China has become a master at pushing right up to the boundary of internationally acceptable behavior, then briefly crossing over the line, retreating, and doing the same again, until it establishes a 'new normal' for what is deemed to be acceptable. This has been seen for some time in a variety of areas, whether it be compliance with WTO rules or applications of international law. Given the recent saber rattling between China and Vietnam over national maritime boundaries and the ongoing muscle flexing over the Spratly Island Archipelago, it appears China is incapable of speaking the vernacular of international diplomacy in a manner commensurate with the expectations of responsible nation states.
The Spratly island group has long been a source of conflict between Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam. They comprise 100-plus islands, atolls, and shoals in the southern part of the South China Sea. Not only are the Spratlys at the heart of one of the world's busiest sea lanes, they are known to hold rich oil and natural gas reserves -- so much so that in 2002 a Declaration of Conduct of Parties was agreed between China and the ASEAN to demilitarize the islands, maintain the status quo, and to pave the way for joint deep sea oil exploration.
Among the six claimants, China, the Philippines, and Vietnam have been the most assertive. The Philippines predicates its claim under the theory of occupation and discovery since 1947, and Vietnam, through a broader (and less particularized) French title in the 1920s. At first, China attempted to lay claim to the entire "South China Sea" -- forming what on a map looks like a long tongue, extending hundreds of miles outside the country's exclusive economic zone -- and tracing its title, according to the Chinese, back to the Han Dynasty in the 200 B.C. era. It was only in 1992 when China first attempted to occupy one of the eight islands in the Spratlys' -- an odd way of addressing a sacred right, given that China is not known for simply ignoring its historical land claims.
Manila has accused Beijing of at least six intrusions by Chinese fighter aircraft and vessels in "Philippine territory" and its own "exclusive economic zone" since February of this year. Liu Jianchao, the Chinese Ambassador in Manila, called upon the Philippines to halt all oil exploration without Beijing's prior consent. Just Monday of this week, under the guise of naval exercises, Viet Nam fired rounds of artillery from its coastline after Chinese vessels allegedly disrupted its own economic activities in the western portion of the Spratlys.
In classic black letter law fashion, the Philippines, a long-time ally of the United States, quickly turned to the provisions of its Mutual Defense Treaty with the United States. Signed in 1951, the treaty requires the parties to "act to meet the common dangers" in the event of an "armed attack." The Treaty's operative phrase, "armed attack," may not qualify as a semantic equivalent of "threat or use of force" under the Geneva Conventions, but couched in antiquated Cold War vernacular, the Treaty also stresses that any such "armed attack" should first be reported to the United Nations Security Council (of which China is a permanent member). This implies that multilateral diplomacy and negotiations should be exhausted before the parties may resort to reasonably necessary force. The treaty contemplates an armed attack on a "metropolitan territory" of either party, or one of its "island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific." In short, ownership over the Spratlys isn't clear cut, and the United States may find it premature to take too strong a position in assuaging its ally, the Philippines, whenever Treaty obligations are invoked. This becomes more complicated given that China has pre-empted possible U.S. entry into the fray by warning America to stay out of this 'regional' conflict.
Whether considered in its entirety or any of its main islands, it is unclear whether the Spratlys can be categorized by the international community or the international courts as a "metropolitan territory" or "island territory" of the Philippines. It is also doubtful whether China, in making its case, can hearken to the sheer nominalism of the "South China Sea" on the map (which India of course wouldn't dare do with the "Indian" Ocean). Meaningful bilateral negotiations presuppose equal bargaining power, but this is clearly not the case between China and the Philippines. Can multilateralism be the key? Vietnam tried to take this route via the ASEAN when it served as Chair of the organization last year -- a strategy which China rebuked. Instead, and despite accusations of high handed unilateralism, Beijing, along with its ambassador in Manila, seems to be disposed to a bilateral approach, even today.
The governing international legal framework - the UN Convention on the Law on the Seas (or UNCLOS) -- which entered into force in 1994, has been criticized as controversial and its own grievance machinery, ill-equipped. There is no doubt that no less than six states are jockeying for the largest chunk in the Spratlys with regard to economic interests, which makes the Spratlys an international issue ripe for adjudication under international law. Beyond UNCLOS's built-in grievance system, contestants may turn to the International Court of Justice (ICJ) at the Hague. This will 'legalize' the issue, and will surely take long to adjudicate.
If the Philippine government wishes to field a good case, it should not presume that the United States will unconditionally support its position. The Philippines should avoid spending its political capital with the United States on this issue, which was largely built upon historical sentimentalism between the two. The United States has changed a lot since 1951 and the Cold War, and more so since the Americans formally recognized Philippine independence in 1946 in the aftermath of war. The United States considers itself a dynamic player in international politics and has also signed quite a number of mutual defense pacts since the second world war, two of which are with Japan and South Korea - two countries which might choose to stay close to the Spratly question.
