In his brief prepared remarks on China, Tillerson misstated international law on Beijing’s island-building activities in the South China Sea. Pressed to clarify, he compounded his ignorance with belligerent policy suggestions such as imposing a naval blockade around Chinese controlled islands, which if enforced could leave the Asia Pacific at the doorstep of war.
Although it appears that Tillerson has since tempered his remarks, he must speak and act more cautiously.
China is within its rights to construct artificial islands on the high-tide features that it administers in the South China Sea, as well as on those submerged features that lie within the territorial sea of a high-tide feature that it administers or claims. Such construction is not an ‘illegal taking of disputed international territories’ — much less a violation of the undisputed territorial sovereignty of a neighbouring state ‘akin to Russia’s taking [of] Crimea’.
Tillerson’s remarks also betray a lack of understanding of the US position on sovereignty claims in the South China Sea. The United States takes no position and hasn’t for decades. On the one occasion that it did throw its diplomatic weight behind a claimant, the State Department and its advisor, John Foster Dulles, came down on the side of the Chinese.
On 8 September 1951, at the San Francisco Peace Treaty conference, Japan renounced all rights, titles and claims to the Korean peninsula, Taiwan, Penghu (the Pescadores), the Kuril Islands, South Sakhalin, the Pacific Islands and the Spratly and Paracel Islands. On 28 April 1952, hours before these renunciations were to come into force, the Yoshida government renounced Taiwan, Penghu and the Spratly and Paracel Islands in a Treaty of Peace (the Taipei Treaty) with Taiwan’s Chiang Kai-shek-led Nationalist government.
The timing of the Taipei Treaty was not a coincidence. Its architect, Dulles, had resolved prior to the San Francisco conference to restore to Japan — after it signed the San Francisco Treaty but before it came into force — all the freedoms in the treaty except military sovereignty.
Nor was the Taipei Treaty’s content a coincidence. By late-December 1951, Dulles had spelt out the key treaty provisions that Yoshida was to offer Chiang to re-establish normal relations. The inclusion of the Spratly and Paracel Islands in the territorial provisions — signalling Washington and Tokyo’s favourable opinion of Chiang’s claim to these islands — was not the point of contention. Instead, the contention was over the contingent form of sovereignty that the US and Japan were prepared to recognise. Only nationals and juridical persons who resided in or were registered on territories under Chiang’s current or future sway were to be recognised as falling under the Republic of China’s sovereignty. This was done so that if Nationalist forces were ousted from the territories they currently held, there could be no stated or implied basis for Mainland China to claim sovereignty over Taiwan, Penghu, and the Spratly and Paracel Islands.
To this day, the US does not accept or reject the claim that Taiwan is a part of China, as part of its ‘One China’ policy, and, under this pretext, claims its intrusion into cross-straits affairs is technically not an interference in the internal affairs of China.
It is for this reason too that the future title of Taiwan, Penghu and the Spratly and Paracel Islands was left undetermined in the San Francisco Peace Treaty as well as in the Taipei Treaty. Japan renounced these territories but left their final disposition suitably vague so that these territories would not legally devolve to a ‘hostile regime … that could enable [it] to endanger the [US Seventh Fleet’s] defensive position which is so vital in keeping the Pacific a friendly body of water’.
The United States’ legal legerdemain regarding Taiwan’s status is disingenuous. But this should not obscure the argument that on the one occasion when the Spratly and Paracel Island disposition was under active consideration, the US favoured (the Republic of) China as the superior claim-holder.
The Taipei Treaty, being a bilateral treaty, doesn’t bind non-signatories. For its part, Beijing — excluded from San Francisco — traces its claim to the islands to the war-time Cairo and Potsdam Declarations, which was confirmed in Article 3 of its September 1972 normalisation agreement with Tokyo. This being said, no other regional claimant can produce a Spratly and Paracel renunciation or reversion clause in its own post-war normalisation agreement with Tokyo.
On 8 December 2016, at a ceremony in Beijing to commemorate the 70th anniversary of China’s recovery of the South China Sea islands, 95-year-old Li Jingsen recounted his role onboard the Yongxing, one of the vessels that had led the operations. If Tillerson has the chance to encounter Li on his next visit to Beijing, he might learn that the warships sent to recover the islands in 1946 were provided by the US. China and the claimant states have made valuable progress in bilateral ties since the 2016 ASEAN Foreign Ministers Meeting in Laos. The Trump administration should support — not disturb — this progress.
Sourabh Gupta is a senior Asia-Pacific international relations policy specialist at the Institute for China–America Studies.
Chinese foreign minister Wang Yi recently asked American officials to learn a bit of history before they open their mouth. This article is a good summary of history that these ignorant officials should read first before opening their big mouths.
The author’s assertions have merit in two cases. They lack merit with regards to Fiery Cross, which is built within the Philippines’ EEZ. Likewise, China’s actions at Scarborough Shoal in blocking Filipino fishermen.
That the author failed to bring up these two examples indicates either the present of bias or an certain degree of ignorance.
Fiery Cross Reef and Scarborough Shoal are high-tide features, meaning they are capable of appropriation regardless of their location within the Philippines’ EEZ. Which further means that a sovereign or administering state can reclaim and build upon it without exception. China, as the sovereign/administering state in both cases, is thus fully within its rights to build an artificial island on Fiery Cross (as it has) and on Scarborough Shoal (as it once intended to and could again in the future).
1)Article 2 of the Taipei treaty required Japan to renounce rights “all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands.” but, article 3 specified “The disposition of property of Japan and of its nationals in Taiwan (Formosa) and Penghu (the Pescadores)- intentionally, left out Spratly and Paracel. 2) The reason was: a) Russia was defeated 47-3 when it tried to claim Spratly and Paracel for its ally Communist China (non-attendant). b)At the 1951 SF Conference and “On 7 July 1951, Tran Van Huu, head of the Bảo Đại Government’s (State of Vietnam) delegation to the conference declared that the Paracels and Spratlys were part of Vietnamese territory. This declaration met with no challenge from the 51 representatives at the conference – including the Russian delegate (representative of PRC) and the attendee/non-invited Taiwan’s Chiang Kai-shek-led Nationalist government. c) The 1954 Geneva Conference which the PRC co-chaired explicitly, assigned the State of Vietnam (changed to Republic of Vietnam/South Vietnam in 1955) administration rights to all territories below the 17th parallel – including Spratly and Paracel. The Republic of Vietnam officially, replaced French occupation troops at all features except some on Paracel and 1 single feature of Taiping on Spratly. Eventually, Taiwan withdrew from Paracel and continues to hold on to Taiping, today. 3) All PRC-occupied features om Paracel and 7 rocks on Spratly are resulted from bloody attacks and forces invasions from either Republic of Vietnam (Paracel in 1974, killing 78 South Vietnamese) and the united Socialist Republic of Vietnam (Spratly in 1988, murdering 64 unarmed Vietnamese construction crews)- violation of UN sovereignty rights. 4) In July 2016, UNCLOS’s PCA ruled Chinese claim null and void!
1 “but, article 3 specified “The disposition of property of Japan and of its nationals in Taiwan (Formosa) and Penghu (the Pescadores)- intentionally, left out Spratly and Paracel.”
China’s Spratly and Paracel Islands were colonized by Japan in 1939, after evicting the French invaders and then Japan put them under the administration of Formosa circa 1940. When Japan surrendered and Formosa was returned to China by General Rikichi Andō, governor-general of Formosa and commander-in-chief of all Japanese forces on the island on October 25, 1945 under the terms of the Potsdam Proclamation, the Spratly and Paracel Islands were also deemed returned to China.
2 The SFPT had reduced the Spratly and Paracel Islands to the status of Res Nullius and therefore free for grabs by France’s puppet, the short-lived ‘State of Vietnam’, which was not even recognized by North Vietnam, but it was too late as the Spratly and Paracel Islands were already returned to China in October 1945, together with Formosa.
3 Japan had also renounced ownership of the Spratly and Paracel Islands in the Treaty of Peace in Taipei, some 16 hours before the SFPT came into force on April 28 1952, a peace treaty in San Francisco in which China, one of the Three Great Allies (US, UK and China) which signed the Cairo Proclamation on Dec 1, 1943 and the Potsdam Proclamation on July 26,1945 was not even invited to attend. With “Great Allies” like the US and UK, who needs enemies?
4 The July 1954 Geneva Conference was hastily convened by the US and France, not only to stop the national elections in 1956 and wrest control of North Vietnam from Ho Chi Minh, by actively supporting an extremely corrupt regime in the South, but it also split Vietnam into two states, despite Ho Chi Minh’s decisive defeat of the French at Dien Bien Phu in March 1954.
5 How the Geneva Conference could “assign to the short-lived State of Vietnam administration rights” of the Spratly and Paracel Islands when they were already returned to China in October 1945 is a paradox.
6 The US started the Vietnam War based on lies that US Navy ships were attacked by North Vietnam patrol craft in 1964 in the Gulf of Tonkin. In the tragic 10-year Vietnam War, more than 58,000 US troops died and the US killed over 3 million innocent Vietnamese and dropped more bombs into Vietnam than all the bombs the US dropped in Europe in WW2.
