The current rationale for Washington’s South China Sea policy continues to reference history and law as a justification for reinforcing U.S. military presence in the region. Further Washington’s reliance on a decision by the Permanent Court of Arbitration, not only circumvents normative interpretations of the UN Convention on the Law of the Sea, but uses this ruling to build cooperation among partner States to overlook the details of both China’s claim and the U.S. policy that originally recognized China’s maritime boundary.
For U.S. maritime policy there has been a long held position called Freedom of Navigation, and not unlike the vague doctrine of expansionism we find in the Monroe Doctrine, the Freedom of Navigation is an equally vague policy growing out of President Wilson’s “Fourteen Points,” intersecting commercial maritime rights with what British Foreign Minister Viscount Grey of Fallodon called “belligerent rights.”
As part of its Asia-Pacific Maritime Security Strategy, the 2015 NDAA report outlines what is at stake with its Freedom of Navigation objectives:
“Maritime Asia is a vital thruway for global commerce, and it will be a critical part of the region’s expected economic growth. The United States wants to ensure the Asia-Pacific region’s continued economic progress. The importance of Asia-Pacific sea-lanes for global trade cannot be overstated. Eight of the world’s 10 busiest container ports are in the Asia-Pacific region, and almost 30 percent of the world’s maritime trade transits the South China Sea annually, including approximately $1.2 trillion in ship-borne trade bound for the United States. Approximately two-thirds of the world’s oil shipments transit through the Indian Ocean to the Pacific, and in 2014, more than 15 million barrels of oil passed through the Malacca Strait per day.”
For the Freedom of Navigation, the objectives were not only meant to build plurilateral consensus for resolving territorial disputes in the South China Sea, it was also to promote U.S. presence in the region while obstructing maritime and regional trade priorities like the One Belt One Road and the BRICS agenda. The Freedom of Navigation operation is a consensus-building platform for containing China’s influence in the region, removing the controversial nine-dash line that defined China’s territorial boundary.
In his public remarks on the next phase of the U.S. Rebalance to the Asia-Pacific, Defense Secretary Carter said that the TPP was “worth as much to him as a new aircraft carrier.” On the one hand he was speaking about enhancing military cooperation in the Asia-Pacific region, while on the other he was speaking about building capacity for military defense among member nations and industries by targeting all the potential threats that could undermine the objectives for the TPP, the “crown jewel” of Obama’s trade and military rebalance.
Although there have been flare-ups over fishing rights, there is no evidence of China ever having impeded the passage of transport vessels through the SCS. As the U.S. has argued, there is only the “potential” of China doing something illegal, and last I looked, the potential of being able to do something is not a crime.
Once the TPP negotiations concluded, the US sailed its warship, the USS Larssen, near China’s Subi and Mischief outposts in the Spratly Islands, part of the disputed territory in the South China Sea. As an exploratory and provocative mission, Washington appeared to be testing the waters of cooperation to see how the regional partners, particularly ASEAN members, would align themselves with Washington’s maritime security strategy. Shortly after the incident, Malaysian defense minister Hishammuddin Hussein said, “I don’t welcome anything that can disrupt the stability of the region,” “This is our region. We cannot allow other parties to determine our future.” As one of the TPP members, Malaysia’s criticism of this incursion prompted Obama to host a meeting among the ASEAN leaders at Sunnylands Ranch in California earlier this year. This was the first time that ASEAN leaders met in the United States, and both TPP and the South China Sea were high on the agenda.
The dispute over China’s territorial boundaries in the South China Sea is central to how cooperation and capacity building can destabilize a region, something that ASEAN members recognize would not benefit trade and security, and reflects the difference of priorities between the United States, China and ASEAN, despite statements suggesting otherwise.
Historically, the nine-dash line was drawn as an 11-dash line by the U.S. backed General Chiang Kai-Shek who helped lead the Nationalist Party against the Japanese occupation of China, along with–but apart from– Mao Zedong’s Communist Party.
In 1945, after the Japanese defeat, the Nationalists and Communists fought for control over China, and in 1949 the People’s Republic of China (PRC) succeeded as the legitimate government of China, driving the Nationalists to flee to U.S. occupied Taiwan and established the government of the Republic of China (ROC) in Taipei.
