Abusing History - Beijing’s Weak Link in Maritime Claims

 

China says historical title supports its maritime claims. But did it really have sovereignty?

Beijing’s claims to nearly all of the South China Sea are now embossed in new Chinese passports and official maps. Chinese leaders and foreign ministry spokespersons insist with increasing truculence that the islands, rocks, and reefs have been China’s “territory since ancient times.” Normally, the overlapping territorial claims to sovereignty and maritime boundaries ought to be resolved through a combination of customary international law, adjudication before the International Court of Justice or the International Tribunal for the Law of the Sea, or arbitration under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). While China has ratified UNCLOS, the treaty by and large rejects “historically based” claims, which are precisely the type Beijing periodically asserts. On September 4, 2012, China’s foreign minister, Yang Jiechi, told then U.S. Secretary of State Hillary Clinton that there is “plenty of historical and jurisprudence evidence to show that China has sovereignty over the islands in the South China Sea and the adjacent waters.”

As far as the “jurisprudence evidence” is concerned, the vast majority of international legal experts have concluded that China’s claim to historic title over the South China Sea, implying full sovereign authority and consent for other states to transit, is invalid and illegal. The historical evidence, if anything, is even less persuasive. There are several contradictions in China’s use of history to justify its claims to islands and reefs in the South China Sea, not least of which is its polemical assertion of parallels with imperialist expansion by the United States and European powers in the eighteenth and nineteenth centuries. Justifying China’s attempts to expand its maritime frontiers by claiming islands and reefs far from its shores, Jia Qingguo, professor at Beijing University’s School of International Studies, argues that China is merely following the example set by the West. “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,” Jia told AFP recently.

An in-depth analysis of the “historical evidence” underlying China’s claims shows that history is, in fact, not on China’s side. If anything, Beijing’s claim to the Spratlys on the basis of history runs aground on the fact that the region’s past empires did not exercise sovereignty. In pre-modern Asia, empires were characterized by undefined, unprotected, and often changing frontiers. The notion of suzerainty prevailed. Unlike a nation-state, the frontiers of Chinese empires were neither carefully drawn nor policed but were more like circles or zones, tapering off from the center of civilization to the undefined periphery of alien barbarians. More importantly, in its territorial disputes with neighboring India, Burma, and Vietnam, Beijing always took the position that its land boundaries were never defined, demarcated, and delimited. But now, when it comes to islands, shoals, and reefs in the South China Sea, Beijing claims otherwise. In other words, China’s claim that its land boundaries were historically never defined and delimited stands in sharp contrast with the stance that China’s maritime boundaries were always clearly defined and delimited. Herein lies a basic contradiction (ji ben mao dun) in the Chinese stand on land and maritime boundaries which is untenable. Actually, it is the mid-twentieth-century attempts to convert the undefined frontiers of ancient civilizations and kingdoms enjoying suzerainty into clearly defined, delimited, and demarcated boundaries of modern nation-states exercising sovereignty that lie at the center of China’s territorial and maritime disputes with neighboring countries. Put simply, sovereignty is a post-imperial notion ascribed to nation-states, not ancient empires.

The notion of sovereignty is not a Chinese or Asian notion but a European one that originated with the signing of the Treaty of Westphalia in 1648. It was primarily a land-based concept and did not apply to nation-states in Asia and Africa until the mid-twentieth century. The Westphalian state system based on the concept of legal equality or state sovereignty over clearly defined external boundaries distinguished itself not only from the old feudal system in Europe, but also from other forms of hegemony and suzerainty that existed at that time in Asia—in Persia, China and India. Before the Treaty of Westphalia, kingdoms and empires in Europe and elsewhere could not claim or exercise sovereignty.