7 The US Army also dropped 20 million gallons of cancer-causing Agent Orange into Vietnam, which are still affecting many lives there even today, as babies are born deformed at birth.
8 In 1974, a war broke out between South Vietnam and China only because the South Vietnamese troops refused to end the illegal occupation of the Spratly and Paracel Islands, which Mr Pham Van Dong, then Prime Minister of the North Vietnam, had already acknowledged in 1956 and in 1958 that they belong to China.
9 Mr Sam Bateman, a former Australian Naval Commodore with research interests in regimes for good order at sea said that “Vietnam’ s current claim over Xisha (Paracel) Islands is seriously weakened by North Vietnam’s recognition of Chinese sovereignty over the islands in 1958 and its lack of protest between 1958 and 1975.”
10 The ad hoc arbitral tribunal did not award any sovereignty of any feature in the Spratly Islands to the Philippines on July 12, 2016 as it had no such power under the provision of Unclos. And today the Philippines has ostensibly set it aside and has agreed to settle the disputes with China through friendly negotiations and consultations, like other claimants: Vietnam Malaysia and Brunei.
Regarding Mary’s comment, two points: First, as explained in piece, US made a distinction between territorial reversions and type of ROC sovereignty it was willing to recognize (which was sovereignty over people and property under the control of the ROC at the time). Spratlys was not under ROC effective control in 1951-52. Taiping Island did come under ROC effective control again in 1956, and the US-ROC Mutual Defense Treaty (MDT) of 1954 did extend its coverage to the island. The MDT was wound up in end-1979.
Second, the 47-3 vote in San Francisco that you refer to did NOT pertain to the merits of the competing Spratlys sovereignty claims. It pertained to the issue of procedure. Soviets insisted that the text in SF should be open to amendment; US insisted that SF was not a conference to negotiate or make new proposals but instead to conclude by signature a text that had been arrived at and frozen on August 13, 1951. The conference voted 47-3 in favor of the US. It was never a vote on sovereignty, as Vietnam’s subsequent White Papers wrongly claim.
Other points raised in Mary’s comment are not pertinent to this piece – although it does bear pointing out that as late as 1956, i.e. after the Geneva Conference, France envisioned claiming the Spratlys for itself – not on behalf of Vietnam.
‘China is within its rights to construct artificial islands on the high-tide features that it administers in the South China Sea’
Why would one make such a sweeping statement? This sentence alone discredits almost all of the author’s following arguments.
Does the author really mean all of the South China Sea? One has to assume so. This, in turn, means that all actions that the PRC has done in the EEZ of other sovereign states in the South China Sea is legitimate according to the author. This cannot be what the author intends to say because it would be, quite frankly, silly.
On top of that, ITLOS Philippines v. China showed explicitly that China was not in its rights to construct artificial islands on some of the features it claims in the South China Sea.
I agree with Tom that this shows bias or ignorance, neither is something that I wish to see on this page.
I have already replied to Tom (see above). The only feature on which China’s artificial island building was struck down was the one on Mischief Reef.
Mischief Reef is a low-tide elevation, not a high-tide feature, in what has since become the Philippines’ undisputed EEZ. As such, only Manila is at liberty to further conduct constructions on Mischief Reef.
Mr Gupta really needs to read the Cairo Declaration again. The Cairo Declaration, as reinforced by the Potsdam Proclamation, only provides that China would recover Manchuria, Formosa [Taiwan], and the Pescadores [Penghu Islands] after the war. The next sentence simply provides that Japan would be expelled from ‘other territories’ which it had taken by violence, but it does not indicate that these ‘other territories’ would be returned to China.
BILL HAYTON: “…but it does not indicate that these ‘other territories’ would be returned to China.”
Then enlighten us why did American help ROC take control of Taiping Island after WW2. If Spratly is to be “returned” to Philippines, why didn’t America take over it just like it did to Okinawa?
The context of both documents and the actions by all countries afterward all indicates the same: that Spratly was to be returned to China.
Bill, to help you understand how the Spratly and Paracel islands were returned to China under the 1943 Cairo and the 1945 Potsdam Proclamations, here is the Timeline:
1 In 1895 Formosa, the Pescadores and appertaining islands were ceded in perpetuity to Japan under the one-sided Treaty of Shimonoseki.
2 In 1931 Japan invaded Manchuria and changed its name to Manchukuo.
3 In 1937 Japan invaded China after using Manchukuo’s natural resources to manufacture war materials.
4 In 1937 British colonial Malaya and Brunei, US colonial Philippines and French colonial Vietnam made no claims over China’s Spratly or Paracel Islands.
5 In 1938 under the fog of war, France invaded China’s Spratly and Paracel islands.
6 In 1939 Japan evicted the French and colonized the Spratly and Paracel islands. When asked why, Japan replied that in wartime it had the right to seized China’s territories.
7 In circa 1940 Japan put the Spratly and Paracel Islands under the administration of Japan’s Formosa.
8 On December 7, 1941 Japan bombed Pearl Harbor and ignited the Pacific War.
9 On December 1,1943, the Three Great Allies (US, UK and China) signed the Cairo Proclamation “that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China.”
10 On July 26, 1945 Article 8 of the Potsdam Proclamation stated that “The terms of the Cairo Conference shall be carried out..”
11 On September 2, 1945 Japan’s Surrender Instrument stated in part that “We hereby undertake for the Emperor, the Japanese Government, and their successors to carry out the provisions of the Potsdam Declaration in good faith.”
12 On October 25, 1945 General Rikichi Andō, governor-general of Formosa and commander-in-chief of all Japanese forces on the island, signed an instrument of surrender and handed it over to General Chen Yi to complete the official turnover, at the Taipei City Hall. Gen Chen Yi was escorted by Assistant US Naval Attaché George Kerr, under Gen MacArthur’s General Order No1.
13 Since the Spratly and Paracel Islands were administered by Japanese Formosa, they were also deemed returned to China on October 25, 1945.
14 On August 15 1951, to preempt any negative decision by the US and UK colonial powers in violation of the Potsdam and the Cairo Conference Proclamations, Premier Zhou Enlai expressly issued a caveat that:
“Whether or not the US-British Draft Treaty contains provisions on this subject and no matter how these provisions are worded, the inviolable sovereignty of the People’s Republic of China over Nanwei Islands (the Spratly Islands) and Sisha Islands (the Paracel Islands) will not be in any way affected.”
15 The Treaty of Peace on April 28, 1952 was a ROC/Japan Peace Treaty, when Japan formally renounced ownership of the Spratly and Paracel islands 16 hours before the San Francisco Peace Treaty came into force. The latter’s intention was to reduce the Spratly and Paracel islands into Res Nullius territories (without owners) but that was foiled by the Treaty of Peace in Taipei.
16 On Oct 27 1955, at the International Civil Aviation Organisation’s (ICAO) conference in Manila, a resolution was passed for the ROC to provide weather reports on the Spratly and Paracel islands, confirming that these islands were already returned to China.
17 In Sept 1958 the PRC made a Declaration of a 12 nm Territorial water, including in the Spratly and Paracel Islands. Malaysia, Vietnam, Brunei and the Philippines had no objections.
18 But when Oil was discovered by ECAFE in the South China Sea in the late 1960s, Vietnam grabbed 29 features in the Spratlys, Malaysia 6 and Brunei 1. The Philippines annexed 8 features in June 1978, using a Presidential Decree No 1596.
19 On Sept 29, 1972, Article 3 of the Joint Statement for the normalization of relations of Japan and the PRC stated that “The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China, and it firmly maintains its stand under Article 8 of the Potsdam Declaration.”
20 Therefore, under the One-China policy Japan had effectively returned Formosa (Taiwan), the Pescadores as well as the Spratly and Paracel Islands to the PRC.
I’ll repeat David’s conclusion, just in case there is some confusion here: the context of both documents and the actions by all countries afterwards (with the exception of the Vietnamese representative and, to an extent, France) indicates the same: that Spratlys was to be returned to China.
To be fair to the US, America’s subsequent dissimulation on the Spratlys issue is garden variety stuff compared to its subsequent stand on the Kuriles issue. That was a full 180 degree flip-flop.
@ Tom
1 “They lack merit with regards to Fiery Cross, which is built within the Philippines’ EEZ.”
This assertion shows a misunderstanding of the provisions of Unclos, which has no power to award the sovereignty of any feature in the South China Sea to a littoral state when it came into force in 1994.
Tom and Mr Tillerson should please note that in 1933, under the US colonial rule, the Philippines contemplated annexing the Spratlys (including Fiery Cross) but then US Secretary of State Cordell Hull cautioned that “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”.
Mr Hull added: “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands.”
Former colonial powers, like the US, Britain, Japan, France and Spain, never claimed sovereignty over the Spratly Islands after WW2 but paradoxically, their former colonies did.
According to Professor John Anthony Carty, British archives show that “there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole title-holder.”
In Sept 1958 China made a Declaration of a 12 NM territorial sea in her territories, which included the Paracel and the Spratly islands and Mr Pham Van Dong, then Prime Minister of North Vietnam acknowledged this via a letter to Mr Zhou Enlai, then Premier of China.
There were no objections from the Philippines or Malaysia or Vietnam to China’s said Declaration.
