Fact, Fiction and the South China Sea

Fact, Fiction and the South China Sea

Conflicting claims

A definitive look at China’s claim to the sea by a noted author and expert



The next major contributor to the narrative was a Chinese-American law professor, Jianming Shen based at St. John’s University School of Law in New York. In 1997 he published a key article in the Hastings International and Comparative Law Review. Like the Texas International Law Journal, the Review is a student-edited publication. It hardly needs saying that an editorial board comprised of law students may not be the best body to oversee works of Asian maritime history. Chen followed this article with a second in a more prestigious journal, the Chinese Journal of International Law – although in many sections it simply referenced the first article.

Chen’s two articles have been particularly influential – the 2014 CNA paper references them at least 170 times, for example. However, an examination of their sources shows them to be just as suspect as their predecessors. The historical sections that provide the evidence for his 1997 paper rely in large part on two sources. One is a book edited by Duanmu Zheng entitled Guoji Fa (International Law) published by Peking University Press in 1989 (referenced at least 18 times). The following year Duanmu became the PRC’s second-highest ranking legal official – Vice President of the PRC’s Supreme People’s Court – and was later one of the drafters of the Hong Kong Basic Law. In other words, he was a senior Chinese state official. Shen’s other main historical source is a collection of papers from a Symposium On The South China Sea Islands organized by the Institute for Marine Development Strategy, part of the Chinese State Oceanic Administration, in 1992 (referenced at least 11 times). It seems more than ironic that material produced by the State Oceanic Administration and the Chinese legal establishment has subsequently been processed through the writings of Professor Chen and then the Center for Naval Analyses and now become part of the Pentagon’s understanding of the history of the South China Sea.

None of the writers mentioned so far were specialists in the maritime history of the South China Sea. Instead they were political scientists (Cheng and Samuels), lawyers (Chiu and Park and Shen) or international relations specialists (Heinzig and Austin). As a rule their works don’t examine the integrity of the texts that they quote, nor do they discuss the contexts in which they were produced. In particular Cheng and Chiu and Park incorporate anachronistic categories – such as “country” to describe pre-modern relations between political entities around the South China Sea – for periods when political relations were quite different from those that exist today.

It’s also worth noting that Cheng, Chiu and Shen were Chinese-born. Cheng and Shen both graduated with LLBs from Peking University. Chiu graduated from National Taiwan University. While this does not, of course, automatically make them biased, it is reasonable to assume they were more familiar with Chinese documents and the Chinese point of view. Both Samuels and Heinzig were scholars of China.

Flawed evidence

It is hardly surprising that the first English-language writings on the disputes, written as they were by Chinese authors and based upon Chinese sources, come down on the Chinese side of the argument. Cheng’s judgment (p277) was that, “it is probably safe to say that the Chinese position in the South China Sea islands dispute is a “superior claim” Chiu and Park (p.20) concluded that “China has a stronger claim to the sovereignty of the Paracels and the Spratlies [sic] than does Vietnam.” Chen’s point of view is obvious from the titles of his papers: “International Law Rules and Historical Evidence Supporting China’s Title to the South China Sea Islands” and “China’s Sovereignty over the South China Sea Islands.”

These verdicts are still influential today: they were quoted in Li and Tan’s 2014 papers, for example. Yet a closer examination of the evidence upon which they are based suggests they are deeply flawed. Those magazine articles from 1933, 1956 and 1974 should not be regarded as neutral evidence but as partisan readings of a contested history.

There isn’t space here to cover all the claims the writers make about events before the 19th Century. In summary, the accounts by Cheng, Chiu and Park, Samuels and Shen all share the common assumption: that China has always been the dominant naval, trading and fishing power in the South China Sea. Cheng, for example puts it like this, “It has been an important part of the sea route from Europe to the Orient since the 16th century, a haven for fishermen from the Hainan Island, and the gateway for Chinese merchants from south China to Southeast Asia since earlier times” (p.266).

More empirically-based histories of the Sea suggest the situation was much more complex. Works by the historians Leonard Blussé, Derek Heng, Pierre-Yves Manguin, Roderich Ptak, Angela Schottenhammer, Li Tana, Nicholas Tarling and Geoff Wade have revealed a much more heterogeneous usage of the sea in the pre-modern period. Chinese vessels and merchants played almost no role in seaborne trade till the 10th Century and even after that were never dominant but shared the sea with Malays, Indians, Arabs and Europeans. Research by by François-Xavier Bonnet, Ulises Granados and Stein Tonnesson show how similar patterns persisted into the 20th Century.

Accounts from the early 20th century reveal demonstrate that the Chinese state had great trouble even controlling its own coast, and was completely unable to project authority to islands hundreds of miles offshore. For example, two articles in The Times of London from January 1908 describe the inability of the Chinese authorities to control “piracy” in the West River – inland from Canton/Guangzhou. A 1909 article by the Australian newspaper, The Examiner tells us that foreigners (“two Germans, one Japanese, and several Malays”) had begun mining operations on Hainan Island without the authorities finding out until much later.

What these contemporary accounts reveal is a South China Sea that until the mid 20th Century was essentially ungoverned, except for the occasional interventions of foreign powers against piracy. It was only in 1909, following the scandal surrounding the occupation of Pratas Island by a Japanese guano entrepreneur Nishizawa Yoshiji, that the Chinese authorities became interested in the offshore islands.

