The 21st-century conversation between powerful Asian states faces a Freudian predicament: Do they talk as post-colonial states, or should they engage as competing empires like their past masters? Chinese Ambassador to India Sun Weidong recently noted that “both China and India are victims of imperialism and colonialism.” China, Sun asserted, should not be labeled as “expansionist.” Asianist Sheldon Pollock writes: “The theory of civilization needs historical scarcity; nationalism, by contrast, requires historical surplus. No civilization wants its origins searched, and every nation does.” Since China has been expounding a “civilizational theory” of the state, it disdains scrutiny, especially by the non-Chinese.
China pigeonholes its ancient civilization into a modern state. Contrarily, India sees itself as a postcolonial state replacing the British government. Too, while Beijing fights with India on the Himalayas, it fights with another country in the South China Sea that is building the state from the belly of colonialism—the Philippines. Does the dragon worry the elephant, which looks to make its first overseas sale of Indo-Russo BrahMos missiles to the carabao in Manila?
China’s imperial fixation has two prongs: land and oceanic boundaries. “Whether it is the South China Sea issue or China-India boundary question,” Sun said, “we have been committed to settling disputes through dialogue.” But the Vienna Convention on the Law of Treaties (VCLT) 1969 makes unilateral changes to boundary-establishing treaties illegal. It safeguards the UN Charter’s Article 2.4 on the prohibition of the “threat or use of force against territorial integrity” of states. The United Nations Convention on the Law of the Sea, the Unclos 1982, is however different. Beijing sat in the Unclos negotiations for nine years. Yet China argues for ousting Unclos in favor of “respect for historical facts.”
Sun argued that “the boundary question is a leftover from history, which is very complicated and sensitive,” needing a “mutually acceptable solution through equal consultation and peaceful negotiation.” However, “historical facts” betray smoking guns when the Chinese cite poetry. Judge Zhiguo Gao and Professor Bing Bing Jia, for example, said, “the term Nan Hai (Southern Sea) appeared in Shi Jing (The Classic of Poetry), a publication of 475–221 BC, and it has remained the standard appellation in Chinese for the South China Sea ever since.” Chinese scholars sheepishly acknowledge arranging private air trips to the South China Sea for Asian international lawyers.
Drafting the 1935 Constitution under American tutelage, the Filipino constitutionalists made sure to write into it the rectangular metes and bounds of the 1898 Treaty of Paris as integral to national territory. To the American commitment to grant independence to Filipinos, delegate Vicente Singson Encarnacion wanted to tie the integrity of the Philippine archipelago since the world only understood international law fastened to smoking imperial cannons.
The document by which Spain ceded the Philippines to the United States for $20 million was invoked by the colony in an anti-imperialist move. Filipinos carried this over to the post-independence 1973 and 1987 Constitutions, as well as to treaty negotiations for the Unclos.
New international realities would force Filipinos to reimagine history in the 21st century. The Philippine Senate’s 1991 decision to boot out America’s largest overseas military bases was followed by the steady rise of China as a New Great Power. In response, the Philippine Supreme Court, in Magallona v. Executive Secretary (2011), upheld the constitutionality of the new Baselines law according to Unclos rules. In 2014, the Philippines filed the landmark arbitral case against China. The 2016 Unclos ruling put paid to the aforementioned Chinese poetic license.
Delegate Encarnacion in 1935 couldn’t have foreseen the rise in 2016 of a pro-China Rodrigo Duterte. He might have anticipated China’s imperial design to reshape international law according to the “fuerza de los cañones,” however.
China’s Belt and Road initiative today faces resistance in Sri Lanka and many African countries, even as Asean states—Laos and Cambodia—have been remade on the lines of Macau’s casino economy. Irony dies a thousand deaths when one sees Beijing doing to Asian states what Japan did to China in Manchuria: Invest but also puppeteer governments. History repeats.
—————-
Prabhakar Singh is associate professor at Jindal Global Law School, India. Romel Regalado Bagares teaches at the Lyceum of the Philippines University and the San Sebastian Recoletos Manila Graduate School of Law LLM program.