‘The Rule of Law Says That the Islands are Chinese’

Global Times interviews Anthony Carty,  published April 6, 2024

GT Editor’s Note:

The recent tensions between China and the Philippines have been flared up by the Philippines to make illegal claims over South China Sea islands and maritime rights. Nonetheless, a book written by Anthony Carty (Carty), an Irish professor of international law and now a visiting professor at the Institute of Humanities and Social Sciences of Peking University and a professor at the School of Law of Beijing Institute of Technology, shows China’s indisputable sovereignty in the South China Sea. In an interview with the Global Times (GT) reporter Wang Wenwen, Professor Carty explained how the official British and French archives he had dug into back China’s claims and how he thought of the current situation in the South China Sea. The book, The History and Sovereignty of South China Sea, has been released in Chinese language so far and the English version will be released soon by the Beijing-headquartered New Star Press.

GT: You became interested in China-related academic research in 2009. Why?

Carty: I came from the University of Aberdeen, where I was chair professor of public law, to Hong Kong in April 2009. That was when the South China Sea issue was warming up with the claims being put up by the Philippines and Vietnam to vast maritime economic zones in the South China Sea. As I understand, they were put up to do this by the Americans. And the Chinese were responding to that.

So I decided that when I would go back to Britain in the summer, I would go and check the British national archives to see whether there was any material on this. I thought it would be at least marginally of interest and something to do. To my surprise, I found that there was a substantial dossier dealing directly with the question of the ownership of the Nansha Islands, of which the Philippines calls Spratly Islands. Equally to my surprise, it said that the Spratly Islands [the Nansha Islands] were by default Chinese.

Then I still wasn’t that interested in it, but colleagues in Hong Kong have close links with Chinese colleagues and I had been sent to Beijing to present myself to Tsinghua University and finally Tsinghua University brought this to the attention of the China Institute for Marine Affairs, which later invited me to take part in an international conference on the South China Sea question. After I presented some British archival material, Judge Gao Zhiguo invited me to explore these archives more exhaustively. At that time, there was criticism from the European colleagues who were attending the conference, and they said that the French were key players. So I turned to look at the French archives.

That’s how it all started. It mushroomed into a major undertaking from just being a casual way of taking an interest in what I was reading in the newspapers.

GT: After you dug into these official archives which show that China’s position in the South China Sea is reasonable, you wrote the book, The History and Sovereignty of South China Sea. How do these archives back China’s maritime claims?

The cover of The History and Sovereignty of South China Sea.

Carty: They are complex archives going from the 1880s until the late 1970s. The key archives are probably the French, the British are observing the French and the Chinese. The archives demonstrate, taken as a whole, that it is the view of the British and French legal experts that as a matter of the international law territory, which is a rather arcane subject, the Xisha Islands and the Nansha Islands are Chinese territory. That is to say, the Chinese claims and activities on the islands far exceeded in intensity of those of any other country during the period, except for the French, whose own lawyers challenged the actions of France, which, in any case, subsequently withdrew.

From the classical Western international law point of view, this is very significant. The most important French foreign minister of the inter-war period Aristide Briand, who was foreign minister most of the time between 1918 and his death in 1932, took the view that the Xisha Islands were clearly Chinese. And he consulted with the independent Jurisconsult of the Foreign Ministry, Jules Basdevant, subsequently a French judge on the International Court of Justice. The latter wrote that according to the Island of Palmas case, the Xisha Islands were recognized as Chinese. Subsequently, French legal advice was that France never completed an effective occupation of the Spratlys [the Nansha Islands], and they abandoned them completely in 1956. In the 1930s they recognized that these Spratlys [the Nansha Islands] had always been home to Chinese fisherman from Hainan Island and Guangdong. There had never been any Vietnamese or Philippine connection and French interference had only been in its own name and not that of Vietnam. It is the British who then drew a decisive conclusion, from all the French and British records available, that the Chinese were the owners of the Spratlys [the Nansha Islands], a legal position certified as part of British Cabinet records in 1974.

