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Recently we hear a lot of criticisms from countries like Philippines, Vietnam, and especially the U.S. regarding China’s actions on some of the islands, e.g., the Spratly Islands, in the South China Sea. These criticisms claim that (1) China has no rights to claim sovereignty over these islands, (2) China’s construction activities in these islands, including landfills, building oil rigs and constructing air strips, are illegal and represent an act of military expansion and threaten the security of the region, and (3) China wants to restrict freedom of navigation through the South China Sea.

This article addresses these issues, from historical, legal, and world-politics perspectives.

Historical Background:  The islands in question consist of two sets of islands (including reefs, rocks, semi-submerged rocks):

• Paracel Islands (西沙群島):  In the northwestern part of the South China Sea and south of China’s Hainan Island and east of the northern and central part of Vietnam
• Spratly Islands (南沙群島):  In the central part of the South China Sea and between the southern part of Vietnam on the west and the Philippines and Malaysia on the east

South China Sea Islands:
Paracel Islands and Spratly Islands

China and Vietnam both claim jurisdiction over the Paracel Islands (or at least some of the Paracel Islands).  China, Brunei, Malaysia, the Philippines, and Vietnam all claim jurisdiction over some of the Spratly Islands.

What is the history of these sparsely populated or even non-populated islands?  The history of these islands can be found in many Chinese and English articles and books.  The information below comes from a recent long article written by Gary Leupp, Professor of History at Tufts University. [1]  For many centuries Chinese have traveled and used these islands, for the Paracel Islands as early as the 7th century CE, and for the Spratly Islands as early as the beginning of the CE.  They were patrolled by the Chinese navy in the 11th century.  The Mongol emperor of China, Kubilai Khan, dispatched a geographer to map the islands in 1279.  Thereafter the islands were always included on maps of the Chinese empire.  Both the Paracel and Spratly Islands were referred to as Chinese territories in a 12th century Chinese text.  In contrast, the record of Vietnamese visitation and cartography seems to date to the 17th century at the earliest.  The South China Sea territorial claims of the Philippines and Malaysia were presented in the late 20th century, and based upon the (western) legal principle of res nullius (meaning “nobody’s property” in Latin).  The Nation of Brunei’s claim is based on the argument that some of the islets fall upon her continental shelf.

In addition, the famous Chinese navigator Zheng He and his large fleet of ships sailed all over Asia and many other parts of the world between 1405 and 1433 during the Ming Dynasty (1368-1644), sailing through the South China Sea many times on their way to India, Africa, and other places. [2]

After the defeat of Japan in WWII, the Republic of China (ROC) in 1946 sent a naval delegation to South China Sea to take back control of the islands from the Japanese.  Shortly after that, in December 1947, the ROC published the “Eleven-Dash Line” to identify the demarcation of the Chinese territory in the South China Sea.  After some agreement signed between the People’s Republic of China (PRC) and Vietnam (North Vietnam at that time) in 1957, the border lines of land and at Gulf of Tonkin were defined, and hence the “Eleven-Dash Line” is reduced to become the “Nine-Dash Line.”  During that period, no nation contested China’s claims.

Part of the root of dispute came after the 1951 San Francisco Peace Treaty (also known as the Treaty of Peace with Japan), which declared that Japan should give up all the territories that it took from China as a result of previous wars or unequal treaties.  However, it did not say that these territories should be given back to China, as stipulated in the 1943 Cairo Declaration, the 1945 Potsdam Declaration, and the 1945 Surrender Agreements of Japan.  It is important to mention that by design by the U.S., neither the ROC nor the PRC was invited to the 1951 San Francisco Peace Treaty even though China suffered by far the most under the Japanese military in WWII.  Why the deletion?  It was because the Chinese Communist Party won the civil war in China over the Kuomintang Party, and since 1949, the U.S. has completely changed her attitude toward China, and adopted an antagonistic policy to isolate, surround, and weaken China.  The ROC slightly later signed a bilateral peace treaty with Japan that was modeled after the 1951 San Francisco Peace Treaty, but PRC has never agreed to the 1951 San Francisco Peace Treaty.  This was why Zhou Enlai, first Premier of PRC, from the very beginning had said that the PRC does not recognize the 1951 San Francisco Peace Treaty.

