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Maritime Order and the Law
in East Asia

Many of the maritime disputes today represent a competing interest of two

groups: coastal states and user states. This edited volume evaluates the role of the
United Nations Convention on the Law of the Sea (UNCLOS) in managing
maritime order in East Asia after its ratification in 1994, while reflecting upon
various interpretations of UNCLOS. Providing an overview of the key maritime
disputes occurring in the Asia Pacific, it examines case studies from a selection
of representative countries to consider how these conflicts of interest reflect
their respective national interests, and the wider issues that these interpretations
have created in relation to navigation regimes, maritime entitlement, boundary
delimitation and dispute settlement.

Gordon Houlden is the Director of the China Institute, Professor of Political

Science and Adjunct Professor of the Alberta School of Business at the University
of Alberta.

Nong Hong heads the Institute for China-​America Studies (ICAS). She is a
research fellow with China Institute, University of Alberta, the National Institute
for South China Sea Studies and the China Center for Collaborated Studies on the
South China Sea, Nanjing University.
Maritime Order and the
Law in East Asia

Edited by
Gordon Houlden and Nong Hong
First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 selection and editorial matter, Gordon Houlden and Nong Hong;
individual chapters, the contributors
The right of Gordon Houlden and Nong Hong to be identified as the authors of the
editorial material, and of the authors for their individual chapters, has been asserted in
accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now known
or hereafter invented, including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks,
and are used only for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Houlden, Gordon, author. | Hong, Nong, author.
Title: Maritime order and the law in East Asia /
Gordon Houlden and Nong Hong.
Description: Abingdon, Oxon [UK] ; New York, NY : Routledge, 2018.
Identifiers: LCCN 2017055442 | ISBN 9781138561656 (hbk) |
ISBN 9780203710555 (ebk)
Subjects: LCSH: Maritime boundaries–East Asia. | Territorial waters–East
Asia. | Maritime law–East Asia. | Maritime boundaries–Southeast Asia. |
United Nations Convention on the Law of the Sea (1982 December 10) |
South China Sea–International status. | East China Sea–International status.
Classification: LCC KZA1686 .H68 2018 | DDC 341.4/4091642–dc23
LC record available at https://lccn.loc.gov/2017055442
ISBN: 978-​1-​138-​56165-​6 (hbk)
ISBN: 978-​0-​203-​71055-​5 (ebk)
Typeset in Galliard
by Out of House Publishing
Contents

Editor and contributor biographies vii

Introduction 1
G O RD O N H O UL DEN A ND NO NG H O NG

PART I
Regional maritime order overview 7

1 China–​ASEAN relations in the South China Sea: persistent

features and obstacles to cooperation 9
S O U RABH G U P TA

2 The East China Sea: sea of regional and global confrontation 32

RE I N H ARD D RIFT E

PART II
National perspective 51

3 Historic concepts vs. contemporary maritime regimes in

UNCLOS: China’s claims in the South China Sea 53
NONG HONG

4 Navigational rights, freedoms, and interests in the South

China Sea: the Philippines’ perspective 69
J AY L. BATO N GBA CA L

5 Indonesia: an archipelagic state’s perspectives on the

law of the sea 100
E TTY R. AG O ES
vi Contents
6 Balancing the rights of coastal states and user states in the
post-​UNCLOS age: Vietnam and navigational rights 112
H AO D U Y P H A N

7 The United States and accession to UNCLOS: a case of

how domestic political polarization results in free ridership 131
AN AS TAS I A T EL ES ET S KY

PART III
Navigation related issues and UNCLOS 143

8 Freedom of navigation and the UNCLOS order 145

M I RA RAP P -​H O O P ER

9 The prior notification issue of military activities in EEZ 158

Y I N G YAN G

10 Maritime confidence-​building measures: assessing

China–​US MOU on notification of major military
activities and rules of behavior 171
YAN YAN

PART IV
Maritime entitlement, delimitation and dispute
settlement and UNCLOS 191

11 The Sino-Philippine arbitration on the South China Sea

disputes: a preliminary assessment of the merits award 193
M I C H AE L S HENG-​T I GA U

12 Archipelagos and archipelagic regimes in the law of the sea 216

S O P H I A KO P EL A

13 Low-​tide elevations: a contemporary analysis 236

Y I N AN B AO

14 Resolving disputes under UNCLOS when the coastal and

user states are disputed 253
N ATALI E KL EIN

Index 271
Editor and contributor biographies

Editors
Gordon Houlden is the Director of the China Institute, Professor of Political
Science and Adjunct Professor of the Alberta School of Business at the
University of Alberta. He is a former Canadian career diplomat specialized in
East Asia affairs. He has lectured at international conferences in Canada, the
United States (including the US State Department) and China (including the
National Defence University PLA China). He has been interviewed by many
Canadian, Chinese and other international media on Asian economic, trade,
and investment issues.
Nong Hong heads the Institute for China-​America Studies (ICAS), an inde-
pendent, non-​profit academic institution based in Washington D.C. She also
holds a joint position of research fellow with China Institute, University of
Alberta (CIUA), National Institute for South China Sea Studies (NISCSS),
and the China Center for Collaborated Studies on the South China Sea,
Nanjing University. Dr. Hong received her PhD of interdisciplinary study of
international law and international relations from the University of Alberta,
Canada and held a Postdoctoral Fellowship in the University’s China Institute.
She was ITLOS-​Nippon Fellow for International Dispute Settlement, and
Visiting Fellow at the Center of Oceans Law and Policy, University of
Virginia and at the Max Planck Institute for Comparative Public Law and
International Law.

Contributors
Sourabh Gupta is a resident senior fellow at the Institute for China-​America
Studies (ICAS) in Washington, D.C. and a specialist in international relations
of the Asia-​Pacific. His areas of expertise include: analysis of key major power
relationships in the Asia-​ Pacific region (China–​ U.S, China–​ Japan, China–​
India, US–​ Japan, US–​ India, Japan–​India relations); political, security, and
economic risk evaluation of key states in the Asia-​Pacific region; and, territorial
disputes and maritime law-​related developments in the Asia-​Pacific region. His
most recent study is an analysis of China’s U-​shaped line titled The Nine Dash
viii Editor and contributor biographies
Line as a Possible ‘Historic Rights’ Line and its Basis in International Law. He
is a member of the United States Council for Security Cooperation in the Asia-​
Pacific (USCSCAP). He holds master’s degrees from Georgetown University
and Syracuse University.
Reinhard Drifte is Emeritus Professor of Newcastle University (UK). Since his
retirement he has been visiting professor at various Japanese and French uni-
versities and was Visiting Fellow in 2014 at the Chinese National Institute for
South China Sea Studies in Haikou. His subject area is Japanese foreign policy,
focusing currently on various aspects of Japan-​China relations, including the
disputes in the East China Sea and the South China Sea. Book publications
include Japan’s Security Relations with China since 1989, (Routledge 2002),
Japan’s Quest for a Permanent Security Council Seat: A matter of pride or
justice? (Macmillan 1999), and Japan’s Foreign Policy in the 1990s: From eco-
nomic superpower to what power? (Macmillan 1996).
Jay L. Batongbacal is an Associate Professor at the University of the Philippines
College of Law, and Director of the Institute for Maritime Affairs & Law of
the Sea of the U.P. Law Center. He holds the degrees of Master of Marine
Management, and Doctor in the Science of Law, both from Dalhousie
University in Canada. Since 1997, he has done diverse work in maritime
affairs, including community based fisheries management, coastal resource
management, marine environment protection, maritime boundaries, high seas
fishing, offshore energy, seafaring, and shipping. He was legal advisor to the
Philippine delegation that from 2009–​2012 successfully laid claim to a contin-
ental shelf beyond 200 nautical miles in the Benham Rise Region before the
Commission on the Limits of the Continental Shelf. He is also among the List
of Experts on Marine Scientific Research for purposes of Special Arbitration
under Annex VIII of the UNCLOS.
Etty R. Agoes is a professor of International Law (Ret.), Universitas Padjadjaran,
Bandung, Indonesia, and a member of the Indonesia National Maritime
Council. He also serves as advisor to the national negotiating team for
boundary delimitation, and was formerly Director (now Advisor) to the
Indonesian Center for the Law of the Sea.
Hao Duy Phan is a Senior Research Fellow at the Centre for International
Law (CIL), a university-​wide research centre at the National University
of Singapore (NUS). He is the author of many articles on various issues
of international law. Prior to joining CIL, he worked as a legal expert at
the Department of International Law and Treaties, Ministry of Foreign
Affairs of Vietnam, and a visiting research fellow at the East-​West Center in
Washington D.C. and the Institute of Southeast Asian Studies in Singapore.
Hao Duy Phan received a B.A. from the Institute for International Relations
of Vietnam, an LL.M. from the University of Notre Dame Law School
(summa cum laude), and an S.J.D. from the American University Washington
College of Law.
 Editor and contributor biographies ix
Anastasia Telesetsky is a Professor at University of Idaho College of Law
and member of the Natural Resource and Environmental Law faculty.
A graduate of UC Berkeley Boalt Hall School of Law, she is currently
the co-​ chair for the ABA Section of International Law International
Environmental Law Committee, a member of the World Commission on
Environment Law for the International Union for the Conservation of
Nature, and an editorial board member of the Asia-​Pacific Journal for
Ocean Law and Policy. In 2016, she became the Ian Axford Public Policy
Fellow at the New Zealand Ministry of Primary Industries focusing on
fisheries sustainability issues.
Mira Rapp-Hooper is a Senior Research Scholar in Law at Yale Law School, as
well as a Senior Fellow at Yale’s Paul Tsai China Center. She studies and writes
on US-China relations and national security issues in Asia and is currently
completing a book on the role of alliances in American strategy. Dr. Rapp-
Hooper was formerly a Senior Fellow with the Asia-Pacific Security Program
at the Center for a New American Security (CNAS), a Fellow with the CSIS
Asia Program, and the Director of the CSIS Asia Maritime Transparency
Initiative. She was also a Stanton Nuclear Security Fellow at the Council on
Foreign Relations. Dr. Rapp-Hooper’s academic writings have appeared in
Political Science Quarterly, Security Studies, and Survival. Her policy writings
have appeared in The National Interest, Foreign Affairs, and The Washington
Quarterly, and her analysis has been featured in The New York Times, The
Washington Post, and on NPR, MSNBC, and the BBC.

Ying Yang is an Associate Research Fellow at Law School and the Strategic
Research Institute of the South China Sea, Sun Yat-​Sen University, China. She
received her PhD of international law from Wuhan University, China (2015).
Her researching field is international law with a focus on the law of the sea,
especially on the military activities at the sea. She participated in the Summer
Courses of the Hague Academy of International Law in July 2012 and studied
as a visiting scholar at the Center of Oceans Law and Policy, University of
Virginia, US. (2013–2014). She has already published papers in the Social
Science Journal, Journal of Theory monthly, Journal of Presentday Law Science,
Journal of Chinese People’s Public Security University, Journal of Xi’an Politics
Institute of PLA, Xinhua Digest, and more.

Yan Yan is a research fellow at the National Institute for South China Sea Studies
(NISCSS) and currently a Ph.D candidate at the Faculty of Law of the University
of Hong Kong. Prior to joining the NISCSS, she had been an interpreter in the
Foreign Affairs Office in Hainan Province. She graduated from London School
of Economics and Political Science (LSE) in 2005. Her research has focused
on the legal regime on peacetime military activities at sea. Her research themes
include the right of innocent passage of warships in the territorial sea; intelli-
gence gathering activities and marine scientific research; the establishment of
security zones and military exercises and weapon test in the high seas etc.
x Editor and contributor biographies
Michael Sheng-​ti Gau has degrees of LL.B. (National Taiwan University), LL.M.
(Cambridge), LL.M. (London), and Ph.D. (Leiden), all focusing on public
international law. He is now teaching at Law School of Hainan University. He
is also the director of the newly established Research Institute for International
Justice and Arbitration at Hainan University. For the past seven years, he has
been focusing on outer continental shelf, CLCS and the South China Sea
legal issues, with publications at Ocean Yearbook, Ocean Development and
International Law, Chinese Journal of International Law, Journal of East Asia
and International Law, etc.
Sophia Kopela is a lecturer in law at Lancaster University Law School. Sophia
holds an LLB from the University of Athens (Greece), an LLM in Public
International Law from the University of Nottingham (UK), and a PhD
in International Law of the Sea from Bristol University (UK). Her spe-
cialisation lies in international law of the sea, international environmental
law and public international law. She has contributed articles and papers
in international journals and conferences. Her article ‘2007 Archipelagic
Legislation of the Dominican Republic: An Assessment’ was awarded the
first Gerard Mangone Prize for the best article in the International Journal
of Marine and Coastal Law for 2009. She is the author of a monograph titled
Dependent archipelagos in the law of the sea published by Martinus Nijhoff/​
BRILL in 2013.
Yinan Bao is a Research Associate with School of International Law, East China
University of Political Science and Law. He did his PhD studies in diplomatic
law at University of Sussex from 2010 to 2014 with a thesis entitled When Old
Principles Face New Challenges: A Critical Analysis of the Principle of Diplomatic
Inviolability. He had previously studied LLM in Public International Law
at the University of Leicester from 2009 to 2010. Dr Bao’s major research
interest is in public international law, especially in diplomatic law, territorial
disputes and the law of the sea. His major academic work includes ‘The US
Theory of “Excessive Maritime Claims” and Its Practice: A Critical Analysis’ in
Chinese International Studies (Chinese version is in Issue 5, September 2017),
‘On the Historical Evolution of the Principle of Diplomatic Inviolability’
(Chinese International Law Review, Beijing: Social Sciences Academic
Press, 2012) and ‘International Law Issues Concerning the Referendum of
Crimea: A Preliminary Analysis’ (Chinese Yearbook of International Law 2014,
Beijing: Law Press, 2015).
Natalie Klein is a Professor at UNSW Faculty of Law, Sydney, Australia. She was
previously at Macquarie University where she served as Dean of Macquarie Law
School between 2011 and 2017, as well as Acting Head of the Department
for Policing, Intelligence and Counter-​Terrorism at Macquarie in 2013–​2014.
Professor Klein teaches and researches in different areas of international law,
with a focus on law of the sea and international dispute settlement. Professor
Klein is the author of Dispute Settlement and the UN Convention on the Law
newgenprepdf

Editor and contributor biographies xi

of the Sea (Cambridge University Press, 2005) and Maritime Security and
the Law of the Sea (Oxford University Press, 2011). She provides advice,
undertakes consultancies and interacts with the media on law of the sea issues.
Prior to joining Macquarie, Professor Klein worked in the international litiga-
tion and arbitration practice of Debevoise & Plimpton LLP, served as counsel
to the Government of Eritrea (1998–2002) and was a consultant in the Office
of Legal Affairs at the United Nations. Her masters and doctorate in law were
earned at Yale Law School and she is a Fellow of the Australian Academy
of Law.
 
Introduction
Gordon Houlden and Nong Hong

This edited volume explores the legal challenges associated with the role of United
Nations Convention on the Law of the Sea (UNCLOS) in managing maritime
order in East Asia. Many of the maritime disputes today represent competing
interest between two groups, coastal states whose interests stem from extended
national jurisdiction arising from the new regime of UNCLOS, e.g. Exclusive
Economize Zone (EEZ) and the Continental Shelf, and user states who seek the
continuation of freedom of navigation and other rights. Among coastal states,
there are divergent interpretations of UNCLOS clauses, for instance, the inter-
pretation of Article 121 (3) on defining the legal status of insular features, Article
74 and 83 on maritime delimitation etc.
East Asia encompasses two important maritime regions characterized by long-​
standing territorial and maritime disputes, the settlement of which has been
pending for decades. Despite great effort at conflict management, the settle-
ment of the decades-​old maritime disputes in this region seem to be politically
deadlocked. The status quo in East Asia maritime domain is attributed to, in add-
ition to geopolitical factors and competition for resources, the interpretive ambi-
guities embedded in UNCLOS provisions about the rights and obligation of user
states and coastal states respectively, and about competing claims over national
jurisdiction among coastal states based on UNCLOS.
This edited volume is composed of four parts. Part I lays out an overview
of the maritime disputes occurring in East Asia that currently garner much
attention. Both of the two chapters on the East China Sea and the South China
Sea respectively provide an overview of the various issues as far as they are rele-
vant to UNCLOS, and investigates to what extent the UNCLOS regime has
been adhered to by the coastal states, and has been helpful or not in guiding the
concerned states to deal with their different interests.
In Chapter 1, Sourabh Gupta provides an overview of the political state of
affairs in the South China Sea, especially in the context of China–​ASEAN relations.
China and ASEAN are apparently entering a period of calm in their South China
Sea-​related bilateral relations, following the issuance of the South China Sea
Arbitration Award on July 12, 2016. While the underlying sovereignty claims to
land features in this body of water will not be resolved anytime soon, China and
some South China Sea claimant states enjoy a unique opportunity to creatively
2 Gordon Houlden and Nong Hong
address a number of their competing sovereign rights claims under the frame-
work of Beijing’s “dual track” approach.
Reinhard Drifte, in Chapter 2, analyzes to what extent UNCLOS has
contributed to the management of the disputes in the East China Sea which
revolve around the territorial dispute over the sovereignty of the Diaoyu/​Senkaku
Islands and the pending delimitation of maritime borders between China, Japan
and South Korea. At the center of this enquiry is how far has the UNCLOS
regime been adhered to by the littoral states, and has been helpful or not in
guiding the concerned states to deal with their differences.
Part II is composed of five chapters from the respective country’s perspective,
the composition of which represents different types of countries, including China
as a growing maritime power and key coastal state in East Asia, key claimant states
of the South China Sea –​the Philippines and Vietnam, and a key Archipelago
state, Indonesia, and the United States as a non-​claimant state in this region
that has strategic interests there. The fact that the United States, despite its non-
​ratification of the Convention, developed its Freedom of Navigation Program
alongside UNCLOS and remains the only country to support such a program,
suggests that its investment in this principle is not strictly derivative of UNCLOS.
The inclusion of the chapter on the United States in this Part also reflects common
or similar interests and stands of other external powers and user states such as
Japan, Australia, and India.
In Chapter 3, Nong Hong elaborates China’s historic claim in the South
China Sea and points to the conflicts among the claimants in the South China Sea
due to the competition between historic concepts and the new maritime regime.
The Tribunal of the South China Sea Arbitration has set a precedent related
to this question by analyzing the relations between UNCLOS and historic rights.
However, the arguments provided in the Award are problematic and warrant fur-
ther academic scrutiny.
Jay L. Batongbacal, in Chapter 4, considers in greater detail the contours and
interfaces of the navigational rights, freedoms, and interests asserted by all coastal
and user states currently embroiled in the South China Sea disputes. Applying
the practice of the Philippines, he argues that the South China Sea Arbitration
has laid one option, that of allocating maritime jurisdictions in a more conser-
vative manner in line with the existing practice of the smaller Southeast Asian
States, that provides an opening for engaging the multiple duties to cooperate
in ocean management enshrined in UNCLOS and encourages multi-​ lateral
cooperation and management of the disputes that may hold promise of future
resolution.
In Chapter 5, Etty R. Agoes analyzes Indonesia’s view which sees mari-
time diplomacy as a means for establishing cooperative regional relationships,
thereby ensuring its security and demonstrating its leadership credentials to
mediate interstate boundary disputes in the region. Indonesia’s successful man-
agement of its border disputes is an example of its implementation of preventive
diplomacy in the management of regional issues that involve or threaten mili-
tary conflict.
 Introduction 3
Hao Duy Phan, in Chapter 6, examines Vietnam’s positions on major
contested issues regarding the rights of coastal states versus the rights of user
states as provided in UNCLOS. He concludes that Vietnam has increasingly
relied on UNCLOS as a guide and instrument to balance its rights as a coastal
state and the rights of user states in its maritime zones. As UNCLOS assumes
increasing importance for Vietnam, it also plays the key role in Vietnam’s percep-
tion of the legal order of the oceans.
Anastasia Telesetsky, in Chapter 7, argues that while there are palpable tensions
between coastal states and user states over core rights such as navigational rights,
these tensions are not the current basis for the US not acceding to the treaty. She
explains how US ocean policy conforms with UNCLOS obligations as a coastal
state and as a user of global ocean resources. The US benefits from the UNCLOS
regime but will not become a member to the Treaty until there is internal rec-
onciliation within US domestic politics and a return to genuine bipartisanship.
Part III discusses classic contesting issues on navigation regimes and the inter-
pretation of UNCLOS. The conclusion of the text of UNCLOS after the lengthy
negotiation process reflects a compromising package which accommodates the
interest of both coastal states and user states. The rationale of focusing on “navi-
gation regime” in this Part is based on the editors’ observation that it reflects very
precisely the competing interests of user states and coastal states. In explaining
why the navigation and overflight regime in East Asia is increasingly challenged,
in addition to the competition between the littoral states trying to either expand
their maritime claims or to consolidate and protect their existing jurisdictions, the
differences between the littoral states and external powers is a significant contrib-
uting factor. Coastal states may be expected to guard their exclusive jurisdictions
just as zealously as user states could be expected to protect their navigation and
overflight rights and freedoms.
In Chapter 8, Mira Rapp-​Hooper writes about freedom of navigation which
she sees now the primary declared US national interest in the South China
Sea, and one with which Chinese leaders insist they have never interfered and
seek to uphold. She argues that the language of these debates is rooted in and
closely linked to competing interpretations of UNCLOS, but these are fun-
damentally geopolitical disagreements, and the contours of these contentions
will continue to evolve as China’s ascent proceeds and regional competition
accelerates.
Ying Yang, in the following Chapter 9, explores the question of whether the
warship of the foreign States should provide prior notification to the coastal
states before entering its EEZ. She sees this problem as a dispute between the sea
powers represented by the US and coastal countries represented by China. She
argues that the formation of a customary law might address this issue.
In Chapter 10, Yan Yan attempts to answer how to reduce the risks of
miscalculations of close encounter between naval vessels and aircrafts between
China and the United States in the South China Sea. She examines the develop-
ment of the legal regime of encounter and collision, as well as the confidence-​
building measures between the US and the USSR navies. This chapter concludes
4 Gordon Houlden and Nong Hong
that while the MOUs signed by China and the United State play a positive role
in reducing the risk of maritime crisis, they will not eliminate the fundamental
divergence between them.
Part IV focuses on contesting issues with regard to maritime entitlement,
boundary delimitation and dispute settlement arising from the interpretation
of UNCLOS. This part serves to highlight the close connection of maritime
order in East Asia and UNCLOS related legal debate among coastal states.
While we see from navigation regime the difference between user states and
coastal states, these issues discussed in Part IV represent the divergence of views
among claimant states. The chapter on the comprehensive overview of the SCS
Arbitration leads to the following two chapters in this Part on the topic of
archipelagic regime and low-​tide elevation, which are key concepts discussed
in the Arbitral Award. The last chapter provides an analysis on the legal frame-
work of resolving disputes under UNCLOS when the coastal and user states
are disputed.
Chapter 11 by Michael Gau, provides an overview on the South China Sea
Arbitration, explains why the Merits Award of the South China Sea Arbitration
(SCS) is non-​implementable. He asserts that the U-​Shaped Line (USL) representing
China’s territorial claims cannot be erased since the Tribunal cannot settle territorial
disputes. Representing China’s provisional maritime claims, the USL cannot be
over-​ruled as the Tribunal may not settle the disputes concerning the application of
Articles 74 and 83 on maritime delimitation. Philippine claims against China’s his-
toric rights within USL suffer from mootness. Philippine selective claims concerning
legal status of some maritime features is pointless, as China never uses individual
features to claim EEZ and continental shelf there. Philippine traditional fishing
rights in Scarborough Shoal are unreal, whereas the territorial disputes underlying
Submission 13 concerning near-​collision incidents surrounding Scarborough Shoal
renders the Award unenforceable.
In Chapter 12, Sophia Kopela assesses the application of Part IV of UNCLOS
and the practice of archipelagic states with respect to the drawing of archipelagic
baselines and the status of archipelagic waters. She further examines the prac-
tice of non-​archipelagic states in their outlying archipelagos in order to identify
potential developments with respect to the endorsement of the archipelagic con-
cept in the law of the sea. She tries to answer the question whether UNCLOS has
been able to effectively balance and accommodate the interests of archipelagos
vis-​à-​vis those of third states.
Yinan Bao, in Chapter 13, provides a brief analysis of the legal status of low-​
tide elevations and argues that there is no uniform standard on the determin-
ation of the status of low-​tide elevations and the status of low-​tide elevations
should be exclusively determined by international arbitral or judicial bodies
when a relevant dispute arises. In addition, low-​tide elevations should not be
considered as state territory and they cannot be appropriated by states. He also
argues that the expected global sea level rise may greatly affect the status of
low-​tide elevations.
 Introduction 5
In Chapter 14, Natalie Klein discusses the legality of construction activities
on and around a disputed island. She concludes that the prospects for UNCLOS
dispute settlement remain notable, even if territorial sovereignty disputes remain
outside the scope of this dispute settlement regime. Most particularly, the oppor-
tunity for state parties to UNCLOS to resort to compulsory arbitration or adju-
dication may help with the peaceful resolution of international disputes and limit
unilateral actions at sea.
To summarize, this book brings together in one volume a basket of views on
the application of the law of the sea to the thorny mix of rival claims in the South
China Sea. The significance of the issues is underscored not only by the large
scope of the claims, but also by the divergent views of the contending parties.
It is to be hoped that a careful assessment of applicable international law and
thoughtful review by all parties of the benefits of reduced tension in the South
China Sea will facilitate the peaceful resolution of the globe’s most complex mari-
time dispute.
Part I

