To Build a Peaceful Community in the South China Sea: Concept and Approaches

FU Kuen-chen

Abstract: Article 123 of the United Nations Convention on the Law of the Sea requires littoral States of semi-enclosed seas such as the South China Sea to endeavor to coordinate and cooperate in regional marine living resources management, marine environmental protection and marine scientific research projects. A sense of community for such a semi-enclosed sea will certainly benefit the region and even the world. However, due to ignorance of or a lack of respect for the local history, and the “ought-to-be” of contemporary international law, the idea of constructing a peaceful community in the South China Sea is still facing difficulties. The author suggests that the South China Sea littoral States establish self-confidence and endeavor to initiate regional community construction works with the aim of ensuring a peaceful community. States beyond the region should learn and respect the thousand years long history and traditional culture in the region, including the everlasting tradition of peaceful and free navigation, and should stop any self-designated interventions in the affairs of the local community.

Key Words: United Nations Convention on the Law of the Sea; Semienclosed sea; Peaceful community; Code of Conduct in the South China Sea

All the States bordering the South China Sea (SCS) should aspire to settle their disputes in the region through peaceful means. In that case, in addition to mitigating and eradicating internal and external factors that have adverse impacts on the SCS region and ignoring those States or organizations that willfully stir up disputes in the region, the SCS littoral States should also be, in accordance with the concepts envisaged by the United Nations Convention on the Law of the Sea(UNCLOS), committed to building a long-term, orderly and peaceful community in the South China Sea. This, undoubtedly, should be the path that SCS littoral States have to follow.

I. The Concept of Peaceful Communities Bordering Semi-Enclosed Seas under the UNCLOS

The SCS is a semi-enclosed sea surrounded by China, Vietnam, Cambodia,Thailand, Malaysia, Singapore, Indonesia, Brunei and the Philippines. Eight straits or channels, including the Taiwan Strait, the Bashi Channel, the Balintang Channel, the Barbuyan Channel, the Mindoro Strait, the Balabac Strait, the Sunda Strait and the Strait of Malacca, connect the SCS with the open seas of the Pacific and the Indian Oceans.1Navigation Guarantee Department of the Chinese Navy Headquarters, Guide on Chinese Sea Routes: the South China Sea Area, Tianjin: China Navigation Publications Press, 2006,pp. 3～4 (in Chinese). The Guide says that the South China Sea (SCS) encompasses ten straits or channels. In addition to the eight ones connecting the SCS with the pen seas, it also has two internal ones, namely Qiongzhou Strait and Singapore Strait.Such a semi-enclosed sea constitutes a relatively sensitive and fragile marine area, which has low seawater dynamics, slow circulation and basically a self-contained environment.2John F. Caddy, Toward a Comparative Evaluation of Human Impacts on Fishery Ecosystems of Enclosed and Semi-enclosed Seas, Reviews in Fisheries Science, Vol. 1, Issue 1, 1993,pp. 57～95. For the example of the semi-enclosed sea- the Black Sea, please see Yuriy Tokarev and Georgiy Shulman, Biodiversity in the Black Sea: Effects of Climate and Anthropogenic Factors, Hydrobiologia, Vol. 580, Issue 1, 2007, pp. 23～33.

The UNCLOS has paid particular regard to such marine areas with special conditions. For example, the “ice-covered areas” lying within the limits of the exclusive economic zone of a coastal State are also environmentally sensitive and fragile. UNCLOS Article 234 granted the coastal State an extensive and special legislative authority with regard to such waters in particular.3Article 234 Ice-covered areas: Coastal States have the right to adopt and enforce nondiscriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.Article 123 provides a valuable framework for the effective management and conservation of the marine ecological environment of enclosed or semi-enclosed seas. Specifically, it requires States bordering an enclosed or semi-enclosed sea to coordinate their actions and cooperate in the conservation and exploitation of the living resources of the sea,the protection of the marine environment and the undertaking of joint scientific research projects in the area. Other interested States or international organizations may only be “invited”, “as appropriate”, to cooperate with the coastal States. This vital article reads:

Article 123 Cooperation of States bordering enclosed or semi-enclosed seas

States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization:

(a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea;

(b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;

(c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area;

(d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.

Article 123 emphasizes the need of cooperation between States bordering an enclosed or semi-enclosed sea, both in exercising their rights and in performing their duties under the UNCLOS. But such a provision is directory rather than mandatory, since it uses the word “should”, rather than “shall” when it mandates the need to cooperate. In addition, when describing the need for these States to coordinate in the fields of marine living resources management, marine environmental protection and marine scientific research, the UNCLOS adopts the phrase of exhortation, “shall endeavour”, rather than the language of strict obligation “shall”. The former wording, according to the principles of legal text interpretation, means that “to try one’s best” is sufficient, therefore having no mandatory nature either.

