In this second of a three-part series of PH.CN’s re-echoing of what was discussed in the Carlos P. Romulo Foundation and Institute of Southeast Asian Studies’ Forum on the South China Sea, I would like to share to you the presentations made by former Ambassador Frank Wisner and former Ambassador Chen Shi Qiu.
The United States and the South China Sea by F. Wisner
I come to you as an American with a keen interest in this region. I spent many of my early years as a diplomat in my country’s fateful engagement in Viet Nam and I had the honor of representing the United States in Manila as Ambassador. But I do not speak to you today as a representative of the United States government. I speak for myself. In my remarks, I will attempt to reflect my government’s point of view as I understand it.
It seems hardly necessary to explain the interests of the United States in Asia, including in South East Asia and in the South China Sea. The United States is a Pacific power; our destiny is linked to this region. America’s security and economic well being depend heavily on Asia and this fact will grow in importance in the years ahead. During my lifetime, my country has fought three wars in Asia. Today we are intimately involved in two of Asia’s important questions – the future and security of the Korean Peninsula and the question of the People’s Republic of China and Taiwan.
We also have interests in the South China Sea. I need not remind you of the importance of the South China Sea. A full half of the world’s merchant fleets pass through your area each year; in the transport of oil alone, the South China Sea carries six times the freight of the Suez Canal. 80% of China’s oil is shipped through the sea lanes of the South China Sea and similarly large percentage of the energy supplies required in Japan, Korea, China and Taiwan make a similar voyage; the amount of traffic through your area will double by 2030.
The South China Sea is also an area of great complexity, containing as it does thousands of miles of oceans and 231 islands and reefs. Claimants to the area are many and in recent years each has shown itself more determined than ever to assert its rights. Many are increasing their military capabilities. In the view of the United States, these claims, however they are justified, do not diminish from the fact that the South China Sea is a part the global commons. Put differently, the right of free passage and freedom of navigation and the orderly and consensual exploitation of the resources of the South China Sea are matters of huge importance to all nations.
In addition to history and economics, the United States has long standing defense and security ties to nations in this area. At our initiative, SEATO, was born. We enjoy treaty ties with the Philippines and Thailand and we are involved in military assistance and military exercises with the Philippines, Thailand, Malaysia, Indonesia, Singapore. We are beginning to include Vietnam and Cambodia in these efforts.
Our security responsibilities in this region have become part of our domestic political dialogue as well as enjoying a place in our official policies. The Congress has addressed the subject of the South China Sea. In our present campaign for the Presidency, Governor Romney expressed his views on the subject in a speech he gave week before last in support of his candidacy. As I read his remarks, he pledged the constancy of the American presence in this region and he committed his presidency, if he achieves it, to maintaining naval forces adequate to defending our interests.
The Administration, the Governor and the overwhelming majority of Americans, who think about our international obligations, believe that our relationship with the People’s Republic of China is among the most important questions we face as a nation. Americans seek strong and positive ties with China in all fields, including over the question of the South China Sea. Indeed I reflect the views of many, many of my fellow countrymen. We welcome China’s emergence on the world stage, as a great, indeed growing power and one with which the United States looks forward to pursing a respectful, productive and peaceful relationship.
Given our stake in Asia’s security and economy and our ties to the nations of the continent, it follows that the United States pays close attention to developments in the South China Sea. We have watched with growing concern the increasing tensions in your neighborhood — from the first outbreak of hostilities in 1974, when China and Viet Nam clashed over the Paracel Islands. We were similarly concerned by the 1998 incident in the Johnson South Reef. The United States took note of China’s National People’s Congress assertion of sovereignty in the area in 1992; we have also paid close attention to China’s much debated 9-line. In 1995 we made it clear that with regard to the Spratley Islands, “the freedom of passage was a fundamental US interest”. We have been similarly troubled by construction activities on Mischief Reef and the flare ups over oil and gas exploration in 2007 and afterwards.
Throughout this period, the United States has sought to make it clear that unilateral actions which result in rising tensions in the region are a matter of concern and importance to us. As troubled as we have reason to be, the United States has also been impressed by this region’s ability to act politically to address its differences and preserve the peace. South East Asia, often with the participation of the People’s Republic of China, has shown an ability to come together in the region’s interests. Your 1976 Treaty of Amity and Cooperation and your 1995 declaration on the freedom of this area from nuclear weapons are outstanding examples. The same is true of the 1992 ASEAN Declaration on the South China Sea. Any responsible observer should take heart from the ASEAN-China declaration on the conduct of parties in the South China Sea; that document remains a seminal statement of the intentions of all states in the area and a point of reference for the future. Its assertion that parties will seek a peaceful resolution to their differences and cooperate in developing the resources of the area are significant principles which point the way to future management of disagreements.
