Читать книгу South China Sea Disputes And The Us-china Contest, The: International Law And Geopolitics - James Chieh Hsiung - Страница 14

Two remarks stood out from Secretary Clinton’s address at the ASEAN forum, noted earlier, that, as the New York Times report had it, amounted to a targeted “rebuke of China.” One remark picked on China for obstructing the freedom of navigation. The other was a straightforward accusation of China’s violation of international law in the SCS. So far as we know, however strangely, China did not give any direct feedback, much less a rebuttal, to these serious charges (or similar ones made by other U.S. officials or media gurus), not counting its blanket brush-offs. The self-withdrawal attitude underlining this weird silence is typical of China’s usual reaction to international criticisms, even totally unjustified ones. One analyst, Paul Denlinger, describes this Chinese practice as a deliberate policy of not responding directly to Western and Western-media criticisms, especially on the SCS question. The reason, he speculates, is that “this policy will expose the Western criticism as ultimately useless, because it does not change the facts on the ground.” The Chinese government, he adds, “is aware that some people, and the Western media especially, will criticize it no matter what it does, so why bother with what they say?”²⁷

My view on this point, while not in disagreement, is more nuanced, on two counts. At the more intellectual level, I believe in the Enlightenment tradition that truth is to be found through skeptical inquiry and debate, not to be ignored or brushed aside. And, at the more practical level, I think China’s silence is in effect self-deluding. The criticisms, no matter how egregious, will not go away simply by ignoring them. The repeated charges of China breaking international law, when repeatedly leveled by foreign governments (the United States and Japan included) — even if prompted more by political motives and formulated more on ideological grounds than true considerations of the merits — may end up shaping the views, nay, poisoning the minds, of even some of our best scholars, the professionals sworn to being guided by reason and faith in the Enlightenment tradition.²⁸ The resultant nebulous scofflaw stigma hanging over China’s head, when repeated so many times and magnified by the Chinese self-deluding oblivion, is bound to destruct China’s good name beyond repair. It is something that China can ill afford to live with if it seeks to be recognized, as it earnestly does, as a responsible great nation in its phenomenal second rise.²⁹

Hence, the following discourse, following the Enlightenment spirit, is given in the spirit of searching for true answers through a matter-of-fact inquiry that drills into the two typical charges made by Secretary Clinton above, which are often repeated, almost by rote, by other U.S. (and Japanese) government officials. In doing this, I am guided by one thought: Just visualize an unbending Professor of International Law finding himself in a lecture hall at the legendary Hague Academy of International Law, when he has to respond to questions raised by his lawyer students in the audience. The complex questions put to him might run thusly: Do the facts (and law) known to us warrant (a) the United States’ self-assumed right to enforce the freedom of navigation against China in the SCS, and (b) the veracity of the U.S. charge that China is violating international law in its 9-dash-line claim over the SCS waters?

Answer: By examining the evidences, we find that the true picture that can be put together is one which shows that between the United States and China, the ships of one country shadowing those of the other in the SCS is a frequent reciprocal occurrence. And the U.S. side pursues a strategy of armed patrol, despite its questionable legal justification (see below).³⁰ By comparison, more deadly ships were found on the U.S. side, simply because the U.S. navy is more powerful than the Chinese one. This stark contrast prompted Robert D. Kaplan to conclude that “The U.S. navy presently dominates the South China Sea.”³¹ Sailing with the 97,000-ton aircraft carrier USS Carl Vinson, out in the SCS on maritime “routine operations,” was the guided-missile destroyer USS Wayne E. Meyer, according to a statement issued by the U.S. Navy. The Carl Vinson carried a flight group of more than 60 aircraft, including F/A-18 jet fighters. The operation came amid growing tensions between the United States and China over territory and trade, and, a fortiori, as the Trump Administration looked set to take a more confrontational stance toward China than did the previous administrations. During his Senate confirmation hearing, furthermore, new Secretary of State Rex Tillerson blurted out that China should be blocked from accessing the artificial islands it had built, setting the stage for a potential showdown.³²