Secondly, the provisions of Article 123 concerning cooperation between coastal States within a community and other States or international organizations beyond the community in furtherance of the provisions of this article imply that:(a) the coastal States “shall endeavor” to cooperate with other interested States or international organizations, which however is not mandatory; (b) they may do so directly or through an appropriate regional organization, such as the ASEAN; (c)they shall do so “as appropriate”; (d) other States or international organizations may cooperate, only when having been “invited”, with the coastal States in furtherance of the provisions of this article; and (e) the “invitee” shall only be the “interested”States or international organizations (i.e., stakeholders).

When the text of Article 123 was discussed at the Third United Nations Conference on the Law of the Sea, Turkey and Uruguay, respectively, made proposals in the context of determining the breadth of the territorial sea. Both proposals require that in an enclosed or semi-enclosed sea, where it is impossible for coastal States to fix the maximum breadth of their territorial seas, the breadth of the territorial seas shall be determined by “agreement” between the littoral States.4A/AC.138/SC.II/L.16, paragraph 2, reproduced in III SBC Report 1973, p. 2 (Turkey); A/AC.138/SC.II/ L.16/Rev.1, paragraph 2, reproduced in III SBC Report 1973, p. 2 (Turkey);A/AC.138/SC.II/L.24, article 2, paragraph 2, reproduced in III SBC Report 1973, pp. 23, 25(Uruguay), quoted in Myron H. Nordquist et al. ed., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. III, The Hague: Martinus Nijhoff Publishers, 1995, p.357.A proposal by Iraq provides that freedom of navigation should be maintained in semi-enclosed seas.5A/CONF.62/C.2/L.71 and Add. 1 and 2 (1974), articles 1 to 4, III Off. Rec. 236 (Iraq),quoted in Myron H. Nordquist et al. ed., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. III, The Hague: Martinus Nijhoff Publishers, 1995, p. 358.Yugoslavia also proposed that all ships and aircraft should be guaranteed the freedom of navigation and overflight in outlets connecting semienclosed seas with open seas. However, the Yugoslavian proposal does not affect the regime of passage through straits used for international navigation.6Yugoslavia (1976, mimeo.), article 129 bis (RSNT II), reproduced in IV Platzoder 486,quoted in Myron H. Nordquist et al. ed., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. III, The Hague: Martinus Nijhoff Publishers, 1995, p 361.In addition to the said proposals, many States, during the sessions, also submitted their proposals on the norms, rules or standards concerning enclosed or semi-enclosed seas. For example, Korea proposed replacing “should” in the first line of the opening phrase of the draft by “shall”, thus establishing an obligation. However,this proposal was not accepted.7C.2/Informal Meeting/59 (1980, mimeo.), article 123 (Korea), reproduced in V Platzoder 63, quoted in Myron H. Nordquist et al. ed., United Nations Convention on the Law of the

The process of the international legislative conference above and the final text of UNCLOS Article 123 tell that, albeit the absence of any mandatory norms,coastal States bordering an enclosed or semi-enclosed sea like the SCS, the Black Sea and the Caribbean Sea, are required (or exactly, “shall endeavour”) to cooperate and coordinate their actions, in particular with regards to the matters listed in subparagraphs (a) to (c). Such provisions suffice to illustrate that each enclosed or semi-enclosed sea constitutes, without any doubt, a community envisioned by the UNCLOS. China, a State with the largest population and economic aggregate among the SCS littoral States, should naturally be the most important member of the SCS community. Unavoidably, wide varieties of problems may arise in the process of building the SCS community. Taking these problems into account,China should orchestrate, and synchronize the efforts of all SCS littoral States by spearheading such efforts and tackling them to achieve the goal of constructing a peaceful community in the region.

II. UNCLOS Provisions with Respect to the Three Major Spheres of Cooperation

Sea 1982: A Commentary, Vol. III, The Hague: Martinus Nijhoff Publishers, 1995, p. 365.

Notably, UNCLOS Article 123 merely prescribes that States bordering a semienclosed sea, like the SCS, shall “cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention”. “To this end”, they “shall endeavor” to coordinate the management of the living resources of the sea, the protection of the marine environment and the undertaking of marine scientific research. Concrete provisions with regard to these three areas of cooperation have to be found in other articles of the UNCLOS.

A. Provisions Concerning Cooperation in the Sphere of Conservation and Management of the Living Resources of the Sea

UNCLOS Article 56(1)(a) stipulates that the coastal State has sovereign rights for the purpose of exploring and exploiting the natural resources in the exclusive economic zone. This provision is, certainly, an important basic norm regulating coastal states bordering a semi-enclosed sea. The provisions of Article 61 on the conservation of the living resources, including those requiring the coastal State to take “proper conservation and management measures” to avoid overexploitation, and those demanding the coastal State to cooperate with the competent international organization to this end, are regulations that the States neighboring the SCS and other semi-enclosed seas shall implement. Article 63 laid down some provisions with respect to stocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it. Such provisions are even more important to the management of living resources in the semi-enclosed SCS.

