Debby Jain*
Abstract
China’s historical claim over South China Sea as opposed to legitimate claims of its maritime adversaries has opened a Pandora’s Box of infinite problems. Escalating over years, the row has come to witness participation from western countries, notably, the US, leading to a struggle for political hegemony between US-China. While China prefers to cut the Gordian knot via bilateral negotiations only with claimants, where it can exploit their economic vulnerability, the US has been a roadblock. China’s growing military presence has come to raise eyebrows world over, but its tussle with US has given the conundrum a new colour altogether. While ASEAN struggles with China on a Code of Conduct, the fact that no organization at present or in contemplation exhibits the power to enforce any commitments made by China seems to defeat the very purpose of venturing into the endeavour. China’s patronizing its adversaries by offering economic handouts has also dampened ASEAN’s efforts to achieve peaceful resolution and has made more difficult the overtures to secure maritime rights to rightful owners. In light of these, what could be better than US stepping into the morass to counter China?
Keywords- nine-dash line, ASEAN, South China Sea, CoC, UNCLOS, Act-East
Dispute over the South China Sea: The History and the Aftermath
The infamous South China Sea row between, claimants of the Association of Southeast Asian Nations (ASEAN) and the United States on one hand and People’s Republic of China on the other, has escalated in leaps and bounds over the past few years. An attempt at understanding its trajectory witnesses the transition of China’s disinterest in the disputed waters for the first half of the 20th century into its renewed, assertive and a rather formidable position amidst competing claims in the South China Sea. Marked by an array of territorial and maritime disputes, this resource-rich artery has become the battleground for a silent war between the US and China in the recent years, two global superpowers, meanwhile reducing negotiations with ASEAN claimants – the primary stakeholders – to a talk shop. Despite promises of self-restraint from inhabiting uninhabited features and abstinence from counterproductive activities vide the Declaration of Conduct (DoC) entered in 2002, China’s recent approach has been of salami-slicing, duplicitously taking out one feature after another from under the control and jurisdiction of other claimants in the garb of economic handouts.
As is known, China’s claim is based on the ‘nine-dash line’, which snakes around the edges of the South China Sea, bringing under its expanse even features and waters attributable under maritime law to other stakeholders. While rival countries, like the Philippines, have wrangled over territories, China has conveniently adopted economic clouting to exploit the lack of infrastructure and immense price sensitivity of these countries. It is difficult to wade through the partisan claims over this 3.5 million square km of area which is experiencing rapid depletion of reserves and suffering threats of poaching in the wake of the impending powerplay between political superpowers. These disputes are further entrenched by rampant nationalism, as each claimant attaches symbolic value to the South China Sea islands that far exceeds their objective material wealth.
After refusing to accept Permanent Court of Arbitration’s (PCA) ruling in Philippines v. China[1], China has offered to hold bilateral negotiations only with the claimants as means of arriving at a peaceful settlement of the disputes. It has been launching a charm offensive more often than not and has been successful in dividing the ASEAN countries, rendering the present Code of Conduct (CoC) negotiations between itself and the ASEAN fruitless as the Association is bound by the consensus principle. Even a single member country among the ASEAN can bring negotiations to a stalemate and China has been using this to its advantage by conducting land reclamation operations and military exercises in the South China Sea while causing ASEAN countries to engage in an inter-state rivalry lest the 3-year time period for negotiations doesn’t run out. For instance, Beijing has reclaimed 7 islands on reefs under its control in the Spratlys and strengthened its claim over natural resources and trade routes in the region by militarizing. Although other claimants have reclaimed land in the past, China reclaimed 3200 acres of new land in late 2015, more than “all other claimants combined over the history of their claims,” according to the U.S. Department of Defence. A ‘tuquoque’ defence escapes its grasp since China, unlike the others, has exercised low-intensity coercion in an attempt to advance its claims in the South China Sea and is using an opportunistically-timed progression of intensifying steps to increase effective control over disputed areas while avoiding escalation to military conflict.[2] In 2018, China pursued militarization operations by placing anti-ship cruise missiles and long range surface-to-air missiles on its outposts in Spratlys, despite Chinese President Xi Jinping promising in 2015 that “China does not intend to pursue militarization” of the Spratly Islands.[3]
The China-Philippines Imbroglio
