The militarisation of the South China Sea is too dangerous for simplicities
The recent ruling by the UNCLOS Court of Arbitration in the Hague on the case brought by the Philippines has denied China’s claim to historic rights in the South China Sea. The implications could be serious and the ruling may turn out to be the turning point not only for the Asia Pacific but also in the wider world order.
China refused to engage in the arbitration process, and has declared that it will not ac-cept the ruling. Over the last two years, it has sought to back up its own claims, known as the 9 dash line, by constructing huge artificial islands on a number of rocks and reefs under its control, apparently turning them into potential military bases.
Meanwhile, the US, with much rhetoric about safeguarding international law - despite itself never having joined UNCLOS (the UN Convention on the Law of the Sea) - has launched a ‘freedom of navigation’ (FON) campaign with B52s and destroyers, backed by increasing numbers of aircraft carriers deployed around China’s s ‘protobases’ to protect the wider sea from threat.
The situation is shaping into a full-on confrontation between the two superpowers, running the ultimate risk of nuclear war. Even a minor clash in the South China Sea, which carries more than half the world’s merchant shipping, would cause serious damage not only the Chinese but to the global economy.
What is the basis of China’s historic rights claim? And why is a handful of uninhabitable rocks and reefs seen as such an important issue of national interest by the Chinese government? What is driving the militarisation in the South China Sea?
In order to shed light on the significance of the ruling, the discussion here sets out the broader historical and strategic context, on the one hand revealing the background to China’s claim within the agreements made by the major Allied powers at the end of World War 2, frozen by the Cold War, and on other, highlighting the destabilising impact of the US ‘Asian pivot’.
The aim is to argue that the ruling plays into the hands of the US military agenda.
What is at play in the South China Sea are two opposing visions of the future world order: a militarised order dominated by the US quest to maintain primacy against one defined by a more equitable power sharing with the rise of China, an option which contains the potential to bring to realisation the original UN promise of peace.
In arguing for the substance of China’s claim, the aim here is not to deny the Philippines’ claim - it is quite possible for claims to overlap; it is rather to question the wisdom of taking the case to international judgement as well as to question the legal basis of the court hearing itself. But most importantly the aim is to argue that the ruling plays into the hands of the US military agenda.
Is China the bully of the South China Sea?
The Spratlys consists of some 150 islets, rocks and coral reefs that are spread across a wide area of the South China Sea; their sovereignty is contested by China, Taiwan, Vietnam, the Philippines, Indonesia, Malaysia and Brunei. A race to occupy positions was sparked in the 1970s when multinational oil companies started explorations. Competition intensified following the conclusion of UNCLOS in 1982 with states asserting their rights to explore and exploit natural resources within exclusive economic zones (EEZs) of up to 200 nautical miles from their coasts.
At a glance China’s 9-dash line seems excessive to say the least, encompassing the greater part of the South China Sea hundreds of miles beyond its coast. But as a dashed rather than a continuous line, China’s claim is ambiguous. Nor is it unusual for countries to claim islands closer to their neighbour’s coasts than to their own - the UK and Jersey or Greece and Lesbos to mention just two other examples. Meanwhile, Vietnam’s claim to the Spratlys is almost as large as China’s, with at least 21 features under occupation, whilst the Philippines has nine, China seven, Malaysia five and Taiwan one.
In recent years, China has become more open to negotiation. In the 1990s it offered to “shelve disputes and seek joint development”, and in 2002 signed a Declaration of Conduct with ASEAN to promote a peaceful regional environment. China is opposed to the internationalisation of the disputes which runs the risks of outside interference; it insists instead on direct talks between the disputants concerned.
Chinas claim to overseas territories of less than 2 million square kilometres is dwarfed by those of the US and the UK
In fact China has resolved 12 out of 14 of its disputed land borders in this way on terms favourable to its neighbours and in 2000 reached an agreement with Vietnam on their maritime boundary in the Gulf of Tonkin based on historic and legal considerations, in which Vietnam has obtained 53 per cent and China 47 per cent. At the same time, China’s ‘dual track’ approach, also supports multilateral negotiations with ASEAN on maintaining regional stability, more a power-sharing arrangement than a strategy of dominance.
Meanwhile, China has been portrayed in the Western media as an aggressively expansionist power. As China expert, Peter Nolan has pointed out, its claim to overseas territories of less than 2 million square kilometres is dwarfed by those of the US - nearly 10 million square kilometers. - and the UK - 6 million sq. kms, thanks to their island territories derived from past colonial expansion, these countries claim huge expanses of EEZs, giving control over vast stretches of the Pacific, Indian and South Atlantic oceans.