At the present time, the position of Britain and France, who are basically junior allies of the United States, is that they are agnostic as to the ownership of the Nansha Islands and Xisha Islands. Publicly, the British and the French have stated that they are agnostic as to who owns the South China Sea islands, whether it is Brunei, Malaysia, Vietnam and the Philippines, or China itself. They say that China should be prepared to submit the dispute to arbitration. China’s insistence that these islands are Chinese is apparently then viewed by them as an act of what is called “assertiveness” and even aggression. China is portrayed as a “revisionist” power with hegemonic ambitions.

The point of this research is to demonstrate that this is not part of the legal historical memory of the French and the British and that they should really support the Chinese. Basically, I am adopting a rigorously legal position that it’s not up to China to do whatever is necessary diplomatically to calm the nerves of its neighbors. It’s up to all of these countries to accept the rule of law, and the rule of law says that the islands are Chinese. There is a very important document in the French archives, which is a letter from the French ambassador to Beijing in 1974, written to the French prime minister at the time, saying all of this unrest in the South China Sea is due to French interference in the region. It is further due, in his view, to the Americans inciting the Vietnamese to make claims for the purpose of embarrassing China. And there is a record in the mid-1950s in the US National Archive, in which a US under secretary of state says that, while the Filipinos have no claim to the Spratlys [the Nansha Islands], it is in the US interest to encourage them to make a claim anyway to keep Communist China out of the area.

So, there will be peace when people accept China’s legal rights, not when China simply calms down these countries by making whatever concessions they demand.

GT: How do you see the South China Sea disputes being exploited by external players based on their strategic considerations rather than purely legal perspectives?

Carty: There is absolutely no doubt that this whole dispute is entirely about the Americans trying to make life difficult for the Chinese. The aggression that is building up against China and the scapegoating of China by the whole of the so-called democratic community of the world is appalling.

Anthony Carty. Photo: Wang Wenwen/GT

GT: What role can your book play in the peaceful resolution of the South China Sea disputes and the formation of the Code of Conduct?

Carty: The short answer to that, for me as an international lawyer, is that if we abide by the rule of law and rules for acquisition of territory, then countries like France and Britain will have to stop supporting the American line that China is being “unreasonable” and “assertive,” and so on and so forth in the South China Sea. The American position has always been a function of what it thinks are its own strategic interests, regardless of law.

The Code of Conduct is a diplomatic matter for China. For China, this is an issue of historical justice, but once that is accepted by other countries, particularly by Malaysia, Vietnam and the Philippines, then it’s open to China to proceed whatever way it thinks is in the best interests of its relations with these countries. It’s not a purely legal question.

GT: Tensions between China and the Philippines have escalated since last year due to the South China Sea issue. How do you comment on the handling of the disputes and the overall policy in the South China Sea by China and the Philippines respectively?

Carty: That for me is not really a legal question. The legal question is that the Philippines has no legal claim to the Spratly Islands [the Nansha Islands]. The Filipino claim to the Nansha Islands is absurd. This is outside my field, but it’s obvious that the United States has been interfering with and shaping Filipino policies since they conquered the Philippines and wiped out the Filipino independence movement in 1900. The American conduct toward the Philippines has been for a very long time and very problematic, but the Philippines itself is then a divided society. There are pro-Chinese elements and pro-American elements at the moment which are the richer elements of Filipino society. They are in the political ascendancy at the moment.

One has to recognize that this is fundamentally a strategic struggle between China and America. I think that in the long term, America will lose. And the best strategy for China is just to keep cool. My advice would be to stress the legal position and to make sure that is very widely known. The argument about China being an “assertive and aggressive” power and a “revisionist” power is simply slanderous abuse. And it’s very worrying because it definitely implies a willingness on the part of the West to use force against China. It represents a complete collapse of any kind of civilized diplomacy.

*Featured Image: A Chinese coast guard ship uses a water cannon to expel a Philippine coast guard ship near the South China Sea during the Philippines’illegal re-supply mission on March 5, 2024. Photo: VCG

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