http://orcid.org/0000-0002-3056-2691
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Abstract
Conventional accounts of the South China Sea territorial disputes identify China’s assertive behaviour as the primary cause of the rising tension since the early 2010s. This paper goes beyond this traditional interpretation of the disputes by arguing that the territorial disputes are an expression of the broader contestation between two order-building projects by China and the United States (US). China’s assertive behaviour originates in its desire to promote a ‘historical’ and ‘post-colonial’ maritime order that is premised on its Sino-centric historical narrative of the Sea and on its emphasis on the historical legitimacy of the regional order of 1943–1945. The US-led ‘liberal’ maritime order is underpinned by a post-war legal framework built on the San Francisco Peace Treaty and the United Nations Convention on the Law of the Sea, and the notion and practice of freedom of navigation. Since October 2015 the US has enhanced its freedom of navigation operations to challenge China’s ‘excessive’ maritime or territorial claims. We conclude that as a result of the uneasy coexistence of these two order-building projects, which fundamentally disagree over the foundations of maritime order in the South China Sea, the disputes have reached an open-ended impasse.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on Contributors
Anisa Heritage was a lecturer in international relations at the University of Kent, UK for the 2018/2019 academic year. She completed her PhD in international relations at the University of Kent in 2017 with a thesis entitled ‘Interpreting the Obama administration’s rebalance strategy: sustaining US hegemony in the Asia–Pacific’. Her work focuses on US identity construction processes aiming to consolidate and maintain the US role as an Indo-Pacific power. Her forthcoming publications include a book project with Pak K Lee on the South China Sea. Email: [email protected]
Pak K. Lee is a senior lecturer in Chinese politics and international relations in the School of Politics and International Relations at the University of Kent, UK. He is a co-author of China engages global governance: a new world order in the making? (Routledge, 2012) (with Gerald Chan and Lai-Ha Chan). His work has appeared in leading journals such as Nationalities Papers, Australian Journal of International Affairs, Global Governance, Review of International Studies, Contemporary Politics, Third World Quarterly, Pacific Review and China Quarterly. He is now completing a book project on the South China Sea dispute from the angle of international order (with Anisa Heritage). Email: [email protected]
Notes
1 Another line of inquiry is pursued by Bill Hayton (Citation2018), who is investigating the historical and social construction of China’s maritime geo-body and its changing boundaries, based on an imagined emotional discourse about space (see also Hayton Citation2017). Hayton, in turn, draws on Callahan (Citation2009) and Winichakul (Citation1994).
2 It is a historical order because it is based on the alleged historical governance by imperial Chinese governments and a post-colonial order because of China’s allegation that FON by warships was a Western colonial practice (Zhang Citation2010, 37).
3 Morton (Citation2016) also views the South China Sea dispute from the perspective of maritime order. While protection of the global commons, including freedom of the seas, forms a strand of the ‘liberal international order’, as noted by Nye (Citation2019, 71–72), the liberal elements of the US order are often exaggerated. The Truman Proclamation on the Continental Shelf of 1945, which unilaterally extended US jurisdiction over natural resources towards the high seas, is a case in point (Tanaka Citation2015, 137).
4 The order was built on the Cairo Declaration of November 1943 and the Potsdam Declaration of July 1945.
5 Both the US government and Senate do not hold any principled opposition to UNCLOS. The disagreement centres on the implementation of Part XI of UNCLOS concerning deep seabed mining and the associated principle of the ‘common heritage of mankind’ and the developing world’s call for a New International Economic Order (Malone Citation1983). The US government adheres to the rest of UNCLOS as part of customary international law. Malone was the chairman of US delegation to UNCLOS III.
6 Quotation on p. xiii. Emphasis added.
7 See chapters 3, 5–9.
8 Due to disagreement among the allies over which Chinese government had official recognition—the PRC or the Republic of China on Taiwan—neither was invited. In addition, neither North nor South Korea was present. The implications for the post-war order of their non-participation are explored in more detail in the next section.