History, as is well known, is written by the victors, not the vanquished. China’s present borders largely reflect the frontiers established during the spectacular episode of eighteenth-century Qing (Manchu) expansionism, which over time hardened into fixed national boundaries (except outer Mongolia, largely because of the Soviet Union) following the imposition of the Westphalian nation-state system over Asia in the nineteenth and twentieth centuries. Official Chinese history today often distorts this complex history, however, claiming that Mongols, Tibetans, Manchus, and Hans were all Chinese, when in fact the Great Wall was built by the Chinese dynasties to keep out the troublesome northern Mongol and Manchu tribes that repeatedly overran Han China; the Great Wall actually represented the Han Chinese empire’s outer security perimeter. While most historians see the onslaught of the Mongol hordes led by Genghis Khan in the early 1200s as an apocalyptic event that threatened the very survival of ancient civilizations in China, India, Persia and other nations, the Chinese have consciously promoted the myth that he was actually “Chinese,” and therefore all areas that the Mongols (the Yuan dynasty) had once occupied or conquered (such as Tibet and much of Central and Inner Asia) belong to China by retrospectively superimposing the sixteenth century European notion of sovereignty over the twelfth century Asia. China’s claims on Taiwan and in the South China Sea are also based on the grounds that both were parts of the Manchu empire. (Actually, in the Manchu or Qing dynasty maps, it is Hainan Island, not the Paracel and Spratly Islands, that is depicted as China’s southernmost border.) In this version of history, any territory conquered by “Chinese” in the past remains immutably so, no matter when the conquest may have occurred.

Such writing and rewriting of history from a nationalistic perspective to promote national unity and regime legitimacy has been accorded the highest priority by China’s rulers, both Nationalists and Communists. The Chinese Communist Party leadership consciously conducts itself as the heir to China’s imperial legacy, often employing the symbolism and rhetoric of empire. From primary-school textbooks to television historical dramas, the state-controlled information system has force-fed generations of Chinese a diet of imperial China’s grandeur. As the Australian Sinologist Geremie Barmé points out, “For decades Chinese education and propaganda have emphasized the role of history in the fate of the Chinese nation-state . . . While Marxism-Leninism and Mao Thought have been abandoned in all but name, the role of history in China’s future remains steadfast.” So much so that history has been refined as an instrument of statecraft (also known as “cartographic aggression”) by state-controlled research institutions, media, and education bodies.

China uses folklore, myths, and legends, as well as history, to bolster greater territorial and maritime claims and create new realities on the land and water. Chinese textbooks preach the notion of the Middle Kingdom as being the oldest and most advanced civilization that was at the very center of the universe, surrounded by lesser, partially Sinicized states in East and Southeast Asia that must constantly bow and pay their respects. China’s version of history often deliberately blurs the distinction between what was no more than hegemonic influence, tributary relationships, suzerainty, and actual control. Subscribing to the notion that those who have mastered the past control their present and chart their own futures, Beijing has always placed a very high value on “the history card” (often a revisionist interpretation of history) in its diplomatic efforts to achieve foreign policy objectives, especially to extract territorial and diplomatic concessions from other countries. Almost every contiguous state has, at one time or another, felt the force of Chinese arms—Mongolia, Tibet, Burma, Korea, Russia, India, Vietnam, the Philippines, and Taiwan—and been a subject of China’s revisionist history. As Martin Jacques notes in When China Rules the World, “Imperial Sinocentrism shapes and underpins modern Chinese nationalism.” If unchecked, imperial hubris or nostalgia for a return to the past can have unpredictable consequences for regional peace and stability.