Regional maritime order

overview
1 
China–​ASEAN relations in the
South China Sea
Persistent features and obstacles to
cooperation
Sourabh Gupta

On July 12, 2016, in a courtroom in The Hague, an arbitral tribunal constituted

under the United Nations Convention on the Law of the Sea (UNCLOS) issued
a highly ​awaited award which ruled that many of China’s maritime claims –​and
actions in defense of those claims –​in the South China Sea were contrary to
UNCLOS and had thereby violated the Philippines’ sovereign maritime rights
and freedoms. The tribunal made four sweeping observations.
First, it ruled that no land feature in the northern sector or the southern
sector of the South China Sea that was the subject of the dispute was capable
of sustaining human habitation or economic life of its own. As such, none of
the features met the definition of an “island” –​or as the Tribunal called it “a
fully entitled feature” –​within the meaning of Article 121 of the Law of the
Sea Convention (LOSC). As such, none of the features was entitled to a 200-​
nautical mile exclusive economic zone (EEZ).1 Second, the tribunal judged that
China’s nine-​dash line claims to “historic rights” was in fact an exclusive claim
of sovereign rights and jurisdiction within the exclusive economic zone of the
Philippines.2 This, it ruled, was contrary to the Law of the Sea Convention and
without lawful effect because it exceeded the geographic and substantive limits of
China’s maritime entitlements under the Convention.3
Third, the tribunal found that China’s law enforcement vessels had failed to
observe –​and in fact had repeatedly violated –​many international navigation-​
related regulations, notably the Convention on the International Regulations
for Preventing Collisions at Sea (COLREGS) during the course of its enforce-
ment operations in the vicinity of Scarborough Shoal.4 In the course of doing so,
these law enforcement vessels had also violated the Philippines’ sovereign rights
in this northern sector of the South China Sea. Finally, the tribunal ruled that
Chinese fishermen and Chinese flagged vessels had engaged in destructive activ-
ities that had harmed the marine environment and that Chinese authorities were
in a position to prevent such activities but failed to exercise their due responsi-
bility.5 Further, that China’s land reclamation activities had caused harm to the
coral reef ecosystem and, in violation of its international treaty obligations, had
thereby damaged the marine environment. Along the way, the tribunal pointed
out that China’s denial of Filipino artisanal fishermen to engage in traditional
10 Sourabh Gupta
fishing within the territorial sea of the Scarborough Shoal was contrary to its
international law obligations.6

China–​ASEAN relations in the wake of the arbitration award

The extent of the one-​sidedness of the award took observers by surprise. More
surprising however was what followed thereafter. Most countries held their
tongue and, by-​and-​large, remaining silent or neutral on the issue of demanding
that China comply with the award. Only seven countries explicitly called on
China to comply.7 Two weeks after the award, at their forty-​ninth Ministerial
Meeting, the ten ASEAN foreign ministers meeting in Vientiane, Laos signed
four documents, none of which censured China or even referenced the award. In
their all-​important Joint Communique, the ASEAN foreign ministers only called
for the non-​militarization of the South China Sea land features and urged parties
to exercise self-​restraint by “refraining from … inhabiting the presently uninhab-
ited islands, reefs, shoals, cays and other features.”8 On August 5, 2017, at their
fiftieth Ministerial Meeting in Manila, the same pattern ensued. Far from refer-
encing the July 2016 award –​let alone criticize China, the ten ASEAN foreign
ministers “warmly welcomed” the improving cooperation between ASEAN and
China.9 Their communiqué did take note though of some countries’ concerns
regarding land reclamations and re-​emphasized the importance of non-​militariza-
tion and self-​restraint in the conduct of activities in the South China Sea. The same
pattern repeated itself at the thirty-first ASEAN Leaders Summit in November
2017. If the purpose of third party arbitration is to entrench respect for the body
of international law within state practice, the judges in Philippines v. China have
been less-​than-​successful, to say the least, so far, especially in Southeast Asia.
For ASEAN and China, the issuance of the award on July 12, 2016 constituted
the closing of a tense chapter in their recent interactions and the opportunity to
turn a new page of cooperation.10 That post-​July 2016 cooperation has been
manifested in a Joint Statement on the Application of the Code for Unplanned
Encounters at Sea (CUES) in the South China Sea, the drawing up of a Framework
of the Code of Conduct in the South China Sea and the successful operationalization
of the Guidelines for Hotline Communications among Senior Officials of the
Ministries of Foreign Affairs of ASEAN Member States and China in Response to
Maritime Emergencies in the Implementation of the Declaration on the Conduct of
Parties in the South China Sea.
This turning of the wheel in favor of stability and cooperation in China–​
ASEAN relations with regard to the South China Sea is a welcome relief from
the elevated level of tension that had appeared to descend over this contested
waterway during the first half of this decade. There were apprehensions that the
disputes in this body of water were evolving from claims related to sovereign
rights and maritime jurisdiction pertaining to the islets and reefs in the water to
fiercer forms of geopolitical contestation and waterway control involving China
and major external stakeholders, notably the US.11 The turning of the wheel in
favor of stability and cooperation is also consistent with a discernible pattern of
 China–ASEAN relations in the South China Sea 11
easing and deterioration in China–​ASEAN relations with regard to the South
China Sea over the past quarter-​century. There have been four such cycles: two
deteriorating cycles between 1992 and 1999 and 2009 and 2016, and two easing
cycles between 2002 and 2008 and the current cycle that began in July 2016.
Although no two easing or deteriorating cycles are identical, this chapter will
argue that there have been three identifiable features.
First, in one form or the other, a Law of the Sea Convention (LOSC)-​linked
timeline or deadline has been a visible or invisible presence in the background
throughout this period. Second, cycles of deterioration have typically been led
by China slapping down a controversial maritime rights claim, which has been
accompanied by subsequent actions that have visibly disturbed the status quo.
In 1992, China promulgated its Law on the Territorial Sea and the Contiguous
Zone and followed up by constructing structures on the Philippines’ continental
shelf at Mischief Reef in 1995. In 2009, China officially appended a map of the
nine-​dash line and followed it up with a series of large-​scale land reclamations
from mid-​2013 onwards in response to Manila filing the arbitration case. Third,
the Philippines has felt the most violated among the claimant states by China’s
actions, yet has been the most capricious in its policy responses. There have been
stark pro-​and anti-​China pendulum swings, coinciding with the elevation of new
presidents dating back to 2001 which have amplified these cycles. This has also
hurt ASEAN’s ability to speak with one voice.
Looking ahead, the chapter will conclude by arguing that easing cycles have
lent themselves to imaginative approaches by China and ASEAN and by China
and claimant states in the South China Sea to address and manage their common
challenges. The 2005 Joint Marine Seismic Undertaking (JMSU) involving the
national oil companies of the Philippines, China and Vietnam was one such
example. So also now, with Filipino President Rodrigo Duterte’s readiness to
forego near-​term implementation of the arbitration award and his insistence
on scaling back naval cooperation with the US in the South China Sea, an
important opportunity has been unlocked for Beijing and Manila and for China
and ASEAN as a whole to move beyond managing their differences to resolving
some of them in this vital body of water. Some creative approaches will be briefly
outlined within the context of China’s “dual track” policy which would, both,
enable China to imperceptibly bring its practices into compliance with aspects
of the arbitration award as well as enable China and ASEAN to manage the
differences responsibly.
But, first, before delving into the cycles of easing and deterioration in China–​
ASEAN relations over the past quarter-​century, this chapter will at some length
touch upon the underlying sovereignty quarrels and sovereign rights and jur-
isdiction quarrels among the claimant states which has made management and
resolution of disputes in the South China Sea so intractable. In particular, this
chapter will argue that the Law of the Sea Convention (LOSC), in its application
in the South China Sea, has hitherto sown more confusion than clarity and has
confounded the search for cooperative solutions to their common challenges in
this body of water. It will lay out four means by which LOSC has done so.
12 Sourabh Gupta

Competing sovereignty claims in the South China Sea

The Asia-​Pacific presents a veritable paradox. There are numerous sources of
inter-​state tensions in the Asia-​Pacific, yet there has been no outbreak of major
conflict since the late-​1970s. This is particularly remarkable given that there are
major powers transitions taking shape in the region. Typically, rapid shifts in
inter-​country power differentials has been a key marker of inter-​state conflict in
other regions.12 The Asia-​Pacific region also hosts a number of contested mari-
time boundaries that provide intermittent political fodder for populist politicians
and nationalist audiences on all sides, yet there has been minimal to no loss of
life during military tensions or standoffs related to these contested boundaries.
Most notably, the Asia-​Pacific region exhibits what has been described as “Asia
Paradox” –​the disconnect between the region’s growing economic interdepend-
ence on the one hand, and the relative lack of political-​security cooperation on
the other. There is an “Economic Asia,” a dynamic Asia crisscrossed by dynamic
and integrated production sharing networks, and then there is a “Security Asia,”
a region of “mistrustful powers, prone to nationalism and irredentism, escalating
their territorial disputes over tiny rocks and shoals, and arming for conflict.”13 To
a significant degree, the South China Sea too is an illustrative example of these
various paradoxes at play in the Asia-​Pacific region.
The tensions in the South China Sea stem, first and foremost, from the
underlying –​and unresolved –​sovereignty disputes among the claimant states
surrounding this body of water. The numerous land features in the South China
Sea are occupied and administered by a number of claimants. Although the
Paracels group of islands, which are claimed by China and Vietnam, is wholly
under Beijing’s control, the occupation of the Spratly group of islands is spread
across four claimant states –​China presently occupies seven features, Vietnam
twenty-​one, the Philippines nine, and Malaysia six. Additionally, the largest island
in the Spratlys group, Itu Aba or Taiping Island, is occupied and administered
by the Republic of China (Taiwan). Given that the claimant states have displayed
effective control over the land features for a couple of decades now and these
features have become part-​ and-​parcel of their publics’ territorial conscious-
ness, it will be very difficult to resolve the competing bilateral claims politic-
ally. Third party resolution by way of judicial opinion or international arbitration
is also unforeseeable given that countries in the region either view third part
mechanisms to resolve sovereignty questions dimly or have explicitly excluded
themselves from the compulsory jurisdiction of the International Court of Justice
(ICJ) or the optional jurisdiction of a court that is constitute-​able under Chapter
XV of the United Nations Convention on the Law of the Sea (UNCLOS).14

The poisoned chalice of San Francisco

The sovereignty disputes in the South China Sea have their modern-​day proven-
ance in the unfulfilled territorial provisions of the post-​war San Francisco Treaty
and the Republic of China–​Japan Treaty of Taipei. On September 8, 1951, at
 China–ASEAN relations in the South China Sea 13
the United States and United Kingdom stage-​managed San Francisco Peace
Conference to sign a peace treaty with Japan, Tokyo renounced all rights, titles
and claims to a number of territories “which she ha[d]‌seized or occupied … [or]
stolen … [or was to] be expelled from [because they were] taken by violence and
greed.”15 Article 2(f) of the San Francisco Treaty reads:16 “Japan renounces all
right, title and claim to the Spratly Islands and to the Paracel Islands. ”
The Spratly Islands and the Paracel Islands were one among a number of ter-
ritories that were renounced by Japan in San Francisco. These also included the
Korean Peninsula, Taiwan, Penghu (the Pescadores), the Kuril Islands, South
Sakhalin and the Pacific Islands. Crucially, the sovereign to whom each of these
territories would devolve to was not named in the treaty.
Nevertheless, on April 28, 1952, hours before this renunciation was to come
into force, the Yoshida government in Tokyo renounced Taiwan, Penghu and the
Spratly and Paracel Islands to the Chiang Kai-​shek led the nationalist Republic
of China government in Taipei.17 As per Article 2 of the Treaty of Peace between
the Republic of China and Japan, also known as the Taipei Treaty, Tokyo resolved
to recognize:18

that under Article 2 of the Treaty of Peace which Japan signed at the city
of San Francisco on 8 September 1951 (hereinafter referred to as the San
Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan
(Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and
the Paracel Islands.

Legions of commentators have since observed that because no recipient of the

territorial renunciations, including the Spratly and Paracel Island, was stipulated
by Japan in the San Francisco Treaty, their final sovereign status remains as yet
undetermined. The implication further is that the territorial provisions in the
San Francisco Treaty have no bearing on who, in the instance of the Spratly and
Paracel Islands, should be considered its rightful owner. San Francisco supposedly
was agnostic on this question all along.
This is not an accurate characterization. To the contrary, it was the considered
judgment of the signatories at San Francisco and in Taipei that the Spratly and
Paracel Islands should revert to their most superior claimant –​China. Indeed,
this was not even a point of contention among the US, its allies, and Japan. The
point of contention, rather, was over the contingent form of sovereignty being
exercised by Chiang Kai-​shek’s nationalist government in Taipei that Washington
and Tokyo were prepared to recognize.19 Only nationals and juridical persons
who resided in or were registered on territories under Chiang’s current or future
sway were to be recognized as falling under the Republic of China’s sovereignty.20
This was done so that if Nationalist forces were ever ousted from the territories
they currently held, there could be no legal basis for Mainland China to be able
to claim sovereignty over the territories –​Taiwan, Penghu, and the Spratly and
Paracel Islands –​that were due to formally revert to Chiang’s Republic of China
government in Taipei.21
14 Sourabh Gupta
This conditioning in the treaty text was, in turn, imposed by the US, the archi-
tect of both the San Francisco and the Taipei treaties, for purely geo-​strategic
considerations. With the outbreak of the Korean War in June 1950, the island of
Taiwan had assumed critical defense policy ramifications for the US and its allies’
position in the Western Pacific. Leaving these territories final disposition suitably
vague in the treaties signed in San Francisco and in Taipei would ensure that
these territories –​the island of Taiwan in particular –​could not legally devolve
under any circumstances to “a hostile regime (i.e. the communist government in
Beijing) … 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.”22
The Treaty of Peace between the Republic of China and Japan, being a bilat-
eral treaty, does not bind the other South China Sea claimant states –​Malaysia,
Vietnam, Brunei or the Philippines –​who were non-​signatories. For its part,
Beijing –​excluded from the San Francisco Conference –​traces its claim to the
Paracel and Spratly islands to the war-​time Cairo and Potsdam Declarations,
which was confirmed in Article 3 of its September 1972 normalization agreement
with Tokyo.23 This having been said, no other regional claimant can produce a
Spratly and Paracel renunciation or reversion clause in its own post-​war normal-
ization agreement with Tokyo.
This short historical background notwithstanding, the territorial disputes
involving the land features in the South China Sea are not about to be sorted out
anytime soon. As previously noted, the claimant states refuse as a matter of prin-
ciple, formality or political convenience to have their claims resolved bilaterally
or tested and awarded under third-​party arbitration. This contest of sovereign-
ties in the South China Sea is fated to last well into the future. They will not be
reconciled anytime soon.

