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
