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Realpolitik in the South China Sea
Before I discuss a realpolitik[i] solution to the worsening maritime dispute in the South China Sea, let me first dispel the notion that “China never invaded another country,” so that any exchange of views will be grounded on reality.
At the end of the Chinese Civil War (1945-1949)[ii], when the communists gained control of the mainland[iii], and the nationalists retreated to Taiwan[iv], the People’s Liberation Army (PLA) took Uyghur in 1949[v], Eastern Kashmir in 1950[vi], and Tibet also in 1950[vii]. These regions had long histories of self-rule, but the PLA forced their annexation anyway.
The civil war in China resulted in the establishment of two de facto states on opposite sides of the Taiwan Strait[viii]. The mainland adopted command economy[ix], while the island embraced free-market economy[x]. However, instead of accepting co-existence, like in North and South Korea[xi] and East and West Germany[xii], the mainland pursued a One-China policy[xiii], isolating the island from the rest of the world, and reserving its “right to use force” for reunification[xiv].
China also claims practically the entire South China Sea, with all the islands and waters covered by its Nine-Dash Line of demarcation[xv], even without any historical evidence showing human settlements in the area. Surely, Chinese junk cargo ships that sailed only 5 knots[xvi], could not exercise jurisdiction over islands, islets, cays and reefs 800 miles away. The Austronesian karakoa outrigger warships from the much nearer Southeast Asian archipelago sailed much faster at 15 knots[xvii].
In 1982, China along with the coastal states of Asean, signed the United Nations Convention on the Law of the Sea (UNCLOS)[xviii]. Among others, UNCLOS established an Exclusive Economic Zone (EEZ) for coastal states[xix]. However, in violation of UNCLOS, the PLA by overwhelming force, constructed artificial islands and military installations right within the EEZ of the Philippines, i.e. Mischief Reef (1995)[xx].
If this general information, based on publicly available sources, is not enough to dispel the notion that “China never invaded any country”, then the reader should just stop reading right here. There can be no fruitful exchange of views, if one proceeds from a false premise.
Long ago, China had Confucius[xxi], a philosopher and politician of 500 B.C. who espoused family values as bases for government, the “golden rule” of reciprocity[xxii], and the rule of law and uniformity[xxiii]. Its people built the Great Wall of China between the 7th BC to the 14th century to defend against foreign aggression.[xxiv]
Nowadays, China has a national hero in Mao Zedong[xxv], a political ideologue of the 20th century who espoused a command economy, and led China to rival the USSR for leadership of world communism[xxvi] that sought global hegemony[xxvii]. The PLA built a Great Wall of Sand, artificial islands with weapons systems installed, to enforce China’s contested claims to the entire South China Sea.[xxviii]
Thus, the future of peace or war in the South China Sea will depend largely on which path China, and its Asean neighbors, will follow: Confucius or Mao.
If Confucius, all coastal states facing the South China Sea can be one big Asian family, governed by the rule of law – UNCLOS.
All claims to sovereignty over islands and sovereign rights over maritime resources, not covered by UNCLOS, will be shelved (though not withdrawn), in favor of joint exploration and development. Claimants can equitably share resources, technology, capital and revenues, based on proximity of the project site or other fair and reasonable basis. This applies not only to China, but to the other claimants as well, i.e. Brunei, Malaysia, Philippines, Taiwan, Vietnam.
With respect to sovereign rights over maritime resources covered by UNCLOS, this law will have to apply in determining the rightful state. Note that all claimants without exception, are signatories of UNCLOS. For comity, the rightful state should then go beyond UNCLOS, and grant preference to other claimant states, to participate in any joint venture or collaboration that may be formed.
For example, between China and the Philippines, the arrangement may be that China turns over to the Philippines the possession of artificial islands built inside the PH EEZ (i.e. Mischief Reef); the Philippines enters into a service contract with China (i.e. 60/40 sharing of revenues) to explore and develop energy resources inside the PH EEZ (i.e Reed Bank); the Philippines as rightful state assumes full control and security over all construction and operations; and the Philippines guarantees full respect of the revenue sharing with China.
Another example, regarding fishing in the EEZ of a coastal state, the rightful state under UNCLOS assumes full control and regulation over all fishing activities. For comity, the rightful state should again go beyond UNCLOS, and provide preference to claimant states in the grant of fishing rights in its EEZ. If the grant of fishing rights to foreign entities is restricted by local laws, the rightful state should exert best efforts to amend such laws, or resort to other lawful arrangements to make it happen.
If however China decides to follow Mao, or any Asean member state decides to follows his path, then it will be a dark future for the coastal states of South China Sea and beyond, which future I prefer not to write about for now.
Atty.
Dindo B. Donato
General Counsel
Tanggulang
Demokrasya (Tan Dem), Inc.
19 April 2020. Makati City,
Philippines.
Disclaimer:
The views and opinions expressed in this material are those of the author and
do not necessarily reflect the official policy or position of TanDem.
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intellectual property rights are granted to the public domain.
Voice of America / Public domain
[1] “Realpolitik
(from German: real; "realistic", "practical", or
"actual"; and Politik; "politics", German pronunciation: [ʁeˈaːlpoliˌtiːk])
is politics or diplomacy based primarily on considerations of given
circumstances and factors, rather than explicit ideological notions or moral
and ethical premises.”
[1] Id.
[1] Id.
[1] https://en.wikipedia.org/wiki/Nine-dash_line https://en.wikipedia.org/wiki/Spratly_Islands_dispute
https://en.wikipedia.org/wiki/List_of_parties_to_the_United_Nations_Convention_on_the_Law_of_the_Sea
[1] "Do
not do unto others what you do not want done to yourself".
[1] Id.
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