Unearthing Truth from Archives: A Historical Approach to the South China Sea Dispute

Anthony Carty

Into Hong Kong university as the YK power chair of public law in 2009. The south China sea dispute was hoting up. And I decided, given my previous experience in working in international law, to consult the archives in London to see whether the foreign office legal advisers had anything to say about the matter. That fits together very strongly with my whole approach to international law over the last 10 years. I believed that it was possible to really understand. What a state is thinking, if you look into its archives and look into other forms of historical evidence, you can then come to understand the state as a collective entity and when I came to look then at the British archives, I was able to see precisely what that could mean.

In the period nineteen hundred to 1970 the main maritime and imperial powers in the south China sea area were actually the United Kingdom in Hong Kong, and the French in in to China until nineteen fifty six and I was able to observe how in the view of the British archive, objectively observing the Chinese and the French and the Japanese, that the British were quite satisfied that both dispatches and the paracel islands were. Were Chinese and not French, and they criticized the French and observed the French and finally they reached a decision at the cabinet level in 1974 that the Spratlys were Chinese.

I came to the French, it was a matter of studying French imperialism, and this was helped by the fact that the French archives had been opened up at the request of the Vietnamese, to the point now where the key archives of the 1930s when the French purported to seize the paracels and the Spratlys, are digitalized and can be read easily by any Chinese person from his or her computer in their own home. And so I studied these archives and I found that they were. Very much a complex picture, but ultimately very supportive of the Chinese. That's a long story, but you can follow it yourselves from the archives in the thirties, and especially from a French memoranda produced in 1974 at the height of the conflict between south Vietnam and China.

That this is part of my approach to international law. My approach to international law is quite complex. The general view is that international law rests on the customary practice of states, but that it is impossible to know what legal convictions states have about their conduct, and you simply have to take public declarations at their face value. Well, I have never believed that. I believe a state is merely an institutional representation of a people and that it's possible to study closely what the people actually. Think and I have done while I was in England, I spent many years studying the British archives, and produced a major study on the role of international legal advisors in the British government in the 1930s and forties. It's called sir Gerald Chris Morris, a foreign a legal advisor in the foreign office in a world of crisis.

I came to Hong Kong, I decided to continue this kind of work, and I engaged with a research project from the research grants council of the university of Hong Kong, ministry of education and the university of Hong Kong. We engaged in a major project involving many young Chinese scholars who could speak Chinese and Japanese, and we did a study of the whole century of humiliation, from the 1840s right through the second opium war and through the Sino Japanese and Sino French war, right up until the collapse. Of the Qing dynasty and all of that has also been published in a book called moral responsibility of rulers and so, the work that I have done on the south China sea is basically fits into this pattern of wider pattern of major research that I have done.

I want to show is that the archival record of Britain and France a reliable archival record, neither country have tampered with their records. The archival record of Britain and France shows quite clearly that they consider Britain, China and China alone to be the proper owner of the south China sea islands. So this actually fits into my general approach to international law, that it is possible to know and to understand countries and the way they're thinking. If you approach it in in a professionally serious way, which I think I have done, so the south China sea islands book demonstrates from the records that the British and the French considered these islands to be historically, and continuing to be Chinese.

I think that the, how this will affect the dispute is that when it becomes generally known and it has been published for some time but does not seem to be taken up by, by western opinion or by western media to any great extent, when it becomes generally known then it will be accepted and recognised that the American containment, military containment policy in the south China sea is completely without foundation, in fact it's quite clear from the records of the American archives. That they don't care who owns the south China sea. It's simply a matter of containment, a ruthless, machiavellian containment of China, which is entirely biased and not concerned about the justice of the situation. It's really bold, that can be seen quite clearly from the records of the foreign relations of the United States, which are also public and easily available and cited in my book.

I think the solution to the problem is not very difficult to find in terms of academic and technical expertise. The south China sea islands do generate maritime entitlements and the decision of the tribunal in 2016 is biased in reaching an incredibly unsound, grammatically and logically unsound judgment. That the islands are not islands for the purposes of article 121 of the 1213 paragraph three of the so called law of the sea convention, the decision, that decision of that tribunal is outrageous because they refuse to take into account the actual practice of other countries.

The fact that France, the United States, Japan, Australia, New Zealand claim maritime entitlements for similar maritime features to the ones in the south China sea, that was already the case at the time of the judgement. The judgement is therefore outrageous, it is so questionable that one can wonder whether it is ideologically motivated and certainly it is a discreditable judgement, and so once one accepts that there is a maritime entitlement. But to but of these islands, even in the face of the economic zone claims of particularly the Philippines and Vietnam from their mainland, perhaps also Malaysia were to be able to work out an equitable solution and there I would say in favor of the other countries in the south China sea.

The normal practice of maritime, maritime delimitation would, equitably take into account that these islands do not merit an equidistant line to be drawn between the Chinese islands and the coastlines of Malaysia, Vietnam and the Philippines, and an equitable solution would give some weight to the maritime entitlement of the islands. But would also give more weight to the significance of the mainland and densely populated territories of Vietnam and the Philippines, but I think that as a matter of not normal maritime practice of adjudication, of which there's a very great deal, would take into account the greater significance of the mainland territories of these countries.

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