The US, the UK and France also have military bases all over the world. For all the condemnation by the West heaped upon China’s comparatively modest activities in the South China Sea, not once are these aspects of its own global dominance questioned.
The court and its ruling: casting China as an international law violator
By taking its dispute with China over the Spratlys to arbitration, instead of following the more conciliatory approach chosen by other claimants, the Philippines has allowed the situation to be elevated to a new level. The case, backed by the US, has been seen as a wider test, according to a Financial Times editorial, of ‘whether or not China accepts the primacy of international law or only does so when it suits national interest’. But for China, intent on gaining equal status as a world power, the problem in accepting the primacy of international law is how also to get the US to comply, and more generally, how to get the lacunae in international governance that allow the US to stand above the law, addressed.
In a nutshell, the court of arbitration ruled that China has no claim to resources within the nine-dash line and that its pursuit of such claims is creating a dangerous environment. The Philippines’ government paid millions of dollars to a US legal team to pursue the case. The argument was highly technical and the court took three years to deliberate.
The court chose to ignore China’s opt-out and proceed, overriding its own premise of arbitration, fundamental to peaceful settlements of disputes.
UNCLOS has no remit to decide on questions of sovereign rights: only the states concerned can resolve their boundary disputes. When it was drawn up, the convention had to ensure, in accord with UN principles, that the sovereignty rights of coastal states were not compromised. To do so, it gave states the right to opt out of compulsory arbitration on sovereign disputes and maritime delimitation. More than 30 states took advantage of this, including China and the UK.
The court however chose to ignore China’s opt-out and proceed, overriding its own premise of arbitration, fundamental to peaceful settlements of disputes. Its validity has been questioned not only by China but also by numbers of international legal specialists. When it came to the ruling itself, despite the limits to the scope of UNCLOS, the judges contrarily both denied China’s claim whilst at the same time insisting that it was not determining ownership. China has declared the court, the arbitration proceedings as ‘null and void’.
China’s historic rights: a matter of national interest
The history of the South China Sea is integrally intertwined with the history of China and Chinese migration. Chinese fishermen and traders have crisscrossed the waters for centuries. Today not only are the majority of Singaporeans of Chinese heritage, so too are around 25 per cent of Malaysia’s population and between 18 and 25 per cent of the Philippines’ population. Vietnam and Indonesia also have substantial Chinese populations. This diaspora has in recent years reconnected more closely with its land of origin, and in doing so has helped in the process of regional integration.
However, China’s historical claim, as that of Taiwan, is also based on much more recent history, namely the WW2 Cairo (1943) and the Potsdam (1945) declarations. These agreed that Japan be stripped of all the islands in the Pacific which it had seized or occupied since the beginning of the First World War in 1914; and that all the territories Japan had stolen from China such as Manchuria, Formosa, and the Pescadores, be restored.
It was only after the CPC came to power in 1949, that the claims of China were questioned.
Although neither declaration explicitly mentioned the Spratlys by name, the identification of Formosa (Taiwan) was the significant point, since it is from there that Japan administered the islands after 1939. When the Republic of China reclaimed sovereignty over the South China Sea in 1947, it was with the US in full knowledge. It was only after the CPC came to power in 1949, that these claims were questioned. But since when do territorial boundaries change with changes of government?
The Cairo and Potsdam agreements consolidated the worldwide anti-fascist alliance as a union of four major powers - the US, the USSR, Britain and now China. They marked the acceptance of China as equal partner in the world, so finally ending its semi-colonial status. They framed the post WW2 peace in the Far East, providing the foundation for China’s permanent membership of the UN Security Council. The restoration of Taiwan and the South China Sea territories were the fruits of China’s eight year long resistance against Japanese aggression, won at the cost of some 20 million lives. Together with Russia’s claim to the four northern Kurile islands, and the adoption of Japan’s peace constitution, they were to form an iron cage within which to contain Japanese militarism.