UNCLOS Articles 117 and 118 require all States to cooperate in the conservation and management of the living resources of the high seas. This requirement is also likely to be applied to the SCS, because even in this narrow semi-enclosed sea, there may still exist a small area beyond the limits of the exclusive economic zones of States, to which the rules of the high seas established by the 1982 UNCLOS shall be applied.8Although the base points and baselines for measuring the breadth of the territorial sea of some relevant islands in the SCS are not yet clear, this small area of high seas may possibly lie in the broader northern part of the SCS, approximately in the waters off the southern coast of the Dongsha Islands.

B. Provisions Regarding Cooperation in the Sphere of Marine Environment Protection

Article 56, paragraph 1, subparagraph b(iii) of the UNCLOS expressly states that in the exclusive economic zone, the coastal State has jurisdiction with regard to the protection of the marine environment. In addition to that, Article 192 sets out the general provision that States have the obligation to protect and preserve the marine environment. Article 192 should be read in conjunction with Article 193, which explicitly stipulates that States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. Article 195, in order to prevent the transfer of pollution, further provides that: “In taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.” This provision is particularly meaningful to the States adjacent to an enclosed or semi-enclosed sea. Lastly,Article 197 clearly mandates that,

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.

This article further requires that States surrounding a semi-enclosed sea like the SCS, when building a regional system for marine environmental protection, shall cooperate with competent international organizations and take into account the characteristic features of the SCS community.

With regard to marine environmental protection, in addition to the UNCLOS,the United Nations Environment Programme (UNEP) Regional Seas Programme has also developed a series of marine environmental conventions tailored to the special characteristics of the Mediterranean Sea, the Red Sea, the Gulf of Aden,the greater Caribbean region and other regional seas (mainly semi-enclosed seas).Apart from such conventions designed by UNEP, States bordering semi-enclosed seas, such as the Baltic Sea and the Black Sea, have also drawn up conventions within their communities with respect to these semi-enclosed sea areas.

C. Provisions about Cooperation in the Sphere of Marine Scientific Research

UNCLOS Article 56, paragraph 1, subparagraph b(ii) explicitly states that in the exclusive economic zone, the coastal State has jurisdiction with regard to marine scientific research. Additionally, Article 87, paragraph 1, subparagraph (f)articulates the freedom of marine scientific research on the high seas. Article 245 provides for the principles that the coastal States shall obey in the exercise of their sovereignty over marine scientific research in their territorial waters. Specifically,coastal States, in the exercise of their sovereignty, have the exclusive right to regulate, authorize and conduct marine scientific research in their territorial sea.Marine scientific research therein shall be conducted only with the express consent of and under the conditions set forth by the coastal State. Article 246 specifies the principles that the coastal States shall follow in the management of marine scientific research conducted in their exclusive economic zone and on their continental shelf,as well as how to reasonably exercise their right of consent, and how to withhold their consent to the conduct of a scientific research project by a foreign State.9Article 246 (Marine scientific research in the exclusive economic zone and on the continental shelf): 1. Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention.2. Marine scientific research in the exclusive economic zone and on the continental shelf shall be conducted with the consent of the coastal State. 3. Coastal States shall, in normal circumstances, grant their consent for marine scientific research projects by other States or competent international organizations in their exclusive economic zone or on their continental shelf to be carried out in accordance with this Convention exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind. To this end, coastal States shall establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably. 4. For the purposes of applying paragraph 3, normal circumstances may exist in spite of the absence of diplomatic relations between the coastal State and the researching State. 5. Coastal States may however in their discretion withhold their consent to the conduct of a marine scientific research project of another State or competent international organization in the exclusive economic zone or on the continental shelf of the coastal State if that project: (a)is of direct significance for the exploration and exploitation of natural resources, whether living or non-living; (b) involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; (c) involves the construction, operation or use of artificial islands, installations and structures referred to in articles 60 and 80; (d) contains information communicated pursuant to article 248 regarding the nature and objectives of the project which is inaccurate or if the researching State or competent international organization has outstanding obligations to the coastal State from a prior research project. 6. Notwithstanding the provisions of paragraph 5, coastal States may not exercise their discretion to withhold consent under subparagraph (a) of that paragraph in respect of marine scientific research projects to be undertaken in accordance with the provisions of this Part on the continental shelf, beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, outside those specific areas which coastal States may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time. Coastal States shall give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein. 7. The provisions of paragraph 6 are without prejudice to the rights of coastal States over the continental shelf as established in article 77. 8. Marine scientific research activities referred to in this article shall not unjustifiably interfere with activities undertaken by coastal States in the exercise of their sovereign rights and jurisdiction provided for in this Convention.