The above deletion of not mentioning that the stolen territories (including Taiwan) should be returned by Japan to China provided an opening for various countries to lay territorial claims to islands such as those of the Paracel Islands and the Spratly Islands.

After the Republic of China (ROC) evacuated to Taiwan, the ROC government in 1950 pulled out its garrison on the Taiping Island (太平島, also known as Itu Aba Island) which is the largest island of the Spratly Islands.  In 1956 Tomas Cloma, Sr., a Filipino adventurer and fishing magnate, uprooted the ROC flag on the Taiping Island and laid claim to the Taiping Island, the Zhongye Island (中業島, also known as Thitu Island), and several other he called uninhabited islands in the Spratly Islands. [3]  The ROC protested strongly, and later in 1956 the ROC again reestablished its garrison and regained control of the Taiping Island and the Zhongye Island.

The above is just one of many incidents of Philippines (as well as other countries) stealing territories from China.  This started in the 1950s, but most seriously in the 1970s after ROC was replaced by the PRC in the UN, and with internal turmoil within PRC due to the Cultural Revolution.  The Philippines and other countries took advantage of those political developments. Before 1949, Philippines and other countries never disagreed that islands such as the Paracel Islands and Spratly Islands belong to China.

Another example is that Vietnam took control of some of the Paracel Islands, but in 1974 the Chinese Navy retook and has total control of all the Paracel Islands.  Before Vietnam was unified, the North Vietnamese government had also issued official documents agreeing with China’s claim on the Paracel Islands.

China’s Recent Activities in the South China Sea:  In the islands associated with the Paracel Islands and Spratly Islands that are currently under the control of China, China has engaged in a lot of activities to improve the working and living conditions and to provide more services to the people living or working on those islands.  These services include providing better housing, providing better power and drinking water, providing more fuel, improving docking and lighthouse facilities to facilitate supplies via ships, improving communications facilities to provide better shipping navigation and emergency help, installing oil rigs to explore for oil to provide a potential local source of fuel, and in certain islands, constructing air strips to provide transportation by planes.  These are all natural improvements for any community.  Furthermore, they also can improve navigation and provide emergency help not just for China, but also for all the people and ships from other countries who sail through that territory.  Yes, some of these activities can also be helpful from a military standpoint, but China should be able to do that on territories that she owns.

Because many of the islands are very small and some islands are sometimes below the water surface, it is natural to use landfills to increase the size of the islands.

It is not only China that has been engaged in the above activities, but other countries, in particular Philippines and Vietnam, have also engaged in similar activities in the islands in the South China Sea that are currently under their control.

Legality and Criticisms of Such China Activities:  As stated in the previous section, Philippines and Vietnam have also engaged in similar activities as China.  For example, after Philippines retook control of the Zhongye Island (or Thitu Island) in the 1970s, she built bunkers, an airport, and a pier on that island.  Vietnam seized Nanzi Island (南子島, also known as Southwest Cay) from the Philippines in 1975 and has since built a harbor there.  Vietnam has been drilling oil for many years in the islands in the South China Sea that they control, sometimes in collaboration with Western countries or with India.  They have already earned a lot of money and oil export is a significant part of their export revenue.  Malaysia occupied Danwan Jiao (彈丸礁, also known as Swallow Reef) in 1983 and has engaged in considerable construction and reclamation activity.

As a matter of fact, China is a late comer to such construction activities.  Why is it that these countries are criticizing China for doing similar things as what they have already done?  Why hasn’t the U.S. protest about any of these activities by the Philippines, Vietnam, and Malaysia when these countries engaged in many of these activities even before China?

The U.S. has often stated that China’s activities in the South China Sea have violated the “United Nations Convention on the Law of the Sea” (UNCLOS) which was signed in 1994.  But has it?  First of all, UNCLOS does not forbid building various facilities, including docks and airstrips, on the islands that a country has sovereignty over.  It allows landfills to increase the size of the islands, including islands that are only submersed under water part of the time, and not all the time.  It allows sovereignty over a 12-mile territorial sea or the 200-mile Exclusive Economic Zone (EEZ) for the normal islands and even for islands that are only submersed under water part of the time.  For islands with landfills, perhaps the 12 miles and 200 miles are measured from the boundary of the original island before landfill.