The Law of the Sea Convention: sowing more confusion than

clarity so far
Compounding the sovereignty challenges in the South China Sea has been the
introduction, role and development of international maritime law, notably the law
of the sea as developed at successive international conferences during the second
half of the twentieth century. The most notable of these conferences was the
Third United Nations Conference on the Law of the Sea which over a nine-​year
period crafted what became the United Nations Convention on the Law of the
Sea (UNCLOS) in 1982.24 UNCLOS provides a comprehensive legal framework
governing all uses of the ocean and its resources and has been described as a
“constitution for the oceans.” In its application in the South China Sea, it has
hitherto also sown more confusion than clarity and has complicated the man-
agement of security and politics in this body of water. The LOS Convention has
confounded the search for cooperative solutions to the common challenges in the
South China Sea in four ways.25
First, the Law of the Sea Convention (LOSC) has created a sense of resource
consciousness –​and fairly so –​among states and their publics within the
 China–ASEAN relations in the South China Sea 15
international system, including in Southeast Asia. The Convention confers a
200-​nautical mile exclusive economic zone (EEZ) where the coastal state can
explore, exploit, conserve and manage the natural resources, whether living or
non-​living, of the sea. Certain exclusive continental shelf rights extend beyond
200 nautical miles too if particular geological and geomorphological criteria
are satisfied. Resource consciousness can easily drift, and has easily drifted, into
resource nationalism however, and a scramble to corner the resources of the sea.
Periods of friction in the South China Sea have uniquely coincided in one form
or other with a Law of the Sea-​related trigger –​be it in the 1970s, 1990s or
the 2010s. The most notable of these triggers pertained to the scramble by the
South China Sea littoral states to occupy many of the land features in this body
of water through the 1970s.26 The scramble was prompted by a finding in a
U.N. Economics Commission for Asia and the Far East report of 1969 which
confirmed via geological survey that “substantial energy deposits” existed in both
the East China Sea and the South China Sea.27 The value of these hydrocarbon
deposits was magnified, in turn, by the then-​on-​going discussions at the Third
United Nations Conference on the Law of the Sea (1973–​1982), where the new
legal regime of a 200-​nautical mile EEZ and continental shelf regime –​the key
innovation of the Third Conference –​was developed and instituted. Because
maritime entitlements are generated on the basis of the “land dominates the sea”
principle, states felt the need to race each other in occupying as many of the land
features of the South China Sea as possible. To this day, this scramble for terri-
tory has severely complicated the outlook for resolving the sovereign rights and
jurisdiction claims as well as the underlying sovereignty claims in these waters.28
Second, the Law of the Sea Convention’s (LOSC) founding agnosticism to
determining competing claims over land territory while at the same time basing
permissible maritime claims on the “land dominates the sea” principle has, both,
exacerbated the sovereignty and sovereign rights and jurisdiction disputes in
the South China Sea and made them harder to resolve. It has elevated a legal-​
technical approach to dispute management and resolution in this body of water
above the imperative for political compromise –​in turn, going against the grain of
tried-​and-​tested models of successful territory-​related dispute resolution in Asia.
Sovereignty over land territory can be acquired by a state by being the first to
establish effective control. That mechanism does not apply to the sea. UNCLOS
in fact operates on the premise that sovereignty over territory has already been
established.29 That premise does not hold either in the South China Sea. Because
the premise does not hold, the sovereign rights and jurisdiction that originate
from these features is also in dispute. Yet too often the sovereign right to explore,
exploit, conserve and manage the living and non-​living resources of the sea in
the exclusive economic zone (EEZ) is conflated by aroused nationalistic publics
as an attribute equivalent of that associated with territorial sovereignty –​which
it is not.30 From a political standpoint, this resource nationalism-​based fusing of
sovereign rights-​based claims with sovereignty claims has made the search for pol-
itical compromise and the need to share these living and non-​living resources in
overlapping and disputed maritime zones that much harder to achieve.
16 Sourabh Gupta
Had it nevertheless been left solely to the leaders of the coastal states of
South China Sea to marshal the support of their citizens and arrive at political
compromises to resolve their contested resource sovereignty-​driven quarrels, this
might have been possible. Asia –​and China in particular –​enjoys a rich tradition
of successful resolution of contested (land) boundaries on the basis of win–​win
compromises. Fully, 14 of 16 of China’s disputed Asian frontiers, including with
Southeast Asian countries (Myanmar in 1960; Vietnam from 1999 to 2008) were
resolved in this manner.31 Two salient characteristics have underlain these
successful settlements. First, a political imperative of boundary settlement has
vastly overshadowed any territorial imperative –​indeed stabilization of the heart-
land and periphery have held considerably greater importance than incremental
territory that might be gained or lost during the course of a boundary nego-
tiation.32 Second, the act of framing political principles guiding settlement and
thereafter enshrined in a bilateral or plurilateral agreement has always preceded the
legal-​technical effort of marking a delimited boundary on the ground.
Neither of these power and politics-​based principles and characteristics hold
or can be easily brought to bear to facilitate the resolution of overlapping and
disputed maritime rights claim. To the contrary, the resolution of these overlap-
ping sovereign rights and jurisdiction claims are governed by a set of rules that
are set forth in the LOSC. These rules have the effect of inverting the sequence
between framing broad political principles for settlement of an overlapping sov-
ereign rights claim and thereafter sharing or dividing the resources at sea on a
win–​win basis. In doing so, the LOSC rules also negate the space and scope
for political agency and, in privileging a legal-​technical approach to overlapping
claims redressal, go against the grain of the win–​win political approaches that has
characterized China and Southeast Asian countries’ earlier successful approaches
to sovereignty-​related dispute resolution.

The low procedural bar of Article 281(1)

Third, and on a related note, the wide latitude accorded by the Law of the Sea
Convention (LOSC) to convention-​constituted tribunals to arbitrarily frame the
parameters of their jurisdiction while hearing cases has gravely encroached upon
and short-​circuited the role of political compromise to resolve disputes in the
South China Sea and beyond. Article 281(1), paired with Article 288(4) in par-
ticular of Part XV of the Convention, which pertains to dispute settlement, bears
the lion’s share of the responsibility in this regard. Article 281(1) of Part XV of
the LOSC states:33

If the States Parties which are parties to a dispute concerning the interpret-
ation or application of this Convention have agreed to seek settlement of the
dispute by a peaceful means of their own choice, the procedures provided
for in this Part apply only where no settlement has been reached by recourse
to such means and the agreement between the parties does not exclude any
further procedure.
 China–ASEAN relations in the South China Sea 17
The purpose and object of this provision was to ensure that the automatic and
compulsory jurisdiction envisaged in Section 2 of Part XV (Articles 286–​96) to
frame an award on the merits of a maritime dispute would only kick-​in once the
mutual political consultations had failed or local remedies were exhausted. LOSC-​
constituted courts however have failed to heed this injunction in its totality.34
Rather, they have tended to place an absurdly low threshold for an aggrieved
party to satisfy the requirement that prior political efforts to “seek settlement of
the dispute by a peaceful means of their own choice” has been exhausted.35 This
has had the unfortunate effect of circumventing the political process of arriving
at hard-​fought compromises among disputant states and has instead incentivized
parties to make a dash to the court-​house for redress –​even in instances when an
active consensus to resolve the differences through mutual consultations with the
other party has utterly not been exhausted. LOSC-​constituted courts have there-
after gladly taken recourse to Article 288(4)36 of Part XV to self-​indulgently find
competence to proceed to the merits stage of the case at hand.37
In the South China Sea Arbitration (Philippines v. China) case, the tribunal set
aside the injunction to exhaust all local remedies and assigned unto itself the juris-
diction to proceed to the merits stage, even though China and ASEAN have been
actively involved –​and continue to remain in active discussions –​towards framing
a Code of Conduct to manage and resolve their differences in the South China
Sea for the past two decades.38 In defeating the original purpose Article 281(1)
and incentivizing this rush to litigate, the tribunal has also called into question
in the South China Sea and beyond the value of political undertakings, such as
the proposed Code of Conduct, that are solemnly arrived at and seek to resolve
differences by mutual consensus.
The South China Sea Arbitration (Philippines v. China) case is not the most
egregious instance of interpretive abuse of Article 281(1). That would be the
Democratic Republic of Timor-​Leste v. Commonwealth of Australia case which is
currently nearing completion under an Annex V (of LOSC) conciliation process.39
In Article 4 of their then-​extant 2006 Treaty on Certain Maritime Arrangements
in the Timor Sea (CMATS),40 Australia and Timor-​Leste were legally bound to
“neither assert, pursue or further by any means its … claims to sovereign rights
and jurisdiction and maritime boundaries” (Article 4.1)41 nor “commence or
pursue any proceedings against the other party before any court, tribunal or other
dispute settlement mechanism that would raise … issues or findings of relevance
to maritime boundaries or delimitation in the Timor Sea” (Article 4.4).42 Any
court, tribunal or other dispute settlement body too was under binding treaty
instructions to “not consider, comment on nor make findings … on issues or
findings of relevance to maritime boundaries or delimitation in the Timor Sea”
(Article 4.5).43 Clearly, there should be no basis for a third party arbitrator to be
seized of a Dili-​Canberra maritime delimitation matter in the Timor Sea.
At the pleading of Timor-​Leste during the jurisdiction stage, the conciliation
commission however blithely tossed this treaty language aside without so much as
a basic explanation why its interpretation of Article 281(1) and ruling on jurisdic-
tion should supersede that of a solemn treaty. In its reasoning, it first noted what
18 Sourabh Gupta
CMATS was about. It stated that “CMATS [was] an agreement not to seek settle-
ment of the parties’ dispute over maritime boundaries.” Next it observed what
Article 281(1) of the LOSC convention was supposed to be about. It observed
that the article was about “seek[ing] settlement of disputes by a peaceful means
of the Parties’ own choice.”44 Juxtaposing these two points, it thereafter observed
that because CMATS was not an agreement to seek settlement of the disputes by
a peaceful means of the Parties’ own choice (because it did not provide for such a
mechanism), the commission was at liberty to conclude that CMATS was “not an
agreement pursuant to Article 281 that would preclude recourse to compulsory
conciliation.”45 With this legal sleight of hand, it proceeded to find competence
to take the case onward to compulsory conciliation and is preparing to pub-
licly deliver its award shortly on the merits.
If even cast-​iron treaty language that is consensually arrived-​at by the parties
won’t stop enterprising judges to self-​servingly lower the already-​low Article
281(1) bar and inject themselves into the political mix, then nothing else will! It
begs the fundamental question what the object and purpose of a treaty is in the
first place. This extraordinary intrusion into the realm of political compromise
cannot but diminish the standing of the LOSC, and international law more
broadly, down-​the-​line in the eyes of its primary users –​the Member States of the
United Nations, both in Asia and beyond.

Instability of jurisprudence on LOS textual provisions

Finally, the interpretive ambiguities embedded in the Law of the Sea Convention’s
provisions with regard to resource entitlements in overlapping and disputed
maritime zones has incentivized the smaller claimant states of the South China
Sea to advocate for exclusivist solutions to these overlapping sovereign rights
and jurisdiction challenges. This has led to unpredictability and tensions in
their bilateral and multi-​ sided interactions with fellow claimants. The Law
of the Sea Convention’s (LOSC), as a relatively young body of international
law, is understandably prone to violent fluctuations in the course of its inter-
pretive development. The Convention’s text, after all, was a package of polit-
ical compromises reached by representatives of more than 160 sovereign states.
Political compromises left interpretive gaps, willy-​nilly, which subsequent LOSC-​
constituted dispute settlement panels have not always handled wisely.46 Of recent
note of interest in this regard, insofar as the South China Sea is concerned, is the
jurisprudence on small insular formations in the sea and the suite of maritime
zones that they are capable of generating.47
The ambiguity of Article 121(3), namely, the ability of a small islet “to sus-
tain human habitation or economic life of [its] own” and thereby qualify as an
“island” and generate a vast exclusive economic zone (EEZ) and continental
shelf has long vexed legal specialists and lay persons alike. The wording that
became the agreed text in April 1975 was the product of an informal consulta-
tive process, which left few records of its work due to the deep divisions among
the state parties. Unable to form a consensus on this “island/​rock” distinction,
 China–ASEAN relations in the South China Sea 19
the Meetings of the State Parties of the Law of the Sea Convention (SPLOS)
have periodically stayed the hand of statutory international expert bodies from
weighing-​in till the divergence of views is resolved politically. Taking the cue,
international courts too had tended to find artful ways to navigate around this
contested definition in the course of maritime delimitation cases.
The recent International Court of Justice (ICJ) award in the Nicaragua
v. Colombia case and the Annex VII tribunal award in the Philippines v. China case
have veritably upset this applecart. In its judgment in Nicaragua v. Colombia, the
ICJ drew an unusually literalist construction of what constitutes an “island.”48
With reference to “Quitasueno 32,” a rock among various others features in the
Quitasueno area, the court ruled that:49

even using Nicaragua’s preferred tidal model, QS 32 is above water at high

tide by some 0.7 metres. The Court recalls that in the case concerning
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain) (Merits Judgment, I.C.J. 2001, p. 99, para. 197), it found
that Qit’at Jaradah was an island, notwithstanding that it was only 0.4 metres
above water at high tide. The fact that QS 32 is very small does not make
any difference, since international law does not prescribe any minimum size
which a feature must possess in order to be considered an island.

The classification of “Quitasueno 32” has been described as an “extreme example”

of what passes as an “island” as per Article 121(3).50 In Philippines v. China, the
tribunal took a diametrically opposite tack and proceeded to strip a land feature
(Itu Aba or Taiping Island) in the South China Sea –​which by all reasonable
accounts can, has, and does sustain human habitation and economic life of its
own –​of its entitlement to generate a maritime zone beyond its 12-​nautical mile
territorial sea. The tribunal did so in two stages. First, it separated the definition
of an “island” from a “rock” based on whether the feature has sustained human
habitation in the past or not.51 Effectively, henceforth, features “which haven’t
sustained human habitation or economic life of its own” are to be categorized as
“rocks.” Next, it pronounced that the “human habitation” referenced in Article
121(3) was to “be [now] understood to involve the inhabitation of the feature
by a stable community of people for whom the feature constitutes a home and
on which they can remain.”52 In doing so, the tribunal substantially expanded
and transformed the literal definition of a “rock” from one which “cannot sus-
tain human habitation or economic life of their own” to one which “hasn’t [his-
torically] sustained a settled community of inhabitants or economic life of their
own.”53 This expansive and substantial transformation of the vexed interpretation
of Article 121(3) is unlikely to pass muster when the next UNCLOS-​constituted
tribunal is seized of this same definitional question. In all likelihood, the inter-
pretation will be pulled back towards a point somewhere between Nicaragua
v. Colombia and Philippines v. China.
The fundamental underlying criticism being made nevertheless bears reiter-
ating. UNCLOS is a young body of law which is still at an early stage of its
20 Sourabh Gupta
interpretive development, and hence prone to volatility. This flux in the interpret-
ation of the law is not conducive to stable inter-​state interactions among coastal
states in the South China Sea. Indeed, to the contrary, this volatility of the law has
incentivized the smaller claimant states in this body of water to advocate for exclu-
sivist solutions to their overlapping sovereign rights and jurisdiction challenges,
present fait accompli’s to their regional rivals by positioning themselves at the
forefront to unilaterally exploit the resources of the sea, and tempted their dash
to the court-​house which has by-​passed the more arduous but necessary political
compromise and consensus-​building process in the South China Sea.

China–​ASEAN relations in the South China Sea

and persistent features
Ever since a map displaying the nine-​dash line54 was appended to a Note Verbale
communicated by the People’s Republic of China to the United Nations Secretary
General in May 200955 to object to a joint and an individual South China Sea-​
related submission by Vietnam and Malaysia56 and by Vietnam,57 respectively, an
elevated level of tension appeared to descend over the contested waterway. In
the notes appended to the map, China claimed indisputable sovereignty over the
islands in the South China Sea and their adjacent waters as well as sovereign rights
and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.
A year later, in mid-​2010, newly ​elected Filipino president Benigno Aquino III
raised Beijing’s ire by granting an oil service contract to a London-​based oil
and gas company, Forum Energy, in what had hitherto been a disputed section
of the South China Sea (the Reed Bank area). The strained environment was
exacerbated during the summer of 2012 when the Chinese government displaced
the Philippine navy and took physical administrative control over the Scarborough
Shoal. President Aquino raised the tensions a notch higher in January 2013
when his administration launched arbitral proceedings against China at a LOSC-​
constituted Annex VII tribunal, asserting that many of Beijing’s maritime claims –​
and actions in defense of those claims –​in the South China Sea were contrary to
UNCLOS and had thereby violated the Philippines’ sovereign maritime rights and
freedoms. In December 2014, the US too –​though neither a party to the arbi-
tration nor to the Law of the Sea Convention –​waded into the fray by releasing
a study of the nine-​dash line that purported to buttress an important aspect of
Manila’s case.58 The round of tensions only abated following the election and
swearing-​in of Rodrigo Duterte on June 30, 2016 as the sixteenth president of
The Philippines and the issuance of the arbitral award twelve days later.
Four important observations can be formed from the chain of events described
above. First, the Law of the Sea Convention (LOSC) was never far from the surface
during this period of strain. The infringing maritime rights claim issued by China
was precipitated, in part, by a LOSC-​linked deadline –​in this case, the deadline
being May 13, 2009 for Malaysia and Vietnam to submit national claims over the
extended continental shelf to the Commission on the Limits of the Continental
Shelf (CLCS).59 Once Manila filed its memorial and instituted Annex VII
 China–ASEAN relations in the South China Sea 21
arbitral proceedings against China in January 2013, the tensions seemed indis-
soluble. Second, China was the first to stir unease in these waters by unilaterally
issuing what was widely deemed to be a non-​conforming South China Sea-​related
maritime rights claim. China’s Note Verbale and nine-​dash line map was slapped
down on May 7, 2009, a day after Malaysia and Vietnam issued their joint sub-
mission to the CLCS. Three years later, it took physical actions that disturbed
the status quo on the ground –​in this case, the exclusive physical occupation of
Scarborough Shoal which was subsequently closed-​off to traditional Filipino fish-
ermen. Land reclamations followed a year later. Third, a newly elected Filipino
leader broke with his predecessor’s conciliatory policies toward Beijing and
stirred the pot by attempting to unilaterally exploit hydrocarbon resources in a
hitherto-​disputed area which had once been subject to a far-​sighted joint explor-
ation agreement with China –​in this case, the Joint Marine Seismic Undertaking
(JMSU) initialed during the term of his predecessor, Gloria Arroyo. President
Aquino was not shy to leverage the US’s strategic presence thereafter in his
quarrels with Beijing, severely complicating the security dynamics of the South
China Sea. Finally, the US was determined not to let the cycle of tension –​and
opportunities for geopolitical gain therein –​to pass, and dived-​in with both feet
into these roiled waters.60 Loudly advertised Freedom of Navigation operations
(FONOPS) were publicly conducted and a legal analysis of the nine-​dash line, as
part of its Limits in the Seas series, was issued.61

