Rethinking South China Sea Disputes

The Untold Dimensions and Great Expectations

Katherine Tseng

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317374763
• Edition: 1
• Topic: Social Sciences
• Subtopic: Regional Studies
• Index: Social Sciences

The proposed book draws on the on-going South China Sea dispute, and the multifaceted challenges wrought by the South China Sea issue that requires an inter-disciplinary perspective. It employs legal-analytical methods, to emphasize the nuances of the role and interpretation of international law and treaties by China in different periods, while taking into account policy and strategic concerns, which generally cast great sways in decision-making. The re-introduction of interdisciplinary concerns straddling law and history illustrates that the historical dimension, which has long been neglected, is an emerging concern that poses looming dangers that may unexpectedly radicalize the friction. Contributing to debunking the mystique wrought by confrontations between a historical and a law-dominated perspective, these perspectives are supported by a more nuanced analytical framework, featuring theoretical concerns with a tinge of practicality. The South China Sea Dispute aims to unveil a nuanced evolution of the issue with a confluence of inter-temporal law, policy and maritime practices in the South China Sea.

1
The South China Sea under the colonial encounter in the nineteenth century

I The western winds of colonialism

A An overview of colonial expansion in the Southeast Asia

In company with commencing the long haul of transformation into modern capitalist economies and nation states, Europeans had conducted a process of expansion that led to European encounters with the “others”, beyond what the scope of the “barbarian” peoples referred to in ancient periods.¹ This process of expansion, begun in the fifteenth and sixteenth centuries, extended well into following centuries, with expeditions keenly probing around the globe.

During the fifteenth and sixteenth centuries, the Europeans had advanced their explorations in three main areas. In the beginning they concentrated on the Atlantic basin from the Atlantic islands and coastal western Africa to the hinterlands of the American continents. Subsequently, the northern seas fell into the grip of the Europeans, stretching eastward from the Baltic to the White Sea and the Siberian Coast and westward to the coasts of Canada. Then came the Oriental seas and northern Asia. The Pacific region was brought under the European influence during the eighteenth century, when the islands and coastal regions in and bordering the west Pacific, such as Australia, New Zealand, New Guinea and the Pacific Islands, were grabbed by the European explorers.

When Europeans arrived in Southeast Asia as early as in the fifteenth century, they did not come into a decaying and impoverished hemisphere, but rather a wealthy, open and dynamic region. Situations subsequently changed, in both the Europeans’ intentions and the overall context, as the growing European interests extended beyond acquiring trade concessions into huge and prosperous markets in Southeast Asia and China. Instead, the desire to obtain minerals and growing crops for export, for further encroachment into the hinterland of Asian continent, and for prestige in both political and legal legitimacy began to overshadow those original mercantilistic commercial activities.

In this context, at the end of the nineteenth century, there was hardly a piece of land in the world into which the Europeans had not exerted their economic and military powers, let alone the more provocative religious and cultural infiltration. These European penetrations around the globe set in motion processes which resulted in a new reality that the world had been defined by trans-cultural and trans-national phenomena. Prescribed by Wolf, with insights and persuasions, these were the encounters and implications between the Europeans and the rest in the post-1400 world. European expansion created a market of global magnitude by incorporating pre-existing networks of exchanges and by creating new itineraries and historical trajectories between continents bridging European and non-European populations and societies. Intriguingly, this pattern of historical process and international commodity exchange had fostered regional specialization and had initiated worldwide movements of commodities. The growth of European trade and the dominion of capitalism, originating in the European continent, had brought about a qualitative change not only in the regnant mode of production, but also in the commercial network connected with it.²

In Southeast Asia, western countries came in different periods, but had gradually established a condominium of great powers both in the Asian continent and the bordering West Pacific Ocean. In Indonesia, the Dutch greatly expanded their power between 1750 and 1914, by conducting commercial activities and administrations mainly on two big islands, Java and Sumatra.³ After consolidating their position in India, the British became interested in, yet had not become deeply involved in the Malay Peninsula until the late eighteenth century.⁴ The British also extended their power into the area inhabited mostly by Muslim Malays in Borneo and Sarawak in the middle of the nineteenth century. The French ambitions were in Vietnam, gradually creeping into the Indochina continent in pursuit of a “civilized mission” to cultivate the people by spreading French culture and religion, commercial gain, and control of riverine areas along the Mekong and Red River routes.⁵