If the idea of national sovereignty goes back to seventeenth-century Europe and the system that originated with the Treaty of Westphalia, the idea of maritime sovereignty is largely a mid-twentieth-century American concoction that China and others have seized upon to extend their maritime frontiers. As Jacques notes, “The idea of maritime sovereignty is a relatively recent invention, dating from 1945 when the United States declared that it intended to exercise sovereignty over its territorial waters.” In fact, the UN’s Law of the Sea agreement represented the most prominent international effort to apply the land-based notion of sovereignty to the maritime domain worldwide—although, importantly, it rejects the idea of justification by historical right. Thus although Beijing claims around eighty percent of the South China Sea as its “historic waters” (and is now seeking to elevate this claim to a “core interest” akin with its claims on Taiwan and Tibet), China has, historically speaking, about as much right to claim the South China Sea as Mexico has to claim the Gulf of Mexico for its exclusive use, or Iran the Persian Gulf, or India the Indian Ocean. In other words, none at all. From a legal standpoint, “the prolific usage of the nomenclature ‘South China Sea’ does not confer historic Chinese sovereignty.” Countries that have used history to claim sovereignty over islands have had the consent of others and a mutually agreeable interpretation of history—both elements missing in the SCS.

Ancient empires either won control over territories through aggression, annexation, or assimilation or lost them to rivals who possessed superior firepower or statecraft. Territorial expansion and contraction was the norm, determined by the strength or weakness of a kingdom or empire. The very idea of “sacred lands” is ahistorical because control of territory was based on who grabbed or stole what last from whom. The frontiers of the Qin, Han, Tang, Song, and Ming dynasties waxed and waned throughout history. A strong and powerful imperial China, much like czarist Russia, was expansionist in Inner Asia and Indochina as opportunity arose and strength allowed. The gradual expansion over the centuries under the non-Chinese Mongol and Manchu dynasties extended imperial China’s control over Tibet and parts of Central Asia (now Xinjiang), Taiwan, and Southeast Asia. Modern China is, in fact, an “empire-state” masquerading as a nation-state.

Even if one were to accept Beijing’s “historical claims” argument for a moment, the problem is that the Chinese empire was not the only empire in pre-modern Asia and the world. There were other empires and kingdoms too. Many countries can make equally valid “historical claims” to lands that are currently not a part of their territory but under Chinese control (e.g., the Gando region in China’s Jilin province that belongs to Korea). Before the twentieth century, there were no sovereign nation-states in Asia with clear, legally defined boundaries of jurisdiction and control. If China’s claims are justified on the basis of history, then so are the historical claims of Vietnamese and Filipinos based on their histories. Students of Asian history know, for instance, that Malay peoples related to today’s Filipinos have a better claim to Taiwan than Beijing does. Taiwan was originally settled by people of Malay-Polynesian descent—ancestors of the present-day aborigine groups—who populated the low-lying coastal plains. Noted Asia-watcher Philip Bowring argues that “[t]he fact that China has a long record of written history does not invalidate other nations’ histories as illustrated by artifacts, language, lineage and genetic affinities, the evidence of trade and travel.”

Unless one subscribes to the notion of Chinese exceptionalism, imperial China’s “historical claims” are as valid as those of other kingdoms and empires in Southeast and South Asia. The problem with history is where and when to draw the line, why, and more importantly, whose version of history is accurate. China laying claim to the Mongol and Manchu empires’ colonial possessions would be equivalent to India laying claim to Afghanistan, Bangladesh, Burma, Malaysia (Srivijaya), Nepal, Pakistan, and Sri Lanka on the grounds that they were all parts of either the Ashoka, Maurya, Chola, or the Moghul and the British Indian empires. From the tenth through the thirteenth centuries, several of the Pallava and Chola kings in southern India assembled large navies and armies to overthrow neighboring kingdoms and to undertake punitive attacks on the states in the Bay of Bengal region. They also took to the sea to conquer parts of what are now Sri Lanka, Malaysia and Indonesia. In his study of India’s strategic culture, George Tanham observed: “In what was really a battle over the trade between China and India and Europe, the Cholas were quite successful in both naval and land engagements and briefly ruled portions of Southeast Asia.”