It must be underscored that all the provisions above should be implemented under the notion of “peaceful uses”, as proclaimed in paragraph 4 of the preamble to the UNCLOS. This paragraph reads:

[The States Parties to this Convention] Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans,the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment….

This wording shows that the spirit of the entire convention is to create a peaceful environment for human beings to exploit the marine resources, protect the marine environment and undertake relevant scientific research activities. This spirit is not only honored in the preamble of the UNCLOS. Actually, the detailed provisions of UNCLOS Article 88 (with respect to the high seas), Articles 141, 143,147 and 155 (with regards to international seabed area), Articles 240, 242 and 246(concerning marine scientific research), all expressly emphasize that everything shall be done “for peaceful purposes”. Therefore, the framework designed by the UNCLOS for semi-enclosed seas, like the SCS, is founded on the concepts of peaceful cooperation and mutual coordination, with a view to maintaining a peaceful marine community shared and jointly governed by the neighboring States.

III. Current Hurdles: Ignorance of or Disrespect for History by Some States

International law has provided the legal basis for building peaceful communities; nevertheless, the real scenario concerning the building of such a community in the SCS has always been grim. This grim scenario is primarily caused by some States’ insufficient knowledge of history and historical rights or their disrespect for the same, even if they have such knowledge.

China’s sovereignty over the SCS Islands rests on its original title deriving from its continuous occupation of these islands as a whole in history. Clear accounts of the relevant facts could be found as early as the Eastern Han Dynasty(AD 25-220), the era during which the book Yiwu Zhi (Record of Foreign Matters)was completed.10Yiwu Zhi (Record of Foreign Matters), a book completed by YANG Fu in the Eastern Han Dynasty, recorded the dangers when sailing in the waters adjacent to the Xisha and the Nansha Islands, saying that “the waters around Qitou (ancient Chinese designation for islands and reefs) in Zhanghai (ancient Chinese designation for South China Sea) are shallow and full of magnetic rocks. When ships are sailing in this sea area, it is difficult to move forward as if they were caught in some magnetic field.” See TANG Zhou, Zhengde Qiongtai Zhi (Local Records of Hainan Province in the Reign of Emperor Zhengde), Vol. 9,Local Products (II) - Medicines, quoted in Yiwu Zhi, p. 14, a photocopy made by Shanghai Ancient Works Bookstore from the aberrant copy of the edition completed in the reign of Chinese Ming Emperor Zhengde as collected in Tianyi Pavilion, Ningbo, 1964. See also HAN Zhenhua ed., A Compilation of Historical Materials on China’s South China Sea Islands, Beijing: Oriental Press, 1988, p. 23. (in Chinese)In 1933, France forcibly landed on several islets of China’s Xisha and Nansha Islands. Notwithstanding the devastation and chaos caused by the war,the Chinese government and people kept protesting against France’s offense and negotiating with the French authorities.11During this period, the Chinese government and people kept protesting against France’s offense and negotiating with the French government, which never actually controlled and managed these islets in the SCS. In addition, the article “Illes Paracels” by Oliver A. Saix(published in the French journal Terre Air Mer, La Geographie, November-December,1933), mentioned that in the 1920s, the acting viceroy of Vietnam appointed by the French government admitted that “the Xisha Islands, according to various reports, is owned by China.” At the same time, a French captain also acknowledged the fact by saying that “up to now, Annam (Vietnam) has nothing to do with the Xisha Islands. No coastal fishermen or ship-owners go there, and they even do not know the existence of this group of islands.”See Hungdah Chiu, An Analysis on the Territorial Sovereignty over the Xisha and the Nansha Islands, People and Society, No. 3, 1974, p. 39, footnote 48. (in Chinese)Six years later, Japan annexed some islets in the SCS by force in 1939, marking the end of French occupation. And these islets were occupied by the Japanese until the end of World War II.12In 1939 (the 14th year of the Showa Era), the Office of the Japanese Governor-General of Taiwan issued the Governor-General of Taiwan Order No. 31, stating that: “The Shinnan Gunto (the new names given by Japan for the Xisha and the Nansha Islands) has been incorporated into the territory of Kaohsiung, Taiwan.” The order was republished on the official newspaper of the Office of the Governor-General of Taiwan on 18 April 1939, No.3683, p. 720. Hungdah Chiu and Choon-ho Park, Legal Status of the Paracel and Spratly Islands, Ocean Development and International Law, Vol. 3, No. 1, 1975, p. 13.In contrast to these short-lived militarists, the Chinese government and people were the first to discover, exploit and manage the SCS Islands, and have administrated these islands for thousands of years. Numerous evidences can substantiate this point.13Kuen-chen FU, A Study on the Legal Status of the South (China) Sea, Taipei: 123 Information Co., 1995, pp. 47～116 (in Chinese); Kuen-chen FU, Sovereignty Claims over the Ocean Resources in the South China Sea, Taipei: Young Lions Publishing Co., 1981, pp.77～108 (in Chinese).The details will not be explored here, since it is not the subject of this article.