Cycles of strain and progress in relations

These observations are not unique to the strains that appeared to set in post-​
2009. There have in fact been four cycles of easing and deterioration in the pol-
itics and security of the South China Sea region. Two easing cycles can be dated
to 2002–​2008 and the current cycle starting in July 2016; and two deteriorating
cycles, too, dated to 1992–​1999 and 2009–​2016.
The cycle of deterioration that started in 1992 was sparked when China
promulgated its Law on the Territorial Sea and the Contiguous Zone, which
declared that the Paracel and the Spratly islands, among others, were part of
the land territory of the People’s Republic. It was followed with the signing of
a contract between a Chinese national oil company (China National Offshore
Oil Corporation) and a US private firm (Crestone Energy Corporation) in an
area near Vanguard Bank which overlapped with an existing Vietnamese-​granted
oil block in the southern sector of the South China Sea. Kuala Lumpur imme-
diately sought formal clarifications regarding the territorial sea law, Manila and
Jakarta lodged diplomatic protests and Hanoi sent across a secret protest note to
challenge the claims.62 At regional level, the six ASEAN foreign ministers adopted
the Manila Declaration at their meeting on July 22, 1992, calling on all parties
to exercise restraint and resolve the sovereignty and jurisdictional disputes peace-
fully. ASEAN’s common stance in the South China Sea stems, to this day, from
the Manila Declaration –​the first such declaration at the region-​wide level that
sought to launch a code of conduct in the South China Sea.
22 Sourabh Gupta
Two-​ and-​half-​
years later, in February 1995, the Philippines discovered
Chinese-​built structures on a rocky outcrop, Mischief Reef, 130-​odd nautical
miles west of the island of Palawan. It was the first instance when Beijing had phys-
ically occupied a feature in dispute against an ASEAN member state.63 For fear
of break-​out of military confrontation, Filipino president Fidel Ramos made no
effort to evict the Chinese presence from Mischief Reef. To the contrary, Manila
stayed calm and engaged Beijing diplomatically, while also working regionally
and extra-​regionally to de-​escalate the situation. The China–​Philippines eight-​
point code of conduct of August 1995, as well as the formal idea of a region-​
wide Code of Conduct, which was endorsed at the ASEAN Ministerial Meeting
in 1996, dates to this period of strain. ASEAN unity, however, gradually began
to peter away in the subsequent years as differences in various parties’ concep-
tion of what the Code of Conduct should cover came to the fore. In part, this
dis-​unity on the code was triggered by Malaysia’s own pre-​emptive occupation
of Investigator Shoal and its two-​storey building and helipad construction on
another Manila-​contested land feature, Erica Shoal, in mid-​1999. This was the
first time that an ASEAN member state had physically moved against the claims
of a fellow compatriot in the South China Sea.64 The Code of Conduct-related
discussion within ASEAN and between ASEAN and China was finally papered
over at the eighth ASEAN–​China summit in Phnom Penh in November 2002 by
calling the proposed instrument a “declaration” rather than a “code.” Malaysia,
which along with Vietnam had concerns about the geographic coverage of the
instrument, took the lead in devising this compromise.
For its part, the US during this period of strain issued its first comprehen-
sive statement on the insular land formations in this semi-​enclosed sea. On May
10, 1995, in the wake of the Mischief Reef occupation, it issued a statement
on the Spratly Islands and the South China Sea, which stated that Washington
would view with serious concern any claim or restriction on maritime activity
that was inconsistent with international law, including UNCLOS.65 A year later,
it privately warned Beijing that it would not respect China’s May 1996 formal
announcement of its territorial sea baseline adjacent to the Paracel Islands66 and,
not-​so-​privately, conducted freedom of navigation assertions in these waters in
1997. These actions at the table and at sea foreshadowed those of US Secretary
of State, Hillary Clinton, at the ASEAN Regional Forum meeting in Hanoi in
July 2010 and the FONOPS conducted by the Obama administration during the
October 2015 to January 2017 period.
Easing cycles on the other hand have been conducive to making political pro-
gress on China–​ASEAN relations as well as China’s bilateral relations with indi-
vidual Southeast Asian countries, most notably the Philippines. The workmanlike
improvement in China–​ASEAN relations at the turn of the millennium facilitated
the signing of the Declaration on the Conduct of Parties in the South China Sea
in November 2002. A year later, on October 8, 2003, China and ASEAN signed
the Joint Declaration of the Heads of State/​Government on Strategic Partnership
for Peace and Prosperity and Beijing became the first non-​ASEAN country to
officially accede to the Treaty of Amity and Cooperation in Southeast Asia (TAC).
 China–ASEAN relations in the South China Sea 23
The China–​ASEAN Senior Officials Meeting (SOM) format, whose institutional-
ization continues to this day, was regularized during this phase of easing. The first
SOM was held in Kuala Lumpur in December 2004 and led to the establishment
of a Joint Working Group (JWG) to suggest confidence-​building activities in the
South China Sea. China’s bilateral relations with ASEAN countries also reached
important highs during this period, leading to what came to be termed, then, as
Beijing’s “charm offensive” towards Southeast Asia.67
China–​Philippines relations too moved beyond their South China Sea spats
and was qualitatively transformed under the presidency of Gloria Arroyo. Like
Rodrigo Duterte a decade-​and-​half hence, she looked to China as a key economic
engine that could rejuvenate the Philippines economy and bring development to
its non-​metropolitan regions. By 2005, the two countries were hailing their ties
as having entered a “golden age” and the first annual China–​Philippines defense
talks were held later that year. An imaginative joint resource exploration project
in what was hitherto a disputed section of the southern sector of the South China
Sea –​the Joint Marine Seismic Undertaking (JMSU), was the cherry on top.
Signed as a tripartite commercial agreement between the national oil companies
of China, Vietnam and the Philippines, it neither formally touched upon the sov-
ereignty claims of the participating countries nor did it involve actual drilling for
resources in the designated area. The Undertaking was nevertheless a “historic …
breakthrough in implementing the provisions of the code of conduct … and
turn[ing] the South China Sea into an area of cooperation rather than an area of
conflict.”68 It was also an important first step towards realizing Deng Xiaoping’s
far-​sighted entreaty to President Corazon Aquino in 1988 to “set aside disputes
and pursue joint development.”69 The failure to renew the JMSU at the end of
its three-​year term in July 2008 in the face of charges of corruption, and even
treason, was a damaging initial step towards the closing of the window of oppor-
tunity that the Declaration of Conduct of Parties and the Joint Declaration on
Strategic Partnership had opened earlier in the decade. The conversion of this
geophysical survey into an oil service contract and its award to London-​based
Forum Energy under the Philippines’ exclusive jurisdiction in mid-​2010 added
to the aggravated spiral in tensions thereafter.

A couple of key takeaways

Three persistent features can be identified from the ebb and flow of these South
China Sea-​related events over the past twenty-​five years. First, in one form or
the other, a Law of the Sea Convention-​linked timeline, deadline or event, has
been a visible or invisible presence in the backdrop, all along. Be it in 1992 (and
China’s territorial sea law), 2002 (and the Declaration on Conduct of Parties),
2009 (and the CLCS deadline and China’s nine dash line) or 2016 (and the arbi-
tral award), UNCLOS has left an indelible mark. Second, cycles of deterioration
have typically been led by China slapping down a controversial maritime rights
claim, which has been accompanied by subsequent actions that visibly disturbed
the status quo. In 1992, China promulgated its Territorial Sea Law and followed
24 Sourabh Gupta
up by constructing structures on the Philippines’ continental shelf at Mischief
Reef in 1995. In 2009, China officially appended a map of the nine-​dash line and
followed it by taking administrative control over the Scarborough Shoal in 2012
and conducting a series of large-​scale land reclamations from mid-​2013 onwards
in response to Manila filing the arbitration case.
On a related note, the US has been consigned to a secondary role, by-​and-​
large, in the affairs of the South China Sea, except during the deteriorating
cycles. Before Hillary Clinton’s forceful intervention at the ARF meeting in
Hanoi in 2010, the most comprehensive earlier statement on the Spratlys and
the South China Sea had occurred in May 1995 following Beijing’s occupation
of Mischief Reef. The highly self-​publicized freedom of navigation operations,
too, have been conducted during this down cycle. The received view, currently,
that the South China Sea disputes have migrated from competing sovereign
rights and maritime jurisdiction claims to fiercer forms of geopolitical contests
and waterway control involving the established power (the US) and the rising
power (China), and that this “new normal” is here to stay, is a misreading of
the dynamics at play. The current easing cycle, rather, will lend itself to a period
of strategic calm in this critically important waterway. Without an agitated local
claimant on whose behalf it can claim to be intervening to uphold the stability
of the South China Sea, the US has few other tools at its disposal to assert its
relevance and authority in this body of water other than to endlessly navigate its
length and breadth.
Finally, the Philippines (and to a lesser extent Vietnam) has felt the most
violated among the claimant states by China’s actions, yet has been the most
capricious in its policy responses. There have been stark pro-​and anti-​China pen-
dulum swings, coinciding with the elevation of new presidents dating back to
2001 which have amplified these cycles. Easing cycles have also lent themselves to
creative joint approaches to cooperatively develop energy resources in the South
China Sea. President Rodrigo Duterte’s revival of the possibility of joint develop-
ment in early 2017 –​albeit as a non-​state-​to-​state project under the Philippines’
sovereign rights and jurisdiction, suggests that this potential for imaginative and
cooperative resource exploitation during easing cycles remains alive and well.

Concluding remarks and looking ahead

The South China Sea region is an illustrative example of “Asia Paradox” –​the
disconnect between the region’s growing economic interdependence on the one
hand, and the relative lack of political-​security cooperation on the other. The
sovereignty disputes in the South China Sea have their modern-​day provenance
in the unfulfilled territorial provisions of the post-​war San Francisco Treaty and
the Republic of China–​Japan Treaty of Taipei. In four ways, the United Nations
Convention on the Law of the Sea (UNCLOS), in its application to the South
China Sea, has sown more confusion than clarity and has complicated the search
for cooperative solutions to the sovereign rights and jurisdiction challenges in this
semi-​enclosed sea.
 China–ASEAN relations in the South China Sea 25
First, it has triggered a scramble for territory –​and, thereby, lay a superior
claim to the resources of the sea –​among the claimant states, which has severely
complicated the outlook for resolving the sovereign rights and jurisdiction claims
as well as the underlying sovereignty claims in this body of water. Next, in priv-
ileging a legal-​technical approach to overlapping claims redressal, it has gone
against the grain of win–​win political approaches that has characterized China
and Southeast Asian countries’ earlier successful approaches to sovereignty-​
related dispute resolution. Third, the wide latitude accorded by the Law of the
Sea Convention (LOSC) to convention-​constituted tribunals to arbitrarily frame
the parameters of their jurisdiction while hearing cases has gravely encroached
upon and short-​circuited the role of political compromise to resolve the sovereign
rights and jurisdiction disputes in this semi-​enclosed sea. Finally, the interpretive
ambiguities embedded in the Convention’s provisions, particularly the instability
of recent jurisprudence on small insular formations in the sea and the suite of
maritime zones that they can generate, has incentivized the smaller claimant states
in this body of water to advocate for exclusivist solutions to their overlapping sov-
ereign rights and jurisdiction challenges. These states have also been hesitant to
reach out creatively to their counterparts for fear that such outreach might jeop-
ardize their legal position –​should the overlapping sovereign rights claim become
the subject matter of a dispute in a Convention-​constituted tribunal.
These sovereign rights and jurisdiction quarrels have tended to metastasize
during deteriorating cycles in the South China Sea, of which there have been
two over the past twenty-​five years: from 1992–​1999 and from 2009–​2016. The
slapping down of a controversial maritime rights claim by China, accompanied
down-​the-​line by subsequent actions that have visibly disturbed the status quo,
has been a common feature during this down cycle. Easing cycles on the other
hand, of which there too have been two (from 2002–​2008 and from July 2016
onwards), have lent themselves to imaginative approaches by China and ASEAN
and by China and claimant states in the South China Sea to address and manage
their common challenges. A notable expression in this regard was the Joint
Marine Seismic Undertaking (JMSU) of the mid-​2000s involving the national oil
companies of China, Vietnam and the Philippines.
Going forward, President Rodrigo Duterte’s cancellation of major joint mili-
tary exercises with the US, his barring of American naval vessels from using
Philippine bases for freedom of navigation exercises, his cessation of plans for
joint patrols in the South China Sea, and his blocking of US requests to upgrade
and utilize an airbase that lies close to the China–​Philippines area of dispute,70 has
once again opened up political space to conduct imaginative joint and coopera-
tive hydrocarbon development activities on the Philippines’ continental shelf.
Unlike the case of the earlier tripartite agreement, however, China–​Philippines
cooperation this time around will have to be structured as a non-​state-​to-​state
agreement conducted under Philippines sovereign law. Examples of similarly
structured joint development projects abound, including at the Chunxiao oil
block along the hypothetical median line in the East China Sea that, in principle,
is to be developed by China and Japan.71
26 Sourabh Gupta
Within the context of its “dual track” policy, China should also imperceptibly
aim to bring its sovereign rights and jurisdictional practices in the South China
Sea into compliance with aspects of the arbitration award.72 There are creative
means to do so. Building on its readiness to allow the return of traditional Filipino
fishermen to the Scarborough Shoal, China should cease enforcing its summer-​
time fishing moratorium in the northern sector in areas beyond its territorial sea
limits. China should also withdraw its paramilitary presence from the vicinity of
the Second Thomas Shoal, which is a low-​tide elevation on the Philippines’ con-
tinental shelf. Over time, if joint oil and gas development is successfully realized,
Beijing and the Duterte government should devise a condominium arrangement
to govern the administration of Mischief Reef –​yet another low-​tide elevation
on the Philippines’ continental shelf. A common property regime on Mischief
Reef that includes clear rules of management, principled bases for those rules,
and mechanisms for enforcement of those rules can be devised.73 Beijing should
also clarify that the “historic rights” it pursues within the nine-​dash line in this
semi-​enclosed sea is limited solely to a non-​exclusively exercised right to living
resources for its artisanal fishermen. And on this basis, it should cease interference
with all oil and gas development-​related activity beyond the 200-​nautical mile
radius of Woody Island, the largest island in the Paracel group that it has continu-
ously administered since the mid-​1950s.
In parallel, China and ASEAN should devise a forward-​looking and multi-
layered Code of Conduct for the South China Sea that covers the claimant and
non-​claimant states of the region alike, is comprehensive in scope, subjects
its signatories to some form of binding regional dispute settlement, and
encourages extra-​regional partners to adhere and accede to its purposes.74
China and ASEAN enjoy an important opportunity to move beyond man-
aging their differences to resolving some of them during this easing cycle.
They should rise to the occasion and safeguard peace, prosperity and cooper-
ation in the South China Sea.