China’s claims in the South China Sea are also a major shift from its longstanding geopolitical orientation to continental power. In claiming a strong maritime tradition, China makes much of the early-fifteenth-century expeditions of Zheng He to the Indian Ocean and Africa. But, as Bowring points out, “Chinese were actually latecomers to navigation beyond coastal waters. For centuries, the masters of the oceans were the Malayo-Polynesian peoples who colonized much of the world, from Taiwan to New Zealand and Hawaii to the south and east, and to Madagascar in the west. Bronze vessels were being traded with Palawan, just south of Scarborough, at the time of Confucius. When Chinese Buddhist pilgrims like Faxian went to Sri Lanka [southern India] in the fifth century, they went in ships owned and operated by Malay peoples. Ships from what is now the Philippines traded with Funan, a state in what is now southern Vietnam, a thousand years before the Yuan dynasty.”

And finally, China’s so-called “historic claims” to the South China Sea are actually not “centuries old.” They only go back to 1947, when Chiang Kai-shek’s nationalist government drew the so-called “eleven-dash line” on Chinese maps of the South China Sea, enclosing the Spratly Islands and other chains that the ruling Kuomintang party declared were now under Chinese sovereignty. Chiang himself, saying he saw German fascism as a model for China, was fascinated by the Nazi concept of an expanded Lebensraum (“living space”) for the Chinese nation. He did not have the opportunity to be expansionist himself because the Japanese put him on the defensive, but cartographers of the nationalist regime drew the U-shape of eleven dashes in an attempt to enlarge China’s “living space” in the South China Sea soon after Japan’s defeat in World War II. Apparently, the Republic of China (ROC) nationalist government was also incensed over the World War II-era Japanese maps that showed the entire South China Sea as a Japanese lake. The Chinese government first operationally sailed into the South China Sea in 1947 with the voyage of the ROC ships Zhongjian, Zhongye, Taiping and Yongxing. They did not begin surveys there until many years later. Following the victory of the Chinese Communist Party in the civil war in 1949, the People’s Republic of China adopted this cartographic coup, revising Chiang’s notion into a “nine-dash line” after erasing two dashes in the Gulf of Tonkin in 1953 showing places his government had never been to. As late as 2005, the PLA Navy’s published map of Scarborough Shoal was just an exact datum-for-datum copy of the U.S. Navy’s map (with thanks to Barney Moreland for providing the author with this information).

Since the end of the Second World War, China has been redrawing its maps, redefining borders, manufacturing historical evidence, using force to create new territorial realities, renaming islands, and seeking to impose its version of history on the waters of the region. The passage of domestic legislation in 1992, “Law on the Territorial Waters and Their Contiguous Areas,” which claimed four-fifths of the South China Sea, was followed by armed skirmishes with the Philippine and Vietnamese navies throughout the 1990s. More recently, the dispatch of large numbers of Chinese fishing boats and maritime surveillance vessels to the disputed waters in what is tantamount to a “people’s war on the high seas” has further heightened tensions. To quote Sujit Dutta, “China’s unmitigated irredentism [is] based on the . . . theory that the periphery must be occupied in order to secure the core. [This] is an essentially imperial notion that was internalized by the Chinese nationalists—both Kuomintang and Communist. The [current] regime’s attempts to reach its imagined geographical frontiers often with little historical basis have had and continue to have highly destabilizing strategic consequences.”

Apparently, one reason Southeast Asians find it difficult to accept Chinese territorial claims is that it would amount to acceptance of the notion of Han racial superiority over other Asian races and empires. Says Jay Batongbacal of the University of the Philippines law school: “Intuitively, acceptance of the nine-dash line is a corresponding denial of the very identity and history of the ancestors of the Vietnamese, Filipinos, and Malays; it is practically a modern revival of China’s denigration of non-Chinese as ‘barbarians’ not entitled to equal respect and dignity as peoples.”