Tillerson’s statement, wittingly or not, echoed the first of Secretary Hillary Clinton’s charges earlier, alleging China’s obstruction of the freedom of navigation. The true answer to this allegation, so far as we can see, is twofold. First, there is no hard evidence that China was blocking freedom of navigation in the SCS. The only previous glaring instance that came readily to mind was when two Chinese Air Force jet fighters intercepted a U.S. spy plane (EP-3) on April 1, 2001. But it happened to what even the American side admitted was a plane on an espionage (euphemistically termed “reconnaissance”) mission, 70 miles off the coast of China’s Hainan Province, or 100 miles from the Chinese military installation in the Paracel Islands in the SCS, when the EP-3 was intercepted.³³ A spy plane on an espionage mission, as such, can hardly claim that its flight qualified as “innocent passage,” nor could it claim to be showing “due regard” for the security or sensibility of the coastal State being spied upon, breaching the requirements of the modern law of the sea. Hence, the 2001 incident could not be classified as a case of China’s obstruction of the freedom of navigation, including that of air flight, in the SCS.³⁴ Second, in respect of the new Secretary of State Tillerson’s stated policy stance to block China’s access to the artificial islands it had constructed, there is nothing in international law (customary law or treaty law) that purports to disallow and ban island building in the high seas by any State. Article 60 (8) of UNCLOS III only states that artificial islands “do not possess the status of islands” and, as such, “they do not have territorial sea of their own.” And, a few lines earlier, Art. 60 (6) provides: “All [foreign] ships … shall comply with generally accepted standards regulating navigation in the vicinity of artificial islands …” This clause equally applies to U.S. ships,³⁵ which are obligated, under Art. 60 (6), to respect Chinese ships’ right of access to the China-built artificial islands, notwithstanding Secretary Tillerson’s expressed wishes to the contrary.

Critics may fault China for seizing a U.S. underwater drone in December 2016, alleging it was an instance of defiance for the United States’ freedom of navigation, although China later returned its capture to the American side. The Pentagon said the underwater vehicle was an unclassified piece of equipment conducting unnamed “routine operations.” The official Renmin ribao (People’s Daily) in Beijing, however, said the drone was “just the tip of the iceberg” in U.S. surveillance on China.³⁶ If this allegation was true, then the Chinese act of capturing and promptly returning of the drone was probably more an act of showing its displeasure at the U.S. surveillance operation than one calculated to challenge the United States on navigation freedom in the waters of the SCS.

Furthermore, nothing in international law (either customary law, or treaty law) would endow any particular State with the right to play the role of maritime police in the oceans. The United States’ self-appointed role in patrolling the SCS and its vocal threat to deny Chinese access to the artificial islands they built remains on shaky legal grounds. Much less can it be justified by alleging a (flimsy) prior Chinese breach of international law as a protective pretext, such as Secretary Hillary Clinton apparently attempted to do. Piracy or seaborne terrorism would be a totally different matter, as a legal ground justifying intervention by the United States, but neither crime can be empirically linked to China.

Here is a good cut-in point to get back to the second charge made by Secretary Hillary Clinton earlier, to the effect that in making its 9-dash-line claim to the SCS, China is violating international law. The answer is clear but will take a little explanation.

An absolute majority of the arguments against China in the legal debates about the competing SCS claims has been fixated on the islands, but not the waters surrounding them. By contrast, China’s claim, if examined from the standpoint of general international law, can be cast in an entirely different mode, that of a historic title over these waters. As we will see in later chapters, China’s recorded involvement in the SCS dated as far back as the second century BC, an era before the arrival of the legal concepts later developed in international law, following the Westphalia Conference of 1648, which ushered in the modern system of nation-states. Ancient Chinese annals showed that in the 2nd century BC, envoys dispatched by Emperor Wu of the Han Dynasty (漢武帝) sailed through the confines of the SCS, on their missions to establish contacts with foreign lands on the Sea’s periphery and beyond. And, in the year 110 BC, Emperor Wu established two prefectural governments (郡 jun) to administer the “vast reaches” (疆域 jiangyu) of the SCS.