But when Oil was discovered by ECAFE in the South China Sea in the late 1960s, Vietnam grabbed 29 features in the Spratlys, Malaysia 6 and Brunei 1.
And on 11 June 1978 President Ferdinand Marcos annexed 8 features in the Spratlys using Presidential Decree 1596 which violated the United Nations Charter. That decree created the Kalayaan Island Group, whose boundary illegally extended over the Spratlys.
Fiery Cross, therefore, does not belong to the Philippines, despite the fact that it is situated within the EEZ of the Philippines, otherwise Singapore Island would belong to Malaysia as it is situated only about 3 km from Malaysia’s southern coastline.
2 “Likewise, China’s actions at Scarborough Shoal in blocking Filipino fishermen.”
Article III of the Treaty of Paris of 1898 referred to by Mr Cordell Hull, limited the Western border of the Philippines to 118 Degree Longitude. The Scarborough shoal is West of this Longitude and its owner, China, under the provision of Unclos, has every right to block foreign fishermen from its territorial waters (though China and the Philippines have now reached an understanding on this issue after President Duterte visited China last year.)
@ John
1 ‘China is within its rights to construct artificial islands on the high-tide features that it administers in the South China Sea.
Yes, Mr Gupta is correct to say this for high-tide features that China administers in the South China Sea. In fact, China was not the first to build artificial islands in the South China Sea.
According to Mr Alberto Encomienda, former secretary-general of the then Maritime and Ocean Affairs Centre of the Philippine Foreign Affairs Department, the Philippines “was the first to do reclamation in the South China Sea, so we cannot demonise China for reclamation”.
He revealed that their airfield situated on China’s Zhongye Island, which the Philippines now occupies, “was built on top of live coral reefs”.
2 “This, in turn, means that all actions that the PRC has done in the EEZ of other sovereign states in the South China Sea is legitimate according to the author.”
Yes, in so far as the features belong to China and do not belong to the Philippines, despite they being situated within the latter’s EEZ as Unclos did not award the sovereignty of such features to the Philippines when it came into force in 1994.
3 Is Mr Gupta biased? Not at all.
Quite a bit of cut-and-paste nonsense has been added here.
Firstly the assertion that the US helped China “take control” of one of the Spratly Islands (Itu Aba) in 1945 is wrong. The US and the UK provided naval ships and training to the ROC during and immediately aft the Second World War. In September 1946 the ROC government decided to use some of these ships to claim
The Paracels and Spratlys. There was no official involvement of the US government in this expedition at all.
You might as well argue that the US helped the French claim Itu Aba in October 1946 (i.e. before the Chinese got there) because the US supplied ships to the French government too.
Secondly, France annexed several of the Spratlys in July 1933, not 1938. At the time the ROC government had no idea where the Spratlys were. It had to ask the US authorities in Manila for a map. When it learned where they were, the ROC government decided not to protest the annexation.
I could go on and on. Suffice to say KTTAN’s narrative doesn’t hold water. The Journal of Ocean Development and International Law has recently published my paper ‘When good lawyers write bad history’ which provides plenty of evidence to show this.
Bill
1 It is indisputable that in 1939 Japan evicted the French from the Spratly and Paracel islands and colonized them. When asked why, Japan replied that in wartime it had the right to seized China’s territories. Japan did not recognise the French annexation/theft of the Spratly and Paracel islands from 1933 to 1938.
2 Japan then put the Spratly and Paracel Islands (or Shinnan Gunto in Japanese) under the administration of Japan’s Formosa, which had been ceded in perpetuity to Japan by Qing China under the one-sided Treaty of Shimonoseki of 1895.
3 On October 25, 1945 General Rikichi Andō, governor-general of Formosa and commander-in-chief of all Japanese forces on the island, signed an instrument of surrender and handed it over to General Chen Yi to complete the official turnover, at the Taipei City Hall. Gen Chen Yi was escorted by Assistant US Naval Attaché George Kerr, under Gen MacArthur’s General Order No1.
4 You stated that “The Cairo Declaration, as reinforced by the Potsdam Proclamation, only provides that China would recover Manchuria, Formosa [Taiwan], and the Pescadores [Penghu Islands] after the war”. That was good enough because, in case the nuance escaped you, since the Spratly and Paracel Islands were administered by Japanese Formosa, they were also deemed to be returned to China on October 25, 1945.
5 In case you also failed to notice, after WW2, the former colonial powers like France, Britain, United States, Japan and Spain made no claims to the Spratly and Paracel Islands, only their former colonies did.
These former colonies, such as Vietnam, Malaysia, Brunei and Philippines, grabbed features in the Spratlys only in the 60s and 70s, after ECAFE discovered oil in the South China sea, that is to say well before the 1982 UN Convention on the Law of the Sea was even contemplated. At the material time, the territorial seas of these former colonies were only 12 nm. There were no 200 nm EEZ in existence then. How these former colonies could claim features in the Spratly and Paracel islands, which were way beyond their 12 nm territorial seas, is a paradox.
6 I have read your piece ‘When good lawyers write bad history’ and, suffice to say, it contradicts Professor John Anthony Carty’s own findings.
He revealed last year that he had studied centuries’ worth of records produced by European nations and the United States. These official accounts – excepting a period in the 1930s when France unilaterally seized individual South China Sea islands under Chinese protest – recognize China’s historic sovereignty over the islands.
Prof Carty added “I have found my research in the archives quite astonishing,” referring to his findings. Among the records he said he had uncovered is a legal opinion by the British Foreign Office from the 1970s. The report, which is now digitally available, was presented to the British cabinet and then prime minister, James Callaghan.
“This British record is not just the opinion of an individual lawyer – this is the product of an immense amount of research that the foreign ministry did in London. They investigated all of their archives and all of the correspondence they had with other countries for a period of 100 years,” he said.
Prof Carty said the British record proves there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole titleholder.
7 I rest my case.
Dear Tan Keng Tat,
It’s a good attempt to make a case but not very convincing.
There is no evidence that any Chinese official had ever landed on any of the Spratly Islands before 12 December 1946.
France had physically staked a claim to the Spratlys before the Second World War and renewed it afterwards. China neither protested the claiming 1933 nor knew where the Spratly islands were. Japan’s occupation in 1939 did not extinguish the French claim, any more than its occupation of Singapore extinguished the British claim.
You seem to think that Japan had the right to allocate islands to whomever it wanted. That was clearly not the case.
I’m surprised that you think that the name ‘Formosa’ applies to the Paracels and Spratlys. If that were true, the Allies would have had no need to append the Pescadores by name. It’s clear that they only meant the island of Formosa, not the Japanese administration of Shinnan Gunto.
I’m pleased that you noticed that my paper contradicts Professor Carty’s findings. That’s because he is wrong!
Bill,
1 Mr T.K. Chang, Professor of Politics at Ball University, wrote in his 1991 paper “China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective” that in 1405, the Ming Emperor sent Admiral Zheng He, as a special envoy and in command of 27,800 naval officers and men in sixty-two warships for a 2 year voyage of exploration of the South China Sea and to as far as East Africa. All together he made 7 voyages.
Therefore, to imply that China was incapable of first discovery of islands, in her own backyard, prior to 12 December 1946, flies in the face of logic when China was already the world’s maritime superpower between 1292 to 1433, by virtue of China’s invention of the magnetic compass, long before Christopher Columbus set sail to Cathay (China) in 1492.
China’s territorial claim is based on centuries of verifiable historical records, long-term use, treaties, international and customary laws plus records from the prodigious sea voyages of the Yuan and Ming dynasties.
2 “France had physically staked a claim to the Spratlys before the Second World War and renewed it afterwards.“
France invaded the Spratlys in 1933 and the Paracel islands in 1938 on behalf of its colony, Vietnam, showing proof that at the signing of the 1887 Sino-Franco Convention, these islands did not belong to France, otherwise why the need to invade them in 1933/1938.
But who had a superior claim? France, for 6 years of theft/occupation in the Spratlys and for 8 months of theft/occupation in the Paracel islands OR China, for first discovery and long-term use?
The answer is obvious. That is why, contrary to your view, France never claimed sovereignty over the Spratly or Paracel islands after their defeat at Dien Bien Phu in 1954.
Besides, Vietnamese leaders like Messrs Pham Van Dong, Ung Van Khien and Le Loc all agreed that the Spratly and Paracel islands belong to China since ancient times ‘according to Vietnamese data’.
3″China neither protested the claiming 1933″.
Not true. According to Prof Hungdah Chiu, a visiting Associate Professor at the University of Maryland School of Law and Mr C.H. Park, a research fellow in East Asian Legal Studies at Harvard law school in their 1975 paper “Legal Status of the Paracel and Spratly Islands”: “The official Chinese challenge to the French was based primarily on the ground that Chinese nationals have continuously used the islets or resided in them, thus evidencing Chinese sovereignty.”
4 “nor knew where the Spratly islands were.”
A maritime superpower from 1292 to 1433 did not know where the Spratly islands were? That is a laughable claim.
5 If “Japan’s occupation in 1939 did not extinguish the French claim” why do you conclude that the French’s short occupation of the Spratly and Paracel islands had extinguished China’s sovereignty?