Similarly the ASEAN and Chinese agreement which was reached on July 21 of this year constitutes welcome if limited steps forward. Its eight guidelines treat important non-traditional security issues; at the same time, the agreement falls short of defining a path to the management of increasingly volatile territorial issues. Nor do the guidelines address the nettlesome question of naval incidents.
In a word, all of us must be concerned that the states bordering on the South China Sea have not yet agreed on guidelines for the implementationof a Code of Conduct, a fact that leaves room for misunderstandings and the possibility of increased tensions. The United States supports such Code of Conduct.
Diplomacy is essential but diplomacy to be effective must be flexible and inclusive. There is a role for multilateral as well as bilateral processes and fora in addressing differences and conflicting claims. No party has the right to say it will exclude from the dialogue any other party with significant interests. Similarly, international tribunals, like the International Court of Justice, may be able to play a role in the future and the UN Convention on the Law of Seas certainly provides a framework.
But let me emphasize that events of the past several years are troubling. The absence of progress toward a Code of Conduct is a particular reason for concern. Rising tensions and an increase in incidents is another source for concern. There are many causes for increased friction; they certainly include the assertion of territorial claims by nations in the area and by the exploration for hydrocarbons.
The United States has particular sympathy for the concerns of Viet Nam which has been the object of the greatest number of incidents. We are similarly sensitive to the needs of our friends in the Philippines. And to repeat myself for emphasis it is a matter of regret that the region’s diplomacy has not moved vigorously and achieved a Code of Conduct. Foreign Secretary Albert del Rosario of the Philippines recently noted that this area needs to set a “collective goal for rule based actions by all parties concerned”. He spoke wisely and well.
I am sure Secretary del Rosario’s appeal is directed to all parties. I would add an extra word to my friends from the People’s Republic of China. The United States does not take a position on competing territorial claims in the South China Sea. That said, no American can dismiss China’s interests in the area. But China is a great nation which enjoys special advantages in an orderly world – one in which peace and freedom of commerce prevail. To larger states, extra responsibilities fall since they benefit disproportionately from a cooperative environment. It is with this point in mind that I welcome recent efforts of the Chinese government, including in recent days with Viet Nam, to send a signal of cooperation to its Asian neighbors.
The visit of China’s Prime Minister to the region and the actions and statements of China’s Foreign Minister point to China seeking diplomatic engagement and cooperative solutions to the issues of the South China Sea. There must be no gap however between the statements and the actions of any party, China included.
The United States’ attitude on the South China Sea deserves an additional word of elaboration. The United States position was articulated by Secretary of State, Hillary Clinton in Hanoi at the 2010 ASEAN Regional Forum. There she declared the United States, like every nation, has a national interest in the freedom of navigation, open access to Asia’s maritime commons and a respect for international law in the South China Sea. While she refused to take sides in any territorial claim, she stated American opposition to the use of or the threat of the use of force in resolving differences and called for a peaceful resolution of differences. She went on to state that the United States shares “these interests not only with ASEAN members, ASEAN Regional Forum participants but with other maritime nations and the broader international community”. In other words, the Secretary reminded us the US national interest is broadly and internationally shared.
Secretary Clinton’s statement was amplified at the 2010 Shangri-la Conference in Singapore where Secretary of Defense Gates referred to the South China Sea as “an area of growing concern to America”. A year later, at the same conference, Secretary Gates further noted “without rules there will be clashes”. In addition to these statements of principle, the United States has also noted that “claims in the South China Sea should be derived from legitimate claims from land features”.
To repeat my opening contention, the United States has long standing interests in the South China Sea and in the resolution of differences between the littoral states. It does not seek advantage for itself nor does it threaten any other nation. It welcomes the possibility of coordinating its positions and actions and discussing its interests with all parties, including with the People’s Republic of China, which shares responsibility with other neighboring countries for stability in the area.
The United States looks to the nations of this area to find diplomatic solutions to differences. It is willing to do its part when that is appropriate and I believe it is when I reflect on the need to develop rules to manage incidents at sea. In addition, the US is committed to maintaining a robust military presence in Asia and will support its allies. It will maintain capabilities sufficient to deter conflict. As Secretary Gates made clear in his waning days in office, the United States can be counted on in the near future to conduct naval port calls, training and exercises and help its friends address regional challenges. We have already begun to act on these commitments, conducting exercises with Malaysia and the Philippines and responding to President Aquino’s plans to rebuild the military capability of the Philippines.
