International opinion on the South China Sea Issue part II
China and the South China Sea ACC
1. CHINA AND THE SOUTH CHINA
SEA
EugeniaWitherow
ACC/IA E-Intern
Spring 2016
2. OUTLINE
Recent Engagements
The Legal Question: UNCLOS
Perspectives of China
Perspectives of U.S.Allies
The U.S. Position and Policy Options
3. RECENT ENGAGEMENTS
October 2015
U.S. Navy patrol sails within 12 nautical miles of islands
December 2015
U.S. B-52 Bomber flies within 2 miles of man-made
island
February 2016
China deploys surface-to-air missiles onWoody Island
7. U.S. POSITION AND POLICY OPTIONS
Policy Options
A Crisis Management System
Military-to-MilitaryCommunication
Establishment of a Multilateral
Framework
Future Relations
The South China Sea has become an important topic in today’s international relations. As China continues to take aggressive steps in the region, neighboring countries are increasingly concerned and the United States needs to maintain its strategic commitment. Among U.S. allies that are affected are the Philippines, Malaysia, Vietnam, and Taiwan. With each regional power making competing claims, tensions solidify in the region with forecastable flashpoints in that necessitate some level of U.S. planning and involvement.
Recent Engagements
The Legal Question: UNCLOS
Perspectives of China
Perspectives of U.S. Allies
The U.S. Position and Policy Options
In October of 2015, A U.S. Navy patrol sails within 12 nautical miles of Chinese-built islands to assert “freedom of navigation” in disputed waters in the South China Sea. China’s ambassador to the United States calls the patrol a “serious provocation, politically and militarily.”
In December of 2015, a U.S. B-52 bomber flew within two nautical miles of an artificial island built by China. In later days, the Pentagon apologized for the event.
In February of this year, Beijing deployed surface-to-air missiles on Woody Island. U.S. and regional officials warn that the deployment may signal a “militarization” of the maritime disputes, though China argues that the installation of missiles falls within its rights for defense on what it considers sovereign territory.
The South China Sea holds so much importance to China for many reasons. Controlling the many islands is partly a matter of controlling the wealth assumed to lay beneath the sea in the form of minerals, oil, and gas. Another part of China’s claims relates to increasing their sense of security by dominating the maritime approaches to its coast, and securing sea lanes to the Pacific. Additionally, enforcing historical claims plays a key role in China’s behavior in the South China Sea.
Robust industrial growth and increased domestic living standards have left China with a nearly insatiable thirst for energy. And oil has played an integral part in meeting China’s energy demands. In the long term, it is projected that China’s output of oil and petroleum will real 5.6 million barrels per day by 2040. China’s shale oil resources tend to be waxy and buried in deposits rich in clay, making them poor candidates for fracking techniques that are currently used to extract tight oils. Thus, there has been a shift to the South China Sea as an oil resource for China.
The Paracels are separate from the Spratlys, however, both the missile installations and the island building are part of an integrated Chinese effort to establish dominance over the South China Sea. Specifically, China is attempting to establish ownership of land areas that are encompassed by the nine-dash line. With its increasingly assertive behavior and expansive claims, China is able to establish its dominance and maintain sovereignty over the South China Sea region.
China’s maritime disputes span centuries. Claims to islands in the South China Sea began as early as 1894 during the Sino-Japanese War. The competing claims over the region have continued until today. Historical claims have been upheld by China, and have been the strong basis upon which it justifies its presence in the South China Sea today.
The United Nations Convention on the Law of the Sea (UNCLOS) established a legal framework to govern all uses of the oceans. All states bordering the South China Sea are parties to UNCLOS. Brunei, China, Malaysia, the Philippines, and Vietnam are all claimant states that have competing claims to territorial sovereignty over the islands in the South China Sea. Under UNCLOS, entitlement to maritime zones is only generated by land territory – including islands. The Convention contains rules on coastal baselines from which maritime zones are to be measured, breadth of the maritime zones that can be claimed, and rights and obligations of coastal states and other states in each of those zones. Additionally, the Convention contains provisions on settling disputes between parties over the interpretation or application of its provisions.