Harry Thomas, the U.S. Ambassador in Manila, recently announced "we will do whatever we are asked" -- apparently referring to the Philippine position against China -- but he also hedged his words in a manner diplomats usually do. It might be more prudent for Philippine President Aquino to take a more prudential path and avoid citing the martial provisions of the U.S.-Philippines defense pact, because much has changed since Taft and MacArthur were on Philippine soil. President Aquino may also need to keep his own house in order and have his cabinet speak as one voice, given that his foreign affairs department and armed forces seem to have taken divergent views on this subject. President Aquino needs to take into account the nature of realpolitik whenever he or his deputies try to find succor among the Americans, especially in light of the fact that the Philippine Senate voted to dismantle the American military bases and abrogated the 1947 US-PH Military Bases Agreement in the early 1990s, all in the name of nationalism and constitutional policy.
Aquino's best bet would probably be the ICJ, because in terms of legal evidence, the Philippines may have the strongest case among the big three. Since 1947, Philippine settlers and explorers have occupied main portions of the Spratlys, not just for livelihood or economic pursuits, but for residence. While known under different names under different nationalities, Filipinos have always referred to the Spratlys as the "Kalayaan" (Freedomland) Island Group. Then President Ferdinand Marcos issued at least two Presidential Decrees in the 1970s annexing and confirming the Kalayaan islands as a municipality of Palawan, a major province of the Philippines. In particular, the Municipality of Kalayaan was created under PD 1596 on June 11, 1978. Local municipal elections have been held in key Kalayaan towns since then, and even during the last election year. These are concrete and uninterrupted assertions (nay, exercises) of sovereignty which are recognizable by international legal norms, whose evidence has thus far remained undisputed. These are plausible claims which go beyond the mere assertion of rights as holders of exclusive economic zones, a weaker category under UNCLOS, and they may therefore qualify as direct sovereign claims under actual exercises and possession of popular sovereignty, which is the highest caliber of territorial claims.
The Philippines may also pursue the Spratlys dispute concurrently with the UN Security Council, not under the 1951 mutual defense pact but perhaps under a direct appeal to the UN body. This would place China, a permanent member in the Security Council, under heightened scrutiny. This would also allow the Philippines to showcase its legal talent - which is apparently being exported to places like Singapore and Beijing - if it were to advance its case under notions of universality and the Rule of Law.
This is not the first Filipino boxing match with China. The bus hostage tragedy in August last year was a diplomatic and security nightmare (see 'The Bus Debacle and the Philippine Psyche,' Business World, August 29, 2010). Rallies were held throughout China in protest of the botched rescue of Chinese tourists taken hostage and murdered by a disgruntled former policeman in the City of Manila. The Spratlys and the bus tragedy, taken together, represent both the peril and promise of the Philippines today, but also create the foundation for ongoing tension between China and the Philippines.
The Spratly issue is ultimately a litmus test for if, and when, China may act not as an 800-pound gorilla that may do as it pleases, but rather as a responsible member of the international community that exercises discretion and judiciousness in its actions. The backlash that was seen in the streets of Vietnam against China this past weekend as a result of its actions along Vietnam's maritime border may easily be replicated in the Philippines and elsewhere in Asia in due course. If China is smart, it will play its hand in court, rather than on the high seas. As it continues to get its footing in the international arena, China will come to realize the wisdom of playing the game in an honorable manner, consistent with a nation of its stature.
Daniel Wagner is CEO of Country Risk Solutions, a political risk consulting firm based in Connecticut (USA), and senior advisor to the PRS Group. He can be followed on Twitter here. Edsel Tupaz is a professor of international and comparative law, based in Manila. He can be followed on Twitter here.
Follow Daniel Wagner on Twitter: www.twitter.com/countryriskmgmt
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Vietnam and Phillippine acutally did much more than China in terms of extracting resources. By estimates Vietnam already extracted 100 million barrels of oil from the disputed area using foreign oil companies already while China extracted nothing during the 20+ years.
There are always many incidents in the disputed areas among all the claimants against each other whether oil exploration or fishing rights. Vietnam can claim China did this but it may not be first time and Vietnam didn't complain this loudly. Philipphine also shot and arrested Chinese fishermen too but of course they don't say it and easy to blame the big guy in the room. Philliphine arrested 200 Vietnam fishermen and confiscated their ships last year but no big outcry from Vietnam, unlike the news from Fianancial Time today that detail one sided Vietnam fisherman experience without looking at Chinese fisherman's.
