Alternative facts and the threat in the South China Sea

Author: Sourabh Gupta, ICAS

On 1 February 2017, Rex Tillerson was sworn in as the United States’ 69th Secretary of State. As an ex-Fortune 500 CEO, Tillerson passes for one of the rarer sensible types within an administration that has worn its lack of judgment as a badge of honour. Little of that sense was in evidence though at his confirmation hearing on 11 January. In his brief prepared remarks on China, Tillerson misstated international law on Beijing’s island-building activities in the South China Sea. Pressed to clarify, he compounded his ignorance with belligerent policy suggestions such as imposing a naval blockade around Chinese controlled islands, which if enforced could leave the Asia Pacific at the doorstep of war.

US Secretary of State Rex Tillerson removes his glasses after delivering remarks to Department of State employees in Washington DC, 2 February 2017. (Photo: Reuters/Joshua Roberts).

Although it appears that Tillerson has since tempered his remarks, he must speak and act more cautiously.

China is within its rights to construct artificial islands on the high-tide features that it administers in the South China Sea, as well as on those submerged features that lie within the territorial sea of a high-tide feature that it administers or claims. Such construction is not an ‘illegal taking of disputed international territories’ — much less a violation of the undisputed territorial sovereignty of a neighbouring state ‘akin to Russia’s taking [of] Crimea’.

Tillerson’s remarks also betray a lack of understanding of the US position on sovereignty claims in the South China Sea. The United States takes no position and hasn’t for decades. On the one occasion that it did throw its diplomatic weight behind a claimant, the State Department and its advisor, John Foster Dulles, came down on the side of the Chinese.

On 8 September 1951, at the San Francisco Peace Treaty conference, Japan renounced all rights, titles and claims to the Korean peninsula, Taiwan, Penghu (the Pescadores), the Kuril Islands, South Sakhalin, the Pacific Islands and the Spratly and Paracel Islands. On 28 April 1952, hours before these renunciations were to come into force, the Yoshida government renounced Taiwan, Penghu and the Spratly and Paracel Islands in a Treaty of Peace (the Taipei Treaty) with Taiwan’s Chiang Kai-shek-led Nationalist government.

The timing of the Taipei Treaty was not a coincidence. Its architect, Dulles, had resolved prior to the San Francisco conference to restore to Japan — after it signed the San Francisco Treaty but before it came into force — all the freedoms in the treaty except military sovereignty.

Nor was the Taipei Treaty’s content a coincidence. By late-December 1951, Dulles had spelt out the key treaty provisions that Yoshida was to offer Chiang to re-establish normal relations. The inclusion of the Spratly and Paracel Islands in the territorial provisions — signalling Washington and Tokyo’s favourable opinion of Chiang’s claim to these islands — was not the point of contention. Instead, the contention was over the contingent form of sovereignty that the US and Japan were prepared to recognise. Only nationals and juridical persons who resided in or were registered on territories under Chiang’s current or future sway were to be recognised as falling under the Republic of China’s sovereignty. This was done so that if Nationalist forces were ousted from the territories they currently held, there could be no stated or implied basis for Mainland China to claim sovereignty over Taiwan, Penghu, and the Spratly and Paracel Islands.

To this day, the US does not accept or reject the claim that Taiwan is a part of China, as part of its ‘One China’ policy, and, under this pretext, claims its intrusion into cross-straits affairs is technically not an interference in the internal affairs of China.

It is for this reason too that the future title of Taiwan, Penghu and the Spratly and Paracel Islands was left undetermined in the San Francisco Peace Treaty as well as in the Taipei Treaty. Japan renounced these territories but left their final disposition suitably vague so that these territories would not legally devolve to a ‘hostile regime … that could enable [it] to endanger the [US Seventh Fleet’s] defensive position which is so vital in keeping the Pacific a friendly body of water’.

The United States’ legal legerdemain regarding Taiwan’s status is disingenuous. But this should not obscure the argument that on the one occasion when the Spratly and Paracel Island disposition was under active consideration, the US favoured (the Republic of) China as the superior claim-holder.

The Taipei Treaty, being a bilateral treaty, doesn’t bind non-signatories. For its part, Beijing — excluded from San Francisco — traces its claim to the islands to the war-time Cairo and Potsdam Declarations, which was confirmed in Article 3 of its September 1972 normalisation agreement with Tokyo. This being said, no other regional claimant can produce a Spratly and Paracel renunciation or reversion clause in its own post-war normalisation agreement with Tokyo.

On 8 December 2016, at a ceremony in Beijing to commemorate the 70th anniversary of China’s recovery of the South China Sea islands, 95-year-old Li Jingsen recounted his role onboard the Yongxing, one of the vessels that had led the operations. If Tillerson has the chance to encounter Li on his next visit to Beijing, he might learn that the warships sent to recover the islands in 1946 were provided by the US. China and the claimant states have made valuable progress in bilateral ties since the 2016 ASEAN Foreign Ministers Meeting in Laos. The Trump administration should support — not disturb — this progress