However, some Western scholars, being ignorant of China’s ancient history,presume that China’s sovereignty claims over SCS Islands should be compared with the later military occupation by colonialists, such as France and Japan. They also falsely claim that those military colonialists, who came to the SCS from afar, have clearer evidences of their rights. In the South China Sea Arbitration initiated by the Philippines in 2016, the arbitrators surprisingly made the following statement based on the words of the Philippines’ attorneys:14South China Sea Arbitration, Award on Merits, 12 July 2016, para. 198.

According to the Philippines, the absence of any Chinese historic rights in the South China Sea is also apparent in various historical documents obtained by the Tribunal from the Bibliothèque Nationale de France and the Archives Nationales d’Outre-Mer and provided to the Parties for comment. In the Philippines’ view, these documents confirm that “prior to the Second World War France did not consider China to have made a claim in regard to any of the Spratlys, or to the waters of the South China Sea far removed from China’s mainland coast.”15South China Sea Arbitration, Written Responses of the Philippines on French Archive Materials, 3 June 2016, para. 30. The claims made by the French colonial government over the territories of the islands in the Far East, obviously, should not be considered decisive.The “facts” alleged by the Philippines merely reflect a unilateral hope of the Philippines.

In addition, the arbitrators also said,

“The post-war documents - including France’s internal records - make clear that France retained its claim to those features,” a position the Philippines considers consistent with its view that the United Kingdom and United States“wished to protect France’s sovereignty claim” in connection with the Cairo Declaration and Potsdam Proclamation.16South China Sea Arbitration, Written Responses of the Philippines on French Archive Materials, 3 June 2016, para. 31.

Ironically, these statements have even been incorporated into the final award of the South China Sea Arbitration. It reveals the psyche and mindset of Eurocentrism of certain Western scholars or politicians: “China cannot be the owner of the SCS Islands.” They “wish” that the SCS Islands were the territories of European countries like France, the United Kingdom or even Germany; in their minds, the fact that the Chinese people have lived here for thousands of years is completely ignorable. Disputably, the arbitrators also showed such improper mindsets during the adjudication. To their disappointment, however, history has turned out to be opposite to their hope. Not only does China have the original sovereignty over the SCS Islands due to its first discovery and occupation of these islands as well as its continuous exploitation and administration of them for thousands of years, but it also enjoys the legitimate historic rights under international law to the waters adjacent to these features in the SCS.

The documents of World War II mentioned in the Award, such as the Cairo Declaration and Potsdam Proclamation, were far from supporting the French colonialists’ intention to continue their enjoyment of sovereignty over the maritime features in the SCS. Instead, the negotiation process showed the aspiration of all Allied countries to eradicate colonialism after the war. In particular, the United States, the leading Allied power of the war at that time, took a very different position from the declining British Empire. U.S. President Roosevelt, who had negotiated and concluded the Cairo Declaration with British Prime Minister Churchill and Chinese President Chiang Kai-shek, met Churchill on the warship USS Augusta and discussed whether or not the post-war colonies should exist.Roosevelt asserted that the existing world structure was that of the 18th century,which was unfair to the people of the colonies and therefore should be changed after the war. Churchill, when feeling the shift in leadership, could only shake his finger in exasperation and said to Roosevelt: “I believe you are trying to do away with the British Empire. Every idea you entertain about the structure of the postwar world demonstrates it. But in spite of that, we know that you constitute our only hope. And you know that we know that without America, the Empire won’t stand.”17Elliot Roosevelt, As He Saw It, New York: Duel Sloane & Pearce, 1946, pp. 36～42.Joseph Stalin, the leader of Soviet Union at that time, clearly expressed his opposition to the return of Annam (Vietnam) to France after the war.18FU Bingchang, Chinese Ambassador to the Soviet Union, telegraphed to the Republic of China government on 11 December 1943, saying that the Soviet leader Stalin fully agreed upon the content of the Cairo Declaration. In this telegram FU Bingchang added, the Soviet Union had expressed that Annam (Vietnam) should not be handed back to France after the war, which was revealed in confidence by Harriman, the U.S. Ambassador to the Soviet Union. See the archives of Chinese Taiwan authorities, Daily Record of the Cairo Conference, pp. 159～160 (in Chinese), quoted in LIANG Jingchun, Cairo Conference, 4th edition, Taipei: Taiwan Commercial Press, 1978, p. 156. (in Chinese)