Malaysia, the Philippines, and Vietnam view the South China Sea through the lens of international law – especially UNCLOS. It is in their interests to bring their claims into conformity with UNCLOS and to base their claims exclusively on the Convention. In this context, it would be in the interests of Malaysia, the Philippines, and Vietnam to argue that all of the islands should be treated as falling within the exception in Article 121 (3) concerning rocks that cannot sustain human habitation or economic life of their own.
One of the issues raised is whether China is claiming sovereignty over geographic features that do not meet the definition of an island under UNCLOS. To some, China’s historic sovereignty claim is to all of the islands, rocks, reefs, and shoals in the four archipelagos, whether or not the features meet the definition of an island under international law. Another issue is the extent to which China’s claims are based on the nine-dash line. It is difficult to see how China can assert that it has rights to, and jurisdiction over, the natural resources in and under all the waters inside the nine-dash line. Additionally, the nature of Chinese maritime claims in the South China Sea have been ambiguous.
SOMETHING ELSE ABOUT THE LEGAL ASPECT
Aside from China, there are several countries laying competing claims to different parts of the South China Sea, including Philippines, Malaysia, Vietnam, and Taiwan. China, in attempts to cement its stance in the South China Sea, has built man-made islands atop seven reefs it controls in the Spratly archipelago. There is a growing concern among the countries in the region that China’s ambitious island-building could trigger confrontations or conflict. The U.S. military may be asked to assist its allies in the event of hostilities.
The Spratly Islands are presently claimed by both China and the Philippines. Currently, the Chinese are involved in dredging operations on five different reefs and have created some 2,900 acres of land in the Spratlys. Facing a drastic military imbalance, Manila based its protest to Chinese behavior in the Spratlys within a legal framework. Manila is drawing on the 2002 Declaration of Conduct in the South China Sea, however, Beijing is not a party to this document. The Philippines is also attempting to use international law to challenge Beijing. The Philippines has taken China to the Permanent Court of Arbitration at The Hague, arguing that China’s occupation of the Spratly islands violates the United Nations Convention on the Law of the Sea (UNCLOS). A ruling on the matter is expected in May. However, China refuses to participate and does not recognize the court’s jurisdiction. Additionally, the Philippines has called on the United States to become more involved. The U.S. military plans to increase its presence near the South China Sea by placing troops across five bases in the Philippines. Reportedly, the Pentagon is to make sizeable investments on construction projects to boost capacity at the five bases.
Malaysia has several interests in the South China Sea. First, Malaysia claims 11 maritime features in the Spratly Islands and occupies eight of them – the other three are occupied by Vietnam and Philippines. It is in Malaysia’s interest to preserve these claims for the purpose of prosperity and security. Secondly, Malaysia has an interest in maintaining a strong bilateral relationship with China beyond the South China Sea issue. Third, the South China Sea would ensure broader regional peace and stability, and an open commons for Malaysia. The final interest in the South China Sea for Malaysia is the preservation of global norms and international law. Malaysia is attempting to avoid conflict by being diplomatic and using regional norms and mechanisms to secure its interests. Malaysia has chosen this route because of limited capabilities and threats in the maritime domain. However, rising nationalism among the public may constrain government options and risk damaging a vital relationship. Malaysia has continued to work publicly and privately with other ASEAN states to narrow differences and forge a united front against coercion in the wake of rising tensions in the South China Sea. Privately, Malaysia insists that ASEAN speak with one voice against any acts that violate international law. Since 2012, there has been a growing call for a full implementation of the Declaration of Conduct on the South China Sea and a speedy conclusion of a legally binding Code of Conduct. Militarily, Malaysia is actively augmenting its capabilities at sea.