B Evolution of intergovernmental maritime cooperation and practices⁶

The European expansion would not have been vindicated without the advancement of maritime technology and the re-envisioned world views. Following the unfolding of the world map from the European continent, expansion expeditions of these empires helped cultivate the classic mercantilist economy, in which its theoretical advancement and operation was underpinned by state policies and practices of mercantilism, along with a row of measures that helped empires to maintain balances of trade.⁷ In this sense, it is argued that acquisitions of overseas territories and colonies were effected mainly to increase the wealth of the imperial mother nation by furnishing raw materials at controlled prices to the advantage of the mother country. The kinetics between mercantilist economy and the formation, and even collapse, of empires, could also be verified, as it has been asserted that “wealth is needed to underpin military power, and military power is needed to acquire and protect wealth.”⁸

From this line, imperial encounters on the sea aroused issues and challenges both among expeditioners themselves and with local and indigenous communities. Within these empires, raw materials, fresh labour and markets with huge export potentials brought about from overseas occupation triggered fierce competition in political manoeuvring in metropole capitals, and legal brainstorming among European intellectuals. The proposal of a liberal formula for maritime traffic, from which the right for free trade in the newly discovered territories was granted to those equipped with required capabilities, was staunchly upheld by late-coming Dutch colonialist-cum-merchants.⁹

One positive side was that this competition brought to the table the agenda of law-making and conflict management in maritime affairs among these empires. It developed further when maritime communication became an artery critical for continuing thriving of imperial dominance on the Indian Ocean and the Southeast Asian waters. Leaving aside whether certain criteria drawing the line separating the civil and military dimension of these imperial maritime activities had been developed in due course, it was an era where conventions were to be redrawn – and the view re-envisioned – in the scenario of law-making and rule-compounding in maritime communication. Nevertheless, what overshadowed this rosy picture was the differentiation, if not outright discrimination, in the application of rules and institutions to European polities and non-European kingdoms and dynasties in the exotic, non-Christian world. Adam Watson poignantly observed, “The rules and institutions which the Europeans spread to Persia and China in the nineteenth century were those which they had evolved with the Ottomans…rather than those in use within itself…”¹⁰

By the mid-nineteenth century, the ideal of international cooperation in maritime affairs was accompanied by sprouting efforts, taking multilateral treaties as a type of international legislation and an initiative for a prosperous outlook. The Declaration of Paris of 1856 marked the beginning of converging a consensus of maritime affairs management at the international level.¹¹ Despite an aftermath effort in post-war period of the Crimean War, which seemed dedicated more to wrap up the conflict but not to commence commencing international judicialization and institutionalization of rules of maritime affairs, this Declaration laid out protections of vessels and cargos during belligerency.¹² It further advocated the abolishing of privateering and the binding of blockades based on the effectiveness principle.¹³

Subsequent efforts were picked up in 1884, when the International Convention for the Protection of Submarine Cables was signed by 26 nations, aiming to deal with international communication and vessel operations.¹⁴ Later in 1889, the Washington Conference on Safety at Sea was convened to discuss difficult issues, such as rules to determine the seaworthiness of vessels and compulsory sea lanes in frequented waters.¹⁵ Other than these, the Conference had considered creating a permanent international maritime committee, a predecessor of the International Maritime Organization today. These international efforts, as law-making efforts aiming at global uniformity were nevertheless aborted.¹⁶ Yet, they had at least reaffirmed that treaty process, which converged, recalibrated and refined proposals and opinions from participating countries, all of which appeared essential for the progressive harmonization and unification of laws in maritime trade and shipping.¹⁷

These efforts, however, encountered rather tepid responses from the international community, as international cooperation was suspended during the ferocious maritime and naval competition between the powers in the early years of the twentieth century. The First World War further postponed these important international works, which were not resumed until 1929. The 1929 Conference produced a new convention, dealing with the subjects concerning safety standards and technology of vessels, and lifesaving appliances on the ship.¹⁸ An International Rules of the Road was also included.