China seems to have a chip on every stakeholder’s shoulder due to its economic leverage over them. The Philippines can be said to have borne the brunt of it despite the PCA ruling which was prematurely celebrated as ‘David’s victory over Goliath’. The warm ties between Philippines President Rodrigo Duterte and Chinese President Xi Jinping have stoked division within the Philippines government. There has been widespread disparity in the statements made by the military officials and the government of Philippines. In June this year, a Chinese vessel was reported to have collided with a Philippine trawler near the islands further to the south, leaving 22 Filipino fishermen stranded at sea.[4] President Rodrigo Duterte, however, downgraded it as a “little maritime incident”, despite officials calling it a ramming.[5] The alleged ramming emerged as the biggest test yet of President Duterte’s pivot to China, as his non condemnation of the incident sparked criticism. He earned severe mistrust and was even accused of parroting the Chinese lines. To make matters worse, a statement was released that President Duterte had had a binding verbal agreement with President Jinping to allow Chinese vessels to operate within the Exclusive Economic Zone of Philippines. This had a cataclysmic impact on his political image as the very economic interests he had been swearing to protect so far were seen as having been put at stake by his surrender of Philippines’ fishing grounds and the constitutional mandate to protect Philippine sovereignty was said to have been breached. President Duterte’s necessary concession to China had been intended to portray a conciliatory stand to maintain peace and open more avenues for economic growth. However, he narrowly escaped impeachment due to his strong majority in the Congress.
Speculations are rife that he is selling the country’s sovereignty for economic gain. In the face of this adversity, the President has however maintained that Philippines badly needs investment to build infrastructure and to alleviate poverty. But this investment has been seen by the elite in Philippines as a path to corruption and coercion by the larger power. President Duterte, however, is of the belief that his country is “being used as bait” while the issue has taken fervour of a geopolitical rivalry between the U.S. and China and that people would die if he challenged China outright. He has made his stance clear in a very emphatic manner, “Let America declare the war. Let them assemble all their armaments there in South China Sea. Fire the first shot and I’ll be glad to do the next.”[6] The situation however is still dubious given his previous departure from a promise to secure economic interests of Philippines. Recent statement made by the President is reflective of this wariness and concern, “If I want to prohibit Chinese fishing, how do I enforce my desire? …Even America won’t do so out of fear of confrontation there.[7]
The US-China Power Play: A Struggle for Political Hegemony?
The dispute can fairly be said to be of Rashomon nature given the little to zero presence of sufficient historical evidence substantiating any one claimant’s case. The United States had earlier distanced itself from the territorial dispute for record, but has stepped into the morass by conducting freedom of navigation operations and over flights in the disputed waters and airspace irking China in the process and causing it to perceive a cost unlike before. Even though the US has been accused of acting in furtherance of pure propaganda, it would not be wrong to say its presence has become a necessary evil, even if it threatens a cold war. Stance of the US is clearer than ever in this regard, as was reiterated by U.S. Ambassador Sung Kim when he remarked that Washington would be obliged to defend the Philippines under 1951 treaty if ships owned or operated by the state come under armed attack in the South China Sea.[8] Acting US Secretary of Defence, Patrick M. Shanahan, too, was vocal about the US policy at the Shangri-La dialogue,
China can and should have a cooperative relationship with the rest of the region too, but behaviour that erodes other nations’ sovereignty and sows distrust of China’s intentions must end. Until it does, we stand against a myopic, narrow and parochial view of the future, and we stand for a free and open order that has benefited us all, including China.[9]
The entire dispute has, of late, become tinged by US-China power play and the outcome of the struggle for diplomacy stands to determine the future course of both the region and the conflict. Yet, China can fairly be said to be facing imminent threat from involvement of the US in the South China Sea, despite the US not being an affected party. Its Ambassador to the UK, Liu Xiaoming recently stated that, “China will not tolerate US military muscle-flexing off our shores.”[10] In anticipation of unpleasant discord, it has even expanded bomber training over the past few months, probably for US strikes. Also a case in point is the increased devouring of funds on defence by Beijing which has exceeded $190 bn in 2017 in China’s pursuit to expand its global influence and show of might.[11]
Chinese Policy in the South China Sea: Steps and Impacts
China presently claims about 80% of the South China Sea as ‘territorial waters and all of the islands in which each island has its own EEZ and continental shelf’[12] and is bent on exploiting it to its advantage. This has wide ramifications for the energy and fishing reserves in the region which have depleted at unprecedented rates. More than 50% of the fishing vessels in the world are estimated to operate in this Sea. The undaunted capitalization has resulted in a catastrophic 70-95% drop in the total fish stocks since the 1950s and a decline of 66-75% in the catch rates has been witnessed over the last two decades, according to Centre for Strategic and International Studies.[13] Regardless, extending control in a non conventional manner, Chinese militia of well-equipped vessels, disguised as fishing vessels, patrol, survey, resupply, and sometimes provoke fishermen in the disputed waters.