Of course we have all heard of the famous Palm Islands in Dubai, United Arab Emirates, which involve massive landfills to build the large islands with residential, business, and entertainment skyscrapers.  But has anyone heard of any protests?

For islands/reefs/rocks that are submerged under water all the time, UNCLOS does not allow such territory to claim sovereignty over the 12-mile territorial sea or the 200-mile EEZ.

Since the large majority of China’s activities are on real islands or on islands/reefs/rocks that are not submerged under water all the time, none of the criticisms related to UNCLOS is applicable.  The U.S. criticisms of China’s activities often purposely do not distinguish the two types of activities, thus making many false accusations.  Furthermore, as far as I know, China has not claimed 12-mile territorial sea or the 200-mile EEZ over islands/reefs/rocks that are submerged under water all the time before their landfills.

What is especially astounding is that the U.S.’ criticisms of China’s activities, even if the criticisms were valid, often point to UNCLOS, whereas the U.S. is one of the few countries in the world who has not signed the Convention.  This is another example that the U.S. uses different sets of rules to judge others and herself.  Furthermore, again even if the criticisms were valid, why weren’t these criticisms also issued to countries like the Philippines and Vietnam who have been engaged in many such activities even before China?

One of the excuses that the U.S. uses its force to patrol near and over China’s islands is to “protect the peaceful navigation in South China Sea.”  However, the freedom of navigation in the South China Sea has never been an issue before.  Only the recent intrusions and provocation of the U.S. forces have raised the tension and the potential military conflicts in the South China Sea

China’s actions are not a sign of military expansionism and do not jeopardize the stability in the South China Sea.  On the other hand, the attitude and actions of the U.S. of firing false accusations against China and sending military ships and planes into or near Chinese territories are dangerous, increase tensions, and could lead to military confrontations between the world’s two largest economies.

Summary Remarks:  As the arguments presented above, China’s territorial claims for the Paracel Islands and the Spratly Islands are really much stronger than those of any other country.  The criticisms of China’s expansionism to take territories from other countries have no validity; as a matter of fact, it is the other countries who have taken or are trying to take territories from China.  We may acknowledge that there may be territorial disputes in the South China Sea, but China is not the main instigator of these disputes, and China has always emphasized that such territorial disputes should be settled through negotiations.

The accusations that China has been engaged in illegal activities in the South China Sea also do not have validity.  Those activities do not violate UNCLOS.  Furthermore, the activities engaged by China have also been engaged by other countries.  Even if it turns out that some of those activities can be criticized, why the criticisms have not been directed to other countries?

The U.S. should not even be a direct participant in these territorial disputes.  Furthermore, the U.S.’s criticisms of China’s activities often refer to UNCLOS, yet China’s activities are consistent with UNCLOS.  Since the U.S. is one of the few countries in the world who have not signed the UNCLOS convention, why the U.S. does not use the same set of rules for themselves as for others?  The explanation for the U.S.’s puzzling actions can only be explained because of fearing economic competition from China, the U.S. has continued to adopt a policy to isolate, surround, and weaken China, and is using other countries such as the Philippines, Vietnam, and Japan as her partners and front-line pawns in this competition. The U.S., instead of looking within herself to improve her own competitiveness, has adopted a Tonya Harding-like foreign policy. [4]

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Acknowledgment:  I would like to thank Kai-ching Chu for providing valuable inputs and comments in writing this article.

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[1] Gary Leupp, “Fishing in Troubled Waters:  the U.S. ‘Pushback’ Against China’s Claims in the South China Sea,” November 4, 2015, published in “Counter punch:  Tells the Facts, Names the Names.”

[2] There are many books covering Zheng He’s sailing accomplishments.  See, e.g., Louise Levathes, When China Ruled the Seas, Open Road Distribution, 2014.

[3] The history involving Tomas Cloma is actually very complex.  At first, he claimed the islands for a new government/country which he called Freedomland, with him as the head.  In 1972, he was jailed by Philippine President Ferdinand Marcos for impersonating a military officer by being called an”admiral,” and in 1974 he signed a document conveying to the Philippines whatever rights he had over these islands.  See, e.g., https://en.wikipedia.org/wiki/Tom%C3%A1s_Cloma.

[4] United States’ Tonya Harding-Like Foreign Policy:  http://www.dontow.com/2015/06/united-states-tonya-harding-like-foreign-policy/.