How did we go from assessments like “Beijing is a seriously overrated power,” and “China is a second-rate military power…in no position to matter much as a source of international political power” (“Does China Matter?” Foreign Affairs, September/October 1999) to the view that “the vast South China Sea has become one of the world’s most dangerous hotspots” (“Limits of Law in the South China Sea,” Brookings, 2016) in which, according to Admiral Philip Davidson, “China is now capable of controlling the South China Sea in all scenarios short of war with the United States”?
Vice President Mike Pence was of the opinion in October 2018 that “Beijing is using its power like never before,” referring to a Chinese naval vessel that came within 45 yards of the USS Decatur as the United States conducted freedom of navigation operations in the South China Sea.
And how did we arrive at the point where, according to author Robert D. Kaplan, China treats the South China Sea as “China’s Caribbean”? China, the Philippines, Malaysia, Brunei, Taiwan, and Vietnam all maintain claims in the South China Sea, but China has been using its power and influence to overwhelm its neighbors’ rights and claims.
The source of the present situation lies in the interpretation of rules of the law of the sea related to the freedom of navigation and the ability of states to claim sovereign rights over wide expanses of what has traditionally been delineated as open seas.
Open or Closed Seas
The age-old conflict between the 17th century’s Hugo Grotius and the 20th century’s John Selden – whether the high seas should be open (“Mare Liberum”) or closed (“Mare Clausum”) – namely, whether freedom of the high seas should be the rule or the exception, has morphed into a conflict between China and its neighbors in the South China Sea. This dispute has wide and grave implications for regional and global stability and is a litmus test for whether rules of international law and the global order, long advocated by the United States, will be followed or rejected.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) codified rules of the law of the sea and also stemmed the tendency of coastal states to make extensive claims of sovereignty to areas of the territorial sea (such as the claims of Chile, Ecuador and Peru to 200-mile territorial waters)
UNCLOS, among other provisions, established the maximum extension of the territorial sea at 12 miles, created a 200-mile wide Exclusive Economic Zone (EEZ) in which the coastal state would exercise the right to explore, exploit, conserve, and manage the resources in the water column and under the seabed (UNCLOS, Article 56). It also set rules for how to establish the outer limit of the continental shelf.
While one provision of China’s domestic law guaranteed high seas freedoms for foreign flagged ships within its EEZ, another provision stated that the law does not apply to “historic rights enjoyed by the People’s Republic of China.” China claimed sovereignty over virtually the entire South China Sea based on its historic rights related to what it called the “Nine-Dash” or “U-Shaped line,” which produced an enormous area of sovereign control claimed by China as its economic exclusion zone. China took the position that foreign military vessels do not enjoy freedom of navigation in its extensive exclusion zone. The United States vehemently opposed China’s position.
Rocks, Not Islands
In a dispute between the Philippines and China in the Permanent Court of Arbitration (PCA), the Philippines sought a ruling on the effect of UNCLOS on China’s claims to historic rights within its so-called “Nine-Dash line.” The tribunal held that there was no legal basis for China to claim historic rights to resources within the sea areas falling within China’s “Nine-Dash line.” The tribunal found that the historic rights China claimed over its economic exclusion zone were extinguished when China acceded to UNCLOS. However, China’s Vice Foreign Minister, Liu Zhenmin, described the PCA decision as “a piece of waste paper,” and urged other countries not to “take the opportunity to threaten China.”
Under UNCLOS, islands have the same jurisdictional regime (territorial sea, economic exclusion zone and continental shelf) as other landmasses. The exception is what the UNCLOS terms “rocks” which are emergent lands that are unable to support human habitation or economic activity (Article 121). While a rock has a territorial sea, it has no economic zone, so what the Chinese have done is to militarize and place landfill to create islands which have a territorial sea and an EEZ. The Permanent Court of Arbitration declared that all the islands in the South China Sea (on which China-based its extensive sovereignty claims) are not islands, but rocks. Therefore, they can not be used as a territorial basis for advancing China’s economic exclusion zones.
However, the confrontation between the Philippines and China fizzled out, and Rodrigo Duterte, the Philippines’ leader, needing China’s support and bilateral economic cooperation, in effect ended the dispute with China. Duterte took the view that the South China Sea seems to be “back to normal.”