The scramble for these diminutive islands and features has been spurred time and again by China despite its attempt at bilateral negotiations with affected countries since 2012. According to Philippines’ officials, 275 Chinese ships have been sighted near the Philippines-occupied Thitu Island alone in early 2019.[14] It has effectively been following an anti-West policy, portraying itself as the victim of US domination to attract sympathy from the ASEAN countries. As a result, its passive aggressive tactics have changed the status quo drastically, while there is no dearth of government officials who believe there are positive developments in the region. For time immemorial, there has been an ongoing game of chicken between the affected parties, each expecting the other to give way. However, owing to China’s size and leverage over other countries, it has been able to circumvent fruitful negotiations each time by finding one ASEAN country to hold gun over. This has led to speculations of ASEAN negotiating an “ASEAN minus X” principle as per Article 21 of its Charter[15] when Vietnam will hold the chair in 2020. Though the application of this principle is limited to matters of economic commitments, there is history of resorting to the principle in matters of counterterrorism and like security issues. In light of Chinese militia sinking boats of its maritime adversaries, there is growing tension that there is a move from Chinese acts of covert nature to bold military actions in an attempt to show might. Consequently, the regional governments have felt the need to push back and secure their own maritime rights over fisheries and energy resources (approximately 290 trillion cubic feet of natural gas and 11 billion barrels of oil)[16] which have been of paramount economic and cultural importance to them and constitute a tenth of the global catch.
The relative inaction between Vietnam and China has also been punctuated with violence yet again as Chinese and Vietnamese coastguard vessels have recently become involved in a week-long confrontation over a reef in the South China Sea, risking the biggest clash between the two nations in five years. The stand-off may trigger a wave of anti-China sentiment in Vietnam not seen since 2014, when the China National Offshore Oil Corporation moved oil platform Hai Yang Shi You 981 into waters near the Paracels.[17] Their relations stooped to the lowest ebb in May 2014 but the anti-China wave and attacks on 14 factories owned by Chinese in the south-eastern Binh Duong province led China to withdraw a month before the schedule.[18] The relations have since been peaceful, but further course of diplomatic relationship between the two countries may suffer from the consequences brought about by this stand-off.
Non-Claimant Views and Allegiances: Shifts and Recent Developments
China’s seaborne invasion has raised concerns for other parties as well. In light of China’s show of military might, Japan beefed up its security measures when its Cabinet approved plan to adapt ships to create aircraft carriers and buy 45 new stealth fighters.[19] Concern was also shown by Australia’s Defence Minister for China’s aggressive tactics in the South China Sea in the following words, “any intimidation is ‘potentially dangerous’ after ‘unsafe encounter’ with US destroyer.”[20] In January 2015, Indian Prime Minister Narendra Modi and the then US President Barack Obama issued a Joint Strategic Vision for the Asia-Pacific and the Indian Ocean Region,[21] which affirmed the importance of ensuring freedom of navigation and over flight through the region, especially through the South China Sea, and called upon parties to avoid threat or use of force and to resolve disputes according to universally recognised principles of international law, notably the UNCLOS[22]. Over time, India’s strategic ties with countries in the region, especially with Malaysia, Indonesia, Singapore, Vietnam and the Philippines have also strengthened under Prime Minister Modi’s “Act-East” Policy. After the PCA ruling, however, India relatively distanced itself from any direct deliberation over the matter. Since then, it has only conducted coordinated patrols, as a matter of policy, with a few maritime neighbours. India continues to have high stakes in the matter given the trade linkage between the Indian Ocean and the South China Sea. Its experience in the matter is no less either, aware as it is of China’s ‘sovereignty is ours’ approach ever since it claimed Arunachal Pradesh as South Tibet.