6 “You seem to think that Japan had the right to allocate islands to whomever it wanted.”
Since the French invaded the Spratly and Paracel islands to allocate them to Vietnam, why was it not possible for Japan to assign the administration of the Spratly and Paracel Islands (Shinnan Gunto) to Formosa, which had been ceded to Japan in perpetuity under the 1895 Treaty of Shiminoseki?
7 “I’m surprised that you think that the name ‘Formosa’ applies to the Paracels and Spratlys.”
What I said was that “Japan then put the Spratly and Paracel Islands (or Shinnan Gunto in Japanese) under the administration of Japan’s Formosa.”
8 “It’s clear that they only meant the island of Formosa, not the Japanese administration of Shinnan Gunto.”
Not true. The Pescadores and Shinnan Gunto were distinctly different. That’s why the ROC insisted in Article 2 of the Treaty of Peace that Japan renounced not only Formosa and the Pescadores but “as well as” the Spratly and Paracel islands, which were administered by Formosa.
9 “I’m pleased that you noticed that my paper contradicts Professor Carty’s findings. That’s because he is wrong!”
Who then can one believe? Professor Carty’s research, all of the British archives and all of the correspondence they had with other countries for a period of 100 years plus the legal opinion from the British Foreign Office in the 1970s to the Prime Minister and his cabinet or a former television reporter? The answer is obvious.
I’m afraid you’re left repeating the same old tired untruths. I have dealt with them all in my paper available here:
When Good Lawyers Write Bad History: Unreliable Evidence and the South China Sea Territorial Dispute
http://www.tandfonline.com/doi/full/10.1080/00908320.2017.1265362
In this paper I show all the mistakes made by Professor T.K. Chang, Prof Hungdah Chiu and Mr C.H. Park and by extension, Prof Carty – and you.
Bill, here is Part One of my reply:
1 “I’m afraid you’re left repeating the same old tired untruths.” -Bill Hayton.
In this era of fake news by the Main Stream Media (according to President Trump) and “weaponized” text by the newspaper (according to Julian Assange), I prefer to stick to facts. So be a gentleman and please advise me which of the over 50 points I have made so far in this comment page are “repeating the same old tired untruths” if you can.
2 “I have dealt with them all in my paper available here: When Good Lawyers Write Bad History: Unreliable Evidence and the South China Sea Territorial Dispute.”
I shall comment on your piece in Part Two of my reply.
3 “In this paper I show all the mistakes made by Professor T.K. Chang, Prof Hungdah Chiu and Mr C.H. Park and by extension, Prof Carty – and you.” -Bill Hayton.
In so far as Professor T.K. Chang is concerned I only stated that “1 Mr T.K. Chang, Professor of Politics at Ball University, wrote in his 1991 paper “China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective” that in 1405, the Ming Emperor sent Admiral Zheng He, as a special envoy and in command of 27,800 naval officers and men in sixty-two warships for a 2 year voyage of exploration of the South China Sea and to as far as East Africa. All together he made 7 voyages.”
Why do you characterize him as making a mistake when you yourself confirmed this to be true in your piece when you wrote “This is thought to have been composed around 1430, toward the end of the Ming Dynasty’s naval epoch. This was the era when several navigators, including the most famous, Zheng He, sailed from China as far as East Africa’?
And if you do not disagree with Professor T.K. Chang that the Ming Emperor’s envoy, Admiral Zheng He, explored the South China Sea, why did you imply that “China was incapable of first discovery of islands, in her own backyard, prior to 12 December 1946″?
4 In so far as Professor Carty is concerned he researched British archives and the correspondence the British had with other countries for a period of 100 years plus the legal opinion from the British Foreign Office in the 1970s to the Prime Minister and his cabinet”, why do you insist that he is wrong when he concluded that “the British record proves there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole titleholder”?
You castigated Cheng, Chiu and Park, Heinzig and Samuel for allegedly not conducting “independent investigations of archive sources but relied on texts printed much later in highly partisan sources, almost exclusively Chinese, to write their histories of the South China Sea” and yet when Professor Carty conducted independent investigations of British archives you excoriated him too. Can you explain why?
You can’t seriously be asserting a modern territorial claim on the basis that a Chinese naval fleet sailed past the islands 600 years ago. Imagine how much of the world still belongs to Spain and Portugal if that’s a valid basis for territorial claims.
And as for Prof Carty. We haven’t seen his evidence – and neither have you. All you have done is cut and paste from a China Daily article. This one…
http://europe.chinadaily.com.cn/world/2016-07/18/content_26127469.htm
1 In case you have forgotten, my reference to Admiral Zheng He’s exploration of the SCS as an envoy of the Ming Emperor was in response to your laughable claim that “There is no evidence that any Chinese official had ever landed on any of the Spratly Islands before 12 December 1946.”
Mr Ma Huan, the chronicler of Admiral Zheng He’s voyages wrote in his 1433 book entitled ‘Ying-Hai Sheng-Lan ‘ or ‘The Overall Survey of the Ocean’s Shores’ which was translated from the Chinese text and edited by Mr C.C. Feng in 1970, with an Introduction, Notes and Appendices by Judge V.G Mills, a former Puisne Judge in the Straits Settlement, is verifiable as he sailed with the fleet on three voyages. There is also a map of the SCS in the Appendix.
The fleet had to sail past ‘Wan-sheng Shih Tang yu’ (Paracels) and Shih-Shing Shi-Tang (Spratlys) at least 14 times where they mapped and named them and you alleged that China did not know where the Spratlys were?
How the officials in the fleet could explore, survey and map the South China Sea without stopping to replenish their fresh water supply from Yongxing and Taiping islands is a mystery.
In the Qing dynasty, Mr L.C Chen described in his book ‘Notes on land across the sea’ in 1730, the geographical positions of the Paracels and Spratlys. In his ‘General map of four seas’, the Paracels were described as ‘Chi-yang chou’ and the Spratlys as Shih-tang. Who did the survey if not the officers in Admiral Zheng He’s fleet?
2 “And as for Prof Carty. We haven’t seen his evidence – and neither have you.”
If you have not seen his evidence, then on what basis did you dismiss his statement that “British archives show that “there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole title-holder” as allegedly “wrong”?
3 “All you have done is cut and paste from a China Daily article.”
Not true. I have read two reviews on his 688 page book “Sir Gerald Fitzmaurice And The World Crisis: A Legal Adviser In The Foreign Office” which Prof Carty co-authored with Richard A. Smith in 2000. ISBN 90-411-1242-1.
The reviewer wrote: “The book investigates the work of Sir Gerald Fitzmaurice during the period 1932 to 1945 in matters concerning the world crisis’,which narrowed to certain incidents in the count-down to the Second World War, as well as during the conflict itself. This is a unique work in International Law publishing in that to accompany its text it reproduces photocopies of documents held in the Public Record Office, London. The photocopies occupy about half the pages in the work and are interleaved with a substantial amount of analysis by the authors who are based at the University of Derby, where Fritzmaurice’s private papers are deposited.
4 Here is Professor Anthony Carty’s Biodata in brief:
Currently he is the Professor of International Law at Tsinghua University. (Since 2015).
Education background:
LLB Queens, University Belfast, LLM University College London, PhD Jesus College Cambridge.
Experience:
He was the Professor of Public Law at the University of Aberdeen, Scotland (on extended leave of absence). Previously , he was the Sir Y K Pao Chair Professor of Public Law at the Law Faculty, University of Hong Kong, from 2009 to 2015; He has been a Visiting Professor at HKU Law Faculty from 2015.
Previously, he was the Visiting Professor of International Law at the Free University of Berlin (Law and Politics, Otto Suhr Institute) the Universities of Paris I and II (Pantheon-Sorbonne), the University of Tokyo Law Faculty, the Autonomous University of Madrid (Instituto Ortega y Gasset). DAAD, Alexander von Humboldt and Max Planck Research Fellowships at the Institutes of Comparative Public Law and International Law, Heidelberg, of Comparative European Legal History, Frankfurt and the University of Munich Law Faculty.
He is the author of The Decay of International Law, due to be reprinted by Manchester University Press and The Philosophy of International Law, for which a second edition is in preparation with Edinburgh University Press.
He is also the editor in chief of the Oxford Online Bibliography of International Law.
He, with Dr. Richard Smith, authored the book “of Sir Gerald Fitzmaurice and the World Crisis, A Legal Adviser in the Foreign Office 1932-1945”
A second volume on the period 1945-60 covering the Cold War and End of Empire is virtually complete to be published soon.
5 Who does one believe? Prof Carty or a former television reporter? The answer is obvious.
Bill,
Part II (a)
In my opinion, your piece “When good lawyers write bad history” is a rehash of your repetitive-meme that France, not China, has a better claim to the Spratley and Paracel, never mind the fact that France had finally stopped all claims on these islands when they were brutally defeated by Ho Chi Minh’s General Vo Nguyen Giap at the battle of Dien Bien Phu, lasting barely two months, from 13 March till 7 May 1954.
I have already addressed all your flawed claims in detail in my email to you on 23 Sept 2014.