The Vietnamese government has made public declarations denouncing China’s claims to the South China Sea. There have been anti-China demonstrations in Hanoi and Ho Chi Minh City to protest Chinese activities in the South China Sea. Adding to Vietnamese-Chinese tensions is the formalization of closer relationship with other regional powers, such as Indonesia, and public calls for U.S. involvement in the region. Additionally, Vietnam has been calling on the United States to take action in the South China Sea dispute. Though Vietnam opposes China’s occupation of the Paracel Islands and parts of the Spratly archipelago, its responses in disputed areas are typically measured and come days after those of other countries involved.
Taiwan claims to have continuously occupied Taiping Island in the South China Sea for 60 years. Taiwan’s President Ma Ying-jeou asserts that Taiping Island “is entitled to an exclusive economic zone of 200 nautical miles,” which gives a country special rights over the seabed, and marine resources. However, Taiwan’s deputy foreign minister claims that they are opposed to militarization or military expansionism in the area. With competing claims from the other countries involved, the waters are largely contested. In response to the competing claims to the region, Taiwan has rejected claims by the Philippines, who have claimed that Taiping does not deserve to be called an island with reference to international maritime law. Tension continues among the regional powers as China continues to assert its dominance while the other countries struggle to maintain theirs.
The involvement of these regional is important to the United States, as it has military commitments to allies in the region such as Japan and the Philippines.
The United States has not taken a hard position on the territorial disputes, but has called for an end to land reclamation by China. The United States sails and flies its assets in the vicinity of the reclaimed islands, citing international law and freedom of movement. The U.S. Air Force will continue to fly daily missions over the South China Sea despite the buildup of Chinese surface-to-air missiles and fighter jets. Other nations have been urged to exercise their freedom to fly and sail in international airspace and waters claimed by China in the South China Sea. Though the United States lays no claims to the South China Sea, it argues for ensuring freedom of navigation and overflight, and non-use of force and coercion to assert claims. As such, there are several viable policy options.
The first is a crisis management system: increased use of the contested waters by China and its neighbors heightens the risk that miscommunication could trigger an unintended armed conflict. This is important to the United States, as it has military commitments to allies in the region such as Japan and the Philippines. To avoid such situations, policy experts recommend a crisis management system for the region. Open communication and cooperation in the region is ideal in the South China Sea dispute. This can be achieved through military-to-military communication and the establishment of a multilateral framework that will hold all those involved accountable.
The second is military to military communication: increased dialogue between military forces of the claimants involved could help reduce the risk of conflict escalation. Establishment of communication mechanisms such as military hotlines could connect leaders in the event of a crisis that could arise from miscommunications or miscalculations. Additionally, joint naval exercises, such as those proposed by Beijing in late 2015, could support greater military transparency and help develop shared rules.
A third option is the establishment of a multilateral framework: the development of a multilateral, binding code of conduct between China and the other claimants could ease territorial disputes. The 2002 Declaration on the Conduct of Parties in the South China Sea has already been agreed upon, but none have adhered to its provisions or trust-building proposals. Though it is uncertain that progress can be made this way, if successful, conflict over territory could be avoided.
The last and least desirable option is engaging in military action: if confrontation between Japan and China or the Philippines and China occurs, the United States would be obligated to consider military action under defense treaties. Under treaty obligations with Japan, the United States would have to defend Japan in the event of an armed attack. Under treaty obligations with the Philippines, both the United States and the Philippines would be held accountable for mutual support in the event of an armed attack. Military action is a last resort and is dependent on the scale and circumstances of the escalation of conflict.
Based on current Chinese activity in the region, further tension and conflict is likely in the South China Sea. China does not seem to intend on halting land reclamations or assertive actions, and the other countries involved seem intent on maintaining their position on the issue. Though China has made agreements with countries in the past, it does not seem to be upholding those agreements, and they are pursuing militarization of the region. China seems to be disregarding the agreements and discussions it has made with other countries in the region – posing a security dilemma in the region that is only getting started. Taking this into consideration, it is likely that the United States will need have a plan of action for a military response. This could involve establishing regular military presence in the region.