Uncertainty: The Fertile Ground of Endless Possibilities
As is evident, the South China Sea issues have the potential to ignite a broader regional conflagration which may extend far West. An estimated $3.37 trillion (2016) worth of trade is known to take place through the South China Sea each year.[23] Accordingly, the stakes are excruciatingly high for China, the ASEAN countries, the Indo-Pacific countries and countries far west. China’s incessant stress on bilateral negotiations has been to evade extra-regional intervention which it strictly abhors. Despite the same, ASEAN has been striving to arrive at a legally binding Code of Conduct (CoC) with China within a span of three years beginning 2019 to no avail so far. A major pothole has been China’s ability to seek diplomatic support in exchange for economic benefits to its maritime adversaries. It is pertinent therefore that the ASEAN countries demand not just economic benefit, but security too, from China and refrain from achieving benefits of their own at the cost of another country. Without consensus, they surface as weak negotiators at the mercy of China and their scepticism of the United States for historical reasons leaves them no major ally. It is not far-fetched to say that this inter-state division of opinion among the ASEAN countries will leave only crumbs for the claimants lest they have to choose between the US and China. It will also be naïve to expect that China would shy away from needling its adversaries with démarches anytime soon. Even the ‘Single Draft Negotiating Text’, announced by the foreign ministers of ASEAN and China in August this year, is a living document which has numerous references to established principles of international law but does not explicitly mention duty of states to comply with awards issued under arbitration proceedings as per UNCLOS.[24] Given the circumstances, if a legally binding CoC is somehow brought into being, it would not make the situation any better as no judicial body exists or is known to come into existence upon coming into force of the CoC which would exhibit the power to make China CoC-compliant. Despite having ratified the UNCLOS, China walked away from the PCA ruling in 2016 without batting an eye. Who is to say it will cede to the provisions of the CoC if they are opposed to its own interests, as they sure will be?
*Student of Law Centre-1, Faculty of Law, Delhi University
This essay was adjudicated as the 2nd runner up of 1st NLUO-Ganesh & Co. National Maritime Law Essay Writing Competition, 2019.
[1]PCA Case No. 2013-19, ICGJ 495 (PCA: 2016)
[2]Assessment on U.S. Defence Implications of China’s Expanding Global Access, Dec. 2018, https://media.defense.gov/2019/Jan/14/2002079292/-1/-1/1/EXPANDING-GLOBAL-ACCESS-REPORT-FINAL.PDF
[3] Office of the Secretary of Defence, Annual Report to Congress, Military and Security Developments Involving the People’s Republic of China 2019, May 2, 2019, https://media.defense.gov/2019/May/02/2002127082/-1/-1/1/2019_CHINA_MILITARY_POWER_REPORT.pdf
[4] JASON GUTIERREZ, The New York Times, Philippines Accuses Chinese Vessel Of Sinking Fishing Boat In Disputed Waters, Jun. 12, 2019, https://www.nytimes.com/2019/06/12/world/asia/philippines-china-fishing-boat.html
[5] JAKE MAXWELL WATTS, The Wall Street Journal, Hit-and-Run Collision in South China Sea Tests Philippines’ Beijing Ties, https://www.wsj.com/articles/hit-and-run-collision-in-disputed-waters-tests-philippines-china-ties-11562941674
[6] CNN PHILIPPINES STAFF, CNN Philippines, Duterte: ‘Let America declare the war’ on China, Updated Jul. 6, 2019, https://www.cnnphilippines.com/news/2019/7/6/duterte-us-declare-war-china.html