Now it is clear the ad hoc arbitral tribunal‘s predictable decision on the Philippine-China Arbitration (why predictable? Because everybody and his dog knew of the outcome of the charade months before it was finally released on 12 July 2016) in favour of the Philippines, gave you another bite of the cherry to recycle your threadbare thesis by cherry picking episodes in history to buttress your tenuous claims but leaving centuries of verifiable historical records, long-term use, treaties, international and customary laws plus records from the prodigious sea voyages of the Yuan and Ming dynasties, gleaned from China’s long history, spanning many Dynasties, virtually untouched by offering the lame excuse that “There is not (sic) space here to cover all the claims the writers made about events before the nineteenth century.”
Can your said piece be taken seriously? In my view, the answer is obvious.
You wrote:
1 “In the eyes of many Western analysts, the South China Sea has also become a critical testing ground for China’s emergence as a great power.”
If you and the many unnamed Western analysts think that the West can revive the ‘Great Game’, (that was in play in the South China Sea (SCS) in the 1930s, by then colonial powers Britain, France and the US, to stop Japan, another colonial power, from gaining access to territories and resources in the SCS) this time to stop “China’s emergence as a great power” you are all delusional.
Today, China is the number two largest economy in the world (the largest on PPP basis since 2014) and the world’s largest trading nation. She is also a nuclear power, with a war chest of about US$3 trillion, the fastest super computers in the world and a permanent member of the UNSC, with Veto rights.
In sharp contrast, as karma would have it, Britannia no longer rules the waves and France, no longer a great Napoleonic nation, is now embroiled with jihadist and sectarian violence.
That leaves Uncle Sam to play the ‘Great Game’ with China and Russia, another great Pacific power.
Will a US miscalculation lead to a catastrophic nuclear war, since they have between them about 15,000 nukes? The jury is still out.
But if a nuclear war breaks out will there be a winner when the nuclear winter sets in? No. It’s MAD or Mutually Assured Destruction. No nation will be spared. So Western analysts had better be careful what they push for.
2 ”They regard China’s attitude to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as a test of whether the country’s leadership will, in the future, follow the existing rules of the international system or challenge them.”
What a bunch of hypocrites! Why are they not campaigning for the US Senate to ratify Unclos first, to enable it to “follow the existing rules of the international system” when China ratified it in 1996 and is now abiding by the provisions of Unclos?
In case, the nuance escaped these Western analysts it is Uncle Sam who is challenging “the existing rules of the international system”.
According to Professor Myron Nordquist, the associate director and editor of the Center for Oceans Law and Policy at the University of Virginia and also a senior fellow at the Center for National Security Law, at the University of Virginia School of Law, a law expert who spent more than 30 years on maritime law studies, including being editor in chief of a seven-volume commentary on the United Nations Convention on the Law of the Sea:
The “United States doesn’t even recognize the tribunal. Everyone in the Western press believes China is really being the bad guy, and they are only getting half of the story.”
Part II (b) to follow.
Bill,
Part II (b).
1 “.. the Republic of the Philippines brought a case against the People’s Republic of China to an arbitral tribunal constituted under Annex VII of UNCLOS”..Bill Hayton.
China refused to participate because the ad hoc arbitration was illegally convened for these reasons:
a)China and the Philippines originally reached a consensus to settle their disputes over the SCS in accordance with the DOC, signed by China and 10 ASEAN Member States in 2002.
The DOC explicitly states that “the Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 Unclos.”
However, the Philippines went ahead with compulsory arbitration on 23 Jan 2013, without any consultation with China, thus not only violating the agreement with China but ignoring the key part of the Unclos dispute settlement procedure.
b) Unclos’ Article 298 (1)(a) specifically allows for exclusion from compulsory arbitration and in 2006 China made a Declaration excluding disputes concerning maritime delimitation, historic bay or titles, military activity and law enforcement activities.
c) The arbitral tribunal had no jurisdiction because under Article 288(1), the tribunal’s jurisdiction was limited to only DISPUTES between the parties concerning the interpretation and application of Unclos. It had no power to decide on matters concerning sovereignty, maritime delimitation, historic bay or titles, military activity and law enforcement activities.
The International Court of Justice (ICJ) held in 1962, in the South West Africa cases, that to prove the existence of a DISPUTE, it “must be shown that the claim of one party is positively opposed by the other”.
But Mr Alberto Encomienda, former secretary-general of the then Maritime and Ocean Affairs Centre of the Philippine Foreign Affairs Department, told China’s news agency Xinhua that “China has been for the negotiations all along, but from the beginning we are not”.
Since no substantive negotiation between China and the Philippines had ever taken place, there could not be any DISPUTE. The tribunal’s jurisdiction was therefore in serious doubt and any decision it made could be ultra vires and therefore, null and void.
Even the then UN Spokesman cast doubts and said “The UN doesn’t have a position on the legal and procedural merits of the South China Sea arbitration case.”
My opinion on the ruling is here:
http://www.straitstimes.com/opinion/did-the-ruling-sink-the-rule-of-law
2 “While the tribunal was unable to rule on matters of territory or maritime delimitation, it did clarify the question of whether China could assert “historic rights” in the South China Sea”. ..Bill Hayton.
But China only claims sovereignty over territories in the SCS like Xisha (Paracel), Nansha (Spratlys), Dongsha (Pratas), Zhongsha (Macclesfield bank) and Huangyan (Scarborough shoal), and this was not disputed by the Philippines or the tribunal.
According to law experts, although the nature and scope of “historic rights” remain undetermined, it can be safely asserted that they originated from and are governed by general international law including customary international law, and rules of customary international law regarding “historic rights” operate in parallel with the Unclos”.
“Accordingly, disputes concerning “historic rights” do not concern the interpretation or application of Unclos”, they said.
In the Continental Shelf Case between Tunisia and Libya, the ICJ pointed out in 1982 that “the notion of historic rights or waters … are governed by distinct legal régimes in customary international law”.
Ted L. McDorman, a Canadian international lawyer, also wrote that, “whether historic rights exist is not a matter regulated by Unclos.
3 Mr Motofumi Asai, a former Japanese Foreign Ministry official specializing in China relations, stated after the July 12 tribunal ruling: “From the result of the arbitration, people can see that it was conducted by a bunch of people who knew very little about the South China Sea issues”.
4 “In other words, China has no claim to rights over the resources of the sea beyond those provided for in Unclos”..Bill Hayton.
But China is not claiming the resources of the sea beyond those provided for in Unclos.
Mr Sourabh Gupta rightly pointed out that “China is within its rights to construct artificial islands on the high-tide features that it administers in the South China Sea, as well as on those submerged features that lie within the territorial sea of a high-tide feature that it administers or claims”.
5 The ruling is now a non-event as the Philippines has decided to settle any dispute by peaceful negotiation and consultation. The same goes for other claimants like Vietnam, Brunei and Brunei. So why the need to stir the pot, I wonder?
Bill,
Part II (c)
1”There is not (sic) space here to cover all the claims the writers made about events before the nineteenth century.” Bill Hayton.
This is a lame excuse if one wants to refute the veracity of China’s claims of sovereignty over the Islands in the South China Sea.
For your information, here is an account by China’s MOFA on why “China was the first to discover, name, develop, conduct economic activities on and exercise jurisdiction of the Nansha (Southern Sea) Islands”
Quote:
“A. China the First to Discover and Name the Nansha Islands
The earliest discovery by the Chinese people of the Nansha Islands can be traced back to as early as the Han Dynasty. Yang Fu of the East Han Dynasty (23-220 A.D.) made reference to the Nansha Islands in his book entitled Yiwu Zhi (Records of Rarities) , which reads: “Zhanghai qitou, shui qian er duo cishi”(“There are islets, sand cays, reefs and banks in the South China Sea, the water there is shallow and filled with magnetic rocks or stones”). Chinese people then called the South China Sea Zhanghai and all the islands, reefs, shoals and isles in the South China Sea, including the Nansha and Xisha Islands, Qitou.
General Kang Tai, one of the famous ancient Chinese navigators of the East Wu State of the Three Kingdoms Period (220-280AD), also mentioned the Nansha Islands in his book entitled Funan Zhuan (or Journeys to and from Phnom) (the name of an ancient state in today’s Cambodia). He used the following sentences in describing the islands: “In the South China Sea, there are coral islands and reefs; below these islands and reefs are rocks upon which the corals were formed.”
In numerous history and geography books published in the Tang and Song Dynasties, the Nansha and Xisha Islands were called Jiuruluo Islands, Shitang (literally meaning atolls surrounding a lagoon), Changsha (literally meaning long ranges of shoals), Qianli Shitang, Qianli Changsha, Wanli Shitang, and Wanli Changsha among others. Reference was made to the Nansha Islands in over one hundred categories of books published in the four dynasties of Song, Yuan, Ming and Qing in the name of Shitang or Changsha.
There were more detailed descriptions of the geographical locations and specific positions of the various islands of the Nansha Islands in the Yuan Dynasty. For instance, Wang Dayuan, a prominent Chinese navigator in the Yuan Dynasty, wrote about the Nansha Islands in his book entitled Abridged Records of Islands and Barbarians in these words: “The base of Wanli Shitang originates from Chaozhou. It is tortuous as a long snake lying in the sea. Its veins can all be traced. One such vein strentches to Java, one to Boni (or Burni, a kingdom which then existed in what is now Brunei in the vicinity of the Kalimantan) and Gulidimen (another kingdom on the Kalimantan), and one to the west side of the sea toward Kunlun (Con Son Islands, located outside the mouth of the mekong River some 200 nautical miles away from Saigon) in the distance….” Wanli Shitang here refers to all the islands in the South China Sea, including the Nansha Islands.
