The trip was only a partial success. Mr Zhu did his best with a tight brief to give the impression that China is more interested in conciliation than conflict. Nevertheless, his spokesman indicated that China is not prepared to modify its total and exclusive claim to “the historic waters” of the South China Sea.
Even in recent months there have near clashes between China and the Philippines – and, long continuing, China has verbally clashed with Malaysia, the Philippines, Vietnam and the Philippines. All of the smaller countries are united in believing that the threat from China will continue to hang over them until there is a binding legal document settling the respective rights of each and all of them.
The dilemma is easily put: there can be no negotiated solution as long as China justifies its claim only in vague terms of “historic waters”. China appears to realize that if it were more forthcoming it would then have to justify its claim both more legalistically and more narrowly. Beijing knows full well that in the annals of international law and in the UN-brokered, Law of the Sea, it has a weak case.
Indeed back in August, 1990, it seemed that China had started to come to terms with the outside world, its legal inheritance and its reasonable demand for specificity. The then premier, Li Peng, announced that China was prepared to put aside the question of sovereignty and develop the Spratly Islands jointly with the other neighbouring countries. It had all the looks of a significant volte-face.
Yet China’s deeds have singularly failed to match its words. Shortly after this pronouncement it gave an oil concession on the continental shelf claimed by Vietnam to the Crestone Oil Company – and said it would protect the company with force. But then again in 1995 the Chinese foreign minister said it was prepared to use the Law of the Sea as a basis for negotiations.
Even the most knowledgeable observers find it difficult to keep track of Beijing’s changes in policy. As Mark Valencia of the International Institute of Strategic Studies has observed, “China has acted according to different motives at different times”. The trouble is, he says, “the Spratly archipelago has been part of the motherland since ancient times and is embedded in the Chinese national psyche.”
The truth is, however, if China had a legitimate claim to repossess Hong Kong and Macao, its claim to Taiwan is much more ambiguous and its claim to the totality of the Spratlys, in any common interpretation of international law, exceedingly flimsy. The Law of the Sea is very clear: rocks that cannot sustain human habitation or an economic life of their own cannot generate exclusive economic zones or continental shelf claims.
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U.S. policy has been to stay out of the South China Sea dispute. This makes good sense. But it would be useful if the U.S. would sign and ratify the Law of the Sea. Having been one of its determining forces during the long and intense negotiations that led to its adoption, it dropped its zeal and interest during the Reagan years and never rediscovered it.
Indonesia, Philippines, Vietnam, Singapore and the European countries have all ratified the Treaty. But China, partly if not wholly taking its cue – or its excuse – from the U.S. has not.
The Law of the Sea, arguably the international treaty with the least sex appeal as far as the media is concerned is without doubt the key to ending the Spratly dispute. This would allow for a regional “common heritage” area, encouraging cooperative management of semi-enclosed seas.
China would gain much: legitimacy and the stabilization of a dispute that it could only settle in one way or another by force, putting it in perpetual conflict with most of its neighbours. The time to make peace is now, whilst there is still peace.