Protests against German surveys

Samuels (p52), however, argues that an implicit Chinese claim to the Spratly Islands might be dated to 1883 when – according to his account – the Qing government officially protested against a German state-sponsored expedition to the Spratly Islands. The assertion is sourced to the May 1974 edition of the Hong Kong-based magazine Ming Pao Monthly without other corroborating evidence. Chiu and Park (in footnote 47) ascribe it to an article published 50 years after the alleged events in question in a 1933 edition of Wai Jian Yue Pao (Wai-chiao yüeh-pao) [Diplomacy monthly], Heinzig quotes the same edition of Ming Pao that Samuels relies on to state that the 1883 German expedition actually withdrew following the Chinese protest.

This claim seems highly unlikely because the German surveyors mapped the Paracel Islands (not the Spratlys) between 1881 and 1883, finished their work and subsequently published a chart. A French edition was published in 1885.

The 1887 Sino-Tonkin convention

Samuels argues that the 1887 Sino-Tonkin convention negotiated by the French government, nominally on behalf of Tonkin, amounted to an international agreement allocating the islands to China (p52). Article 3 of the Convention does indeed allocate islands east of the Paris meridian 105°43’ to China. But Samuels and the other authors failed to notice that the Convention applied to Tonkin – the northernmost area of what is now Vietnam and therefore can only relate to islands in the Gulf of Tonkin. The Paracels and Spratlys lie much further south in what were then the realms of Annam and Cochinchina, not covered by the Convention.

The mystery of the 1902 voyage

There also appears to be some confusion about the date of the first visit by Chinese officials to the Paracel Islands. Samuels (p.53), on the strength of the 1974 Ming Pao Monthly article, puts it in 1902 with a return visit in 1908. Austin and Dzurek follow Samuels in this. Li and Tan (2014) also assert the 1902 claim, along with one of a separate expedition in 1907. Cheng dates it to 1907, based on several 1933 references as do Chiu and Park who make reference to a 1933 edition of Kuo-wen chou-pao. However, in contrast to these accounts, written 26 and 72 years after the events they supposedly describe, a survey of contemporaneous newspapers makes it quite clear that the voyage took place in 1909.

There is good reason for the confusion about the 1902 expedition. In June 1937 the chief of Chinese Administrative Region Number 9, Huang Qiang, was sent on a secret mission to the Paracels – partly to check if there was Japanese activity in the islands.

But he had another role too – which a secret annex to his report makes clear. An excerpt of the annex was published in Chinese in 1987 by the Committee of Place Names of Guangdong Province. His boat was loaded with 30 stone markers – some dated 1902, others 1912 and others 1921. On North Island, they buried two markers from 1902 and four from 1912; on Lincoln Island, the team buried one marker from 1902, one from 1912 and one from 1921 and on Woody Island, two markers from 1921. Finally, on Rocky Island, they deposited a single marker, dated 1912.

The markers were forgotten until 1974 when, after the battle of the Paracels, they were found and the “discovery” was trumpeted in Hong Kong newspapers – such as Ming Pao Monthly. The non-existent 1902 expedition then entered the history books. Only now has it been debunked by the Manila-based French geographer Francois-Xavier Bonnet.

The island names

In his 1997 paper Shen claims the RoC Government “reviewed the names of the islands in the South China Sea” in 1932. In fact that government committee simply translated or transliterated the existing British or international names. As a result several of the Chinese names continue to honour the British surveyors that first mapped the features. In the Paracels, Líng yang Jiao – Antelope Reef – is named after a British survey vessel, the Antelope. Jīn yín Dǎo – Money Island – is not named after notes and coins – but after William Taylor Money, the Superintendent of the Bombay Marine – the navy of the East India Company.

Comments

One Response to Fact, Fiction and the South China Sea

  1. Gantal

    May 26, 2015 at 3:11 pm

    “The Philippines wants the Court to rule that, under the UN Convention on the Law of the Sea (UNCLOS), China can only claim sovereignty and the rights to resources in the sea within certain distances of land territory.” Is the Philippines even a UNCLOS signatory?
    UNCLOS does not even mention sovereignty. so it’s hard to see how any court could rule on such a claim.
    Even our own, beloved US Navy doesn’t think much of the SCS claimants’ cases: A recent authoritative report*** from the Center for Naval Analyses in Washington says that

    China has control of all the land features in the South China Sea north of 12 degrees north latitude—essentially the northern portion of the South China Sea.

     It has controlled the Paracel Islands since 1974, and, despite Vietnam’s claim, is unlikely to ever leave.

     China effectively resolved the dispute with the Philippines over Scarborough Shoal in 2012 when it established control over the shoal. Again, it is unlikely to relinquish it.

     This means that the Spratly Islands are the only remaining features that are not completely under the physical control of Beijing (or of greater China).

    This situation suggests that U.S. policy options, aimed at a peaceful rules-based outcome, need to focus on the Spratlys, which, unfortunately for those who must craft and execute policy, are the most complex and legally arcane area of the South China Sea.

    …This project commissioned three separate legal analyses of the claims made to land features in the SCS. A review of these documents makes clear that in the unlikely event these sovereignty claims are taken to the International Court of Justice for resolution, the process will be long and difficult. None of the claimants has what might be called an “open and shut” legal case.

     The consensus among scholars seems to be that China and Vietnam have the best legal case to claims in the Spratly Islands. China’s claims in the Spratlys are weaker than its claims to the Paracels (also claimed by Vietnam), and depending on how certain historic actions are legally interpreted, Vietnam may have a better claim to both island chains. At the same time, U.S. policy- makers cannot lose sight of the fact that China’s claims may be superior.

     The absence of an unambiguous legal case in any of these disputes reinforces the wisdom of the U.S. policy of not taking a position regarding which country’s sovereignty claim is superior.

     The claims of the Philippines, Malaysia and Brunei to islands or rocks in the Spratly Islands are not strong as the claims of either China or Vietnam.

    Read the entire report here at