Similar episodes were recorded in subsequent Chinese annals, including the celebrated seafaring missions headed by (Admiral) Zheng He (or Cheng Ho) during the early 15th century (1405–1433), sailing through the SCS onward to the Indian Ocean, until reaching East Africa after going through Hormuz Strait. Zheng’s sizable fleet of 250 mammoth ships and 27,000 men, including professional soldiers (sailors) and medical and other personnel, first passed from Vietnam and other points in Southeast Asia, then proceeded onward to points in South Asia, and so on.³⁷

In the Guangdong tongzhi (廣東通志 Canton Gazette) published in 1512, it was recorded that the Xisha (now known as Paracels in English) and Nansha (Spratlys) were officially designated as within the national defense perimeter of China³⁸ (more details with documentation in Chapter 2).

In short, one could implore the proverbial Professor at the legendary Hague Academy of International Law, mentioned earlier, to define the status of the SCS in its relations to the Chinese suzerain, using the language of traditional international law. His answer would, invariably, be that the SCS was China’s “historic waters” (more on “historic waters” in Chapter 3), although it is one of the things on which the 1982 Law of the Sea Convention (UNCLOS III) is totally silent. But, the preambular part of UNCLOS III proclaims, inter alia: “… matters not regulated by this Convention continue to be governed by the rules and principles of general international law” (emphasis added). As will be shown in Chapter 3, “historic waters” is a principle in general international law (as opposed to treaty law), and has been affirmed in judicial cases.

A working hypothesis of this book is that if “historic waters” as the basis of China’s claim can stand up to a rigid testing under general international law, then all the on-going disputes posed by its contenders will be elevated to a different plane, casting the competing claims in a different mode that may help in the search for a way out of the dead heat of the prevailing disputes.

The rest of the book, accordingly, will endeavor to ascertain if our stated hypothesis can be verified under general international law. The answer for now is that whether the abovementioned charge against China made by Secretary Hillary Clinton, and similar ones by others, can be sustained will by necessity depend on the ultimate answer whether our stated hypothesis proves verifiable.

¹Robert D. Kaplan, “Why the South China Sea Is So Crucial,” http://www.businessin-sider.com.a/.

²Cf. Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven: Yale University Press, 2014), pp. 1–120; and the sources cited therein.

³“Zhongguo zhuzhang nanhai zhuquan di lishi yu fali yiju [The Historical and Legal Bases of China’s Sovereign Claim to the South China Sea],” zhongguoguoqingzhongguonet, April 11, 2014; retrieved February 1, 2016.

⁴“Nanhai guofang jingji yiyi jie zhongyao yucheng dier posiwan [The Defense and Economic Significance of South China Sea Made It a Second Persian Gulf],” news on the Tengxun Blog; retrieved October 1, 2015, online.

⁵See “China’s Maritime Disputes,” a Council on Foreign Relations presentation (January 2017).

⁶Cf. Timeline of Events in “Territorial Disputes in the South China Sea,” from Wikipedia, the free encyclopedia, retrieved February 26, 2017, online.

⁷“Presidential Decree No. 1596 — Declaring Certain Area Part of the Philippine Territory and Providing for Their Government and Administration.” Chan Robles Law Library, June 11, 1978.

⁸“China Face-Off in South China Sea,” DNA India Report, July 22, 2011.

⁹South China Analysis Group whitepaper, September 2, 2011.

¹⁰Vietnam-PRC Gulf of Tonkin Agreement, 2,000.

¹¹“China Paper Warns India Off Vietnam Oil Deal,” Reuters Article, October 16, 2011.

¹²Leszek Buszynski, “The South China Sea: Oil, Maritime Claims, and U.S.–China Strategic Rivalry,” The Washington Quarterly, Spring 2012.

¹³“Vietnam Crude Oil Production, 1994–2016,” www.tgradingeconomics.com/vietnam/crude-oil-production; retrieved March 4, 2017, online.

¹⁴“南海钻井平台工人直升机上下班 [Workers Taking Helicopters to Go to Work and Back at the SCS Oil Platform],” NetEase News, May 11, 2012.

¹⁵A fact explicitly acknowledged by PRC’s foreign minister, Wang Yi, at a press conference jointly staged with his Australian counterpart, in Canberra, February 7, 2017, as reported in Qiao Bao (New York: The China Press, February 8, 2017), p. 4.

