In just a few weeks, international judges will begin to consider the legality of China’s “U-shaped line” claim in the South China Sea. The venue will be the Permanent Court of Arbitration in The Hague and the court’s first step – during deliberations in July – will be to consider whether it should even consider the case.
China’s best hope is that the judges will rule themselves out of order because if they don’t, and the Philippines’ case proceeds, it’s highly likely that China will suffer a major embarrassment.
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. If the court agrees, it will have the effect of shrinking the vast “U-shaped line” to a few circles no more than 24 nautical miles (about 50km) in diameter.
China is not formally participating in the case but it has submitted its arguments indirectly, particularly through a “Position Paper” it published last December. The paper argued that the court shouldn’t hear the Philippines’ case until another court had made a ruling on all the competing territorial claims to the different islands, rocks and reefs. This is the issue that the judges will have to consider first.
China’s strategy in the “lawfare” over the South China Sea is to deploy historical arguments in order to outflank arguments based on UNCLOS. China increasingly seems to regard UNLCOS not as a neutral means of resolving disputes but as a partisan weapon wielded by other states in order to deny China its natural rights.
But there is a major problem for China in using these historical arguments. There’s hardly any evidence for them.
This isn’t the impression the casual reader would get from reading most of the journalistic articles or think-tank reports written about the South China Sea disputes in recent years. That’s because almost all of these articles and reports rely for their historical background on a very small number of papers and books. Worryingly, a detailed examination of those works suggests they use unreliable bases from which to write reliable histories.
This is a significant obstacle to resolving the disputes because China’s misreading of the historical evidence is the single largest destabilizing factor in the current round of tension. After decades of mis-education, the Chinese population and leadership seem convinced that China is the rightful owner of every feature in the Sea – and possibly of all the water in between. This view is simply not supported by the evidence from the 20th Century.
Who controls the past, controls the future
The problem for the region is that this mis-education is not limited to China. Unreliable evidence is clouding the international discourse on the South China Sea disputes. It is skewing assessments of the dispute at high levels of government – both in Southeast Asia and in the United States. I will use three recent publications illustrate my point: two 2014 “Commentary” papers for the Rajaratnam School of International Studies in Singapore written by a Chinese academic Li Dexia and a Singaporean Tan Keng Tat, a 2015 presentation by the former US Deputy-Ambassador to China, Charles Freeman at Brown University and a 2014 paper for the US-based Center for Naval Analyses.
What is striking about these recent works – and they are just exemplars of a much wider literature – is their reliance on historical accounts published many years ago: a small number of papers published in the 1970s, notably one by Hungdah Chiu and Choon‐Ho Park; Marwyn Samuels’ 1982 book, Contest for the South China Sea; Greg Austin’s 1998 book China’s Ocean Frontier and two papers by Jianmeng Shen published in 1997 and 2002.
These writings have come to form the conventional wisdom about the disputes. Google Scholar calculates that Chiu and Park’s paper is cited by 73 others, and Samuels’ book by 143. Works that quote these authors include one by Brian Murphy from 1994 and those by Jianming Shen from 1997 and 2002 – which are, in turn, quoted by 34 and 35 others respectively and by Chi-kin Lo, whose 1989 book is cited by 111 other works. Lo explicitly relies on Samuels for most of his historical explanation, indeed praises him for his “meticulous handling of historical data” (p.16). Admiral (ret) Michael McDevitt, who wrote the forward to the CNA paper, noted that Contest for the South China, “holds up very well some 40 years later.”
These works were the first attempts to explain the history of the disputes to English-speaking audiences. They share some common features:
- They were written by specialists in international law or political science rather than by maritime historians of the region.
- They generally lacked references to primary source material
- They tended to rely on Chinese media sources that contained no references to original evidence or on works that refer to these sources
- They tended to quote newspaper articles from many years later as proof of fact
- They generally lacked historical contextualizing information
- They were written by authors with strong links to China
The early works on the disputes
English-language writing on the South China Sea disputes emerged in the immediate aftermath of the “Battle of the Paracels” in January 1974, when PRC forces evicted Republic of Vietnam (“South Vietnam”) forces from the western half of the islands.
The first analyses were journalistic, including one by Cheng Huan, then a Chinese-Malaysian law student in London now a senior legal figure in Hong Kong, in the following month’s edition of the Far Eastern Economic Review. In it, he opined that, “China’s historical claim [to the Paracels] is so well documented and for so many years back into the very ancient past, that it would be well nigh impossible for any other country to make a meaningful counter claim.” This judgement by a fresh-faced student was approvingly quoted in Chi-Kin Lo’s 1989 book “China’s Policy Towards Territorial Disputes.”