Freedom of Navigation
The United States has reacted to China’s actions by engaging in freedom of navigation operations. Washington supports the principle of freedom of the seas guaranteed to all nations in international law. Ironically, while America has never ratified UNCLOS, it abides by UNCLOS’ rules, while China, which approved UNCLOS, has failed to abide by its requirements and rules. In the U.S. view, coastal states have the right to regulate economic activities in their exclusion zones, but do not have the right to regulate foreign military activities in them.
This issue has the potential to disrupt U.S. military operations not only in the South China Sea but also around the world. China’s position is that coastal states have the right to regulate the activities of foreign military vessels in their exclusive economic zone. It is the U.S. position that while UNCLOS established economic exclusion zones as a feature of international law, giving coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZ’s, it does not give coastal states the right to regulate foreign military activities beyond their 12-nautical mile territorial waters.
America supports the principle of freedom of the seas guaranteed to all nations in international law. China has used coast guard ships and maritime militia more than its navy (the People’s Liberation Army Navy) in maritime sovereignty operations to avoid precipitating an escalation of the conflict. China has also sought to “territorialize” the airspace over its economic exclusion zone. Obviously, the situation in the South China Sea is fraught with danger.
Commentator Oriana Skylar Mastro, writing in Foreign Affairs early this year, says “China has now entered the beginning stages of a direct challenge to the U.S.-led order… China is no longer content to play second fiddle to the United States and seeks to directly challenge its position in the Indo-Pacific region.”
The United States, in response to China, will continue its freedom of navigation operations. The State Department has indicated that “U.S. policy since 1983 provides that the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention. It will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.” Said Vice President Pence when speaking about the USS Decatur incident: “Despite … reckless harassment [by China], the United States Navy will continue to fly, sail, and operate wherever international law allows and our national interests demand. We will not be intimidated and we will not stand down.”
However, it may be that China has gone too far and may precipitate a backlash against its actions in the South China Sea. Former Australian Prime Minister Malcolm Turnbull was quoted as saying, “China’s recent behavior – particularly its aggressive military posture in the contested South China Sea – has been counterproductive. They’ve pushed their neighbors, including Vietnam, closer and closer in the U.S. security orbit.” The U.S. has been supportive of Vietnam in its dispute with China over oil and gas rights.
The great 19th century commentator on sea power, Alfred Thayer Mahan, included as one of the elements of sea power “character of government.” According to Mahan, “A government in full accord with the natural bias of its people would most successfully advance its growth in every respect; and, in the matter of sea power, the most brilliant successes have followed where there has been intelligent direction by a government fully imbued with the spirit of the people and conscious of its true general bent.” One might argue, based on Mahan’s formulation, that China’s authoritarian government, with a leader elected for life, might be held back from successfully projecting its sea power.
Admiral James Stavridis, USN (Ret.) in his book Sea Power: The History and Geopolitics of the World’s Oceans, states that the South China Sea “will be a maritime hinge upon which huge geopolitical issues will ultimately swing. The United States must consider it a crucial zone of maritime activity in the twenty-first century. If we cede it to China – something China deeply desires and would consider inevitable – our global strategy will fail. While we should not push ourselves into a cold war with China, we need to be mindful of the importance of international law.”
Stavridis recommends that the United States maintain a network of bases and access agreements around the littoral of the South China Sea at the same time as maintaining an open and constructive relationship with China where we can (the current trade dispute may make that more difficult). This is good advice.
At a Crossroads
When asked recently if America misjudged the speed at which Xi Jinping would begin to project China’s power around the world, General Joseph Dunford, Chairman of the Joint Chiefs of Staff, said that the United States, “made a judgment… that economic integration with China would lead to political integration” and “we thought that we could integrate China in a way that they would comply with the world order as we know it. As it turns out what they’ve tried to do is leverage the rules when they’re to its advantage and ignore the rules when it’s not to their advantage” (Council on Foreign Relations, September, 2019).
We are literally at a crossroads where an ascendant China has challenged the rules-based order which has always included freedom of navigation. The United States is hopefully not on the brink of a new cold war with China, but rather at a point of effective engagement with a rising China to prevent conflict, resolve outstanding disputes and protect and promote the rules-based international order so long supported by the United States.
Mark Meirowitz, Ph.D., is Associate Professor of Humanities at SUNY Maritime College in New York.