefore, do not in truth relate to lonely spikes of sand dotted throughout its neighbouring waters. Rather, they refer to the discrepancy between China’s actual economic, political, cultural and territorial status on the international stage, and that to which China perceives itself to be entitled – a discrepancy concretised and represented by the present international order. Since Deng Xiaoping’s renunciation of Communism in the 1980s, the Party’s key legitimating narratives have relied chiefly upon a form of developmental nationalism. This has been articulated specifically in terms of its ability to make China ‘strong and wealthy’ (fuqiang); an ambition dating back to mid-19th century, when China was ravaged by the forces of Western and Japanese imperialism. Vital to fulfilling this promise is the robust defence of China’s interests on the international stage, the elevation of its position to one commensurate with its newfound economic clout, and the corresponding rectification of perceived historical slights and deprivations. The Party will not neglect these duties lest it should become target to accusations of ‘selling out the nation’ (maiguo) – accusations that were levelled against numerous of its predecessors, with devastating and terminal effect. In the meantime, it seems likely that the world will have to deal with the reality of an expansionist and ambitious China, and the disruption of the status quo that this will entail. In the words of China’s former foreign minister, Yang Jiechi, ‘China is a big country, and other countries are small countries, and that’s just a fact.’