The first academic works appeared the following year. They included a paper by Tao Cheng for the Texas International Law Journal and another by Hungdah Chiu and Choon‐Ho Park for Ocean Development & International Law. The following year, the Institute for Asian Studies in Hamburg published a monograph by the German academic, Dieter Heinzig, entitled ‘
Cheng’s paper relied primarily upon Chinese sources with additional information from American news media. The main Chinese sources were commercial magazines from the 1930s notably editions of the Shanghai-based Wai Jiao Ping Lun [Wai Chiao Ping Lun] (Foreign Affairs Review) from 1933 and 1934 and Xin Ya Xiya yue kan [Hsin-ya-hsi-ya yueh kan] (New Asia Monthly) from 1935. These were supplemented by material from the Hong Kong-based news magazine Ming Pao Monthly from 1973 and 1974. Other newspapers quoted included Kuo Wen Chou Pao (National News Weekly), published in Shanghai between 1924 and 1937, Renmin Ribao [Jen Ming Jih Pao](People’s Daily) and the New York Times. Cheng didn’t reference any French, Vietnamese or Philippine sources with the exception of a 1933 article from La Geographie that had been translated and reprinted in Wai Jiao Ping Lun.
The paper by Hungdah Chiu and Choon‐Ho Park relied upon similar sources. In crucial sections it quotes evidence based upon articles published in 1933 in Wai Jiao Ping Lun and Wai Jiao Yue Bao [Wai-chiao yüeh-pao] (Diplomacy monthly), and Fan-chih yüeh-k’an [Geography monthly] from 1934 as well as Kuo-wen Chou Pao [National news weekly] from 1933 and the Chinese government’s own Wai-chiao-pu kung-pao, [Gazette of the Ministry of Foreign Affairs]. It supplements this information with material gathered from a 1948 Shanghai publication by Cheng Tzu-yüeh, Nan-hai chu-tao ti-li chih-lūeh (General records on the geography of southern islands) and Republic of China government statements from 1956 and 1974.
Chiu and Park do use some Vietnamese references, notably eight press releases or fact sheets provided by the Embassy of the Republic of Vietnam in Washington. They also refer to some, “unpublished material in the possession of the authors.” However, the vast majority of their sources are from the Chinese media.
Writing a year later, Dieter Heinzig relied, in particular, on editions of two Hong Kong-based publications Ch’i-shih nien-tai (Seventies Monthly) and Ming Pao Monthly published in March and May 1974 respectively.
What is significant is that all these foundational papers used as their basic references Chinese media articles that were published at times when discussion about the South China Sea was highly politicised. 1933 was the year that France formally annexed features in the Spratly Islands – provoking widespread anger in China, 1956 was when a Philippine businessman, Tomas Cloma, claimed most of the Spratlys for his own independent country of “Freedomland” – provoking counterclaims by the RoC, PRC and Republic of Vietnam; and 1974 was the year of the Paracels battle.
Newspaper articles published during these three periods cannot be assumed to be neutral and dispassionate sources of factual evidence. Rather, they should be expected to be partisan advocates of particular national viewpoints. This is not to say they are automatically incorrect but it would be prudent to verify their claims with primary sources. This is not something that the authors did.
The pattern set by Cheng, Chiu and Park and Heinzig was then repeated in Marwyn Samuels’ book Contest for the South China Sea. Samuels himself acknowledges the Chinese bias of his sources in the book’s Introduction, when he states “this is not a study primarily either in Vietnamese or Philippine maritime history, ocean policy or interests in the South China Sea. Rather, even as the various claims and counterclaims are treated at length, the ultimate concern here is with the changing character of Chinese ocean policy.” Compounding the issues, Samuels acknowledges that his Asian research was primarily in Taiwanese archives. However, crucial records relating to the RoC’s actions in the South China Sea in the early 20th Century were only declassified in 2008/9, long after his work was published.
There was another burst of history-writing in the late 1990s. The former US State Department Geographer turned oil-sector consultant Daniel Dzurek wrote a paper for the International Boundaries Research Unit of the University of Durham in 1996 and a book by an Australian analyst Greg Austin was published in 1998. Austin’s historical sections reference Samuels’ book, the paper by Chiu and Park, a document published by the Chinese Foreign Ministry in January 1980 entitled “China’s indisputable sovereignty over the Xisha and Nansha islands” and an article by Lin Jinzhi in the People’s Daily. Dzurek’s are similar.