The subsequent history shows that the United Nations (UN), under the push of the Allied countries, was established immediately after the end of World War II,and “decolonization” was set as a common mission of mankind. Additionally, the UN Trusteeship Council was created to lead the old colonies to self-government or independence.19On 1 January 1942, twenty-six anti-Fascist Allies, including the United States, the United Kingdom, China and the Soviet Union, signed the Declaration by United Nations,expressing their common aspiration to establish a new universal international organization.Upon the end of the World War II, the United Nations Conference on International Organization, was held at San Francisco on 25 April 1945. In addition to the five initiators,i.e., the United States, the United Kingdom, China, the Soviet Union and France, other signatories to the Declaration participated in the conference. The attendees included more than 280 delegates of 50 nations, and more than 1,700 advisors, observers, and representatives of the media. Notably, the Chinese delegation consisted of ten members. After over two months of discussion, those delegates drafted the Charter of the United Nations on the basis of the proposals worked out at Dumbarton Oaks. The Charter was unanimously adopted by the delegates of the 50 nations on June 25, and was signed by them on the following day. In accordance with the procedures agreed at the conference, DONG Biwu,the Chinese delegate, had the honor of signing first. Poland, which was not represented at the Conference, signed the Charter later and became one of the original 51 Member States.The United Nations officially came into existence on 24 October 1945, when the Charter became effective after being ratified by the United States, the United Kingdom, China, the Soviet Union, France, and by a majority of other signatories. According to the Charter,the purposes of the United Nations are “to maintain international peace and security”, “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” and “to achieve international co-operation”. All these purposes have embodied the common aspiration of all States to “completely eradicate colonialism”.

In fact, at the summit meeting held in Cairo in 1943, Chinese president Chiang Kai-shek also reached an agreement with the British and American leaders over the following issues: (a) in due course Korea should become free and independent;(2) Vietnam should be independent and should not be under the control of France;(3) Ryukyu should be jointly administrated by China and the United States temporarily. Unfortunately, since the content of the summit was not recorded,only the independence of Korea was partly achieved; neither the promise for the independence of Ryukyu nor that of Vietnam was kept. The consequential Ryukyu issue and the Vietnam War were tragic misadventures that could have been avoided.All countries in the world should draw lessons from such tragedies.20LIANG Jingchun, Cairo Conference, 4th edition, Taipei: Taiwan Commercial Press, 1978,pp. 157～159. (in Chinese)

Virtually, the French government at that time was merely a government-inexile. The quote that “the United Kingdom and United States wished to protect France’s sovereignty claim” means, at most, that the Allies (including China)shared the wish to rebuild an independent France after the war; this quote should not be in any way interpreted as their support for France’s colonial rights in Vietnam. The so-called “support” for French colonial rights, if any, would probably be Churchill’s. A bundle of facts have proven that the United Nations system established by the Allied powers after the war has always insisted on abolishing colonialism. Even before the end of World War II, the United States and United Kingdom had divergent views on colonies and colonialism. Nevertheless, to abandon the colonial system of the 18th century, to help the peoples of the nonself-governing colonies achieve independence and freely decide their own future,and to create a fair and free international trading system have become the common aspirations of all the peoples in the world. Undoubtedly, the system created on the basis of such concepts has, in the end, become the international system accepted universally. Those who are still pursuing the rights of colonists should get a clear picture of the development of international law, and renounce their desire to be enemies with the people of the world.