In the Consolidated Map of Territories and Geography and Capitals of Past Dynasties published in the Ming Dynasty, we find the words “Shitang”, “Changsha” and “Shitang.” Judging from the geographical locations of these places as marked on the Map, the second Shitang denotes today’s Nansha Islands.
The Road Map of the Qing Dynasty marks the specific locations of all the islands, reefs, shoals and isles of the Nansha Islands where fishermen of China’s Hainan Island used to frequent, including 73 named places of the Nansha Islands.
B. China the First to Develop the Nansha Islands
Chinese people started to develop the Nansha Islands and engage in fishing on the islands as early as in the beginning of the Ming Dynasty. At that time, fishermen from Haikou Port, Puqian Port, Qinglan Port and Wenchang County went to the Nansha Islands to fish sea cucumber and other sea produce.
The 1868 Guide to the South China Sea has accounts of the activities of the Chinese fishermen in the Nansha Islands. According to the Guide, “fishermen from Hainan Island went to Zhenhe Isles and Reefs and lived on sea cucumber and shells they got there. The footmarks of fishermen could be found in every isle of the Nansha Islands and some of the fishermen would even live there for a long period of time.
Every year, there were small boats departing from Hainan Island for the Nansha Islands to exchange rice and other daily necessities for sea cucumber and shells from the fishermen there. The ships used to leave Hainan Island in December or January every year and return when the southwesterly monsoon started.”
You can read the rest of Section B and C here:
http://www.fmprc.gov.cn/mfa_eng/topics_665678/3754_666060/t19231.shtml
It’s time to read some evidence as opposed to the usual evidence-free cut-and-paste.
You could start here with some experts rather than propagandists:
Early Voyaging in the South China Sea:
Implications on Territorial Claims
https://www.iseas.edu.sg/images/pdf/nscwps19_early_voyaging_south_china_sea_implications_territorial_claims.pdf
What is the ‘historical’ in China’s claims to the South China Sea? A survey of relevant pre-modern Chinese texts
http://www.academia.edu/8401817/What_is_the_historical_in_Chinas_claims_to_the_South_China_Sea_A_survey_of_relevant_pre-modern_Chinese_texts
On the meaning of the 1943 Cairo Declaration try Kimie Hara’s ‘Cold War Frontiers in the Asia-Pacific’
https://books.google.co.uk/books?id=9k58AgAAQBAJ&
Bill,
Talking about cut and paste, in my view your article “When good lawyers write bad history” is just another cut and paste rehash of your 15 June 2015 article “The importance of evidence: Fact, fiction and the South China Sea.”
In your latter piece you wrote “The venue will be the Permanent Court of Arbitration in The Hague and the Court’s first step – during deliberations in July – will be to consider whether it should even consider the case. The Philippines wants the Court to rule that, under the UN Convention on the Law of the Sea (UNCLOS), China can only claim sovereignty and the rights to resources in the sea within certain distances of land territory”.
This shows that you don’t appreciate that the Permanent Court of Arbitration in The Hague is not a court at all. It only provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes” for a high fee.
Despite the highfalutin title of your article “The importance of evidence: Fact, fiction and the South China Sea.” you passed off fiction as facts.
How can we take you seriously if you make such a glaring error in your article?
I have read Michael Flecker’s article. He is an excellent maritime archeologist but when he wrote that “Six countries lay claim to all or part of the Spratly Islands and the Paracels” it shows that he does not know that Taiwan is not a country, ie a member of the UN.
He also neglected to state that Brunei only claims a single feature in the SCS and that Malaysia, Brunei and the Philippines have made no claims on the Paracel Islands.
Another blooper he made in his paper was that “Until the early 20th century the islands and reefs in the Spratlys and Paracels were effectively terra nullius, not occupied by any state” and “No country has demonstrated that they have historical rights to the Spratlys, simply because it is, and always has been, Dangerous Ground, a place to avoid at all costs.”
According to China’s Foreign Ministry spokesperson, “Over the history, Chinese fishermen have resided on Taiping Dao for years, working and living there, carrying out fishing activities, digging wells for fresh water, cultivating land and farming, building huts and temples, and raising livestock”.
“The above activities are all manifestly recorded in Geng Lu Bu (Manual of Sea Routes), which was passed down from generation to generation among Chinese fishermen, as well as in many western navigation logs before the 1930s.”
“Geng Lu Bu, created collectively by Chinese fishermen more than 600 years ago, records not only the terrain features and oceanic condition of the islands in the South China Sea, but also names the islands, marks their locations and identifies reefs, shipping lanes and fisheries.”
“The working and living practice of Chinese people on Taiping Dao fully proves that Taiping Dao is an ‘island’ which is completely capable of sustaining human habitation or economic life of its own,”
http://english.cri.cn/12394/2016/06/03/3441s929762.htm
As for Johannes L Kurz, the Senior Assistant Professor of Arts and Social Science at the Brunei Darulsalam University, the conclusion of his article says it all “I could only briefly sketch the historical texts and their contents here. The literature on the topic is rather overwhelming..”
And nowhere did he make any claim that France has a better claim of the Spratly and Paracel Islands than China, as you claim.
The 1943 Cairo Conference terms are clear.
Bill,
Part II (d).
1 “The South China Sea disputes only began to take shape in the 1900s. While the modern claimants may assert earlier evidence in support of their cases, it is clear that there was no state-to-state dispute over any of the islands before the twentieth century.”- Bill Hayton.
The reason for this is clear that prior to the 1900s, former colonial powers like Britain, France, United States, Spain and the Japan made no claims to the Paracel or Spratly or Pratas islands.
However, many current Vietnamese scholars and some misguided Western analysts argue the Vietnam had explored and controlled the Paracel islands since the 1700s (18th century). This cannot possibly be true as in the 1700s Vietnam as a country did not exist.
Then they claim that in 1802 that when Emperor Gia Long ascended the throne after defeating the rebels, he started the Hoang Sa company to exploit and develop the Paracel Islands.
But Emperor Gia Long has wanted first to name the unified Peninsula “Nam Viet” or Southern Viet.
Being a tributary state of Qing China, Emperor Gia Long had to seek the approval from the Qing Emperor for his proposed name of “Nam Viet”. When that was rejected, because it resembled a legendary state called Namyue, in the northern border with China, Emperor Gia Long reversed the name of the country to Vietnam in 1804.
Since Vietnam was under the suzerainty of Qing China, from 1804 to 1884, it was unthinkable for a vassal state to annex territories belonging to the suzerain state and therefore, Vietnam could not possibly have sovereignty over the Chinese territories of Xisha (Paracel) and Nansha (Spratly) Islands then.
History shows that the Sino-Franco war erupted when French troops reached the Chinese borders in 1885 to invade Northern Vietnam (later named Tonkin under the French) because Qing China was obliged to defend a tributary state.
After that war the Sino-Frenco Conventions of 1887 and 1895 were signed.
The Sino–Frenco convention, 1887.
Article 2 of the 1887 Convention stated in part that “The isles which are to the east of the meridian of 105° 43′ longitude east of Paris, which is to say of the north-south line passing through the eastern point of the island of Chagu [Tch’a-Kou or Ouan-chan (Tra-co)] and forming the border, are similarly assigned to China. The Jiutou [Go-tho] islands and other islands which are to the west of this meridian belong to Annam.”
But Bill Hayton argued that “(t)he map attached to the 1887 Sino-French Convention shows that the delimitation\could not have been intended to refer to any islands beyond those immediately adjacent to the coast of Tonkin. The map is of such large scale that it is clearly intended only to illustrate the drawing of the boundary in the mouth of the Beilun/Ka Long river. It extends no further than Tra Co island, which lies just 600 meters offshore. There is no indication that the cartographer intended the map to have any meaning further south.”
This is misguided because if the parties to the 1887 Sino-Franco Convention had agreed that the delimitation line did not “refer to any islands beyond those immediately adjacent to the coast of Tonkin” then why did the 1887 Convention state that “The Jiutou [Go-tho] islands and other islands which are to the west of this meridian belong to ANNAM” in the South? (Emphasis mine).
It is not hard to see that if the 1887 delimitation line was drawn straight down from the Vietnam/China border it would have ended in the then ANNAM part of the peninsular (south of the then Tonkin) or between the present cities of Hue and Da Dang today.
It is therefore clear that East of that delimitation line included not only Hainan island but also Xisha (Paracel) and Nansha (Spratly)Islands.
The French were not stupid. If Xisha (Paracel) and Nansha (Spratly) Islands were already deemed Vietnam territories or French colonies at the material time of the signing of the Sino-Franco Convention of 1887, the French would have excluded Xisha (Paracel) and Nansha (Spratly) Islands from Article 2 of the 1887 Convention. They did not because they had no claim on these Chinese territories.