At the end of the 19th century, President McKinley referred to China’s maritime provinces as, “subserving our large interests in that quarter by all means appropriate to the constant policy of our government.” How the U.S. exerted its expansionist agenda to compete with Japan and the European colonial powers over their territorial ambitions over China was to create an “Open Door” policy which would give all nations with competing interests, access to China’s resources.
Later, the ROC government published the 11-dash line map in 1947, based on the 1935 “Map of Chinese Islands in the South China Sea,” published by the ROC’s Land and Water Maps Inspection Committee. It’s important to recognize that these maps were drawn after the 1922 Nine-Power Treaty that effectively held the door wide open for trade and investment by the large industrial powers of that time. By 1928, when the U.S, recognized the Kuomintang leadership of General Chiang Kai-Shek’s Nationalist Government, foreign powers had already gained control of ports, railways and key industries. In 1935, when the Land and Water map was drawn, island reefs and atolls known as Dongsha, Xisha, Zhongsha and Nansha were included and these archipelagos contained more that 170 islets, sandbars and reefs.
In the 1945 pre-conference documents leading up to the Yalta conference, U.S. policy promoted reconciliation of Kuomintang-Communist differences, favoring “no political factions,” but to support the “Government of China as the central authority recognized by the Chinese people.” The U.S. objective for the post-war peace meetings was to negotiate with China a “comprehensive treaty relating to commerce and navigation on the basis of unconditional most-favored-nation treatment.”
During the post-war planning, none of the allied Nine-Power Treaty nations formally opposed China’s maritime territory, ostensibly because the conditions for Open Door trade with the Kuomintang Nationalist government were so favorable. Even after Japan forced their expansion into Manchuria in 1937, then Taiwan, the South China Sea islands and other Pacific territories, no one challenged the 11-dash line.
The context of this is significant because when the map was drawn in 1935, there was clearly an overlap over the maritime boundaries of the 11-dash line and the Philippines, then a U.S. territory. No formal questioning over this territorial overlap between the U.S. administration and the Kuomintang Government had been lodged.
The U.S. recognized the Kuomintang nationalists over the Communists and other competing governments, and I would surmise that Washington simply overlooked the territorial overlap, seeking to take advantage of the opportunity presented by the financial and industrial interests of the Nine-Power Treaty. When the U.S. renegotiated the treaty with the Kuomintang government, it provided the U.S. tariff-free and extraterritorial privileges in both transport and trade throughout China.
In 1951, Japan sought membership to the U.N. and submitted a Treaty of Peace formally renouncing all right, title and claim to the territories that was annexed before and during the war. The territories were broken up into six divisions that should have fallen under different administrations, but because of the spurious and controversial way with which the U.S. oversaw Japan’s Peace treaty, the USSR rejected the treaty. For example: Korea was to be self-determined; the Kurile and Sakhalin islands should have gone to the USSR; Taiwan and Penghu were unilaterally treated as separate from China; Pacific Islands fell under UN Trust Territories to be administered by the U.S.; while the question of who would administer the Spratly and Paracel Islands was left undecided
Complicating matters, neither the PRC nor the ROC were permitted to participate at the UN peace signing due to anti-communist bias, and both refuted the claims by the French-backed Republic of Vietnam, who at that time was in the midst of a civil war when they opportunistically declared their sovereignty over the Spratly and Paracel islands, seeing that neither China was present.
During WWII, when the Ministry of Interior of the Republic of China announced to the world the formal names of the islands, reefs, and banks of the four archipelagos of Dongsha, Xisha, Zhongsha and Nansha, no country presented any objection. When the ROC had formally drawn the 11-dash line, the U.S. did not contest it, and rather saw it as an extension of China’s history. Later, when Japan transferred administration of Taiwan and Penghu to the Government of the Republic of China, they explicitly excluded the Spratly and Paracel islands, recognizing them to be part of China’s territory. Hence, since the PRC won China, the islands were generally accepted to be administered by the People’s Republic, and not the Republic of China.
The contradictions over the U.S. backing of the ROC’s government of Taiwan and Penghu while it was under U.S. military occupation had been justified as a security measure for its involvement with the Korean War, and later the Vietnam War. The PRC understood early on, that any U.S. claim to “maintain security in the Pacific,” meant that its occupation of Taiwan and Penghu was to shatter the security of the Pacific when it came to Communist China.