It is also worth noting that the UK and the US, based on their own interests,had divergent opinions on the handling of the China Theater following the end of World War II. While discussing such issues, they failed to fully consult with the Chinese leaders.21In fact, the Cairo Conference was held when China had been fighting against Japan for six years and the US and the UK had yet to agree on a strategy to deal with Japan. Close to that time, the China Theater was deeply affected by the U.S. “Europe-first” strategy, according to which the preponderance of the resources would be used to subdue Germany in Europe first and fewer to fight against Japan in Asia. Consequently, according to General Marshall’s Report, China had received, by the end of World War II, the least amount of supplies leased by the US to other countries, accounting only 5 percent of the total amount; moreover, such rare supplies were often diverted for other purposes. In addition, the commander of the Allied forces in the China war zone did not participate in the discussion on what strategy the Allies should use to defeat Japan. British leader Churchill was preoccupied with the thought of defending the colonial interests of the British Empire in the Far East. The supplies for Chinese troops, when arriving in Rangoon, were robbed by their British counterpart. A coalition of Chinese and British forces fought against the Japanese troops in Panmana in Myanmar, with the Chinese army facing the front of the enemy forces and British troops on the right flank. The latter, however, quietly retreated at the climax of the battle, causing heavy casualties to the Chinese army. During the Battle of Yenangyaung, China dispatched its forces to the rescue of more than 7,000 British soldiers encircled by the Japanese troops. However, due to this dispatch, the battlefield was taken from the Chinese troops by their enemies. The US and the UK have, so far, made little public statement on China’s contributions and sacrifice during the World War II, which implies their guilty conscience.See LIANG Jingchun, Cairo Conference, 4th edition, Taipei: Taiwan Commercial Press,1978, pp. 12～14 (in Chinese). History of Anti-Japanese War, p. 249, and Kuomintang Archives, Chinese Expeditionary Forces in Burma (I), pp. 4～5, quoted in LIANG Jingchun,Cairo Conference, 4th edition, Taipei: Taiwan Commercial Press, 1978, p. 33. (in Chinese)The disagreement between the UK and the US on the China Theater during the Cairo and Tehran Conferences held at the end of the war,according to a research report on American military history, deeply affected the post-war situation in the Far East.22Strategic Planning for Coalition Warfare 1943-44, Appendix B, quoted in LIANG Jingchun,Cairo Conference, 4th edition, Taipei: Taiwan Commercial Press, 1978, p. 40. (in Chinese)This historical factor has had a long-term and negative impact on regional peace and stability, since it is still rendering murky,international legal position on some issues in the Far East, such as the status of Ryukyu, the disputes over the Diaoyu Islands and the sovereignty disputes over some features in the SCS. East Asian countries bordering the SCS that were once under the unequal colonial rule of Western countries, including China, Vietnam and the Philippines, in particular, should learn and draw lessons from these historical facts. If we, the SCS littoral States, want a long-term peaceful environment for development, we obviously cannot rely on the decisions of major powers outside the region; instead, we should depend on the goodwill and cooperation of the SCS community members.

At present, although the UNCLOS has laid down a clear legal framework for the SCS community, the goodwill and cooperation of the community members are still insufficient. Such insufficiencies constitute an obstacle to the building of a peaceful community in the SCS.

In fact, the Philippines and Vietnam are well aware of China’s territorial claims in the SCS based on its occupation of the relevant islands and reefs. In 1945, China recovered the Xisha and the Nansha Islands in the SCS; and in 1947 it officially drew the U-shaped line in the SCS, defining the limit of China’s claim to the waters in the region. Neither the Philippines nor Vietnam, the two countries currently controlling several features of the Nansha Islands, had raised any objection against China’s conducts at that time. However, ridiculously, the Philippines’Cloma brothers alleged, in 1956, to have “discovered” the “terra nullius” of the Nansha Islands. This absurd claim has been long refuted by Chinese and foreign scholars and experts.23Hungdah Chiu and Choon-ho Park, Legal Status of the Paracel and Spratly Islands, Ocean Development and International Law, Vol. 3, No. 1, 1975, p. 9; Chorography of China’s South China Sea Islands, 30 June 1975, p. 13; Patrol of the Waters Adjacent to the Nansha Islands by Chinese Navy, Taipei: Taiwan Student Press, June 1984, pp. 85～89; Report on the Handling of the Cloma Incident, October 1956, in Kuen-chen FU, LIU Li and JING Xiaojie eds., Exhibition of Historical Materials on Chinese Southern Territory Held by Taiwan Authorities, Xiamen: Xiamen University South China Sea Institute, 1 March 2015.(in Chinese)The diplomatic note sent by Pham Van Dong, Premier of the Democratic Republic of Vietnam to his Chinese counterpart ZHOU Enlai in 1958 is, actually, in a better position to tell the truth about that part of history. On 4 September 1958, the Chinese government issued the Declaration of the Government of the People’s Republic of China on the Territorial Sea, stating that the breadth of China’s territorial waters shall be 12 nautical miles and the method of straight baselines shall be applied to draw its territorial waters. The Declaration also made it clear that the said provision shall also apply to the Xisha Islands, the Nansha Islands and other islands belonging to China.24Hungdah Chiu and Choon-ho Park, Legal Status of the Paracel and Spratly Islands, Ocean Development and International Law, Vol. 3, No. 1, 1975, p. 15, footnote 80.On 14 September of the same year,Pham Van Dong sent a diplomatic note to his Chinese counterpart ZHOU Enlai,stating that “the government of the Democratic Republic of Vietnam recognizes and supports the Declaration of the Government of the People’s Republic of China on its decision concerning China’s territorial sea made on 4 September 1958 and the government of the Democratic Republic of Vietnam respects this decision”.25On 30 January 1980, the Ministry of Foreign Affairs of China published a document titled“China’s Indisputable Sovereignty over the Xisha and Nansha Islands”, Ta Kung Pao, 31 January 1980. (in Chinese)