To sum up, empires and kingdoms never exercised sovereignty. The “history question” is very complex and defies an easy explanation. If historical claims had any validity then Mongolia could claim all of Asia simply because it once conquered the lands of the continent. There is absolutely no historical basis to support either of the dash-line claims, especially considering that the territories of Chinese empires were never as carefully delimited as nation-states, but rather existed as zones of influence tapering away from a civilized center to the periphery of alien barbarians. This is the position contemporary China took starting in the 1960s, while negotiating its land boundaries with several of its neighboring countries. But this is not the position it takes today in the cartographic, diplomatic, and low-intensity military skirmishes to define its maritime borders.

The continued reinterpretation of history to advance contemporary political, territorial, and maritime claims, coupled with the Communist leadership’s ability to on and off like a tap during moments of tension with the United States, Japan, South Korea, India, Vietnam, and the Philippines, makes it difficult for Beijing to reassure neighbors that its “peaceful rise” is wholly peaceful.  An acceptance of China’s version of history is seen as tantamount to rejection of other countries’ history and the notion of equality of sovereign nation-states. Since there are six claimants to various atolls, islands, rocks, and oil deposits in the South China Sea, the Spratly Islands disputes are, by definition, multilateral disputes requiring international arbitration. But Beijing’s insistence on a bilateral approach to resolving the dispute is predicated mainly on the belief that Beijing might succeed because of China’s superior relative power and ASEAN’s fractiousness. China’s claims of “indisputable sovereignty over the South China Sea” that have their origins in the late 1940s—and not in ancient history—pose a challenge to all seafaring nations.

China’s mix of historical and legal claims in the South China Sea are inconsistent, says Frank Ching. Beijing can’t have its cake and eat it.

Abusing History?   

US scholar Lucian Pye once famously said that China was not a country but ‘a civilization pretending to be a state.’ That may have been apt at one time, but today’s China has been transformed into a modern state that plays an active role in international forums.

However, China also tries to capitalize on its long history when pressing its case in international disputes. Nowhere is this more clear than in the current South China Sea territorial dispute, which pits China against several of its neighbours. Also embroiled in the various rows are the United States, India and, increasingly, Japan. It’s a potent mix.

In 1996, Beijing ratified the UN Convention on the Law of the Sea (UNCLOS) and publicly embraced the treaty’s provision that ‘China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf’ – a hitherto unknown concept.

At the same time, however, it reaffirmed its claim over the islets, rocks and reefs in the South China Sea on historical grounds—grounds that aren’t recognized by the convention. That is to say, China claims all the rights granted under international law today and, in addition, claims rights that aren’t generally recognized because its civilization can be traced back several thousand years.

Historically, China was the dominant power in East Asia and considered lesser powers as its tributaries. By insisting now on territorial claims that reflect a historical relationship that vanished hundreds of years ago with the rise of the West, Beijing is, in a sense, attempting to revive and legitimize a situation where it was the unchallenged hegemon.

The ambiguity about what parts of international law China recognizes and which bits it doesn’t gives rise to the current dispute, which directly involves Vietnam, the Philippines, Malaysia and Brunei, and indirectly involves the interests of many other nations.

The claims made by Southeast Asian countries rest primarily on the provisions of the Law of the Sea. China, however, is taking the position that its sovereignty over the territories concerned precedes the enactment of the Law of the Sea, and so the law doesn’t apply. History trumps law.

In 2009, China submitted a map to the UN Commission on the Law of the Sea in support of its claims to ‘indisputable sovereignty over the islands of the South China Sea and the adjacent waters’ as well as ‘the seabed and subsoil thereof.’

The map featured a U-shaped dotted line that encompassed virtually the entire South China Sea and hugged the coasts of neighbouring countries including Vietnam, Malaysia and the Philippines. This was the first time China had submitted a map to the United Nations in support of its territorial claims, but there was no explanation given as to whether it claimed all the waters as well as the islands enclosed by the dotted line.

This was a radical departure from the position China took when it ratified the treaty. Back then, China said that it would hold consultations ‘with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.’

Significantly, especially for the United States, China’s position on UNCLOS has also shifted in another respect. In 1996, it took the position that foreign warships required its approval in order to pass through China’s territorial waters. Now, China says that foreign warships must obtain its approval before they can pass through its exclusive economic zone – a much wider area that isn’t part of its sovereign waters.