In November, President Obama will participate in the East Asia Summit, the first American president to do so. He will also take part in the USASEAN Summit and will host APEC in Honolulu. The President’s presence in each of these fora point to the resolve of the United States in protecting its interests and standing by its friends, pursuing at the same time, peaceful solutions and cooperation.
Of course, there are differences between nations over the South China Sea but these differences need not become disputes nor worse yet, causes for conflict even if we admit, as we should, that the likelihood of agreement on issues of sovereignty will not occur any time soon. Isn’t the time right to shelve disputes and develop the region jointly. The time is certainly right for tempers to cool and diplomatic engagement to take over. A Code of Conduct is needed and it must be a full one. The interests of all will be served by it. And it must be based on principles all of us accept – freedom of navigation, peaceful resolution of differences, the sharing of resources and the avoidance of the use of force or the threat of its use.
China and the South China Sea by Chen S.Q.
I would like to share with you some of my own perspectives in my personal capacity.
First, The core of the South China Sea Issue. Sovereignty disputes over the Nansha Islands is the core part of the South China Sea Issue. Other matters, such as disputes over maritime areas and resources, all directly depend upon how to properly handle the sovereignty disputes over the Islands. To put it bluntly, the fundamental issue is who has sovereignty over the Nansha Islands. Maybe it is necessary now for us to take a look at the evolving process concerning the sovereignty disputes over the Nansha Islands.
For a very long period of time of more than a thousand years before 1970s, there had been no such a problem as the so-called Sovereignty disputes over the Nansha Islands. There had not been any doubt about the fact that the Nansha Islands, along with Xisha Islands, Dongsha Islands, Zhongsha Islands belong to China. No country surrounding the South China Sea had challenged China’s exercise of sovereignty over the Nansha Islands and their adjacent waters. Only beginning from the 1970s, when oil and gas reserves were discovered in the South China Sea, some countries began to occupy part of the islands and reefs of the Nansha Islands and laid claim to sovereignty over them, thus turned the China-owned Nansha Islands into disputes.
Second, Viewing the Issue from International law. A Disputes in the South China Sea should be analysed in accordance with universally accepted principles of international law. Since the core part of the South China Sea Issue is the Sovereignty disputes over the Nansha Islands. We have to study the issue with applicable international law as well as the historical facts of the situation in question. Among all international law principles, the most pertinent one is the intertemporal law principle. There are many exemplary cases in the world such as the Palmas Island case, the Clippton Island case, the East Greenland Island case and the Minquis and Ecrohos Islands case, to mention just a few.
Historically. Discovery is the oldest way to claim land territory, Classical international law developed doctrines by which States could make a valid claim of sovereignty over territory. The doctrines included discovery. Discovery can produce complete sovereignty. New territories and islands were subject to claim of sovereignty by discovery. A host of historical facts have proved that before 16th-17th century, it was China who first discovered, occupied and developed the Nansha Islands; the Nansha Islands have become an inalienable part of Chinese territory since then.
Occupation and Effectivity. Occupation applies to territory that is terra nullius, that is, territory which is not under the sovereignty of any State by that time and is subject to acquisition by any State. Occupation requires proof of two elements: (1) the intention or will to act as the sovereign; and (2) the continuous and peaceful display of sovereignty. In the case of islands in the South China Sea, activities of China, though modest in number but diverse in character, covering a considerable period of time and revealing an intention to exercising State functions, show its effectivity.
After discovering the islands in the South China Sea, the Chinese Government marked the Nansha Islands on the authoritative maps and exercised administrative jurisdiction over these islands. Chinese people started to develop the Nansha Islands and engage in fishing on the islands. Up till the beginning of 20th century, the Chinese Government had exercised peaceful jurisdiction over the Nansha Islands without any disputes.
After the founding of the People’s Republic of China, the Nansha Islands were incorporated into Guangdong Province and Hainan Province successively and the Chinese Government has all along maintained China’s sovereignty over the Nansha Islands and taken effective actions for that. All in all, according to international law, China was the first to discover, name, occupy and develop the Nansha Islands and exercise sovereignty over them
Estoppel. “Estoppel” is a generally accepted principle of international law in international relations. This principle has particular relevance to territorial sovereignty issues. In accordance with this principle the recent claimants should be still subject to their original recognition or Default.
Prescription. Prescription applies to territory that was claimed by another State. It is described as the acquisition of territory through a continuous and undisturbed exercise of sovereignty during such a period as to usurp another State’s sovereignty by its implied consent or acquiescence. As for the Nansha Islands issue, the Chinese Government has indisputable sovereignty over it since ancient times. And the Chinese Government has all along maintained China’s sovereignty over the Nansha Islands and taken effective actions for that. The very recent time claimants can’t resort to the doctrine of “occupation” or “prescription” to gain sovereignty over them.
