The Chinese concept of sovereignty differs markedly from that in Western-inspired international law. Take the dispute over the sovereignty of the Spratly and Paracel islands, which, though shelved for now – following the agreement with ASEAN – remains, in the long term, unresolved. [940] The Spratly and Paracel islands are barely islands at all, but a collection of uninhabited rocks, many of which are usually under water, situated in the South China Sea, the Spratlys to the north of East Malaysia and to the west of the Philippines, and the Paracels to the east of Vietnam. The idea of maritime sovereignty is a relatively recent innovation, dating from 1945 when the United States declared that it intended to exercise sovereignty over its territorial waters, [941] and it is this body of law that essentially forms the basis of the claim by the various South-East Asian states to the Spratlys and Paracels. China, in contrast, rests its argument on ‘historic claims’, namely that the islands have for thousands of years formed an integral part of the south-east frontier of the Middle Kingdom in the same manner, for example, as the land border to the north of Beijing. Expeditions to the islands have discovered various Chinese artefacts, such as chinaware and copper cash from the Tang and Song dynasties, that have been used to buttress these ‘historic claims’ and demonstrate that the islands have long been a part of China. The islands are part of the folklore of Chinese culture, kept alive, in various invocations of the Chinese frontier spirit, by articles written by Chinese journalists who regularly visit the islands. They are shown on many Chinese maps as clearly within the ‘historic claim line’ (see map on p. 293) and therefore as part of China. [942] Hainan Island, off the southern coast of China, may be China’s smallest land province, but it is also regarded – because of the extent of its maritime territory which, as claimed, reaches far into the South China Sea – as its largest ‘ocean province’. [943] In 2007 Beijing established the new Sansha municipality in Hainan Province, which has jurisdiction over three islets that Vietnam claims in the Spratly and Paracel archipelagos. This led to large-scale protest demonstrations outside the Chinese embassy in Hanoi. [944] The idea of ‘historic claims’ finds expression in the Chinese use of intertemporal law, which concerns rights or wrongs in the historical past. Chinese legal scholars argue that: ‘a judicial fact must be appreciated in the light of the laws contemporary with it, rather than the laws in force at the time when a dispute arises.’ [945] This gives force and legitimacy to history rather than the present, to the laws that prevailed during the era of the tributary system rather than the present international legal system.
Map 11. Chinese Claims in the South China Sea
In 1984 Deng Xiaoping suggested ‘the possibility of resolving certain territorial disputes by having the countries concerned jointly develop the disputed areas before discussing the question of sovereignty’. [946] In other words, the question of sovereignty should not necessarily delay moving forward on other issues. Deng’s remark has frequently been cited by Chinese sources in the context of the islands in the South China Sea, where his approach has in practice been followed, and in relation to the Diaoyu/Senkaku islands in the East China Sea that are disputed with Japan; it has also been suggested in connection with Taiwan. [947] While insisting on their ultimate sovereignty over the latter, the Chinese have offered to shelve the matter more or less indefinitely, providing Taiwan does not seek to declare independence, illustrating the flexibility with which the Chinese are prepared to approach the issue. Alternatively, they have suggested that, providing their sovereignty over the island is accepted by the Taiwanese, Taiwan can continue to have its own government, political system and even armed forces. [948]
