1. The Philippines’ challenge on China's sovereignty claim, a U shaped ocean boundary in the SCS, including Spratly islands (On Oct. 29, 2015, the Permanent Court of Arbitration in The Hague claimed jurisdiction over the case). Vietnam, Malaysia, Brunei and Indonesia all have disputes on islands near them.
2. China's construction efforts on her islands in the SCS making some of them to be serviceable air and sea ports.
3. The U.S. gestures sending naval ships including a carrier to demand freedom of navigation as if the above two activities have restricted the maritime freedom in the SCS.
Tracing the origin of the SCS issue really leads to a legal interpretation of the U shaped boundary line China has claimed and published in 1947 after WW II. The officially published U shaped boundary line is based on historical Chinese presence and territorial claims in the SCS。 In Sino-French war (1884-85), France recognized China’s claim of the S.C.S. in exchange for China’s recognition of Vietnam as a French occupied colony. In 1933, France seized the Spratly and Paracel islands despite China’s protest. In 1938, Japan took the islands from France and kept them until the end of WW II. After Japan surrendered in 1945, according to the San Francisco Treaty and Potsdam Declaration, Japan had to renounce all the captured territories and returned them to their rightful owners. This includes Taiwan, Penghu, Spratly, Paracels, etc., acknowledged by both the ROC and PRC governments. At present, ROC is in control of Taipin Island - one of the largest island in Spratly, where a garrison, school, hospital and bank all exist; whereas PRC has total control of the Paracels where China has built airport and seaport on some of the islands.
Although there were squatting activities in the SCS mainly by fishermen, there was no impact to freedom of maritime. China has taken a very low key in dealing with any disputes in the SCS islands. However, in the recent 2-3 years, more disputes in SCS arose resulting in a confrontational situation as described by the three developments listed above. Many Chinese American organizations especially those familiar with the Chinese history felt necessary to diffuse the confrontation and mystery by revealing the facts. Hence, On March 4-7, 2016, a number of organizations sponsored a series of seminars on the hot topic, disputes in the SCS by inviting two experts on international law, Professor Fu Kuen Chen of Xiamen University and Prof. Yang Cui Bo of Sichuan University to offer a number of presentations on their research in Los Angeles, Flushing and Manhattan, NY and Wash. DC. On behalf of the organizers, I had the privilege to chair the seminar session on March 7th at NYU Kimmel Center. The room was fully packed and the presentations were very stimulating. The audience, including a number of well known professors such as Professor Jerome Cohen, Director of US-Asia Law Institute and his students, Professors James Chieh Hsiung, Huang Chi Chao and Hua Jun Xiong and many legal professionals including Douglas Burnett of Square, Patton Boggs, Issac B. Kardon, U.S. - Asia Institute, and Shen Jianmin, a practicing attorney with international law background, engaged in a very lively discussion.
Professor Fu first presented historical evidences to establish the de-facto presence of Chinese and their utilization of the SCS over two thousand years. Then he gave a detailed description on how the U shape line was drawn, published and recognized by the international community including Vietnam's official acknowledgment of China's definition of ocean boundary in the S.C.S., the U.S. navy’s request of permission to survey Spratly island in 1960, and the Filipino government’s return of the stolen ROC flag from Taipin Island by Filipino citizens and her apology. He then traced the proceedings of the UN arbitration court, from the Philippines' initiation of a false claim denying Spratly islands as real islands, to the problematic creation of the arbitration court when a judge is lacking real impartiality and to the interpretation of UN Convention on the Law of the Seas (UNCLOS) regarding island definition, jurisdiction, compulsory ruling and member's right to refuse acceptance of the ruling when sovereignty is in dispute. Professor Yang added more of his research in historical evidence of China's ocean boundary in the S.C.S. In summary, they concluded that from legal and historical inheritance point of view, China has ample proof for her claim in the S.C.S.
Professor Cohen made a comment during Q&A, “if the tribunal court ruled in favor of the Philippines, it would make China look very bad in the international community” and he asked “what will happen to China then?” This is a hypothetical question. The Q&A session did not arrive at an answer. As the chair monitoring the session, I could not engage freely in the discussion but Professor Cohen's question stayed with me. Here, I would like to offer my comment. Given the fact that the arbitration court's track record on impartiality and success rate in enforcing its decision are not good, I think in the case of SCS, the impact of the court ruling on China would be determined by the ability of the disputing parties to make a successful interpretation to the International community, a PR case I may say.
Since China is armed with more historical facts, research work and archived documents, she should be able to present arguments against the ruling, if necessary, discrediting the impartiality and due diligence of the court. The United States has the richest communication media/industry in the world; hence generally she has a hold on the communication media and platform. However, in recent years since the opening of the Internet, China has established a sizable media and communication network of her own. Therefore, China would not be shy in publicizing her research and due diligence in defending her position regarding S.C.S. In this process, not only the litigants but even the bystanders will be dragged in. If China is able to present a fool-proof counter argument to support her case, every party including sideline cheer leaders will have to face the consequences. To avoid embarrassment, not only China needs to do a thorough research job to defend her position, all litigants must do the same. If the U.S. is to take side, then she must do her due diligence as well.
Based on what has been known so far, it appears that China has done more research than anyone else in defining the SCS case. The U. S. most likely has access to the same information. It is my opinion that the academicians and scholars in the U.S. should begin a due diligence to do research on the S.C.S. issue rather than accept blindly the media spin coming with any SCS news. The American citizens and policy makers should be well informed and educated on the SCS issue so that the U.S. will not take the wrong side of the justice. After all, there is no real advantage for the U.S. to take sides in the first place. The SCS presents no real security threats to the U.S. If the U.S. would casually or deliberately take the wrong side on the SCS issue, it would no doubt hurt the US-China relations, with both ROC and PRC governments. Therefore, it is wise for the U.S. to stay neutral and impartial to digest all the PR work presented by the disputing parties rather than choreograph any act to compound the SCS issue.