Later, during the Anti-French Resistance in Vietnam, Premiere Zhou Enlai reduced the 11-dash line to the nine-dash line, erasing the boundary between the coast of Vietnam and Hainan Island, presumably giving President Ho Chi Min open access to resources in the region as a concession for support.
Philippines 1898 and 1946 territory
After the 1898 Spanish-American War, the United States purchased the Philippines and the boundaries of the territory were clearly delineated and the Scarborough Shoal sat within the Philippines territorial boundary . When the Philippines gained their independence in 1946, the boundaries that were transferred ti the U.S. were unchanged.
With the admission of more States to the United Nations, there needed to be new international rules over ocean boundaries, exploitation, conservancy and governance and in 1982, the United Nations signed the Convention on the Law of the Sea (UNCLOS), of which 168 parties have since ratified. What UNCLOS offered coastal States was the right to “establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines” determined in accordance with the convention. Additionally, exclusive economic zones (EEZ) extending up to 200 nautical miles from the territorial seas were provided for economic activities that were in accordance to the Convention. When the Philippines ratified UNCLOS in 1984, they expanded their territorial jurisdiction by adding a clause of sovereignty over part of the Spratly Islands that were not included as their territorial boundary.
When China signed UNCLOS in 1996, there were exemptions to those territorial definitions that reaffirmed China’s “sovereignty over all its archipelagos and islands” as listed in article 2 of the Law of the People’s Republic of China. These exemptions would exclude China from any binding interpretation over its territorial boundaries. This included “Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands belonging to the People’s Republic of China.”
Additionally in stark contrast with U.S. claims of China’s “illegal island building,” China is within their right to expand and build structures within its EEZ, under UNCLOS. China– to be clear– is abiding by the rules it signed when ratifying UNCLOS– what the Philippines had done is apply a narrow reading of only the 12-nautical mile baseline, excluding an entire Chapter of UNCLOS on the EEZ, which Article 46 1(b) gives China the right to the “establishment and use of artificial islands, installations and structures.” within the EEZ.
Clearly, these competing territorial claims were only going to create conflict within the region and when you mix in the competing claims by Vietnam and Malaysia, it created a flurry of territorial scuffles in the region. In a 1996 Strait baseline document, the U.S. State Department wrote:
“The PRC is hardly alone in violating the spirit, if not the letter, of the 1982 UN Convention. Excessive baseline claims are all too common in Asia and elsewhere. Those of Burma, Cambodia, Malaysia, North Korea, Russia, Thailand and Vietnam are as extreme as that of the PRC.” In terms of the US using diplomatic or military options for challenging China’s claim, the State Department concludes that in order to resolve these disputes, “We must now wait for the proverbial other shoe to drop.”
The shoe that dropped may have been the Philippine’s notification and statements of claim that they filed against the PRC in 2013. Upon receiving notification, China made it very clear that they were not participating in arbitration proceedings, because the proper jurisdiction for this territorial dispute was within ASEAN, under the 2002, ASEAN-China Declaration on Conduct of Parties in the South China Sea. This Declaration contained a dispute mechanism signed by all parties and recognized by UNCLOS (XV) as the appropriate venue for resolving disputes. The Philippines broke this 2002 Declaration when it submitted its case to the Permanent Court of Arbitrations in 2012 despite objections from some of the other ASEAN members who in the end reaffirmed the 2002 Declaration as the proper jurisdiction for settling these disputes.
Since May 2016, when President Rodrigo Duterte took office, Philippine policy moved away from Washington and pledged to cancel bilateral agreements with the U.S., while moving closer to China on issues over security and trade. This directly contrasts with policies of previous President Benigno Aquino, who expressed interest in joining the TPP but was unable to congressionally liberalize its constitution to meet TPP membership. The Philippines, it was argued, already had a Trade and Investment Framework Agreement, and the Enhanced Defense Cooperation Agreement came under tremendous public criticism due to its secrecy, unconstitutionality, and the precariousness of committing the Philippines to the front lines in the event of a military conflict with China. Further, many questioned why Aquino filed this case with the Permanent Court of Arbitrations knowing that the outcome would produce only a stalemate and terrible mess.