Notes
1 The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of
China) case, Award of the Arbitral Tribunal, July 12, 2016, pp. 259–​60, paras. 643–​48,
available at: www.pcacases.com/​web/​sendAttach/​2086
2 See Philippines v. China, p. 102, para. 243.
3 Further, the arbitral tribunal declared that following the coming-​ into-​
force of the
Convention in 1994, any “historic rights” that might have existed had been superseded.
See Philippines v. China, p. 111, para. 261
4 See Philippines v. China, pp. 434–​35, paras. 1105–​8.
5 See Philippines v. China, pp. 378–​84, paras. 950–​66.
6 See Philippines v. China, pp. 315–​18, paras. 805–​14.
7 Center for Strategic and International Studies (CSIS). Who Is Taking Sides After the
South China Sea Ruling? CSIS, August 15, 2016, https://​amti.csis.org/​sides-​in-
​south-​china-​sea/​
8 Association of Southeast Asian Nations (ASEAN), 49th Foreign Ministers’ Meeting,
Turning Vision into Reality for a Dynamic ASEAN Community, available at http://​asean.
org/​storage/​2016/​07/​Joint-​Communique-​of-​the-​49th-​AMM-​ADOPTED.pdf
 China–ASEAN relations in the South China Sea 27
9 Association of Southeast Asian Nations, 50th Foreign Ministers’ Meeting, Partnering
for Change, Engaging the World, available at http://​asean.org/​storage/​2017/​08/​
Joint-​Communique-​of-​the-​50th-​AMM_​FINAL.pdf
10 Of equally great importance was the election and swearing-​in of Rodrigo Duterte
twelve days earlier as the sixteenth president of the Republic of Philippines. Mr.
Duterte had made it abundantly clear that he was in no hurry to collect on the Award
and that he would rather seek consensus and cooperation with China in terms of the
Award’s implementation.
11 As per this reading of the emerging security dilemma, the South China Sea is a nat-
ural line of defense for China’s national security and an indispensable strategic bastion
for its Hainan-​based assured second strike nuclear retaliatory force as well as a future
home-​ported aircraft carrier. For the US, meantime, control of this waterway linking
the Indian and Pacific Oceans is indispensable to its strategic primacy in the broader
Indo-​Pacific region. As such, the dominant Great Power and the rising Great Power
are locked in a structural and strategic contest which is fated to be irreconcilable.
12 John Ravenhill, Responding to Security Challenges in East Asia: Three Perspectives,
CIGI Papers, No. 99 (April 2016) at p. 1, www.cigionline.org/​sites/​default/​files/​
cigi_​paper_​no.99web.pdf
13 Evan A. Feigenbaum and Robert A. Manning, A Tale of Two Asia’s, Foreign Policy,
October 31, 2012, http://​foreignpolicy.com/​2012/​10/​31/​a-​tale-​of-​two-​asias/​
14 UNCLOS, 1833 U.N.T.S. 397, adopted in Montego Bay, Jamaica, on December 10,
1982, entered into force on November 16, 1994.
15 The Cairo Declaration, 26 November 1943, History and Public Policy Program Digital
Archive, Foreign Relations of the United States, Diplomatic Papers, The Conferences
at Cairo and Tehran, 1943 (Washington, DC: United States Government Printing
Office, 1961), pp. 448–​ 49. https://​digitalarchive.wilsoncenter.org/​document/​
122101
16 Treaty of Peace with Japan (with Two Declarations), Signed at San Francisco, September
8, 1951, Entered into force, April 28, 1952, available at: www.taiwandocuments.org/​
sanfrancisco01.htm
17 The timing of the Taipei Treaty was not a coincidence. The architect of the treaty (and
future US Secretary of State) John Foster 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 envisioned in the treaty except military sovereignty.
Japan thus enjoyed the authority to transfer Taiwan, Penghu and the Spratly and the
Paracel Islands to the Republic of China, as per the San Francisco Treaty.
18 Treaty of Peace between the Republic of China and Japan (Treaty of Taipei), Signed at
Taipei, April 28, 1952, Entered into force, August 5, 1952, available from http://​
china.usc.edu/​treaty-​peace-​between-​republic-​china-​and-​japan-​treaty-​taipei-​1952
19 Dean Acheson, Telegram from Secretary of State to the Embassy in the Republic of China,
Foreign Relations of the United States, Vol. XIV, Part 2, China and Japan, 1952–​54
(Washington, DC: United States Government Printing Office), Document 502.
20 At the time, there were no Republic of China nationals or juridical persons residing or
registered in the Paracel and Spratlys.
21 John Foster Dulles was unambiguously clear on this point. In a memorandum to the
US Secretary of Defense that was written barely 75 days before the San Francisco
Conference, Dulles instructed that: “It should be made certain that there be no basis,
either stated or implied, written into the [San Francisco] Treaty which might provide
for the possible legal claim of Communist China to sovereignty over Formosa, the
Pescadores, Paracel, and Spratly Islands and to property in the other islands referred
to in Article 3 … It would appear that in [the draft treaty’s] present form the second
sentence of Article 4(a) might afford Communist China a valid claim over that terri-
tory were it to sign and ratify this Treaty.” Dulles, Memorandum for the Secretary of
Defense, Japanese Peace Treaty, Foreign Relations of the United States, Asia and the
28 Sourabh Gupta
Pacific, Vol.VI, 1951 (Washington, DC: United States Government Printing Office),
p. 1157.
22 See John J. Tkacik, Jr., Taiwan’s “Unsettled” International Status: Preserving U.S.
Options in the Pacific, Heritage Backgrounder, No. 2146 (June 19, 2008) at p. 6,
www.heritage.org/​asia/​report/​taiwans-​unsettled-​international-​status-​preserving-​us-​
options-​the-​pacific. 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.
23 Treaty of Peace and Friendship between Japan and the People’s Republic of China, August
12, 1978, available at: www.mofa.go.jp/​region/​asia-​paci/​china/​treaty78.html
24 The United Nations Convention on the Law of the Sea (A Historical Perspective),
Originally prepared for the International Year of the Ocean, 1998, available at: www.
un.org/​depts/​los/​convention_​agreements/​convention_​historical_​perspective.htm
25 This is not to argue that the LOSC has been uniformly negative. Far from it indeed. In
a number of areas, LOS-​constituted courts ranging from the rights and obligations of
states in areas of overlapping claims (provisional measures) to necessary law enforce-
ment requirements for fulfillment in the case of hot pursuits in exclusive maritime
zones to the three-​ stage process for delimitation of maritime boundaries, LOSC
and LOS-​constituted courts have provided predictability and certainty to maritime
interactions among member states. These are worthy achievements.
26 Between 1970 and 1980, the Philippines occupied Nanshan Island, Flat Island, Thitu
Island, Loaita Island, Northeast Cay, West York Island, Panata, and Commodore Reef.
Between 1973 and 1978, Vietnam occupied Nam Yit Island, Southwest Cay, Sandy
Cay, Spratly Island, Sin Cowe Island, Amboyna Cay, Grierson Reef (a sand bank some-
times called East Sin Cowe Island), Central Reef, and Pearson Reef. Malaysia occupied
Swallow Reef and Ardasier Reef in 1977 and Mariveles Reef in 1979.
27 Economics Survey of Asia and the Far East. Publication. 4th edn. Vol. XIX. Bangkok:
United Nations, 1969. Print.
28 For a concurring view, see Yann-​huei Song and Stein Tonnesson, “The Impact of the
Law of the Sea Convention on Conflict and Conflict Management in the South China
Sea,” 44 Ocean Development and International Law (2013) at p. 239.
29 David Anderson and Youri van Logchem, “Rights and Obligations in Areas of
Overlapping Maritime Claims,” in The South China Sea Disputes and Law of the Sea,
edited by S. Jayakumar, Tommy Koh and Robert Beckman, Cheltenham: Edward
Elgar Publishing (2014) at p. 222.
30 An EEZ is a sui generis maritime zone in which certain exclusive coastal state rights
co-​habit with user states’ high seas rights. There is no specific order of priority with
respect to these coastal and user states’ rights in the EEZ nor can residual rights,
i.e. those not specifically attributed to the coastal or user state, be appropriated by
any one side. On this point, see Erik Franckx, “American and Chinese Views on
Navigational Rights of Warships,” 10 Chinese Journal of International Law (2011) at
pp. 200–​1.
31 See Maung Maung, “The Burma-​China Boundary Settlement,” Asian Survey 1 (1961),
p. 39. See also Daphne Whittam, “The Sino-​Burmese Boundary Treaty,” Pacific Affairs
34 (Summer 1961), p. 175.
32 On this point, see M. Taylor Fravel, Strong Borders, Secure Nation: Cooperation
and Conflict in China’s Territorial Disputes (Princeton University Press, Princeton,
NJ, 2008).
33 See Article 281 (1) of UNCLOS. UNCLOS, 1833 U.N.T.S. 397, adopted in Montego
Bay, Jamaica, on December 10, 1982, entered into force on November 16, 1994.
34 Other instances of previous cases where Article 281 has been considered include:
Barbados v. Trinidad and Tobago, Land Reclamation in and around the Straits of Johor
and the Southern Bluefin Tuna Arbitration.
 China–ASEAN relations in the South China Sea 29
35 See Article 281 (1) of UNCLOS.
36 The text of Article 288 (4) reads as: In the event of a dispute as to whether a court or
tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.
UNCLOS, 1833 U.N.T.S. 397, adopted in Montego Bay, Jamaica, on December 10,
1982, entered into force on November 16, 1994.
37 At first blush, Article 288(4) would appear to be a common norm in international
courts. Article 36(6) of the International Court of Justice also employs almost-​identical
language empowering the court to determine its own jurisdiction –​a common con-
cept in private international law known as competence-​competence. The relative youth of
LOSC-​constituted Annex VII courts however has ensured that Article 288(4) of part
XV, paired with Article 281(1), has incentivized enterprising judges to lower the bar
to find jurisdictional competence, and thereby self-​indulgently stretch the perimeter
of law into what should wholly have been the realm of power, politics and political
compromise.
38 See Seokwoo Lee and Nong Hong, Chinese Perspectives on the Philippines-​China
Arbitration Case in the South China Sea, Vol. 20, No. 2 (2013) at p. 178, http://​
chinaus-​icas.org/​wp-​content/​uploads/​2016/​03/​LeeHong-​Chinese-​Perspectives-​
on-​the-​Philippines-​China-​Arbitration-​Case-​in-​the-​South-​China-​Sea.pdf
39 Democratic Republic of Timor-​Leste v. Australia, Decision on Australia’s Objections
to Competence, September 19, 2016, available at: https://​pcacases.com/​web/​
sendAttach/​1921
40 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS), Australian
Treaty Series, Canberra (2006). Available at: www.austlii.edu.au/​au/​other/​dfat/​
treaties/​2007/​12.html. The treaty was terminated earlier this year.
41 Democratic Republic of Timor-​Leste v. Australia, p. 14, para. 59.
42 Democratic Republic of Timor-​Leste v. Australia, p. 14, para. 59.
43 Democratic Republic of Timor-​Leste v. Australia, p. 15, para. 59.
44 Democratic Republic of Timor-​Leste v. Australia, p. 15, para. 62.
45 Democratic Republic of Timor-​Leste v. Australia, p. 16, para. 64.
46 Again, this is not to argue that wise judgements have not been rendered. See
endnote 25.
47 For a comprehensive summary of the academic literature on the island/​rock Article
121(3) debate, see Clive R. Symmons, “Maritime Zones from islands and rocks,” in
The South China Sea Disputes and Law of the Sea, edited by S. Jayakumar, Tommy Koh
and Robert Beckman, Cheltenham: Edward Elgar Publishing (2014) pp. 55–​120.
48 Nicaragua v Colombia, Award of the International Court of Justice, November 19,
2012, available at: www.icj-​cij.org/​files/​case-​related/​124/​124-​20121119-​JUD-​01-​
00-​EN.pdf
49 See Nicaragua v Colombia, p. 645, para. 37.
50 On this point, see Tullio Treves, “Maritime delimitation and offshore features” in The
South China Sea Disputes and Law of the Sea, edited by S. Jayakumar, Tommy Koh and
Robert Beckman, Cheltenham: Edward Elgar Publishing (2014) at p. 134.
51 See Philippines v. China, p. 207 and 230, paras. 487 and 549 in particular.
52 See Philippines v. China, p. 227, para. 542.
53 The Tribunal’s interpretation bears utterly little resemblance to the letter or spirit
of Article 121 and situates at the outer end of the academic literature on the sub-
ject. The provision lays down no requirement –​implicit or other –​that the “human”
presence referenced be an exclusively civilian one; that the “habitation” on the feature
be a “non-​transient one who have chosen to stay and reside”; that the feature must
furnish an abstract “proper standard” of lifestyle; or that the feature’s entitlement
was exclusively intended for a beneficial indigenous population. And while the object
and purpose of Article 121 was indeed intended to not enable a tiny feature to gen-
erate a disproportionately large entitlement to maritime space, there is nothing in the
official record of the Law of the Sea negotiations to suggest that a “stable group or
30 Sourabh Gupta
community” standard was envisioned to qualify a feature as a full-​entitled island that
can “sustain human habitation.” The Tribunal’s interpretation is also at variance with
discernable state practice, as others have observed.
54 There is a formidable literature associated with the nine dash line. See amongst others
Li Jinming and Li Dexia, “The Dotted Line on the Chinese Map of the South China
Sea: A Note,” 34 Ocean Development and International Law, pp. 287–​95 (2003); Gao
Zhiguo and Jia Bing Bing, “The Nine-​Dash Line in the South China Sea: History,
Status, and Implications,” 107 The American Journal of International Law, pp. 98–​
124 (2013); and Robert Beckman, “The U.N. Convention on the Law of the Sea
and the Maritime Disputes in the South China Sea,” 107 The American Journal of
International Law, pp. 142–​63 (2013).
55 People’s Republic of China, “Note Verbale to the Secretary-​General of the United
Nations –​ CML/​17/​2009,” (May 7, 2009), available at: www.un.org/​Depts/​los/​clcs_​
new/​submissions_​files/​mysvnm33_​09/​chn_​2009re_​mys_​vnm_​e.pdf
56 Malaysia-​Socialist Republic of Vietnam, “Joint Submission to the Commission on the
Limits of the Continental Shelf Pursuant to Article 76, paragraph 8 of the United
Nations Convention on the Law of the Sea 1982 in Respect of the Southern Part of the
South China Sea, Executive Summary” (May 2009), available at: www.un.org/​Depts/​
los/​clcs_​new/​submissions_​files/​mysvnm33_​09/​mys_​vnm2009excutivesummary.pdf
57 Socialist Republic of Vietnam, “Submission to the Commission on the Limits of the
Continental Shelf Pursuant to Article 76, paragraph 8 of the United Nations Convention
on the Law of the Sea 1982, Partial Submission in Respect of Vietnam’s Extended
Continental Shelf: North Area (VNM-​N), Executive Summary” (April 2009), avail-
able at: www.un.org/​Depts/​los/​clcs_​new/​submissions_​files/​vnm37_​09/​vnm2009n_​
executivesummary.pdf
58 Manila had pleaded in its memorial to the court that “China’s maritime claims in the
South China Sea based on its so-​called ‘nine dash’ line are contrary to UNCLOS and
invalid.”
59 The Commission on the Limits of the Continental Shelf (CLCS) is a LOSC-​
linked scientific and technical body of experts, which is tasked to inspect and make
recommendations on the submitted national claims over their respective extended
continental shelf limits.
60 US Secretary of State Hillary Clinton had in fact led this charge as early as July 2010
when she, along with five ASEAN foreign ministers, rose to voice her country’s concerns
against China’s assertiveness in the South China Sea at the 17th ASEAN Regional Forum
(ARF) meeting in Hanoi. Ms. Clinton declared that the US had a “national interest” in
freedom of navigation, and respect for international law in the South China Sea –​the
first time that a US Secretary of State had delivered a statement on the U.S. position at
an official regional foreign ministers gathering. The ARF meeting in Hanoi was widely
recorded as one of the rarer instances where the US, with its favored ASEAN partners,
had cornered China at a regional summit meeting.
61 US State Department, “China: Maritime Claims in the South China Sea,” Limits in the
Seas No. 143 (December 5, 2014), online: www.state.gov/​documents/​organization/​
234936.pdf
62 Tran Truong Thuy, “The Declaration on the Conduct of Parties in the South China
Sea and Developing Maritime Energy Resources,” in Maritime Energy Resources in
Asia: Energy and Geopolitics, edited by Clive Schofield, NBR Special Report #55
(December 2011) at p. 176.
63 Vietnam, Laos, Cambodia and Myanmar had not yet been admitted to ASEAN at
the time.
64 Christopher Chung, “Southeast Asia and the South China Sea dispute,” in Security
and International Politics in the South China Sea: Towards a cooperative management
regime, edited by Sam Bateman and Ralf Emmers, London: Routledge (2008) at
p. 100.
 China–ASEAN relations in the South China Sea 31
65 On this point, see Yann-​huei Song and Stein Tonnesson, “The Impact of the Law of
the Sea Convention on Conflict and Conflict Management in the South China Sea,”
44 Ocean Development and International Law (2013) at p. 247.
66 Song and Tonnesson, “The Impact of the Law of the Sea Convention …” p. 248.
67 This is not to argue that easing cycles have all been smooth sailing or even that the
2002–​8 cycle did not witness its fair share of frictions. For a Vietnamese view of China’s
unilateral acts during this period, see Nguyen Hong Thao, “The Declaration on the
Conduct of Parties in the South China Sea: A Vietnamese perspective, 2002–​2007,”
in Security and International Politics in the South China Sea: Towards a cooperative
management regime, edited by Sam Bateman and Ralf Emmers, London: Routledge
(2008) pp. 207–​21.
68 Tran Truong Thuy, “The Declaration on the Conduct of Parties in the South China
Sea …” pp. 192–​94.
69 Set Aside Dispute and Pursue Joint Development, Ministry of Foreign Affairs of the
People’s Republic of China, available at: www.fmprc.gov.cn/​mfa_​eng/​ziliao_​665539/​
3602_​665543/​3604_​665547/​t18023.shtml
70 See Richard Javad Heydarian, “Duterte’s Populist Project Grinds on,” in East
Asia Forum (May 10, 2017) available at: www.eastasiaforum.org/​2017/​05/​10/​
dutertes-​populist-​project-​grinds-​on/​
71 Japan-​China Joint Press Statement –​Cooperation between Japan and China in the East
China Sea, Japan Ministry of Foreign Affairs, available at: www.mofa.go.jp/​files/​
000091726.pdf
72 As per the “dual track” policy, China and the claimant states should handle disputes
bilaterally through negotiations and China and ASEAN as a whole should safeguard
and maintain peace and stability in the South China Sea. Nothing in the “dual track”
policy precludes China from creatively bringing its maritime rights-​related practices in
the South China Sea into compliance with aspects of the arbitration award during the
course of bilateral negotiations with the Duterte government
73 Joel H. Samuels, “Condominium Arrangements in International Practice: Reviving an
Abandoned Concept of Boundary Dispute Resolution,” 29 Mich. J. Int’l L. 727 (2008).
Available at: http://​repository.law.umich.edu/​mjil/​vol29/​iss4/​3
74 Mark Valencia, “Policy Forum 11–​41: A Code of Conduct for the South China
Sea: What Should It Contain?”, NAPSNet Policy Forum (December 8, 2011) avail-
able at: https://​nautilus.org/​napsnet/​napsnet-​policy-​forum/​a-​code-​of-​conduct-​for-​
the-​south-​china-​sea-​what-​should-​it-​contain/​
2 
The East China Sea
Sea of regional and global
confrontation
Reinhard Drifte

Introduction
All three states bordering the East China Sea (ECS) –​the People’s Republic of
China (PRC), Japan, and the Republic of Korea (ROK) –​ratified United Nations
Convention on the Law of the Sea (UNCLOS) in 1996, yet no maritime border
has been delimited among any of the three states despite the obligation under
the Convention.1 This failure is at the bottom of many problems in the ECS with
regard to political, economic, environmental, and security issues which partly
fall within the jurisdiction of UNCLOS. Since the geography of the ECS does
not allow any of the littoral states to claim a 200 nautical miles (nm) Exclusive
Economic Zone (EEZ), there are conflicting proposals of applying either the
median line or the continental shelf principle. In the northern sector of the ECS,
the EEZ claims of all three states overlap in a tri-​junction and would require
a trilateral negotiation process. An agreement between China and the ROK is
notably difficult because of conflicting positions on whose continental shelf lies
a submerged feature (Ieodo for Korea, Suyan Rock for China) which has a con-
siderable impact on where to delimit the maritime border. In addition, Japan and
China are disputing sovereignty over the Senkaku/​Diaoyu Islands which is an
additional obstacle for an agreement about the Japan–​China maritime border in
the southern sector.2 Despite these unresolved maritime borders, all three states
have concluded fisheries agreements among each other which rely on interim
delimitations without prejudice to any final border agreement. However, this has
not prevented frequent confrontations of Japanese and ROK coast guards with
Chinese fishermen. Casualties occurred in clashes between the ROK coast guards
and Chinese fishermen in the adjacent Yellow Sea. Interests in the hydrocarbon
and seabed resources of the ECS are further current or future sources of conflict.
The territorial dispute over the Senkaku/​Diaoyu Islands is not only the most
serious flash point, particularly since the incidents in 2010 and 2012, but it also
draws attention to the role of the United States in the region. The United States
(US) is a security partner of Japan and the ROK and it has a considerable military,
notably maritime presence in this region. The issues of maritime border delimita-
tion, freedom of navigation, and the UNCLOS objective of a stable ocean regime
have therefore also to be seen against the background of the increasing regional
 The East China Sea 33
as well as global US–​China rivalry. Finally, the management of disputes in the
ECS has already now an impact on the perception and handling of disputes in
the South China Sea (SCS). As a result of this complex situation, the security
environment of the East China Sea has become rather tense and volatile, with the
coastal states’ coast guards confronting each other, while their naval and air forces
are hovering in the background.
This chapter gives an overview of the various issues as far as they are rele-
vant to UNCLOS, and investigates to what extent the UNCLOS regime has
been adhered to by the coastal states, and has been helpful or not to guide the
concerned states to deal with their different interests. While UNCLOS defines
the rights and responsibilities of states with regard to the world’s oceans and
their use, providing also a dispute settlement mechanism, it is not concerned
with sovereignty issues. The latter has to be addressed through agreement
between the concerned parties or submitted to international arbitration, not-
ably the International Court of Justice (ICJ). The territorial dispute over the
Senkaku/​Diaoyu Islands will therefore only be touched to the extent that it
affects UNCLOS issues. The Convention has created a clear nomenclature which
should help to define issues and conclude agreements within its wide-​ranging
scope. In this way UNCLOS provides an example of an internationally agreed
framework for how to delimit maritime borders but it still leaves considerable
leeway for interpretation by the concerned parties. Of particular relevance is the
stipulation that, pending an agreement on the delimitation of the EEZ (Article
74,3) or Continental Shelf (Article 83,3), nothing should be done by any party
that might jeopardize a final delimitation while provisional arrangements of a
practical nature are encouraged –​as long as they are made without prejudice to
the final delimitation. As we will see, various provisional agreements have been
concluded between all three coastal states in the ECS. However, extensive rights
and vagueness regarding certain issues in the Convention have whetted the appe-
tite for maximum demands and made agreements in certain cases more diffi-
cult. In the end, this article has to conclude that resolving the various problems
threatening the maritime order of the ECS depends on the political will of the
three states. Failure will not only endanger regional and global peace and stability,
and weaken UNCLOS, but will also deprive all concerned parties benefiting from
the resources of the ECS.