9 Towns argues that social hierarchy is a core feature of international society, which itself is ‘a stratifying society in which states are socially ranked and ordered’, and that norms generate social hierarchy and ranking (Towns Citation2010, 41; Citation2012).
10 Hayton challenges the authenticity of this Chinese historical narrative (Hayton Citation2014, Citation2017, 98). Fu and Wu is an internal publication without publisher or year of publication. However, the two authors are authoritative on their subject matter. Fu Ying is now serving in the Foreign Affairs Committee of China’s legislature, the National People’s Congress, and was formerly China’s ambassador to the Philippines, Australia and the UK and a vice minister of foreign affairs. Wu Shicun is the President of the National Institute of South China Sea Studies: <http://en.nanhai.org.cn/index/survey/motto.html>, accessed 4 September 2018.
11 Fu and Wu admit that, as a token of friendship to the North Vietnamese regime, China removed two dashes in the Gulf of Tonkin from the initial 11-dash line in 1953 (Fu and Wu Citationn.d., 20). For a similar argument, see Gao and Jia (Citation2013, 103, n37).
12 ‘Historic rights’ may be defined as ‘rights over certain land or maritime areas acquired by a State through a continuous and public usage from time immemorial and acquiescence by other States, although those rights would not normally accrue to it under general international law’ (Tanaka Citation2015, 223). For the Chinese perspective on historic rights, see Li and Li (Citation2003) and Zou (Citation2001).
13 The 1998 Law is available at <http://www.npc.gov.cn/englishnpc/Law/2007-12/11/content_1383573.htm>, accessed 27 February 2019.
14 Fu and Wu contend, however, that there was no official record of this statement.
15 The Chinese government did not acknowledge the reclamation until June 2015 (Dolven et al Citation2015, 1).
16 The SFPT was designed to manage later claims of non-contracting parties. Article 25 states that the treaty ‘shall not confer any rights, titles, or benefits on any state which is not an Allied Power’. Furthermore, rights, titles and benefits can only be bestowed upon states that have signed and ratified the treaty (Lee and Van Dyke Citation2010, 759).
17 Japanese Prime Minister Abe first presented the concept of a free and open Indo-Pacific at the Sixth Tokyo International Conference on African Development, held in Kenya in August 2016: <https://www.mofa.go.jp/afr/af2/page4e_000496.html>, accessed 10 January 2019.
18 While officially ‘Asia–Pacific’ remained the preferred construct during the Obama Administration, Hillary Clinton first linked the Indian and Pacific Oceans in her ‘America’s Pacific century’ article (Clinton Citation2011).
19 The Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas, the Convention on the Continental Shelf and the Convention on Fishing and Conservation of the Living Resources of the High Seas.
20 <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHN_1992_Law.pdf>; <http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/chn_1998_eez_act.pdf>, accessed 24 July 2018. For the first time China officially raised the notion of historic rights in Article 14 of the 1998 Law.
21 China’s statement, dated 7 June 1996, is available at <http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification>, accessed 27 February 2019.
22 The Chinese line of argument is countered by the claim that the EEZ is sui generis and the coastal states’ jurisdiction is confined to the exploration and exploitation of living and non-living resources within the zone only. Jurisdiction is not equivalent to sovereignty (Dutton Citation2011, 49–50; Franckx Citation2011, 200; Tanaka Citation2015, 130).
23 Article 86 implies that high seas are ‘all parts of the sea which are not included in the EEZ, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic State’. The scope of the high seas therefore depends on whether a coastal state claims its EEZ (Tanaka Citation2015, 22–23, 155).
24 For the details of ARIA of 2018, see <https://www.congress.gov/115/bills/s2736/BILLS-115s2736enr.pdf>, accessed 23 February 2019.
25 China was enraged at British Defence Secretary Gary Williamson’s suggestion in February 2019 that a British aircraft carrier, HMS Queen Elizabeth, be deployed to the Pacific and the South China Sea in 2021 (Liu Citation2019).