The League of Nations, established after the First World War and surviving only 20 years, nevertheless took up some maritime subjects and was able to achieve some success with respect to uniform systems of maritime signals and buoys. However, subjects such as oil pollution of the oceans were less successful and had not seen any breakthrough until after the Second World War in 1958.¹⁹ To a considerable extent, the multilateral treaty process was one critical step in forging and reifying international consensus in maritime law-making and rules-compounding. Despite its overtly idealistic discourses and the lack of political support from members in the international community because of the deteriorating economy and dwindling trade, the League of Nations had demonstrated the feasibility of international cooperation in this early period in international law-making in maritime affairs, only that its system of collective security had failed to achieve the contextual stability and global peace thus required.²⁰

II Southeast Asia and the South China Sea in the colonial era: the intermixture of changed-unchanged paradox in colonial policy

A Some critical thinking on the colonial Asia and the maritime law-making

When writing about maritime issues²¹ in colonial Asia, one enduring problem is how history should be constructed and recast in the writing. Undoubtedly, history has played a weighty role in regional maritime disputes. Moreover, situations may become more complicated, should they be imbued with frivolous sentiments of national pride, self-determinative justice, an inflated sense of victimization and an insatiable demand for compensation, whether nominally or materially. This has plagued efforts to recast the history of maritime issues in Southeast Asia and China during the periods of colonial and imperial occupation.

From an epistemological perspective, history, in the scenario of maritime territorial disputes, could be reconsidered via three lenses. First, it can be conducted from a national perspective, by retracing the ancestral footsteps of respective countries and reframing contested issues when considering mainly realistic interests of respective countries. The second is from a bipartisan perspective, in which the main examining body would be legal treatises, claims of involving nation(s) and an analytical and chronological discussion of the development of disputes. The third is to deem the issue as a fraction of a general history, and to examine such in the context of the vicissitude of political powers and balances of interests, at both regional and international level. This third approach risks boiling down the subject to merely bland prescriptions based on the right, but dry, analytic instruments of power and politics. However, it tends to outbid the former two approaches, in terms of its academic contributions, because of a bipartisan attitude and a relatively neutral position when treating the presented facts, realities and contestations.

Another issue meriting attention is the need to heed a specific shift in terms of subjectivity and the framing perspective. It can be done by avoiding the misperception of realizing the interconnectivity of local day-to-day activities and events either read or constructed in Southeast Asian waters and Chinese coasts, with the erasure of the civilizational, societal, ethnic and regional boundaries from afar, namely the not so relevant European contexts and perspectives. This adjustment is worth efforts.

On the one hand, it marks the recognition of the continuing struggle of the indigenous people, their uncomfortable response to the thrust-upon “modernity” with the escort of threating forces and discriminatory western mastery. It is from this approach that the very often monolithic history writing of Asia at the helm of colonization and imperialism could be avoided, when voices and concerns of the indigenous people could be meaningfully presented. On the other hand, this plural-dimensional tone in historical prescription is to better present the complex relationship between Europe and the rest of the world in post-1492 era. It...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• 1 The South China Sea under the colonial encounter in the nineteenth century
• 2 Beyond territorial disputes: maritime issues and the revolutionary China
• 3 A neglected dimension in South China Sea: fishing
• 4 From the centre: the dash-line claim as a historical imaginarium or a quest for new course?
• 5 From the centre: a proposal of jurisdiction right upon maritime spaces
• 6 From the periphery: the South China Sea as a frontier and application of the maritime space jurisdiction right
• 7 Echoing the mandala legacy: rethinking ASEAN engagement in the South China Sea
• 8 From the periphery: state succession and the South China Sea disputes
• Conclusion
• Index