IV. An Uneven Path: From the Declaration on the Conduct of Parties in the South China Sea to the Code of Conduct in the South China Sea

The chaotic situation in the SCS, especially in the Nansha Islands with some component features having been illegally occupied by the Philippines, Vietnam and Malaysia respectively, is still difficult to resolve at the moment. This chaos is not primarily caused by unclear legal provisions, but by some States within and beyond the region that disrespect history and law. Thanks to China’s adherence to the path of peaceful development, no major wars have been waged in the SCS so far. With China’s continuous efforts for many years, the States bordering the SCS signed the Declaration on the Conduct of Parties in the South China Sea (DOC) in Phnom Penh, capital of Cambodia on 4 November 2002, with a view to stopping the disorderly occupation of features and predatory exploitation of resources in this very community. China and Vietnam, in 2004, also delineated their maritime boundaries in the Beibu Gulf, northwestern SCS. However, a party of scholars and officials from certain SCS littoral States, instigated by Western scholars, still assume that the DOC is not a treaty and therefore has no binding force. Some littoral States even attempted, from time to time, to continue the private exploitation of oil and gas resources in the region by avoiding the DOC, with no intention to return the features they illegally occupied to China. Under such circumstances,while adhering to the DOC, China is also willing to work with other member States of the SCS community, to develop, in line with the plan envisioned in Article 10 of the DOC, a Code of Conduct in the South China Sea (COC) with full normative force, seeking to build a long-term peaceful community in the region at an early date.26Declaration on the Conduct of Parties in the South China Sea, Article 10: The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.

How can negotiations be concluded successfully on the COC so as to create“another” treaty with binding force? To this question, Chinese Foreign Minister WANG Yi, on 5 August 2013, highlighted four key points before journalists:27At http://news.sina.com.cn/c/2013-08-05/133327867046.shtml, 9 November 2018. (in Chinese)

1. We should hold reasonable expectations for the negotiations over the COC.Such critical negotiations cannot be completed overnight.

2. A consensus should be reached through negotiations. This is also an agreement reached upon the conclusion of the DOC in 2002. In order to achieve a successful implementation of the COC in the future, the code needs to be concluded by consensus at the very beginning.

3. We should eliminate interference and disturbance from non-parties. All parties to the DOC should work together towards this end. We must avoid any interference from States beyond the region.

4. We should proceed step by step. The existing DOC cannot be replaced by the COC. That is to say, the parties are not going to abandon the original DOC to create a completely new thing. Contrarily, the COC should be established on the basis of the DOC.

China and ASEAN member States drafted a framework for the COC in 2017.Details of the framework have not been released yet, which indicates obviously that the States concerned still held reservations about the final content. The author asserts that the four basic principles put forward by Chinese Foreign Minister Wang Yi, especially the third and fourth ones, should be unanimously recognized by the States neighboring the SCS. This consensus should be the cornerstone for building a peaceful community in the SCS in the future, since it shows the basic respect for international treaty law, and it is also the basis for the community members to build a win-win mentality through mutual trust.

V. Efforts to Make Within and Beyond the Community

In conclusion, given the current imperfect situation, how should we cooperate to foster the construction of the concept of SCS community? How do we create a peaceful, collaborative, harmonious and forward-looking SCS community? The author asserts that education and publicity efforts in this regard should be started from both inside and outside the community:

For the States bordering the SCS, the priorities should be as follows:

a. Work together to promote national equality and peaceful coexistence, and resolutely move away from the old mentality of eurocentrism;

b. Promote the building of a peaceful community in the semi-enclosed sea of the SCS, based on UNCLOS, and encourage the spirit of community service in the region;

c. Value the history of this community and its peace-loving cultural traditions;

d. Promote the rule of law in the international community, respect the“due course” of international law, and refrain from sacrificing the idealism of international law for the sake of short-term practical interests; and

e. Start cooperation from programs with low sensitivity in the SCS community, such as joint enforcement of fishing moratorium and fishing restriction,and cooperation on conserving the environment and ecology, strengthening the construction of navigation safety facilities and on emergency search and rescue.

For the stakeholders beyond the region, their priorities should be as follows:

a. Respect the ability of the SCS littoral States to resolve the disputes in their own community and stop interfering with their affairs, if not invited;

b. Understand and respect the long history and peace-loving traditions of all the peoples living around the SCS with an open mind;

c. Faithfully abide by the UNCLOS provisions on semi-enclosed sea communities and stop meddling, improperly, in the internal affairs of these communities; and

d. Recognize and respect the fact that peace and freedom of navigation have been maintained in the SCS for thousands of years, and stop spreading rumors and creating disturbances in the region, and intervening in the affairs of the SCS community under the pretext of safeguarding freedom of navigation.