Border delimitation
The maritime border delimitation in the ECS requires the resolution of various
differences among the three littoral states. As we will see, UNCLOS does not
provide sufficient guidance to come easily to a resolution and sometimes even
adds to the complexity of the involved issues.
The most difficult delimitation is between Japan and China. Here is a sum-
mary of the various necessary steps towards a resolution: Initially, there would
have to be an agreement on the method of determining basepoints and baselines
from the coasts of each state as the starting point for delimiting the Territorial
34 Reinhard Drifte
Waters (TW), the EEZ, and the continental shelf (CS). However, all three states
have been rather liberal in interpreting the relevant international regulations on
the method to do so and there are some disputes. Notably, the US government
considers some of the baselines against the regulations in UNCLOS.3 Only after
a Japan–​China agreement on the sovereignty over the Senkaku/​Diaoyu Islands
is achieved can the foundation be laid for a delimitation of the EEZ border in
the southern sector of the ECS. Japan and China will then have to agree on
which principle to apply for drawing the EEZ and CS border: Japan demands
the application of the principle of the median or equidistance line which would
provide equity in the sense that no state can achieve a 200 nm EEZ area since
the ECS’s width is less than 400 nm. China, however, wants to apply the nat-
ural prolongation of the CS principle on the basis of having the longer con-
tinuous coast (whereas on the Japanese side there is only a chain of islands), a
greater population, and a topography which can be interpreted as favourable to
China (the latter refers to the so-​called Okinawa Trough). Both interpretations
refer to different historical precedents although in various judicial precedents,
the principle of the equidistance or median line seems to be given nowadays
more weight even if qualified with some adaptations to specific circumstances.4
If China’s choice would carry the day, the Senkaku/​Diaoyu Islands would be on
China’s CS and strengthen China’s sovereignty claim, but in case of adopting the
median line principle (and assuming Japan’s sovereignty claim would be accepted
by China), both countries would have to agree on how to draw the baselines
around the islands. In the northern sector, all three coastal states would have to
agree on which principle to apply.5
Today, we are far from an agreement on these various issues and there are
uncertainties even deriving from UNCLOS, e.g. how to define the CS based on
Article 76 of UNCLOS.6 While no agreement has been reached on the maritime
border, Japan is not only demanding the median line as the maritime border, but
since 2004 insists as a basis for negotiations on a zone of up to 200 nm according
to Article 76 until a final agreement has been reached.7 China is demanding not
only a 200 nm EEZ, but a zone up to the Okinawa Trough, based on the prin-
ciple of the extended CS, but without having provided so far any coordinates.
Although pending an agreement on the delimitation of the EEZ (Article 74,3)
or Continental Shelf (Article 83,3), nothing should be done to impede a future
agreement on the maritime border. China has, since the 1990s, proceeded with
the exploration and now exploitation of oil and gas reserves on China’s side of
the Japan-​proposed median line. Beijing argues that this area is clearly within its
EEZ despite the lack of an agreement with either Japan or the ROK. However,
Japan seemed to have initially at least tacitly agreed with China’s stance, even pro-
viding loans through the Asian Development Bank (ADB) and directly through
its Export-​Import Bank for two oil and gas pipelines linking these fields to China’s
coast.8 On the other hand, Japan complied with the requirement of UNCLOS
and did not allow any company to explore for hydrocarbons on its side of the
median line. However, with the increase of China’s exploration activities getting
as close as 5 kilometres (km) to the median line (and Japan’s concerns that China
 The East China Sea 35
may actually tap oil and gas fields straddling this line), Tokyo started to protest
China’s activities (see below for the 2000 Prior Notification Agreement) and
in 2004 conducted its own one-​off survey on the Japanese side of the median
line which, for security reasons, was not followed up by extraction activities.
China immediately reacted after the announcement of the survey and warned the
Japanese to ‘act with caution’ in what it considered to be China’s EEZ. It was
even reported that a Chinese surveillance vessel, and later two warships, tried to
chase away the survey ship commissioned by Japan.9
China–​ROK negotiations over the EEZ border have so far failed to narrow
the gap between the two sides, notably regarding the submerged feature of what
is called Ieodo by the Korean side and Suyan Rock by the Chinese side. Whereas
Korea bases its proposal for the delimitation on the median line principle, and
argues that the rock is on its CS, China holds the opposing view of locating the
rock on the natural prolongation of its CS. In the meantime, both sides claim
EEZ jurisdiction over the rock and are deploying their coast guard vessels to
the area.10
During the post-​1996 renegotiation process of a new Japan–​ROK fisheries
agreement (see below), the latter tried to use these negotiations as a lever to
come to an agreement on the maritime border. However, this attempt failed
since Korea wanted an agreement covering the borders in the Sea of Japan as well
as in the ECS. Since no agreement could be reached on the disputed Dokdo/​
Takeshima Islands in the Sea of Japan, the negotiations were aborted. In short, an
agreement on the Japan–​ROK ECS border is de facto hostage to the Japan–​ROK
territorial dispute in the Sea of Japan.
The most serious roadblock for the delimitation of the maritime boundary
in the southern sector of the ECS is the territorial dispute over the Senkaku/​
Diaoyu Islands. Japan and China both claim the islands, and Japan requests an
EEZ for them which would bring the maritime border even closer to the Chinese
coast.11 Moreover, Taiwan’s interests would also have to be accommodated in
the southern sector and Japan would probably be more inclined to take these
interests into consideration than the PRC.
UNCLOS only provides (Article 83,1) on the delimitation of the CS between
states with opposite or adjacent coast, that the delimitation should be effected by
‘agreement based on international law… in order to achieve an equitable solu-
tion’. The following guidance (Article 83,2) about dispute settlement in case of
failing to agree is not applicable to China and South Korea because these two
states opted out of the UNCLOS dispute settlement system.
The Committee on the Limit of the Continental Shelf (CLCS) was established
by UNCLOS to provide technical advice considering the calculation of the CS.
In accordance with UNCLOS (Article 76,8) China and Korea submitted claims
for their extended CS in the ECS to the CLCS. Since China’s and the ROK’s
submissions in 2009 and 2012 both extended the CS claims into Japan’s EEZ,
Japan protested these submissions and demanded a delimitation according to
Article 83. In its 2012 submission, China had advanced its claim even further
into the 200 nm zone of the ROK, and extended its claim also up to the Okinawa
36 Reinhard Drifte
Trough.12 Japan and the ROK both protested against the Chinese claims, and
Japan even excluded the possibility of the CLCS’s recommendation being given
in case all disputants agree on the Commission to act as is allowed under its
regulations. But in any case, the CLCS cannot make any recommendation in
case there is a maritime border or territorial dispute among the concerned states
which throws the whole issue back to the three coastal states.13
Article 17 of UNCLOS states that ships of all states ‘enjoy the right of
innocent passage through the territorial sea’ of other states, subject to certain
conditions and definitions as specified in subsequent articles. Under Article 32,
warships and other government ships operating for non-​commercial purposes
enjoy immunities in the TW of other countries and can therefore not be forcibly
removed by the coastal state but only be asked to leave immediately if they do not
comply with the laws and regulations of the coastal state (Article 30). In addition,
although Article 19 defines innocent passage (‘Passage is innocent so long as it
is not prejudicial to the peace, good order or security of the coastal state’), it is
often difficult to know whether a ship is carrying out a survey, collecting intelli-
gence, or engaging in any kind of military operation rather than just passing. The
higher the mutual distrust, the more the coastal state will assume a contravention
of innocent passage.
This issue is particularly troublesome in the case of Chinese Coast Guard
ships which are now regularly cruising in the TW of the Senkaku/​Diaoyu
Islands to reinforce the PRC’s sovereignty claim.14 As Miyoshi Masahiro has
pointed out, from a Japanese perspective, the passage of Chinese government
vessels as it is now occurs in the TW of the disputed islands is not ‘innocent’
since they exercise an official duty and their passage is not ‘continuous and
expeditious’ as Article 18 (2) defines innocent passage. However, Japanese law
and regulations do not specify countermeasures, whereas Chinese domestic
law gives authorities the right to order a foreign ship to leave the territorial
sea immediately when deemed in violation of Chinese regulations ‘rather than
when its passage is deemed not innocent’.15 In practice both sides have so
far shown self-​restraint, with the Japanese Coast Guard merely asking the
Chinese Coast Guard vessels to leave the TW and the Chinese side refuting
this demand by claiming that they are in Chinese TW. Japan’s self-​restraint is
also demonstrated by the fact that its Coast Guard never used water cannons
against a Chinese government vessel. However, they did use water cannons in
September 2012 against Taiwanese patrol boats which were trying to protect
a Taiwanese fleet of 70 fishing boats outside the TW of the disputed islands.16
Japan’s reaction against foreign fishing vessels in the TW of the islands is
different: The September 2010 incident occurred when the Japanese Coast
Guard apprehended the crew of a Chinese fishing vessel 27 km from Kubajima
because it had been operating within 12 km of Kubajima. When chased by the
Japanese Coast Guard, the Chinese fishing vessel rammed two of its ships when
trying to flee.17
There is also a contrast between China’s interpretation of Article 58 which
does not allow foreign military activities in its EEZ and that of the US which
 The East China Sea 37
does –​giving rise to tensions in the ECS. The US is also contesting China
demanding permission even for passage through its territorial waters which the
US considers contrary to the principle of ‘innocent passage’. The Chinese inter-
pretations are in a minority and led to incidents between US naval vessels and
PRC vessels in the ECS in March 2001, September 2002, March 2009, and May
2009, as well as two others incidents in the SCS.18 In order to make its point of
‘innocent passage’ and ‘military activities in the EEZ’, the US navy conducts so-​
called Freedom of Navigation Operations (FONOPs), including in the ECS.19
Korea also demands prior notification for foreign military or government vessels
to enter its TW which are similarly contested by the US through FONOPS, as it
contests Korea’s straight baselines.20
Submarines are required (Article 20 of UNCLOS) to navigate through the
TW on the surface and show their flags. Chinese submarines regularly pass
through the Japanese island chain into the Pacific Ocean which is legal if done
according to this article, although not welcome by Japan. However, there was
at least one reported incident between China and Japan when in November
2004, a submerged Chinese nuclear submarine went through Japan’s territorial
waters in the Sakishima Gunto. In response to Japan’s protest, the Chinese side
explained that the submarine had entered Japanese territorial waters by ‘mistake’
and ‘regretted’ this incident.21 This incident occurred against the background of
rising bilateral tensions in the ECS as a result of China’s oil and gas exploitation.
In this context one has to mention the issue of the Air Defence Identification
Zone (ADIZ). Like the system of Flight Information Zones, ADIZ is outside
of the UNCLOS framework, and ADIZ is not even subject of an international
convention but simply historical practice. According to UNCLOS Article 58,
all states enjoy freedom of navigation as well as freedom of overflight within
EEZs.22 Moreover, the establishment of an ADIZ has no legal implication for ter-
ritorial and maritime borders. However, when the Chinese government decreed
on 23 November 2013 an ADIZ in the ECS, the Senkaku/​Diaoyu Islands were
inside the zone but marked with a red circle, they were assumed to be Chinese
territory. Moreover, the zone overlaps with the Japanese ADIZ.23 The Korean
side was also upset because the zone included the air space around the Ieodo/​
Suyan feature. The Chinese ADIZ was widely interpreted as a desire to reinforce
China’s claim to the disputed islands and to the sea around the Ieodo/​Suyan
rock. Also, unusual for an ADIZ is the Chinese stipulation that it includes all air-
craft (even those which are only transiting through the ADIZ) whereas normally
it applies only to aircraft heading for the state that has proclaimed the ADIZ.
The threat of military countermeasures in the text of the decree (‘China’s armed
forces will adopt defensive emergency measures to respond to aircraft that do not
cooperate in the identification or refuse to follow the instructions’) has further
heightened the possibility of a military clash.24 China has, of course, a right to
establish an ADIZ, as had been done by the ROK and Japan in the 1950s. But
the above peculiarities, the timing and the lack of proper prior bilateral consult-
ation were not seen as conducive to establishing order in the ECS. Moreover, it
started an unhelpful speculation about China’s future intentions regarding an
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When Constantine, who is generally called the first Christian
emperor,—but who was very far from being a real Christian,—when
Constantine became nominally a Christian, he did not leave off being
the high bridge-maker of the heathen. He remained high priest of
the heathen at the same time he was a Christian emperor; and he
found means, as well as his son after him, to keep the two functions.
He acted on some occasions as high pontiff of the heathen; on other
occasions, he called councils, presided over them, and sent them
away when he had had enough of their presence; declared to the
bishops that he was in some sense one of them, and acted to all
intents and purposes as popes have acted after him. Thus that title
remained the type of whatever was most sacred in Rome; and the
bishop of Rome, when an opportunity came,—when the title had
been lost in Rome by emperors,—took it up again. And thus we see
on the same stone, at the present time in Rome, the name of a high
bridge-maker who is a heathen emperor, and the name of a high
bridge-maker who is a pope, who is the head of the Christian
Catholic Church. Thus you see an old superstition, an old local
superstition, established with a political meaning, has survived itself,
has survived centuries, has survived the downfall of heathenism, and
is at the present time flourishing. You all know that the present pope
is called Pontifex Maximus; it is his title; and everywhere you see,
even on the pieces of money, that Pio Nono is Pontifex Maximus,—
the great bridge-maker, which means the highest of all priests, of all
sacred beings. Thus has tradition, on that special spot, and in
connection with the history and with the antiquities of that spot,
established an authority unequalled anywhere else.
Though the Roman Catholic Church is special to that place, and
inherits the local habits and traditions, it pretends also to
universality. This is, again, perfectly Roman. The heathen Romans
had thought for centuries that the world was made to be conquered
by them; that unity was represented by Rome; that Rome was all in
all; and at the present time the Pope, on Thursday of every Easter
week, gives his solemn blessing, as you know, to the town first, and
the world afterwards,—urbi et orbi. All countries, both hemispheres,
all nations, all languages, are lost in that great unity. One town and
one world, of which that town is the capital,—that was the wish, the
hope of the heathenish Romans for centuries; and that has been the
aim, the assumption of papal Rome for centuries also. When the
present Pope said, on a celebrated day, after enumerating the great
acts of his pontificate, that he had created more bishoprics than any
other pope, he was right. He has created, on his own authority,
bishoprics in Holland, in England, and in other countries; cut out
bishoprics on the map of those countries. And he did that because,
as pope, he is the spiritual sovereign of the world; because England
and Holland belong to him; because Rome is the capital of the
world; and he cuts off a part of any country, in America as well as in
Europe, in order to make of it the see or dominion of a bishop. The
old Roman idea was that nobody knew how to govern except
Romans. They assumed—and often, if an unscrupulous government
was the best of all, if a tyrannical government was the best of all,
they were right—to govern better, more wisely, and with more acute
politics, than any other nation. They said, "Other sciences, other
arts, may be the share of other nations; but our share in the great
things of this world is government." I hardly dare to speak Latin in
an English country, because I cannot pronounce Latin as you do; but
though I pronounce it as a Frenchman, which is, perhaps, a shade
less bad than to pronounce it as you do in England and America, you
may guess what I mean when I recall to the memory of some of you
the famous lines of Virgil, where he says what must be, in this
world, the function of the Romans:—

"Tu regere imperio populos, Romane, memento;

Hæ tibi erunt artes."