¹⁶Peter J. Brown, “Calculated Ambiguity in the South China Sea,” Asia Times, December 8, 2009; retrieved February 5, 2014, online.

¹⁷Cf. “Limits in the Seas” (PDF), Office of Ocean and Polar Affairs, U.S. State Department.

¹⁸“Taiwan Sticks to Its Guns, to U.S. Chagrin,” Asia Times (1999); STRATFOR’s Global Intelligence Update (July 14, 1999); retrieved May 1, 2014, online.

¹⁹Taken from Frank Ching, “Paracels Islands Dispute,” Far Eastern Economic Review (Hong Kong), February 10, 1994, which reproduced the original Pham Va Dong letter written in Vietnamese.

²⁰“Vietnamese Mobs Torch Foreign Factories in Anti-Chinese Protests,” Los Angeles Times, May 14, 2014, online.

²¹Mark Landler, “Offering to Aid Talks, U.S. Challenge China on Disputed Islands,” New York Times, July 23, 2010, online.

²²Tessa Jamandre, “China Fired at Filipino Fishermen in Jackson Atoll,” ABS-CBN News, June 3, 2011; Bill Gertz. “Inside the Ring: China warship grounded,” Washington Times, August 8, 2012.

²³“China, Philippines Locked in Naval Standoff,” CNN, April 11, 2012.

²⁴“Vietnam Accuses China in Seas Dispute,” BBC News, May 30, 2011.

²⁵China Digital Times (China). http://chinadigitaltimes.net/2011/08/anti-china-protests-continue-in-vietnam-despie-police-opposition/; retrieved November 16, 2011, online.

²⁶Tim Taylor, “The Rights Stuff in Oil Islands Row,” The Lawyer, October 15, 2012.

²⁷Paul Denlinger, “Will China Do Something to Defend Their Position about the South China Sea?,” Quora, July 19, 2016, http://www.linkedin/pauldenlinger.

²⁸One example is, in an otherwise sensible essay on Trump’s approach to China, a respectable Sinologist succumbed to the influence of these repeated questionable charges, when she began by noting: “In recent years, China … has defied international law and risked violent clashes in East and South China Seas” (emphasis added). Susan Shirk, “Trump and China,” Foreign Affairs, vol. 96, no. 2 (March/April 2017): 20.

²⁹I have dealt with China’s first rise, during 713–1820, when it had the world’s largest GDP, based on data meticulously kept by English economic historian Angus Maddison; and its current ascent is its second rise. Hsiung, China into Its Second Rise (Singapore: World Scientific, 2012).

³⁰Consider: (a) “Chinese Ship Shadows U.S. Carrier,” CNN News, June 15, 2016 and (b) “U.S. Carrier Starts to Patrol the South China Sea,” CNN News, February 20, 2017.

³¹Robert D. Kaplan, Asia’s Cauldron: The South China Sea and the End of a Stable Pacific (New York: Random House, 2015), p. 14.

³²“U.S. Carrier Starts to Patrol the South China Sea,” CNN News, February 20, 2017.

³³See “The Hainan Incident,” Wikipedia, the free encyclopedia.

³⁴A similar case involving the interception of a U.S. spy plane by Chinese jets took place in June 2016, but that was in the East China Sea. Wall Street Journal, June 8, 2016.

³⁵Though it has not ratified the UNCLOS, the United States has declared that it is, nevertheless, committed to observe its provisions.

³⁶CNN News, December 18, 2016.

³⁷I discussed Zheng’s seafaring missions in my China into Its Second Rise, and see note 29, p. 52. See also Edward Dreyer, Zheng He: China and the Oceans in the Early Ming Dynasty, 1405–1433 (New York: Pearson/Longman, 2007).

³⁸For parsimony’s sake I shall not give more details than this much, so as not to preempt discussions in Chapter 2. Readers who can read Chinese may consult my article “Nanhai zhi zheng: guojifa yu zhongguo ruhe huwei ziji quanyi [The Disputes over the South China Sea: International Law and How China Can Defend Its Own Rights],” Zhongguo pinglun (China Review) (Hong Kong), February 2016 issue, pp. 43–45.