The United States disputes that position, maintaining that waters in a country’s EEZ are part of the high seas and that naval vessels are free to enter them and even conduct operations without any need for approval.

This difference in opinion between China and the United States (as well as most developed countries) has led to confrontations between the two countries, with US naval surveillance vessels carrying out information-gathering missions in China’s EEZ and being challenged by the Chinese.

China’s resort to history is a relatively new development in international law, although it isn’t completely unprecedented. For example, coastal states have been allowed to claim extended jurisdiction over waters, especially bays or islands, when those claims have been open and long-standing, exclusive, and widely accepted by other states.

In China’s case, however, its claims are evidently neither exclusive nor widely accepted by other states since they are being openly contested. Still, Chinese officials and scholars have attempted to buttress their arguments by appealing to historical records.

For example, Li Guoqiang, a research scholar with the Research Center for Chinese Borderland History and Geography of the Chinese Academy of Social Sciences wrote in July in the China Daily: ‘Historical evidence shows that Chinese people discovered the islands in the South China Sea during the Qin (221-206 BC) and Han (206 BC-AD 220) dynasties.’ China’s maritime boundary, he asserts, was established by the Qing dynasty (1644-1911).

‘In contrast,’ he wrote, ‘Vietnam, Malaysia and the Philippines hardly knew anything about the islands in the South China Sea before China’s Qing Dynasty.’

Vietnam, in pressing its case, has cited maps and geography attesting to its ‘historical sovereignty’ over the Paracel and Spratly islands going back to the 17th century. This doesn’t match the antiquity of China’s claims, but, at the very least, it shows that Chinese claims have been contested for centuries, and that China didn’t enjoy exclusive and continuous jurisdiction over these islands.

And, if history is to be the criterion, which period of history should be decisive? After all, if the Qin or Han dynasty is to be taken as the benchmark, then China’s territory today would be much smaller, since at the time it had not yet acquired Tibet, Xinjiang or Manchuria, now known as the northeast.

One compromise that China has offered to its neighbours is to shelve the territorial disputes and engage in joint development of natural resources. This was proposed by President Hu Jintao as recently as August 31, when he met the Philippine President Benigno Aquino.

However, there are serious problems. Just what does China mean by this policy?

The Chinese Foreign Ministry website explains: ‘The concept of “setting aside dispute and pursuing joint development” has the following four elements:

‘1. The sovereignty of the territories concerned belongs to China.

‘2. When conditions are not ripe to bring about a thorough solution to territorial dispute, discussion on the issue of sovereignty may be postponed so that the dispute is set aside. To set aside dispute does not mean giving up sovereignty. It is just to leave the dispute aside for the time being.

‘3. The territories under dispute may be developed in a joint way.

‘4. The purpose of joint development is to enhance mutual understanding through cooperation and create conditions for the eventual resolution of territorial ownership.’

These four points make it clear that instead of shelving the territorial disputes, the idea of joint development is China’s way of imposing its claims of sovereignty over the other party. Chinese sovereignty is the stated desired outcome of any joint development. No wonder that no country has taken China up on its proposal.

Perhaps because of the conflict between historical claims and the UNCLOS, other Chinese scholars are now calling for a review of the Law of the Sea.

Li Jinming, a professor at the Center for Southeast Asia Studies at Xiamen University, says that there are ‘shortcomings’ in UNCLOS and, as a result, ‘China should consider its own situation before enforcing UNCLOS.’ That is to say, even though China has ratified the treaty, which has been in effect for 17 years, Beijing shouldn’t abide by its provisions unless the convention is somehow revised to support China’s territorial claims.

Beijing, it appears, wants to be made an exception in international law. It wants to have its cake and eat it. But law is law. What is the point of having international law when it is no longer international, and when it is no longer law?