[7] ANDREO COLANZO, Bloomberg, Duterte in U-turn Says China Can’t Fish Philippines Waters, Jun. 27, 2019, https://www.bloomberg.com/news/articles/2019-06-27/duterte-backpedals-on-chinese-fishing-in-philippine-waters
[8] WATTS, supra note 5
[9] PATRICK M. SHANAHAN, Acting Secretary of Defence, United States, First Plenary Speech, The IISS Shangri-La Dialogue 2019, https://www.iiss.org/events/shangri-la-dialogue/shangri-la-dialogue-2019
[10] LIU XIAOMING, The Guardian, China will not tolerate US military muscle-flexing off our shores, Jun. 27, 2018, https://www.theguardian.com/commentisfree/2018/jun/27/china-not-tolerate-trump-military-muscle-south-china-sea
[11] REUTERS, The Guardian, China is ‘rapidly’ expanding bomber training, probably for US strikes-Pentagon, Aug. 17, 2018, https://www.theguardian.com/world/2018/aug/17/pentagon-claims-china-military-likely-training-strikes-us-targets
[12] FLORIAN DUPUY, PIERRE-MARIE DUPUY, A Legal Analysis of China’s Historic Rights Claim in the South China Sea, The American Journal of International Law, 107 (1): 124-141, Jan. 2013, doi: 10.5305/amerjintelaw.107.1.0124
[13] SOUTH CHINA EXPERT WORKING GROUP, Asia Maritime Transparency Initiative, A Blueprint For Fisheries Management And Environmental Cooperation In The South China Sea, Sep. 13, 2017, https://amti.csis.org/coc-blueprint-fisheries-environment/
[14] GREGORY B. POLING, Introduction, Illuminating the South China Sea’s Dark Fishing Fleets, https://ocean.csis.org/spotlights/illuminating-the-south-china-seas-dark-fishing-fleets/#spotlight__intro
[15] Charter of the Association of Southeast Asian Nations, Singapore, 20 November 2007, Association of Southeast Asian Nations, https://asean.org/storage/2012/05/The-ASEAN-Charter-26th-Reprint.pdf
[16] Id.
[17] Wikipedia, Hai Yang Shi You 981 standoff, https://en.wikipedia.org/wiki/Hai_Yang_Shi_You_981_standoff
[18] TEDDY NG, South China Morning Post, China blocking Malaysian and Vietnamese oil and gas vessels shows greater willingness to intimidate, says think tank, Jul. 17, 2019, https://www.scmp.com/news/china/diplomacy/article/3018951/china-blocking-malaysian-and-vietnamese-oil-and-gas-vessels
[19] TIM KELLY, Thomson Reuters, Japan to buy more U.S.-made stealth jets, radar to counter China, Russia, Dec. 18, 2018, https://www.reuters.com/article/us-japan-defence/japan-to-buy-more-u-s-made-stealth-jets-radar-to-counter-china-russia-idUSKBN1OH05Z
[20] GARETH HUTCHENS, The Guardian, Australia concerned over China’s ‘aggressive tactics’ in South China Sea, Oct. 3, 2018, https://www.theguardian.com/world/2018/oct/03/australia-concerned-over-chinas-aggressive-tactics-in-south-china-sea
[21] Office of the Press Secretary, THE WHITE HOUSE, President Barack Obama, U.S.-India Joint Strategic Vision for the Asia-Pacific and Indian Ocean Region, Jan. 25, 2015, https://obamawhitehouse.archives.gov/the-press-office/2015/01/25/us-india-joint-strategic-vision-asia-pacific-and-indian-ocean-region
[22]Convention on the Law of the Sea, 1833 U.N.T.S. 397 (December 10, 1982), https://www.refworld.org/docid/3dd8fd1b4.html
[23] CHINA POWER TEAM, Centre for Strategic and International Studies, How much trade transits the South China Sea?, Aug. 2, 2017, https://chinapower.csis.org/much-trade-transits-south-china-sea/
[24] CARL THAYER, The Diplomat, A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct, Aug. 3, 2018, https://thediplomat.com/2018/08/a-closer-look-at-the-asean-china-single-draft-south-china-sea-code-of-conduct/
Centre for Maritime Law 