That is to say, "You Romans! remember that you are made to govern
the nations; that must be your office; all the arts come after this;
this is the special Roman art." I declare to you that at this present
moment the clergy, the cardinals, the bishops, the prelates, the
court of Rome, think, and have never ceased to think, that they are
the people to govern better than any other political body; and that
the government of the world has been providentially reserved to that
town; first, in a temporal way, for the heathen; and, secondly, in a
spiritual way, for the Christians, for the Catholic countries of the
world. And as they believe spiritual things are a great deal more
important than temporal things, they think their government is a
great deal more important, and greatly superior to any government
of any kind.
Let us now turn back a little again, and try more fully to understand
what the old Roman genius was in its way of government. They
governed by laws. You all have heard about Roman law, about
Roman jurisprudence. It has been said for centuries that they were
men who, better than any other, understood the art of making laws,
—very precise, full of foresight, forgetting nothing, or few things,
and giving in the most exact terms the decisions to be enforced in all
possible cases, at least in all the cases with which they had occasion
to deal. It is said also, it has always been said, that their laws were
hard; but they accepted them, though hard: "dura lex, sed lex." And
certainly there was something noble and good in this respect for law,
whatever the law was: there was something just, really in the
interest of nations, in this love of law. But at that time this love of
law was accompanied by the fact that the law was exceedingly hard
in a great number of cases. Yet that hardness was in conformity with
the general temperament of the nation at that time: the Romans
were hard.
I have no time to stop to show you how different they were from the
Greeks; but you remember that when the Greeks assembled in one
of their great annual festivals, they heard music, they listened to
poetry, they listened to the works of the historian; or they saw men
run races, or engage in one of those contests that were not cruel,
that were only displays of strength, agility, or training. That was the
pleasure of the Greeks in their annual festival. What did the Romans
do? You all know. They had immense amphitheatres where they
assembled to see men kill one another. Their pleasure was to see
people die, to see people suffer, to see people maimed, and
weltering in their blood: that was their favorite amusement. And
ambitious men in that day secured votes by bringing lions, hyenas,
and tigers, in large numbers, to Rome, and by giving the people the
diversion of seeing those animals killing men, devouring living men,
women, and children, living Christians, often. That was the
punishment in fashion at that time: Christian men, women, and
children were killed, were devoured, were mangled before the eyes
of the people, and for their pleasure. In their hardness they had a
taste for the formal, precise execution of their law, whatever it might
be. Christianity came and swept away their abominable pleasures,—
this cruelty, which was contrary to every human feeling; but the
habit of a sort of hardness, in the infliction of the penalties of law,
remained in Rome more than it did in any other place. And this was
allied to another feeling of a different nature, but which very well
connected itself with it. I mean the Roman love for the literal in
every thing. They did not like to understand any thing as
metaphorical, as poetry: they liked to take every thing literally; and
it was in consequence of this characteristic of the Roman mind that
they were able to enforce their law. Even if the result of what the
law demanded was absurd, they maintained, for the honor of the
law, that it must be literally understood, and literally executed; and
they permitted none of those different ways of alleviating the
hardships of the law that have been in other places not only allowed,
but ordered, by those in command. This is of extreme importance.
Perhaps at first sight it does not strike you so, but it is. Remember
from what country Christianity came. Christianity came from the
East, came from Asia, came from the Jews. The Apostles, the first
propagators of Christianity, were Oriental men, were Jews. I have
seen part of the Levant, I have seen those very countries, and I can
speak of it as a fact known for centuries, that the people of the
Orient never speak otherwise than by images. They do not like the
shortest way from one point to another; they make the way long.
They use flowers, and rays of light, and moonshine, or any thing
else that gives an image and color to their speech. They bring these
things in continually, whatever may be the subject they speak of.
Perhaps I may give here an illustration that will make you
understand me. I was in a house made of branches of trees, where
lived a sheik. He told me that every thing in that house, his own
person, his own family, were mine; and he said this with the greatest
protestations. This is exactly the same as if you should say to a
foreigner, coming into your house, "You are welcome." Nothing
more. If, on going away, I had taken any thing from that house, the
man would immediately have shot me; though he had given me
every thing, even to his own person and his own family; because he
would have had this idea: "This man is a thief; I have a thief in my
house." If I had said, "But you gave me every thing in the house,"
he would have answered me, "You come from a country where
people have no politeness. I gave you these things: that means
welcome, and nothing more." Thus a man of the Orient never says
any thing in the simple short way that Western nations do: they
always want some poetry, some rhetoric, some image about it. And
you must remember that many of the most admirable teachings of
the Bible are in images, are in poetry, and are extremely beautiful
and eloquent by their poetry. We are accustomed to this, so that we
know that it is poetry; and we understand it. But the Romans,
accustomed to their principle, that the law may be hard, but that law
is law, and must be understood literally, and executed literally,
understood every thing literally, and in that way they spoiled many
of the great Christian truths. I will not here quote many instances,
though it would be exceedingly easy to bring them in large numbers
before you. I will take the most striking and best known of all. When
our Lord, a few hours before being separated from his disciples, to
die on the cross, gave them of the bread that was on the table, and
said, "Eat, this is my body," it was absolutely impossible for Eastern
people to misunderstand him; it was impossible for them not to
understand that he meant, "This represents my body." The idea that
what he held in the hands of his own body was his own body again;
that he gave them his own body to eat, and that he ate some of it
himself with them,—that idea could not for a moment have entered
the head of one of those who were there. And if a multitude had
been there, instead of the twelve Apostles, it would have been
exactly the same. Nobody would have understood, when the Lord
said, "I am the way," or when he said, "I am the door," that he was
really, in fact, a path or a gate; everybody knew that he meant, "I
am the leader; you must come with me; I show you the way."
Everybody in the Orient understood that. But here comes the Roman
genius, taking every thing literally; and they repeat, "He said, 'This is
my body,' and this is his body." They repeat: "You Protestants do not
accept the truth coming from the lips of your Master. He says, 'This
is my body,' but you Protestants say, 'No, it is not his body, it
represents his body.'" Thus it seems we are convicted of crime; it
seems we will not accept the teachings of our Lord; yet we are
perfectly true to his own meaning, to his real meaning, that could
not be misunderstood in the East, but that was misunderstood when
it was carried to Rome, a country where people gloried in taking
every thing in a literal sense. So they did with many other most
beautiful and delicate things in the Bible. The Roman genius—I
cannot help saying it—had something clumsy in it. They were like
giants, having very strong arms, and enormous hands, to take every
thing, and to dominate over every thing. But any thing very delicate,
very poetic, like flowers from the East, they could not touch without
the flowers being broken and faded, losing their charm and their
color. That was their way of treating many of the most beautiful
things of the Bible, which they did not understand; which they made
absurd or repulsive, by taking in a literal sense what was said, and
ought to be taken, in a spiritual sense. They acted exactly as we
should, if we received an Oriental letter and understood as literal
every thing contained in it.
I will give another instance to make this clear. I remember having
seen two letters, written one by a French General, and another by
Abd-el-Kader, the chief of the enemies of the French in Algeria.
These letters were intended to convey identically the same thing;
that is to say, that some prisoners on one side were to be exchanged
for the same number of prisoners on the other side. It had been
decided that the French General and the Arab chief should say the
same thing. I have seen both. The French General writes two lines;
very clear, distinct, and polite, with nothing but the exact meaning
he wanted to convey. But Abd-el-Kader, meaning to write the same
thing, writes a whole page, about flowers, and jewels, and roses,
and moonshine, and every thing of the kind. His intention was to say
exactly the same thing, to convey identically the same meaning; but
these things, translated from one language to another, pass, as a
celebrated German scholar says, "from the Shemitic to the Japhetic;
from the poetic language of the sons of Shem, to the precise
language of the sons of Japhet." This has been the fault of the
Roman Catholic Church in many dogmas, in many points of very high
importance: the sons of Japhet could not understand what the sons
of Shem meant. They thought they understood it, when they were
entirely in error, and gave to it a meaning altogether different from
what was intended.
I must add, that what helped them along in this belief of things,
taken in a literal sense, was Roman superstition. In that town, and in
Italy, have always prevailed the strangest superstitions. The most
celebrated Romans, men whose wisdom and whose glory have filled
the world, if they met, when they went out of their house in the
morning, a hare in the way, re-entered their house on the instant,
and renounced any thing they had to do, because meeting a hare
was ominous of misfortune, and any thing they should undertake
that day would result in their confusion or misfortune. When they
put their foot in the wrong way, the left before the right, or the right
before the left, on the stone at the entrance of a house, they
stopped there and returned to their house, because every thing they
should do in that house would prove unfortunate, since they had
made a mistake in putting the wrong foot foremost when they
entered the house.
So there were a multitude of superstitions. You know when they
were to decide the greatest questions of peace or war, they
consulted their sacred chickens. They gave them grains of wheat,
and if the chickens ate it, or if they refused to eat it, or if they ate it
too fast, or if the chickens let fall a grain of wheat from their
mouths,—these signs meant that war would be successful, or that it
would not be, and they decided according to these whether there
should be a war or not. And those great magistrates, who were
sometimes men of the greatest eminence, like Cicero, were augurs.
You know what Cicero says, "Two of us cannot meet without
laughing;" because they knew that their auguries were utterly
worthless, but the multitude thought they were true. So the Romans
were superstitious to the highest degree, and they have never
ceased to be so. There is superstition in the marrow of their bones.
Many Romans are ready to believe any thing to-day, at the present
moment. I shall allude to a single fact. They all believe devoutly in
the evil eye; that there are people who, if they look at you, will bring
upon you some horrible misfortune, disease, or death. They believe
this so fully, that they have a gesture, representing with their fingers
a pair of horns; and, when they meet any one who is supposed to
have the evil eye, they endeavor, in a secret way, to make that sign,
to prevent misfortune from coming upon them. It is believed, in
Rome, that the present pope, who is to them God on earth, who is
to them the successor and vicar of Jesus Christ, that he, as a man,
has the evil eye. And when he passes through the streets of Rome, a
great many women, devoutly kneeling before him, with their heads
almost in the dust, craving to receive his blessing, as he passes in
his carriage, will, under their aprons, make this sign, to preserve
themselves from the effects of the evil eye. This is no disparagement
to his person; they think that the poor man cannot help it; that there
is no ill will in it; that it is fate; he has the evil eye.
I could cite many other instances of this superstition; perhaps it will
be enough to refer to one more, and one that disgusted me
completely. It is the worship with which they surround the Santo
Bambino. There is on the Capitoline Hill a church that was formerly a
heathen temple, and which has kept an old name, "Ara Cœli," or
"altar of Heaven." In that church, the Franciscan monks keep a very
ugly doll. This doll is said to have been sculptured out of one of the
olive-trees on the Mount of Olives, and then Saint Luke is supposed
to have painted it over. Saint Luke must have been the painter of the
poorest daubs that ever were in the world, and the angels who took
it to him must have been very far from being connoisseurs of
painting. This doll is covered with diamonds, emeralds, sapphires,
and other precious stones, of greatest price. It is kept in a box on
the altar, and, when you ask to see it, the monks pray before the
door, they light tapers, they produce the box, and then the box is
opened, and you see the hideous little wooden image. Now, this
Santo Bambino is supposed to have healing properties. He heals
people, when they are rich enough to pay a good salary to him; he
is not a physician who heals for nothing. He has a magnificent
carriage of his own, and servants with his own livery; and, when any
rich man wants to be cured by him, the Santo Bambino goes in his
own carriage to the man's house, carried on the knees of Franciscan
monks, and cures the patient,—if he can. Such is the belief of the
country. But I could not see any very great difference between that
doll and the idols that the old Romans had, and used in the same
way. The idea is this: they suppose that the Santo Bambino
represents Christ as a little child.
Not only were the old Romans superstitious, but we know, by
historical testimony coming from the heathen themselves, that at the
time when Christianity appeared there was an increase of
superstition; there was a general feeling of a want of something
definite, something like a sort of atonement; and at that time all
sorts of ceremonies, all sorts of bloody sacrifices, were introduced
from Syria, from Libya, from the most remote countries, and the
Romans tried to find for their consciences some satisfaction in those
rites. For instance, you all know they had a custom of having their
sins expiated by means of what they called taurobolium. A man had
a grave dug in the ground, and then over that grave was put a
marble slab, with a great many holes in it, like a sieve. In that grave
the man stretched himself at full length, and over the marble slab a
bull was killed, in such a way that the blood fell through the holes
into the grave. When the bull was taken away, and the marble slab
was lifted, the man rose out of that grave perfectly covered with the
blood of the bull, entirely bathed in that blood. Then he was
supposed to be a new man, supposed to be washed of all his sins.
He believed that from that moment the anger of the gods had
passed to the bull, and that the blood of the bull had been shed
instead of his own. We find in Ovid, one of the poets of the time, the
prayer of a man for whom was about to be offered up the sacrifice
of the black hen. He asks the gods to take the heart of the hen
instead of his own, the fibres of the hen's body instead of the fibres
of his own body. The poor black hen was sacrificed in the most cruel
way they could find; she must suffer as long as possible, because
then the anger of some god who was supposed to pursue the man
found full satisfaction. The ferocity of the god had ample satisfaction
in the torture of the poor black hen, and the sins of the man were
expiated. Then there was superstition upon superstition, because,
when the mangled remains of the unfortunate hen were thrown into
the street, if any person unconsciously put his foot on that body,
then he became the inheritor of the crimes of the first man, and of
the anger of the gods. They had a special name for those bloody
remains of the sacrificed fowl: they called them purgamentum,
because they thought that such a sacrifice purged a man of his sins.
As nobody dared lift or touch the body of the victim, they put a
fence around it; and, as long as there remained on the ground in the
streets of Rome a vestige of the poor bird, nobody would tread on
that place; and the fence was put there to prevent this. These were
the superstitions of that time; and Plutarch wrote a treatise to which
he gives the title Δεισιδαιμονια, which is translated very often by the
word "superstition;" but it means more than that, it means "terror of
the gods." It means that feeling which was more and more
prevailing in the Roman world, that the gods were to be feared; that
there was anger in heaven; that the earth could not defend itself
against the bad will of a supernatural power. We can very well
understand that when Christianity was preached to those people
they were happy to take that religion of hope, that religion of
regeneration and sanctification. It was to them a marvellous
deliverance to be out of that old doctrine and in the new one. But
they carried with them many habits of thought, many things which
were inherent in the ancient religion. Among those things was the
habit of multiplying the divine being. They had been for a long series
of centuries polytheists, believing in many gods. With their
superstitious fears, they were always afraid there were not gods
enough. That was saying a good deal, for they had more than
30,000 of them at the time of Christ. It was recognized that nobody
could even know them all by name.
Again you will excuse me if I use here a very familiar illustration to
make the leading thought of polytheism understood.
You know that in fairy tales the fairies are always called in to the
festival at the baptism of the infant child. The intention is to invite
them all, but there is always one forgotten; and that one curses the
child in some way or other; and then all the gifts of all the good
fairies cannot prevent the child from suffering, at least for a time,
from the bad will of the one that has been forgotten. This involves
the essential idea of polytheists. They had always the thought that
all the good gods whom they worshipped could not prevent any
malevolent one who had been neglected from hurting them; and
they were always in search of that one. They were always making
altars "to the unknown god or gods," to be certain in that way to
include them all. They were constantly asking what gods were
worshipped in such a country, in such a place; and if it was a god
that was not known among them, straightway they prepared a place
for his worship. They said, "He has no existence, very likely; but if
he has, if he lives, then we must sacrifice to him, to prevent his
spoiling the happiness that the other good gods wish to give us." So
there was an incessant adding to the immense number of gods. At
the time of Christ, they had so many of them that, from the time a
grain of corn was put into the ground to the time the harvest
commenced, they had nine different deities who in succession took
charge of the corn that had been put into the ground, and thus it
passed from one god to another. Nine of them were necessary while
the grain was in the ground. Thus, when the heathen became
Christians, they had been in the constant habit of adding gods to
their heaven, of adding good men to their gods, and also men not
good, but whom they feared,—for all the emperors were made gods
the moment they died, so that one of them, who was rather a wit,
when he was dying said, "I feel that I am becoming a god." The
heathen had become so habituated to this that, when they became
Christians, they continued very naturally to multiply the number of
the objects of worship. They soon ceased to make the slightest
difference between Christ and the Father. In good time they
unconsciously put Mary, the mother of Christ, above Christ; now,
without ever having this intention, they put, in fact, Mary above the
Father. And so on, adding always a new god to a new worship, and
always making the new worship as binding and as efficacious as
possible, to satisfy that polytheistic craving. They did not understand
their error in keeping between the infinite God and themselves an
immense number of minor deities. This craving was unwholesome,
but very sincere. That unconscious wish to multiply gods and make
saints has continued to this day; and no pope has canonized so
many saints as the present one, who is always trying to show that
he does more in this way than any of his predecessors.
This will suffice to give you an idea of what the old spirit of Rome
was, the whole tendency of the Roman mind, and what was brought
by them into the church. I must now ask you to go in imagination
with me to the tomb of one of those old Romans, who were not
burned, according to the custom of that period, say the Scipios.
Suppose one of the Scipios taken out of his tomb; and bring him into
a Roman Catholic Church: do you think he will be very much
astonished? He will be astonished at one thing,—by the crucifix, the
image of the crucified Son of God. That was completely contrary to
the Roman ideal and their habit of thought. But all the other things
he will see will not astonish him at all. He had seen them all his life
in his own time. You believe, perhaps, that the shape of a Roman
Catholic Church at Rome will astonish a pagan? Not at all. Cato had
given the Romans the pleasure of enjoying, for the first time, a
portico with three ranges of columns, the middle aisle being broader
than the others; and at the end was what we call an apse, but the
ancients a conch. The end was rounded off, and thrown into the
form of a semi-circle, and the tribunal for the prætor or judge was
placed in that half-circle at the end. This portico was called a stoa
basilica, and the first Roman Christian churches were built on that
plan. Afterwards, the idea came of making the church in the shape
of a cross; and then a smaller basilica was placed across the other,
forming the transept of the church. But those long ranges of
columns remained, with the same wide space in the middle, and
narrower aisles on either side. The basilica was the form of public
buildings most in fashion in Rome at that time. There the gothic
style was never popular. Even now, of four or five hundred churches
in Rome, only one, the Minerva, is gothic. When Christian
architecture was born, Christian architecture accepted the heathen
plan.
In the new church, in that basilica, what do we find? We find holy
water at the door. That was exactly what you found in the pagan
temple, only it was called lustral water. In the temple, my Scipio,
who goes with me, recognizes all his old habits of thought, all the
old emblems of his religious devotion. He sees a number of statues,
or images; but he has seen those all his life. There is not only a
central shrine, but there are small chapels. The saints have a golden
circle round their heads: Christians call it the aura, the ancients
called it the nimbus; but it was exactly the same thing. They had it
around the heads of their deities in painting and sculpture, and so
on. There are censers and there are tapers burning there; and there
are all the ornaments a pagan was accustomed to see in his temple.
All those things had been kept, had been re-established, and the
pagans had brought them with them into the Catholic churches.
When I went for the first time to Naples, the man who showed me
the museum there showed me feet, legs, and arms, hands, eyes,
and ears, in stone. He said, "These are ex voto." People who were ill
gave to some of the gods, the ones they chose, these things as
marks of gratitude for having been cured. The cicerone told me,
"You see, sir, it is exactly the same thing we have in our churches."
And so it is. In all the churches in Naples and Rome, and in the
Roman Catholic churches all over Spain and France, you see, in wax,
in gold, in silver, and in stone, such legs and arms, eyes and ears. It
is exactly the same thing. The heathen man said to his god, "I will
pay you by this mark of honor and gratitude, by this mark of your
power and your glory, if you cure me." The Roman Catholic says
exactly the same thing to a saint, to the Virgin, sometimes to Jesus,
and very rarely to God.
I cannot mention here all the other details, like funeral services at
the end of the year, like funeral chapels, like many other institutions
that exist in the Roman Catholic Church, that are practised every day
in it, and that are exactly the same, so far as religious ideas go, as
were practised in the pagan churches. But I must add something of
more consequence than that, about the worship of human beings,
and especially of the worship of the Virgin Mary. It was nothing new
to the Pagans to worship a woman, and especially to worship a
virgin. That was one of the ideas the most familiar to their devotion.
In Rome they had the temple of Hestia or Vesta, who was supposed
to be a virgin; and she had around her nuns who were pledged to
live in celibacy, and punished by death if they did not remain true to
their vow. In Greece it was the same thing with Pallas. Perhaps you
all know that in Athens, the largest, most perfect, and most beautiful
of the Greek temples—immensely superior to any edifice I ever saw
in any country—is called the Parthenon, which means the Virgin
Temple. That temple is the temple of Pallas,—Athene, or Minerva,—
who was the principal deity of Athens. Thus that idea was perfectly
familiar to them, and they only kept it, and brought it with them into
Christianity.
I have spoken of monks. You must not believe that the monks are by
any means a Roman Catholic invention. In the East there have been
monks in all times and in all religions. It seems to have been a
special habit or taste of the people of the East to give some men no
other business, no other work to do, but to live in solitude, and pray
for them; and some men have always, in those very hot countries,
where it is exceedingly tiresome to work, liked to live in perpetual
prayer better than any other more fatiguing labor. We find the monk
in all times and countries in the East, then in the West; and he has
been imported from paganism into Christianity, like all the rest. I do
not believe there is a religion more completely contrary to the
monastic feeling than the religion of Christ. I do not think there was
ever a type more radically contrary to the type of the monk, than the
figure of Christ as we find it in the Bible. However, that old monkish
spirit of the Orient was always known to the Romans from the
beginning; for they had priests and monks from the time their city
began. That spirit has, like other things, been smuggled into the
Church, though it was contrary to the spirit of Christianity.
I must recall one last rite of great importance. Both the old Romans
and the old Jews had, as a principal part of their worship, the rite of
sacrifice. The origin of it was simply this: that men in the first place
possessed nothing but flocks, and they gave to God one head of
their flock, one sheep, or one bull, as being the only riches they had
to give. Before they had houses, before they had garments, before
they had any other thing,—money they were very far from having,—
men had to eat, and they had flocks because they wanted to have
meat to eat; and thus they gave to God the only necessity of life to
them, the only thing they understood the importance of. And they
gave him the whole animal, not reserving to themselves any part of
it, in some cases; in other cases, a part of it only, making a meal of
the rest for themselves. To give a part to God was one essential
element of their worship, the rite of sacrifice; and we find that the
rite grew out of that, and nothing else. It was a habit deeply rooted
in the Roman mind, and at the same time already familiar to the
Jews; and when those Christians who had been Jews spoke of Christ
to the Romans, they could not prevent that Roman or Jewish habit
from taking double force, and double space in religion. What
happened? It happened that the old Romans and old Jews wanted a
sacrifice; wanted to give something to God; wanted a victim; and
then came this strange fact, very easy to understand however, of
which we find traces in the first days of Christianity,—that there was
no better victim to offer to God than Christ. When they had
identified completely Christ with the Father, then there was no
greater victim to offer to God than God himself. Therefore, they had
a sacrifice that is called "the mass." You know the official name is
"sacrifice of the mass." It consists in this. The priest takes the host,
which is merely bread,—it is nothing but a little flour and water,
made into bread,—he pronounces the consecrating words; then,
after he pronounces them, there is no bread, there is no flour;
instead of the bread, instead of the flour, there is Jesus Christ.
According to the Council of Trent, that is Jesus Christ, his body, his
blood, his soul, and his divinity; it is Jesus Christ; is perfect God. And
this has been, by an old Roman Catholic writer, very clearly
expressed in these three words: "The priest, what is he? what does
he do? Creatus Creatorem creat." He is a creature who creates the
Creator. After that comes the second great part of the sacrifice of
the mass. There is God, and the priest sacrifices God to God. And
how? Sacrificat manducando. That is to say, according to the formal
explanation, he sacrifices God by eating God. This is the sacrifice of
the mass. If the Roman mind had not been accustomed, as I have
shown you, to superstition, to all literalism, to the love of the law
and the letter, even when the law or the letter was absurd, they
would not easily have accepted all this; but with their turn of mind,
with their way of taking things, that was exactly what they wished
for, and that was what they adopted. Not at once: it was very long in
elaborating itself. It was so completely, I cannot say otherwise, so
completely absurd, that it required a great deal of time to make it so
precise; but they attained to that at last, and they could not but do
so. See, then, what a man the priest is. He has before him bread,
and he makes God; he afterwards sacrifices God; he is almost a God
himself. At the moment when he makes God, he seems to be
superior to God; at the moment when he sacrifices God, by eating
him, he seems superior to God. Thence comes the immense power
of the priesthood, of priestcraft. And as if this were not enough, in
the mass, as you know, the priest has not only the host, but he has
the wine, the cup. The other members of the church have not the
cup, because they must not be equal to the priest even in the
communion; even in the act of uniting themselves with God. Laymen
cannot arrive at the height of glory to which the priest arrives; they
must eat the host when it is given to them, but they cannot touch
the cup; that is reserved to the priest, a sort of heavenly, or divine,
or godlike character. Even as the Romans had respected their old
bridge-makers, their old pontifices, their old priests, whom they
considered the bulwarks of their town, they respected afterwards the
priests of the Roman Catholic Church. So the mass was established,
with all its consequences.
This is not all. I must explain exactly how a part of the heathenish
religion answered, in the time of Jesus, the wants of the heathen
better than the more natural religion of the Christians. At the time of
Christ, many Romans did not believe in thirty thousand gods and in
all the absurd and indecent history of those thirty thousand deities,
but they had a form of worship that had become purer and purer.
They had what they called "Mysteries." In Greece, and in Rome also,
there were "Mysteries." These were ceremonies in which great
philosophic and religious lessons were given. There exists a very
touching letter from Plutarch to his wife, written at the time he lost
his only daughter, and when they were in the deepest affliction and
desolation. He writes to his wife, who was separated from him at
that time, a very kind and loving letter, trying to give her comfort
and hope. He says to her, "Remember the beautiful things we have
seen together in the Mysteries of Bacchus." You must not believe, as
many would at first believe, that the Mysteries of Bacchus were
nothing but drunkenness and disorder: they were something else.
They were like the Mysteries of Ceres, the Goddess of Corn, and like
the representations, in other cases, of the immortality of the soul.
They were a sort of tragedy in which, less by word than by singing,
and by acting especially, was shown to men that, when the body is
interred in the ground, the soul lives, and the soul shall rise to
fulness of life. A grain of wheat hidden in the ground remained
hidden there for weeks before coming to life. That was the emblem
of the new life of immortality. Now, this teaching, good in itself, true
in itself, but given in dramatic images, was at that time the very
best, soundest, most human, and most natural part of heathenism.
And then it happened that Mysteries were acted, not only in the
heathen churches, but in Christian churches; that the history of
Christ, that the death of Christ, that the resurrection of Christ, took
the place of the resurrection of Proserpine, the daughter of Ceres,
who represented wheat and corn; and then Christianity became a
sort of subject of sacred myths, sacred plays, that were very
devoutly acted, and that kept their title of "Mysteries." As soon as
we see something of the dark ages, and what the practice of
worship was, we see this same thing. It is going on in all countries in
some measure. You may see it in the Roman Catholic churches
during Easter week. You may see then that, when Christ dies, all the
lights are put out, save one very small light, because that represents
the moment when the sky was covered with darkness at his death.
And you hear in a choir some persons sing the words of the people
who screamed "Crucify him!" and others repeating the words of
Caiaphas and the words of Christ. This "Mystery," this serious,
devout play, is acted in all Roman Catholic churches. When Christ is
dead, the host is taken away from the altar, and it is carried into the
tomb, carried into some lower chapel, from which it comes back to
the great altar on Easter morning, on the day of the resurrection.
That solemn play is going on in all Roman Catholic countries at the
present time, and that is a "Mystery." Such is also the "Mystery" that
was played in Germany, at Oberammergau (Bavaria), during the last
year, and is played there every ten years. It is a devout, religious,
serious, dramatic representation of our Lord's suffering, death, and
resurrection. The mass in itself was in the beginning a Mystery; it is
often called so; it is often called in old Roman Catholic books and
often in modern ones the "Mystery of the Mass." It was a
representation of the death and sacrifice of Jesus; but the Roman
Catholic spirit coming in declared that this Mystery was not, like
others, a mere representation, a sacred play, but a reality; and
according to the doctrine proclaimed by the Council of Trent, three
hundred years ago, the sacrifice of the mass is much more than a
representation of Christ's death, of Christ's sacrifice, for he is
sacrificed anew, he suffers death really anew. And it has been
declared, because some Protestant opponents were astonished at it,
that every time any priest says mass,—and every priest must say
mass at least once every day,—every time a priest says mass, Christ
suffers again, and dies again, sacrificed by the priest for the
redemption of human kind. This is the doctrine of the mass, and this
gives it a very tragic, grand, and solemn effect in the eyes of those
who believe in it. Yet this again is nothing but Roman literalism, the
Roman way of taking every thing literally.
Is all this real Christianity? At all events I have said enough, I hope,
to give you an idea of the way in which the religion of Jesus of
Nazareth, as he was called, preached by him on the hills of Galilee,—
a religion that was quite spirit, and quite truth; a religion that had at
that time no bleeding, no consecrated man, but that was alive by the
Spirit of God in the conscience and in the hearts of men,—how that
religion, purely spiritual as it was, became all the pomp, all the
exterior complications, all the dramatic intricacies of the Church of
Rome.
And here I stop to ask again, Can all this suit the urgent necessities
of our times? Is that the truth after which our souls hunger and
thirst?
Now I must, before I end, say a few words to you about the late
changes. Do those changes make matters better or worse? Let us
pass over ages and centuries, and come to the present day, because
I say we must make some change in our way of resisting the Church
of Rome. I must state, and very rapidly, what these changes are.
There are three of them. The first is, that a new dogma has been
established. The new dogma amounts to this, without going into
details, that Mary, the mother of Christ, was created, at the moment
she began to exist, exempt from original sin. All human beings are
guilty of Adam's sin, with one exception, and that exception is Mary.
That exception dates from the very first instant of her existence. She
never was, even in thought or in feeling, a sinner; she is
consequently out of the pale of humanity; she is not a human being;
she is more than a woman, she is something godlike from before her
birth. That is the dogma. It is not new; it was invented in Spain; it is
a Spanish, an Andalusian dogma. It was invented at a time when the
Catholics in Spain were laboring very hard to expel from their
country the Moors, the African Moslems, who were masters of a
great part of Spain, and who had more science, more art, and more
literary culture than the Christians of Spain, but who had absurd
doctrines about the family and about religion, as well you know.
Nothing could displease them more, could astonish them more, or
could confound all their ideas more, than to tell them that a woman
was godlike. They thought, as all Moslems have thought, that a
woman had no soul; and here was a woman who was a goddess
before her birth, who was always a goddess. This was something
absolutely incredible to them, and it showed the great difference
between Christians and Moslems, between Spaniards and Arabs.
This became the general rule among the Spaniards of the southern
part of the country, in Andalusia especially; and when they met one
another they did not salute with words of good greeting, but for
centuries it was the habit in Andalusia, when one Spaniard met
another, to say to him, Ave Maria purissima, and the other
answered, Sin pecado concepida, which means that that dogma was
proclaimed every time two persons met. This dogma has been taken
into special favor by the very powerful order of Jesuits. They thought
it was important to the church; it was putting Mary in the highest
honor, to have that dogma become the law of the church. But up to
the present century, up to last year in the Roman Catholic Church,
people could believe it or not; now the Pope has declared that
henceforth every man who does not believe that dogma is eternally
lost and damned. This he has decreed, after consulting with some
bishops, with whom he conferred about it, but declaring that he did
so of his own accord, because, as pope, he had a right to decide on
that. He said, it is no new doctrine; it has always been in the church.
As the great writer Father Perrone wrote, "That dogma has been
developing itself in the church a long time." When I saw the Church
of Rome speaking of a dogma "developing itself," I thought, This is
the beginning of the end. If they understand that dogmas develop
themselves, that they have not fallen like aerolites from the heavens,
it seems to me that that is the end of infallibility. Some people think
it was the beginning of infallibility, that it was the Pope for the first
time declaring a dogma for all men without consulting officially or
legally any one, and that when he had done this he had augmented
his power. I must remark here, that when a pope is very weak, the
general rule is, he does something extremely strong. When he is
extremely weak, politically, materially, he generally makes some
great demonstration of spiritual power. When Pope Gregorius VII.
kept Henry in his shirt a whole night at the door of the castle of
Canossa without opening the door to him, saying, "You are a sinner,
do penance,"—when he did that, the Pope had been expelled from
Rome, he had lost Rome, therefore he must prove his immense
spiritual power, because his temporal power was lost. And when the
present Pope has done acts of authority greater than any other
pope, it has not been because he was strong, but because he was
weak; to remain on his throne he wanted to have the bayonets of
Louis Bonaparte to keep him in power. His own subjects would very
soon have shown him a second time the way to the frontier, if they
had not been prevented by the bayonets of that man. Thus the Pope
did more towards asserting and confirming his own power than any
of his two hundred and fifty odd predecessors. When afterwards he
took a new step, it was in continuance of this. He called a council
when three hundred years had elapsed since an œcumenical council
had been called. I know old Roman Catholic families who had been
waiting for centuries for the moment when an œcumenical council
should assemble, to denounce before that council the
encroachments of the Pope, and to ask that the popedom be kept
within bounds for the future. Pio IX. had an œcumenical council
called, and held it in his own house, in the Vatican. And there, in one
end of one of the transepts of the immense church of Saint Peter,
the Pope had himself declared infallible by the council. Thus all the
other councils which had been the hope of such persons in the
church as could not accept every word of the Pope, all those councils
have been sacrificed, have abdicated, in the last of them, at the foot
of the Pope. Now, the Roman Catholic Church has become very
logically, what it ought to become, the same thing in the spiritual
world that the Roman Empire became in the temporal world. The
Roman Emperor was every thing; there had been priests and
magistrates who had great powers; then the emperor made himself
dictator, consul, tribune of the people; made himself high bridge-
maker; took upon himself all dignities. He was every thing; and then
the whole Roman Empire was one man; and sometimes it happened
that that man was a mad man like Caligula, who said, "I am sorry
that all men have not one head that I might cut it off." Such was the
unity of the Roman Empire, and we see the same fact in the Roman
Catholic Church to this extent, that there is one human brain that
thinks for all Roman Catholics in the world, and if that human brain
decides that such a thing is or is not, all other human brains must
believe it, or be damned eternally; there is no choice. This is
perfectly logical; this is not an unexpected change; this must have
come to pass. As the Pope became physically weak, the more
absolute became the necessity that this should be done. Now, he is
weak, he has lost Rome. Although it was not in my way, I passed
through Rome a few months ago for the purpose of seeing Rome
free, and it was an immense joy to see that. I had seen Rome
groaning under that proud, domineering government of the priests,
who declared that their government was the best in the world, while
the whole world called it emphatically il mal governo. Now I have
seen it free; and I think no Bonaparte of France, nor any French
Government, nor any other government, had any right to give up
Rome to the priests, to prevent the Romans from being masters in
their own house, from being free in their own city. I must declare to
you, that if in one sense the Roman Catholic Church has lost a great
deal because she has lost that great tradition, lost that long habit of
ruling in Rome, and the high prestige that comes from it, yet the
Roman Catholic Church has gained more perhaps than she has lost
in this. You must not believe that the Roman Catholic Church is to
disappear to-morrow, or the next day: that shall not happen. There
are hundreds of thousands of souls who like better to have one man
on a throne thinking for them, taking on his conscience and his
honor the question of their salvation,—they like that better than to
think for themselves; and there will be Roman Catholic churches for
a long time to come. They will even be stronger in one sense,
because that temporal power was so exercised that it caused great
weakness; and now the Pope will be strengthened; will find more
interest and sympathy, because he is a king without a crown, a king
without a throne: in his weakness he will find new strength.
What must we do, we Protestants, in the presence of this fact? Must
we exaggerate, must we be unfair in our attacks? No. Must we go to
sleep, thinking there is nothing to do? No, not that either. We must
work; we must work steadily to give light and instruction to all. We
have here,—and I have tried in a very rapid way to give you an idea
of it,—we have here history. That is the greatest of weapons in such
a case as this. Usurpers never like history, because they know very
well that history condemns them. We must make history known,
make the facts known, and proclaim liberty and the rights of the
human conscience. We must do that over the whole world. I do not
believe that Protestantism, as it has often been said, is nothing else
but Roman Catholicism stripped of some of its abuses, and without
some of its errors. It is something else. If there were time, and I
could begin now instead of ending, I would try to show you that in
the history of Protestantism, and even before Protestantism
appeared, there has always been, next to that stream of power of
Roman Catholicism, always becoming stronger and more
encroaching up to these last days, another current of protest; there
have always been men struggling for faith with liberty, who said,
"That cannot be;" who understood better the Gospel, who liked the
spirit of the Gospel, the spirit of God in Christ, better than the spirit
of Rome. For centuries their mouths may have been closed; their
speaking and teaching punished by death; but always they became
more and more numerous, and active, and vigorous; and then came
the great day of Luther. Protestantism has not been a negation, a
remnant of Roman Catholicism, the negative side of Christianity. I
cannot adopt that idea in the least. True Protestantism is full of the
spirit of the Gospel; it is the living soul of Christ in the Church, it
embodies the perfect conviction that there is truth, that there is
salvation, that there is liberty, in the Gospel, and nowhere else so
completely.
Now, we must consider the Roman Catholic Church as being an
organization of power, the most dreadful, the most tyrannical, the
most crushing organization of power that ever was. It is the master-
piece of Roman genius. It has been preparing during centuries, and
it has been complete only since yesterday. It is a great organization
against liberty, against man's rights, against man's conscience, for
the honor of a church and of a man. And this we must resist, too. In
my country, I declare that the cause of all our ills, the fact that is at
the basis of all our suffering and all our misfortunes, is nothing else
than Roman Catholicism. This is against the conscience of many
souls; this throws many people into sheer Atheism, because they see
no choice between kissing the shoe of the Pope, as is done in
ceremonies, and denying the existence of God. So they deny God
rather than submit to the Pope. We must give them sound teaching,
religious teaching; we must give them the Gospel. And I came to
this country to say these things to you; to ask you to help us with all
your might, and with all your heart, to do what is necessary should
be done in France to-day; what will be necessary to be done in this
country sooner or later, and what will be necessary to be done in all
countries, to show more and more that "where is the Spirit of the
Lord, there is liberty."
 SELFHOOD AND SACRIFICE.
By ORVILLE DEWEY.
The title which I have chosen for this discourse, is Selfhood and
Sacrifice. My purpose is, to consider what place these principles have
in human culture. I use the word, selfhood, rather than self-regard
or self-interest, because I wish to go back to the original principle—
selfhood, according to the analogy of our language, describing the
simple and absolute condition in which self exists; as manhood does
that of man, or childhood, that of a child. And I say sacrifice, rather
than self-sacrifice, because the true principle does not require the
sacrifice of our highest self, but only of that which unlawfully hinders
outflow from self.
The subject of culture has been brought before the public of late, by
Professor Huxley, and Matthew Arnold, and Mr. Shairp. I do not
propose to enter into the questions which have engaged their able
pens, but to go back to those primary and foundation principles,
which I have proposed to consider—the one of which is the centre,
and the other, the circumference of human culture,—Selfhood and
Sacrifice.
It is the object of this course of lectures, in part at least as I
understand it, to discuss this subject—to discuss, i.e. the principles
and grounds, on which right reason and rational Christianity propose
to build up a good and exalted character. Now with regard to what
Christianity teaches, has it never occurred to you, or has it never
seemed to you, in reading the Gospels, that they appeal to self-
interest, to the desire to be saved, in a way that is at variance with
the loftiest motives? But it is appealed to, and therefore is, in some
sense, sanctioned. And yet, as if this self-interest were something
wrong, the prevalence of it in the world, the world's selfishness in
other words, is represented by many preachers, as if it were the sum
of all wickedness, the proof indeed, of total depravity. Here then, it
seems to me, whether we look at Christianity or at the teachings of
the pulpit, there is urgent need of discrimination. And there is
another aspect of the same subject, which seems to require
attention; and that is what is called, individualism—the mentally
living, if not for, yet in and out of ourselves; claiming to find all the
springs and forces of faith and culture within ourselves, to the
exclusion of the proper influence of society, of Christianity, of the
whole great realm of the past, by which we have been trained and
formed; individualism, which says, "I belong to myself, and to
nobody else, and do not choose to be brought or organized into any
system of faith or action with anybody else." This, indeed, is an
extreme to which, perhaps, but few minds go; but there is a
tendency of this kind, which needs to be looked into.
Now there is a way of thinking, in matters of practical expediency, to
which I confess that I am committed by my life-long reflections; and
which has always prevented me from going to the extreme with any
party, whether in reforms, in politics, in religious systems, or in any
thing else; and that is, to look to the mean in things; to look upon
human nature and human culture, as held in the balance between
opposing principles. With this view, I shall first undertake to show
that the principle of self-regard, or of individualism, is right and
lawful—is indeed, an essential principle of culture.
There is a remarkable passage in the old "Theologia Germanica,"
which hits, I think, the very point in this matter of self-regard.
Speaking of its highest man, it says, "All thought of self, all self-
seeking, self-will, and what cometh thereof, must be utterly lost,
surrendered and given over to God, except in so far as they are
necessary to make up a person." This personality, this stand-point,
we must hold to, go where we will.
But let me state more precisely what it is, that is here conceded, and
must be maintained; and why it is important to defend and justify it.
I call it selfhood; and the word, I conceive, is philosophically
necessary to meet the case. Because it is a principle, that goes
behind selfishness; and of which selfishness is the excess and abuse.
Selfishness calculates, overreaches, circumvents. But selfhood is
simpler. It is the instinctive, instantaneous, uncalculating rush of our
faculties, to preserve, protect and help ourselves. Selfishness
proposes to take advantage of others; selfhood only to take care of
itself. It is not, as a principle of our nature, a depraved instinct;
animals possess it. It is not moral, or immoral, but simply unmoral.
It is a simple force, necessary to our self-preservation, to our
individuality, to our personality. The highest moral natures feel it as
well as the lowest. The martyr, who gives up every thing else, holds
his integrity fast and dear. It is written of the great Martyr, that, "for
the joy that was set before him, he endured the cross, despising the
shame." No being that is not an idiot, can be divested of all care and
regard for himself. And not only does necessity enforce, but justice
defends the principle. If happiness is a good, and there are two
equal amounts of it, the one of which is mine, and the other my
neighbor's, I may in strict justice, value and desire my own as much
as his. If I love his more than my own, I go beyond the
commandment. It is not worth while to put any Utopian strain upon
the bond of virtue; nay, it does positive harm.
Yet this is constantly done; to the injury of virtue, of conscience, and
of a proper self-respect. In our theories of culture, we demand of
ourselves, what is impossible, what is unjust to ourselves, what
repudiates a part of the very nature we would cultivate. We demand
of ourselves, and we suppose that Christianity demands of us, a
certain unattainable perfection,—or what we call perfection,—a
sinking of ourselves out of sight, and an absorption into the love of
God and men, quite beyond our reach: and failing of that—thinking
it entirely out of our sphere, we give up the proper rational endeavor
to be Christians. We make the highest virtue something exceptional,
instead of regarding it as a prize for us all. We imagine that some
few have attained it; that Jesus did, and that a few persons,
denominated saints, have approached him; but that for the common
run of men, this is all out of the question. The fact is, that
Christianity is regarded by many, as an enigma, a secret of the
initiated, as an idle vision or hard exaction—not as a rational culture.
Listen to the conversation of the mart or the drawing-room, you will
find that the high Christian law is but a mocking dream in their eyes.
"Giving to him that asketh, and from him that would borrow, turning
not away, and to him that takes from us our coat, giving our cloak
also; and turning the other cheek to the smiter;"—what is this, they
say, but extravagance and fanaticism? As if they did not know that
there is such a figure of speech as hyperbole; and that it was
perfectly natural, in a society where the poor and the weak were
trodden under foot, for the greatest heart that ever was, thus to
pour out itself in pleadings for sympathy, commiseration and
kindness. But the same Master said, "It is profitable for thee—it is
better for thee," to have some of thy pleasures cut off—thine
offending hand or eye; rather that, than to have thy whole being
whelmed in misery.
It is really necessary in this matter, not only to vindicate Christianity
as a reasonable religion, but to vindicate human nature to itself; to
save it from the abjectness of feeling that the necessity of self-help
is an ignoble necessity. Men say, "Yes, we are all selfish, we are all
bad;" and they sink into discouragement or apathy, under that view.
The conditions of true culture are attracting increased attention at
the present time; and it is natural that they should, when men's
minds are getting rid of theologic definitions and assumptions, and
are coming to take broad and manly views of the subject. I am
endeavoring to make my humble contribution to it; and with this
view, to show, in the first place, what part our very selfhood, both of
right and of necessity, has in it.
This principle lies in the very roots of our being; and it is developed
earliest in our nature. Before the love of right, of virtue, of truth,
appears this self-regard. Disinterestedness is of later growth. Infancy
comes into the world like a royal heir, and takes possession, as if the
world were made for itself alone. Itself is all it knows; it will by and
by, take a wider range. There is a natural process of improvement in
the very progress of life. "You will get better," says a dramatic
satirist,[7] "as you get older; all men do. They are worst in
childhood, improve in manhood, and get ready, in old age, for
another world. Youth with its beauty and grace, would seem
bestowed on us, for some such reason, as to make us partly
endurable, till we have time to become so of ourselves, without their
aid, when they leave us. The sweetest child we all smile on, for his
pleasant want of the whole world to break up, or suck in his mouth,
seeing no other good in it—would be roughly handled by that world's
inhabitants, if he retained those angelic, infantile desires, when he
has grown six feet high, black and bearded; but little by little, he
sees fit to forego claim after claim on the world, puts up with a less
and less share of its good as his proper portion, and when the
octogenarian asks barely for a sup of gruel or a fire of dry sticks,
and thanks you as for his full allowance and right in the common
good of life,—hoping nobody will murder him—he who began by
asking and expecting the whole world to bow down in worship to
him—why, I say, he is advanced far onward, very far, nearly out of
sight."
[7] Browning: A Soul's Tragedy, p. 250.