As much as Washington tries to say that the US is not provoking China, how is it not provocative interference when Brookings promotes, “The U.S. government should make clear to the other claimants, and to other ASEAN countries like Singapore and Thailand, that we expect them to be public in their rejection of the nine-dash line under international law.”
It should be clear that the US has not yet ratified UNCLOS, in part because as Professor Bernard Oxman testified before the Senate Foreign Relations committee, “ the historic tension in the law of the sea has been a struggle between the freedom of the seas and coastal state sovereignty over the seas. The two are, in their purest forms, directly contradictory.”
As a final note on the ruling by the Permanent Court of Arbitration, it should be clear that the rules that the PCA relied upon for its decision was “OTHER,” and not UNCLOS or UNCITRAL (UN Convention on the Law of the Sea or the United Nations Commission on International Trade Law, respectively), which would at least have been the relevant rules to approach the territorial dispute. Without China’s participation in the proceedings, no award should have been given to the Philippines. Similarly, just as the U.S. was not party to the proceedings and had not consented to the Hawaiian Kingdom v. Larsen case, the PCA ruled “not maintainable.” China too was not party to the South China Sea proceedings and had not consented, so why all the double standards?
 Woodrow Wilson, “Fourteen Points” 8 January 1918. “Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants.”
 “Plan of Action to Implement the ASEAN-U.S. Strategic Partnership (2016-2020)” ASEAN-U.S. Summit: “Promote maritime security and safety, freedom of navigation and overflight, unimpeded commerce, exercise of self-restraint, non-use of force or the threat to use force, and resolution of disputes by peaceful means, in accordance with universally recognised principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS)”
 Shutaro Tomimas, A.M., “The Open-Door Policy and the Territorial Integrity of China,” (New York: A.G. Seiler, 1919) 24.
 United States Department of State, United States Relations with China “Nine-Power Treaty, Signed at Washington, February 6, 1922″ (Washington: US GPO, 1949) 440.
 Bai Shouyi, An Outline History of China (Beijing: Foreign Language Press 1982, original 1980) 7.
 Foreign Relations of the United States Diplomatic Papers. The Conferences at Malta an Yalta. 1945 (Washington: GP 1955) 356-7.
 United States Department of State, United States Relations with China “Secretary Stimson to Senator Borah, Chairman of the Committee on Foreign Relations of the Senate, February 23, 1932″ (Washington: US GPO, 1949) 447.
 United States Department of State, United States Relations with China ” Treaty between the United States and China Regulating Tariff Relations, Signed at Peiping, July 25, 1928″ (Washington: US GPO, 1949) 446.
 Fred L. Israel, editor, “1951, Japanese Peace Treaty’” Major Peace Treaties of Modern History: 1648-1967, (New York: Chelsea House Publishers, 1967) 2642.
 Teh-Kuang Chang, China’s Claim of Sovereignty over Spratly and Paracel Islands: A Historical and Legal Perspective, Vol. 23 Issue 3, (Cleveland, Ohio: Case Western Reserve Journal of International Law, 1991) 401.
 ibid. 407.
 Speech by Wu Hsiu-Chuan at the United Nations Security Council, November 28, 1950, “People’s China Stands for Peace.” (New York: Committee for a Democratic Fare Eastern Policy, 1950) 16.
 Shutaro Tomimas, A.M., “The Open-Door Policy and the Territorial Integrity of China,” (New York: A.G. Seiler, 1919) 24.
 UN General Assembly, Convention on the Law of the Sea, 10 December 1982, 27.
 UN General Assembly, ibid, 131-4.
 Government of the People’s Republic of China, Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone. February 25, 1992.
 Daniel J. Dzurek, “The People’s Republic of China Staight Baseline Claim,” Boundary and Security Bulletin, 1996, Vol.4 no.2. 86
 Republic of the Philippines, Department of Foreign Affairs, “Notification and Statement of Claims against the People’s Republic of China,” January 22. 2013.
 ASEAN, “Joint statement of the foreign ministers of ASEAN Member States and China on the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea.”
 USAID, “The Philippines and the Trans-Pacific Partnership: A Readiness Assessment” March 2016. 1.
 U.S. Congress, Senate, Committee on Foreign Relations, United Nations Convention on the Law of the Sea, 108th Cong., 2nd sess., March 11, 2004, 35.