Annam (Vietnam) Emperor Gia Long ( of Nguyen Dynasty, 1800-) and successive emperors wrote decrees, many times, in the full 19th century, sending Emperor's Hoang Sa (Paracels) Troops to claim sovereignty and report back to the Emperor. These decrees were still in the Vietnam National Archive. There were no reports of Chinese inhabitation. Only occasional sights of Chinese pirates reported.
In 1956, when the French left Vietnam following Geneva Convention which divided Vietnam in half, the Chinese took advantage of the situation used force to invage and occupy some island groups in the Paracels Islands.
In 1974, when the US left Vietnam following the Paris Agreement, the Chinese seeked advantage of the situation, invaded and occupied the rest of the Islands.
As to the so-called alliance with the Philippines, if you think America is going to flash a carrier task force when it's involved in 3 wars and needs China far more than the Philippines (I wonder how many Americans can even find it on the map), I'd say you're grossly overestimating the sentimentality of the governing elite.
I recall there were leaked conversations between Gloria Macapagal Arroyo and the Bush Administration when she was running for re-election where she asserted she intended to keep the Philippines aligned with the US rather than China should she be re-elected. I found that statement telling in terms of the dynamics in SEA.
I was also dismayed when the Philippines didn't send a representative to the Nobel Peace Prize ceremony for imprisoned Chinese Democracy advocate Liu Xiaobo, especially in light of the travails of President Aquino's parents as they fought for democracy in the Philippines. I heard the rationale for not attending was that the Philippine President didn't want the Philippine relationship with China to be any worse than it already is, and also there was hope that avoiding the ceremony might win amnesty for Filipinos on death row in China, who wound up being executed anyway. Not a good sign.
The Philippines needs to find a way to defend its interests from the encroachment of China, and with its current protector, the United States, up to its ears in debt to China, a new approach is likely required before the Spratly issue metastasizes into something worse.
The Western media's condemnation of China's claims is no more than any other country claimant is acceptable except China. Under any rule in common tradition or in law one would expect that all six claimants should have equal status. Why should China's claim be junior? Since none of the other five claimants have superior claims how does the western media propose to solve problem of slicing and dicing the island archipelego for all claimants? Multiple territorial and navigational jurisdictions will undoubtedly be a mega-mess leading to continuous real armed conflicts between the littoral countries. Such mini-wars open opportunities for outside powers to interfere and thereby enlarge the conflict. This problem alone requires that the two archipelagos remain whole, each under a single jurisdiction. Only China has the means to enforce such a jurisdiction. Go chew on that.
When USA dominates the world, the world prospers. If China ever dominates the world, it will enslave other nations. Because that's Chinese mentality.
Anything that once belonged to their "ancestors" are their, that includes Viet Nam, Mongolia, and even Eastern Europe. Using the ancestors claim is WEAK. If Viet Nam can use that than all the land south of the Yellow River belongs to the Vietnamese. Mongolia can claim all of China and land west of China's current border.
China does not push the boundary. China promises to do something upon certain conditions, and if the line is crossed, China will delivery. China kept her word in Korea, in the Indian conflict, and in Vietnam more than once. If the mosquito states wish to test China's resolve, it is their problem.
Unfortunately, Vietnam do not have great naval powers unlike ancient China who sailed the inner seas many times and mapped the region, refer to the region, many times before a united Vietnam ever appeared.
You are just transferring your ancestors's collective guilt on extermination of entire peoples on multiple continents. China had been around for 5,000 years, compared to the whites from Europe, the amount of "invasion, annexation, and subsequent cultural destruction" of societies of natives is like Chinese:whites = 1:1,000 on a per capita basis.
Go look into the mirror and repent. Don't try to put the blame on the Chinese.
Decades after the liberation of Tibet, Tibetan natives still go to school, legislate, and have street signs in the Tibetan script. WHAT native American languages are used in schools as medium of learning in the United States today? For the last 200 years? The predominant religion in Tibet is still lamaism (or Tibetan Buddhism, if you call it that). WHAT is the predominant religion of native Americans?
Just an example, the R.O.C. (or currently Taiwan) officially declared the possession and legal governing of the Spratlys in 1946. ROC's actual exploration and governing of the Spratlys in fact started in early 30's. Compared to Philippine's exploration since 1947 (wow, big discovery) and their official creation of Municipality of Kalayaan in 1978, which was earlier?
If Vietnam can get the title from the French in 1920s, then the Chinese well deserve the title from their own ancestors from a thousand years ago. LOL...
You can delcare your ancestors were first settlers in China, but do you have proof? PRC China do have lots of proof on these islands and so does ROC Taiwan
Of course anti-Chinese keep saying they are fake etc.. So if legal proof cannot convince them, legal works cannot help them compromise even, then might is the only they can understand and compromise on?