Furthermore, if Xisha (Paracel) and Nansha (Spratly) Islands were already French colonies in 1887 why did the France see a need to invade the Spratly Islands in 1933 and the Paracel Islands in 1938?
Therefore, Prof Hungdah Chiu and Mr C.H Park were right to point out that “Chinese government spokesmen and independent writers have on a number of occasions pointed out that both the Paracels and the Spratlies lie east of the delimitation line as provided in the 1887 Convention and are therefore Chinese territory.”
Wrong
The Jiutou [Go-tho] islands are known in Vietnamese as the ‘Cô Tô’ islands. They are about 50km southwest of the land border with China (and the large-scale map that was part of the Sino-Tonkin Convention). They are within the Gulf of Tonkin, close to the coast and irrelevant to the South China Sea disputes.
You can find them on a map here:
https://www.google.co.uk/maps/place/Cô+Tô+District,+Quảng+Ninh+Province,+Vietnam/data=!4m2!3m1!1s0x314b71b6abf8d8e5:0x3d85fe8787824958?sa=X&ved=0ahUKEwjAmc_w8bfSAhXjK8AKHdiFCPoQ8gEIkAEwDw
Keep trying…
Bill,
On Article 2 of the 1887 Convention.
It stated clearly that “The Jiutou [Go-tho] islands and OTHER ISLANDS which are to the west of this meridian belong to Annam.” (emphasis mine).
Note that that the “OTHER Islands which are to the west of this meridian belong to Annam”.
If the 1887 Convention was meant to refer only to Tonkin, like your flawed claims, why did it mention ANNAM, which borders extended to Cochinchina in the South at the material time?
It is already evident that Vietnam could not have sovereignty over the Paracel and Spratly Islands from 1804 to 1884 as it was unthinkable for a vassal state to annex territories belonging to the suzerain state.
And if the French had miraculously owned the Paracel and the Spratly islands at the material time why were they not excluded in Article 2 of the 1887 Convention? Are you implying that the French were stupid?
Furthermore, if Xisha (Paracel) and Nansha (Spratly) Islands were already French colonies in 1887 why did France see a need to invade the Spratly Islands in 1933 and the Paracel Islands in 1938?
The answer lies in the internal politics of the French protectorate over Annam and Tonkin. The Convention is between Tonkin and the Qing Dynasty but France was ruling through Annam.
It’s nothing to do with the allocation of islands further south. When China and Vietnam agreed their maritime boundary in the Gulf of Tonkin in 2000 they acknowledged this. More details here:
https://www.dur.ac.uk/ibru/publications/view/?id=244
The Qing court had no knowledge of, and no interest in the Paracel or Spratly islands until 1909.
Bill,
1 The Sino-Franco War was a limited conflict that was fought from August 1884 through April 1885, to decide whether France could end China’s suzerainty of Tonkin and it led to the Treaty of Tientsin, signed on 9 June 1885. Qing China had expected Britain and Germany to come to her assistance but that did not eventuate.
(The colonial powers like Spain, Britain, US, Germany and Japan observed the Sino-Franco war from the sidelines, like vultures waiting to pick up the spoils of war. They all wanted a slice of Qing China. Japan provoked a war with Qing China over Korea and Formosa and the Pescadores were ceded in perpetuity under the Treaty of Shimonosecki of 1895. Japan also annex the Diaoyu islands in 1894 and renamed them the Senkaku Islands in 1904. Korea became a Japanese colony from 1910 to 1945. The US invaded the Philippines, Spain’s colony in 1898 and Germany “leased” Shandong till her defeat in WW1).
Politically, the Sino-Franco war was a disaster for France as two Prime Ministers, Jules Ferry and Henri Brisson, had to resign in quick succession in 1884 and 1885.
In the Chamber of Deputies, the opposition to French colonial expansion was led by Mr Georges B. Clemenseau. They voted against it and they lost by only 3 votes, otherwise France had to pull out of Tonkin.
That prompted an observer to write that “France gained Indochina very much against its own wishes.”
On 9 June 1887, the Sino-Franco Convention was signed. It was essentially to delimit the land and maritime borders that was not agreed upon in the 1885 Treaty of Tientsin.
It was also a compromise that Qing China recognized the French protectorates of Tonkin and Annam and in return France pulled out from the Pescadore islands and from the ports of Keelung, Tainan and Kaohsiung in Formosa.
France had no interest in the Paracel, Pratas and Spratly islands at the material time. She only became interested in the 1920s and 30s to use them as a buffer against Japan’s colony of Formosa and the Pescadores.
That was why Article 2 of the 1887 Convention stated that the “The isles which are to the east of the meridian of 105° 43′ longitude east of Paris, which is to say of the north-south line passing through the eastern point of the island of Chagu [Tch’a-Kou or Ouan-chan (Tra-co)] and forming the border, are similarly assigned to China.”
Artcile 2 also stated that “The Jiutou [Go-tho] islands and other islands which are to the west of this meridian belong to Annam.” Why Annam? Because it was the French Administrative Centre.
2 “The Qing court had no knowledge of, and no interest in the Paracel or Spratly islands until 1909.”
Not true. This is another example of fake news disseminated by some misguided Western analysts to further their nefarious agendas.
In their book “Security Flashpoints: Oils, Islands, Sea Access and Military Confrontation, Prof Myron H. Nordquist and John Norton Moore wrote:
“In 1883 the Qing Government lodged strong protest against Germany when the Germans were conducting survey activities in the Paracel and Spratly areas; as a result of such protest, the Germans had to terminate their survey activities.
During the reign of Qing Emperor Tongzhi (1862-1874) the Qing Customs and General Revenue Office planned to establish lighthouses in the Dongsha Island for facilitating navigation in the SCS. In 1908 upon request by foreign states, the Customs of the Qing made plans for erecting lighthouses on the Paracel Islands for the same reason of providing convenience to navigation.
In 1910, the Qing Government decided to “Zhao Lai Hua Shang Cheng Ban Dao Wu (invite Chinese merchants to contract for the administration of the development affairs of the SCS. Meanwhile, it demanded that officials shall provide protection and maintenance in order to highlight (Qing’s) territory and to protect (Qing’s) titles and interests.
Qing’s authority over the SCS was further supported by numerous Qing maps which invariably included the Paracels and Spratlys within the boundary of China.
These maps ranged from the Da Qing Zhong Wai Tianxia Quan Tu (The Complete Sino-Foreign Maps of the Great Qing) of 1709 to The Complete Geographical Maps of the Provinces, Capital Cites, Prefectures, Counties and Tings of the whole China of the Great Qing of 1905.
In short, the Qing Government, like its predecessors, not only claimed but actually exercised sovereignty over the Paracel and Spratly Islands. The sovereignty was never challenged by China’s neighboring states throughout the Qing Dynasty.” Unquote.
Prof Carty said that British record proves there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole titleholder.
Prof Myron H. Nordquist and John Norton Moore are simply wrong when they write this:
“In 1883 the Qing Government lodged strong protest against Germany when the Germans were conducting survey activities in the Paracel and Spratly areas; as a result of such protest, the Germans had to terminate their survey activities”
As I demonstrate in my paper. This never happened. Neither did any plans to build a lighthouse on Dongsha (Pratas). In fact the Japanese merchant Nishizawa Yoshiji occupied Pratas in 1907 and the only reason the Qing Court heard about it was because US Secretary of War William Taft told them about it on his visit in November 1907. It still took them over a year to organise an expedition there in 1909 and subsequently to the Paracels. Hence the first time the Qing Court took any interest in the Paracels was June 1909. Their interest evaporated immediately afterwards.
They never went anywhere near the Spratlys.
Actually, it wasn’t Nordqvist and Moore that you quote. It was Jianming Shen’s chapter in their book. I’m afraid Shen’s scholarship is very weak in this area. One of the sources he quotes is Duanmu Zheng’s ‘Guoji Fa’.
Duanmu was a Chinese judge/state official, not a historian. And the pages in his book that Shen references are simply a series of assertions without any supporting references.
In short, none of the things that you quote are actually supported by evidence.
That was the point of my paper in Ocean Development and International Law. Perhaps it’s worth another read.
1 “In short, none of the things that you quote are actually supported by evidence.”
In case the nuance escaped you the burden of proof always lies with the person who lays charges, according to the legal principle of “Semper necessitas probandi incumbit ei qui agit.”
So where are your proofs that Mr Shen was wrong in claiming that “Qing’s authority over the SCS was further supported by numerous Qing maps which invariably included the Paracels and Spratlys within the boundary of China. These maps ranged from the Da Qing Zhong Wai Tianxia Quan Tu (The Complete Sino-Foreign Maps of the Great Qing) of 1709 to The Complete Geographical Maps of the Provinces, Capital Cites, Prefectures, Counties and Tings of the whole China of the Great Qing of 1905”?
He also wrote:
a) From 1710 to 1712 Vice-Admiral Wu Sheng patrolled the seas in the Paracel Islands.
b) In 1909 Admiral Li Zhun sailed to the Paracels, identified and renamed 15 islands and islets.
c) The Qing Govt on several occasions went to the rescue of foreign ships.
d)In 1755, the Qing Govt rescued 16 foreign sailors whose ships were wrecked in the Paracels.
e)In 1762 the provincial Govt of Guangdong ordered the rescue of ships from Thailand that got into trouble in the Paracels.
