The South China Sea has been a region of intense geopolitical tension in recent years, particularly between China and the Philippines, as the latter has intruded islands there.

In this context, scholar of international law Anthony Carty did a meticulous research and wrote a book titled The History and Sovereignty of the South China Sea, published last April, in which he provides academic evidence supporting China's claim to the South China Sea islands. Carty told Beijing Review he spent several decades gathering primary source materials from national archives, primarily from the United Kingdom and France, and a few from the U.S.

Carty is now an honorary visiting professor at Peking University. In an exclusive interview with Beijing Review, he discussed the historical, legal and geopolitical factors underpinning his conclusions. Excerpts follow:

History speaks

The official historical records of the foreign ministry legal departments of France and the United Kingdom show that they long held the position in the past that the Xisha and the Nansha islands in the South China Sea have been traditionally Chinese. The U.S. position, before World War II (1939-45), was neutral. But after World War II, for strategic reasons, the U.S. adopted the position that the Xisha and the Nansha islands should not fall into the hands of China.

In 1921, Aristide Briand, then Foreign Minister of France and the most distinguished French politician and diplomat of the interwar period, was of the opinion that the Xisha Islands belonged to China. However, in 1931, he was under pressure from the Indo-China Colonial Government to occupy the Xisha Islands.

He then put the matter in the hands of a jurisconsult, a special legal counsel for the foreign ministry, called Jules Basdevant, who later gave the same legal advice as Briand himself: The Xisha Islands were Chinese and that France had recognized this already.

In 1974, a British legal adviser wrote in a legal opinion of the Foreign, Commonwealth and Development Office (FCDO), a ministerial department of the UK Government, that the Nansha Islands were Chinese. The British then conducted an intensive historical examination of the situation of the Nansha Islands and their legal adviser produced a comprehensive, systematic report, considering all of the claims of different countries to the South China Sea islands. In his memorandum from the foreign ministry legal department to the cabinet, he concluded that the Chinese claim was the only credible one with respect to the Nansha Islands. The memorandum was approved by the British cabinet's Defense and Overseas Committee and so, from a legal perspective, the Nansha Islands were Chinese.

The American documents indicate something quite alarming and important, which is that they had no interest in who owns the South China Sea islands, with no legal consideration of the American position. They simply say that it is not in the U.S. strategic interest to allow China to occupy the South China Sea islands.

The Americans, very unhelpfully, say the South China Sea issue is a matter which should then be resolved by arbitration, while the British and the French, despite their archival history and institutional history, say they are neutral, and that they do not know who owns these islands. That matter should be resolved by an international tribunal.

So the main punchline of my book The History and Sovereignty of the South China Sea is to challenge the British and the French, and to say that they should not be supporting the American line, but instead should own up to their own. Legal advisers view that the islands are Chinese.

The U.S. idea of instigating a conflict through the Philippines has plenty of advantages of wearing down the Chinese, making them appear to be aggressive, isolating them from the European Union and making China's trading relations with other countries even more difficult.

How is territorial ownership determined?

There are two contesting views about the basis of title. The dominant view about the law of territory is that a state can, through the conduct of its state organs—which means, basically, its navy, army and political officers—make a formal claim to a territory, impose its flags and other signs, including insignia of statehood, on the territory, occupy it and exclude other countries. Then, that territory belongs to it, provided that the territory was not owned by anybody in the first place when the state came to occupy. That's the Western view of the law of territory.

But at the same time, the Chinese and many other non-Western countries consider that there is a different foundation for the claim to territory, which is that it has been the homeland of the citizens, who are the nationals of the country, so that the Xisha and the Nansha islands are part of China, because Chinese fishermen have been going there for centuries, treating these islands as part of their homeland and using them as a basis for fishing.

From an international law perspective, particularly from an academic standpoint, the most intriguing aspect of my research is the archives suggesting that both the British and the American views align with the idea that the rightful ownership of territory belongs to the state whose nationals treat it as their homeland. The 1974 memorandum from the FCDO legal office to the cabinet argued that the Nansha Islands were part of China, citing the long history of Chinese fishermen visiting the islands for hundreds of years.

Historical archives concerning the Nansha Islands reveal that, in the 19th century, there were legal discussions in both Britain and the U.S. regarding the basis for territorial claims. Notably, legal advisors, including an opinion from the Lord Chancellor of England, argued that the ownership of territory should be determined by the activities of the nationals of the country involved.

Europe holds a similar view

Through an accident of fate, I was at a meeting of the Academy of Military Sciences of China, in September 2024, and met with military attachés from the European Union. After I told them all about my book and my research, they invited me to discuss it with them. I discussed it in the compound of the Delegation of the European Union in China with about 20 military attachés. And it was well received.

On the key issue of the American motivation for engagement in these questions and the American attitudes to law, one of the European delegates said they had, on behalf of their government, conducted a yearlong internal research into all of the aspects of the South China Sea.

They had come to the same conclusion that I have expanded upon in my book and they confirmed that they were in complete agreement with everything that I had said.

I was informed afterward by the organizers of the meeting that the reaction had been positive. And at the end of the meeting, a number of delegates, defense attachés, came to me to take down the details of the book. This interaction marked a key development in my work.

At another seminar, in December 2024, where a then senior Filipino official expressed alarm that the Philippines was being manipulated into a war with China, very much the same as the Ukraine has been stimulated by America to get itself into a war with Russia, and that this would be disastrous for the Philippines. She was serious about the view that the American policy is deliberately pushing President Ferdinand Romualdez Marcos Jr. into a war with the Chinese.

The Western perspective on the law of territory and international law evolved within the context of imperialism, particularly when Western powers were acquiring and seizing territories in what was then known as the "non-Western" or "non-European" world. This was primarily an activity driven by state actors seizing land.

In contrast, the non-Western view holds that territory is intimately tied to the homeland of its people. This has led me to reconsider the entire approach to international law and order. The Global Civilizations Initiative presented by the Chinese Government in 2023, which emphasizes the pillars of intra-civilizational culture, offers a valuable framework for redefining international order. This includes integrating ancient Chinese culture alongside Greco-Roman traditions and more to reconstruct the foundation of international law.

I advocate for a new approach that reflects the dynamics of the BRICS countries and the Global South. It is undeniably a topic of considerable importance and relevance in the global context today.

Copyedited by G.W. Wilson

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