Geographic Contiguity. Some countries argue that small islands and other features of Nansha Islands are close to their main territory, within their EEZ or on their continental shelf, should belong to them. Under customary international law, contiguity is not an independent basis for the acquisition of territory. There are many historical cases which denied similar claims.
UNCLOS. Some countries have claimed sovereignty of Nansha Islands on the ground that these islands are within their continental shelves or exclusive economic zones. According to international law and the UN Convention on the Law of the Sea, it is a basic principle that land dominates the sea. Maritime rights and interests should be based on territorial sovereignty. No country should be allowed to extend its maritime jurisdiction to the territories of other countries, still less should it be allowed to invade and occupy other’s territory on the ground of exclusive economic zones or the continental shelves. The 1982 Convention on the Law of the Sea (UNCLOS) has no provisions on sovereignty, nor does it regulate sovereignty over islands of their original status. UNCLOS only prescribes the regime of maritime zones. UNCLOS assumes that it has been determined which State has sovereignty over a continental land mass or an off-shore island. It then sets out what maritime zones can be claimed by States. All in all, UNCLOS can in no way serve as a basis for a country’s territorial claim, nor can it change China’s indisputable legal status as having sovereignty over the Nansha Islands.
The scenarios for the solution of the South China Sea Issue in the foreseeable future resolution of the sovereignty claims and agreement on maritime boundaries in the South China Sea seem unlikely in the foreseeable future.
One scenario is resolution by threat or use of force. Disputes used to be solved by force, but times have changed. Now, disputes should be dealt with by peaceful means. Threat or use of force is contrary to the purposes and principles of the Charter of the United Nations and in violation of the basic norms of international relations. Threat or use of force in the South China Sea only cause more conflicts. No country, whether the countries surrounding the South China Sea, or countries outside the area, can benefit from this kind of scenario.
One scenario is “let it to be”. The countries concerned engage in “war of words” or unilateral actions on the basis of their own unilateral claims. In this scenario, the risk of conflicts or armed clashes is very high because unilateral actions by one country and counter-actions by another country may escalate or complicate the disputes, could only aggravate tension in the South China Sea which will benefit no one.
One scenario is resolution through direct dialogue and consultation by peaceful means. The countries directly concerned properly handle differences and sensitive issues based on the principle of equality and mutual respect; make great efforts to resolve disputes through bilateral consultations and negotiations. The countries directly concerned need to show political sincerity and flexibility in order to find a final solution acceptable to both sides. The situation in the South China Sea will be peaceful and stable. Good-neighborly relationship of cooperation can be developed among the countries surrounding the South China Sea. It is a win-win way. Though it may take some time, it is worth doing.
One scenario is “put aside dispute for joint development”. Pending the final settlement, all countries concerned should exercise self-restraint and refrain from taking any action that may escalate or complicate the disputes. The countries concerned make great effort to enter into provisional or transitional arrangements, including “shelving disputes and carrying out joint development” in disputed areas. Joint development will not only bring benefits to all parties concerned, but also create favorable environment and atmosphere for settling disputes in a long run. It should be the most practical, feasible and win-win way for the countries concerned under the present circumstances.
Fourth, the way forward on the SCS Issue. The countries surrounding the South China Sea have a common interest in ensuring peace and stability in the SCS. To this end, they must handle their differences in an appropriate way. All the parties concerned should adopt a restrained, calm, responsible, constructive attitude toward the issue. Refrain from further actions that may undermine peace, stability, trust and confidence in the region. Handle differences and relevant disputes with the countries concerned through direct consultation or diplomatic channels and by peaceful means. Solve the disputes properly through bilateral negotiation and consultation in accordance with universally recognized international laws including modern maritime laws and the United Nations Convention on the Law of the Sea , fully respect legal principles, take history and other relevant circumstances into consideration and accommodate each other’s concerns in a fair and constructive manner.
Pending the final solution of the disputes, the countries concerned shelve the disputes for the time being and go in for joint development in the disputed areas. Abide by the Declaration on the Conduct of Parties in the South China Sea(DOC) and actively explore or undertake cooperative activities in such areas as marine environmental protection, marine scientific research, safety of navigation and communication at sea, search and rescue operation and combating transnational crimes. To maintain the safety, unimpededness and freedom of navigation of foreign vessels and aircraft enjoyed in accordance with international law.
No involvement by any external forces in the South China Sea disputes. “Internationalizing” the South China Sea Issue is undesirable, as that will only further complicate the situation. Make joint efforts to transform the South China Sea into an area of peace, stability, cooperation and development.