This advancement, thus springing out of the very experience of life,

I am yet to consider, and have it most at heart to consider. It is of
such priceless worth, it so embraces all that is noble in humanity,
that the importance of the opposite principle, is liable to be quite
overlooked. Selfishness, which is the excess of a just self-regard, is
the one form of all evil in the world. The world cries out upon it, and
heaps upon it every epithet, expressive of meanness, baseness and
guilt. And let it bear the branding scorn; but let us not fail to see,
though selfishness be the satirist's mark, and the philosopher's
reproach, and the theologian's argument, the real nature and value
of the principle, from which it proceeds.
Selfhood I have preferred to call it; self-love, be it, if you please. It is
that, which satire and false criticism have misconstrued, when they
have said that love of kindred, of friends, of country, of God himself,
is but self-love. The mistake arises from that primal and vital part
and participation which ourself has in every thing that we enjoy or
love or adore. This magnificent I—and I emphasize it, because all
meanness is thought to be concentred in that word—this mysterious
and magnificent I—this that one means, when he says I—we may
utter, but can never explain, nor fully express it. There are great
men in the world, whose lives are of far more importance than mine
—statesmen, commanders, kings—but I—no being can feel an
intenser interest in his individuality than I do in mine; no being can
be of more importance to himself than I am to myself; the very
poles of thought and being turn upon that slender line; that simple
unity, like the unit in figures, swells to infinite multiplication; that one
letter, that single stroke of pen or type, may be varied and
complicated, till it writes the history of the world. "I think, therefore
I am," said the philosopher; but the bare utterance of the word I,
yields a vaster inference. No animal ever knew what that word
means. It is some time before the little child learns to say, I. It says,
"Willy or Ellen wants this or that—will go here or there." What is
insanity, but the wreck of this personality? The victim loses himself.
And the morally insane, the prodigal, when he returns to reason and
virtue, comes to himself.
"A man's self," says Thackeray, "must always be serious to him,
under whatever mask or disguise or uniform he presents it to the
public." Yes, though it were as mime, harlequin, jester fool almost;
nor could there be a more deplorable or desperate condition for a
human being, than to account himself nothing, or nothing worth, or
worthy only to be the butt of universal scorn and contempt. From
this utter ruin, every man is protected by that mysterious and
momentous personality that dwells within him. We may be little in
comparison with the general mass of interests, little in comparison
with kingdoms, little in comparison with the swelling grandeur of
thrones and empires, little in comparison with the great orb that rolls
round the sun, and bears millions of such; but we are forever great
in the sense of individual destiny. This swells beyond kingships,
grandeurs, empires, worlds, to infinitude and eternity.
There is another element in this selfhood, to be considered, besides
its conscious importance, and that is free will—itself also unmoral,
but indispensable. For imagine a rational being to be placed in this
world, without free will. He can choose neither wrong nor right. He
has a conscience, but no freedom; no power to choose any thing. It
is, I think, an incongruous and impossible kind of existence; but
imagine it. Evils, troubles, temptations press against this being, and
he can do nothing; he cannot even will to resist. Could there be a
condition more horrible? No; man is a nobler and happier being than
this amounts to. Free will is put in him, on purpose to fight the great
battle against evil. He could not fight, if he could not will. He could
not choose the right, without being free to choose the wrong; for
choosing one path without being at liberty to take the other, would
be no choosing. Free will is to fight the battle. It is a glorious
prerogative. And man, I believe, is out of all proportion, happier,
with this power, all its aberrations included, than he would be
without it. I am glad for my part, that I am not passing through this
world, like a car on a railroad, or turning round like a wheel in a mill;
that I can go, this way or that, take one path or another; that I can
read, or write, or study, or labor, or do business; and that when the
great trial-hour, between right and wrong, comes, though I may
choose the wrong, yet that I can choose the right. What better
would there be for me than this—what better constitution of a
rational nature? I know of no better possible.
Selfhood, then—this interest in ourselves, being seen to be right,
and the play of free will which is a part of it desirable; let us turn
finally to the useful working of the principle. You may have said in
listening to me thus far, "What need of insisting so much upon self-
regard, which we all perfectly well understand?" I doubt whether it
is so well understood; and this must be my apology. We have seen
that the principle is native and necessary to us; let us look a
moment, at its utility.
I am put in charge of myself—of my life, first of all. So strong is the
impulse to keep and defend it, that self-preservation has been called
the first law of our being. But that argues an antecedent fact—self-
appreciation. Why preserve that which we value not? We defend
ourself, because we prize ourself. We defend our life, with the
instant rush of all our faculties to the rescue. "Very selfish," one may
say; "And why does a man care so much for himself; he isn't worth
it." He can't help it. He obeys the primal bond; he is a law to himself.
Is it not well? Man's life would perish in a thousand ways, if he did
not thus care for it. The great, universal and most effective
guardianship over human life everywhere, is—not government nor
law, not guns nor battlements, not sympathy, not society—but this
self-care.
I am put in charge of my own comfort, of my sustenance. I must
provide for it. And to provide for it, I must have property—house,
land, stores, means—something that must be my own, and not
another's. If I were an animal, I might find food and shelter in the
common storehouse of nature's bounty. But I have other wants; if I
have no provision for them that is my own; if some godless
International League, or Agrarian Law, could break down all the
rights of property, there would be an end to industry, to order, to
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