Lets see your proofs that Mr Shen’s citations are wrong.
1 “Prof Myron H. Nordquist and John Norton Moore are simply wrong…”
Not true. To understand why the Qing Govt lodged a protest in 1883, one needs to study German involvement in Qing China.
Germany was a later comer to Qing China. A Prussian expeditionary fleet only arrived in 1860. In the following year the Prussian-Chinese Treaty of Peking was signed. This allowed German warships to operate FREELY in Chinese waters for the protection of German trade.
In May 1961 the Eulenburg expedition arrived in Tianiin where Count Eulenburg negotiated with Qing authority for a Commercial Treaty. On 2 Sept 1861 such a treaty was signed and it governed Sino-German relations until the start of WW1 (1914) when the treaty was abrogated by an independent China.
With good Sino-German relations, Qing China ordered two battleships (Dingyuan in 1881 and Zhenyuan in 1882) plus Jiyuan, a 2,337 ton cruiser in January 1883. The Dingyuan alone cost 1.6 million taels of silver, equivalent to a silver price of US$30 million today.
It is therefore inconceivable that immediately after signing the lucrative contracts for three warships, worth millions of taels of silver, that the Germans would deliberately violate the Commercial Treaty by conducting a clandestine hydro-graphic survey of the Paracel Islands (from 1881 to 1883) and risk losing the lucrative orders for all three warships to be built at the Stettiner Vulcan AG shipyard in Germany.
To avoid any diplomatic incident it was logical that the German surveys were conducted with the full knowledge and approval of Qing authorities, as part and parcel of the terms of the Prussian-Chinese Treaty of Peking of 1861, which allowed German warships to operate FREELY in Chinese waters for the protection of German trade.
But that good Sino-German relations did not last long due to the late delivery of Dingyuan, which was scheduled for 1884 but was stopped in 1883 following a request from France, which was in the middle of a conflict with China when it invaded Annam and forced the Emperor to sign the Treaty of Hue in 1883 to make it a French Protectorate, essentially ending the Suzerainty of Qing China. That eventually led to the Sing-Franco war of 1884-1885.
Because there was a breach of contract when the delivery of the Dingyuan, Zengyuan and Jiyuan was deliberately delayed by 10 months by the Germans, in deference to the French request, it was clear that Qing China retaliated by stopping the hydro-graphic survey by the Germans in 1883 in the Paracel and the Spratlys but the survey in the Paracels was by then completed or almost completed, but not in the Spratlys.
Nevertheless, it could not have a good survey because in 1895 the German ship, the Bellona, sank in the Paracels, followed by the Imeji Maru in 1896.
2 “In fact the Japanese merchant Nishizawa Yoshiji occupied Pratas in 1907”
There were two such incidents with Japanese merchants in the Pratas. According to Prof Hungdah Chiu and C.H. Park, “In 1907, a Japanese merchant tried to explore the resources in the Pratas Islands but was expelled by the Chinese government.”
So it is clear that Nishazawa Yoshiji was only compensated to abandon his operations and to leave Pratas Island in 1909.
3 “Hence the first time the Qing Court took any interest in the Paracels was June 1909. Their interest evaporated immediately afterwards.”
Not true. Dr Tonnesonn in his paper “The Paracels: The other South China Sea Disputes” which you neglected to cite, stated that “The Qing dynasty in 1902 and 1908 (or 1909) sent expeditions to the Paracel Islands and formally claimed them on behalf of the Chinese Empire.”
In his paper “The South China Sea in the Age of European Decline” which you cited, Dr Tonnesonn wrote “In the 1910s–20s, the French Ministry of Colonies and the Ministry of Foreign Affairs more or less agreed that the Paracel Islands were under Chinese sovereignty, and that France should not try to claim them either on behalf of itself or Annam.”
He further wrote that “In the 1920s Britain and Japan both tended to consider the Paracels to be Chinese”
And that “In the interwar period, Britain considered the Paracels to be Chinese”. This was confirmed by the Minutes written by Mr C.G. Jarrett for the Head of the British Military Branch in 1919, which stated that “His Majesty’s Government regarded China as having the best claims to the Paracel Islands.”
He also wrote that in June 1938 “France sent a mission to the Paracels with instructions to establish lighthouses and a typhoon warning station… Their official task would be to combat piracy. The French had informed Chinese authorities about this move, and assured them that the action should in no way be regarded as prejudging the question of sovereignty.“
Therefore, China’s sovereignty over the Paracel Islands was never in question by Britain, France, the US and Japan prior to 1939 annexation by Japan.
You really do have a problem with logic and evidence. Go and read my paper again. First Qing expedition to Paracels was 1909.
There is no evidence of any Chinese protest to the German hydrographic survey in 1887. Give me evidence – not quotes from unevidenced narratives.
1”You really do have a problem with logic and evidence.”
The evidence I presented, which you chose to ignore, is that:
a) Qing China ordered two Battleships and one Cruiser from Germany from 1881 to 1883. Did you or F-X Bonnet, which you have quoted religiously, know about this fact? No. I have not seen both of you making any reference to this fact.
b) After landing these 3 multi-million taels of silver orders was it logical for Germany to immediately jeopardize its good relations with Qing China (and risk the cancellation of these lucrative orders) to carry out a clandestine survey of the Paracel islands?
A reasonable bystander would say it was not logical, when German warships could FREELY sail in Qing China waters, under the Prussian-Chinese Treaty of Peking 1861.
Besides, Qing China would welcome such a survey if it could enhance navigation in the Paracel islands. So why the need for the clandestine surveys from 1881 to 1883?
c) Did the Germans delay the delivery of the three warships to Qing China by 10 months, in deference to the French’s request. The evidence is yes. Did you or F-X Bonnet know about this? No.
d) Did Qing China roll over and pretend to play dead as a result of the serious breach of contract or did it retaliate against Germany? Yes, it retaliated by stopping the German surveys in the Paracel and Spratly islands, the latter of which was confirmed by Prof Chiu and Park.
e) You excoriated Prof Chiu and Park’s claims because it came from “ a statement by the Kuangtung [Guangdong] Provincial government in 1933, fifty years after the events in question” but you were prepared to believe F-X Bonnet who wrote about the subject 129 years later and disagreed by simply claiming and contradicting himself that “Generally, Chinese scholars, writing for an international audience, consider that these German missions were in the Spratly Islands and that the Chinese government protested these activities to the point that the Germans left the area. In fact, Chinese scholars’ own research shows otherwise, but such findings are not published in English.”
Of course, it escaped your notice that F-X Bonnet never revealed the names of the Chinese scholars whose “own research shows otherwise.” You call that archival evidence? That is laughable.
2 “Go and read my paper again.”
I did and you relied too much on F-X Bonnet and other flawed articles and not from archival evidence.
How can you be taken seriously when in your 12 June 2015 paper “The importance of evidence Fact, fiction and the South China Sea” you did not even know that the Permanent Court of Arbitration at The Hague is not a court?
3 “First Qing expedition to Paracels was 1909.”
Not true. Even your good friend Dr Stein Tonnesonn disagreed with you when he wrote in his paper “The Paracels: The other South China Sea Disputes” which you neglected to cite, that “The Qing dynasty in 1902 and 1908 (or 1909) sent expeditions to the Paracel Islands and formally claimed them on behalf of the Chinese Empire.”
4 “There is no evidence of any Chinese protest to the German hydrographic survey in 1887.”
Who says anything about “German hydrographic survey in 1887”? Are we still on the same page?
5” Give me evidence – not quotes from unevidenced narratives.”
a)The PCA is not a court, contrary to your claims.
b) France had no interest in the Paracel, Pratas and Spratly islands at the material time. She only became interested in the 1920s and 30s to use them as a buffer against Japan’s colony of Formosa and the Pescadores, as evidenced from the text of Article 2 of the 1887 Sino-Franco Convention.
c) Prof Carty said that British record proves there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole titleholder.
d) In his paper “The South China Sea in the Age of European Decline” which you cited, Dr Tonnesonn wrote “In the 1910s–20s, the French Ministry of Colonies and the Ministry of Foreign Affairs more or less agreed that the Paracel Islands were under Chinese sovereignty, and that France should not try to claim them either on behalf of itself or Annam.”
e) Dr Tonnesonn further wrote that “In the 1920s Britain and Japan both tended to consider the Paracels to be Chinese”
f) And that “In the interwar period, Britain considered the Paracels to be Chinese”. This was confirmed by the Minutes written by Mr C.G. Jarrett for the Head of the British Military Branch in 1919, which stated that “His Majesty’s Government regarded China as having the best claims to the Paracel Islands.”
g) Dr Tonnesonn also wrote that in June 1938 “France sent a mission to the Paracels with instructions to establish lighthouses and a typhoon warning station… Their official task would be to combat piracy. The French had informed Chinese authorities about this move, and assured them that the action should in no way be regarded as prejudging the question of sovereignty.“
Conclusions:
Therefore, the evidence above shows, without a doubt, that China’s sovereignty over the Paracel and Spratly Islands was never in doubt by Britain, France, the US and Japan prior to the 1939 annexation by Japan.