The UNCLOS ruling reaffirms the Cold War order
The agreements were overturned at the beginning of the Cold War by the 1951 San Francisco Treaty of Peace with Japan, organised under the stewardship of the US and the UK. Neither the PRC nor RoC were invited despite being amongst the main victims of the Japanese aggression. The treaty covered Japan’s renunciation of sovereignty over the South China Sea islands, but said nothing explicitly about returning the islands to China, leaving the question of ownership open. Nor were the Kuriles mentioned. The USSR, which refused to sign the Treaty, spoke out against these violations of sovereign rights, criticising the Treaty’s failure to provide the necessary guarantees against Japanese militarism.
In parallel with the proceedings, China’s foreign minister, Zhou Enlai, issued a statement denouncing the treaty as illegal and claiming all the South China Sea islands by name as parts of China. The concern of both the Soviet Union and China was that Japan was to be transformed into an American military base, drawing it into a US-led military coalition directed against them. Now, sixty five years on, the UNCLOS ruling on the Philippines’ case in effect discounts the WW2 Far East agreements and reaffirms the Cold War order
The militarisation of the South China Sea and the US Asian pivot
There is no doubt that China is challenging US primacy in the South China Sea. Its massive increase in spending on a blue water navy together with its island-building within reach of the Philippines’ and Vietnamese coastlines, cannot but raise alarm amongst its smaller South East Asian neighbours. However, China has insisted that its island construction is mainly intended for non-military purposes. Meanwhile, Dennis Blair, former commander of the US Pacific fleet, has played down the strategic importance of China’s construction work, reckoning that even with substantial reclamation, the artificial islands are far too small for significant military units: “China does not have the capability to assert sea and air control in the seas around the islands…” In his view, ‘the situation is quite stable.’
It is of course the US that has overwhelming military superiority in the Asia Pacific for decades, and since 2009, is increasing its militarisation under the Asian pivot. It is redeploying t60 per cent of its naval assets to the region, including aircraft carriers and their battle groups, whilst strengthening its military alliances with Japan, the Philippines, Australia, and Singapore. US arms sales to Taiwan have been resumed.
US concern is less with freedom of navigation than its ability to militarily control the South China Sea so as to blockade China’s energy supplies
The recent US agreement with the South Korean government on the deployment of the THAAD missile defence system now marks a qualitatively new phase in regional destabilisation. The US has restored its position to project power deep into the Asian mainland. Provocative targeted military exercises, conducted jointly with the Philippines, Japan and South Korea take place regularly whilst FON operations have also been launched.
US concern is less with freedom of navigation than its ability to militarily control the South China Sea so as to blockade China’s energy supplies from the Middle East through the Malacca Strait “choke point”. Control of the South China Sea is crucial for the Pentagon’s ’AirSea Battle’ (ASB) a plan for all-or-nothing war based on surprise which leaves little scope for diplomacy.
More a ‘concept’ than a full blown strategy as yet, ASB would involving extensive bombing raids across mainland China, risking destruction of dozens of major cities, in order to eliminate its military facilities. As FT journalist, Geoff Dyer puts it, demanding nothing less than complete capitulation, ASB is a recipe for rapid conflict esca-lation, setting odds of a nuclear crisis soaring. In response, China’s own military build-up has essentially focussed on strengthening defensive capacity. Again according to Den-nis Blair, ‘Ninety per cent of their time is spent thinking about new and interesting ways to sink our ships and shoot down our planes’.
The US claims its right to conduct naval activity around the world without hindrance is in accord with UNCLOS. But the legalities here are a quagmire. Does ’freedom of navigation’ mean the same as ‘freedom of innocent passage’? China, India, Brazil and a number of other states, understand UNCLOS provisions to apply only to commercial not to military vessels. and they require prior notification of the passage of warships through their territorial seas.
That is why the US has a problem with China’s 9 dash line claim since China might assert its right, as it sees it, to keep US spy planes, aircraft carriers and their battle groups out of the South China Sea. What the arbitration court ruling does is to give US FON operations a much stronger legal backing.
Conclusion: the scale of the moment
A few years ago, Australian defence analyst, Hugh White, in his book, The China Choice, argued that Sino-US relations were reaching a strategic turning point: China’s rise was not just some future prospect, it had become a reality, facing the US with a choice either to seek to preserve its own primacy at the cost of confrontation with a now formidable adversary or to agree to share power on an equal basis in a new negotiated international order minimising the danger of war. Has the court of arbitration ruling now brought Sino-US relations to that turning point?
On the one hand, a new ‘coalition of the willing’ is beginning to coalesce around the US FON operations, with the UK and France, both Pacific powers, expressing interest in conducting South China Sea missions since these can now be justified as defending international law 2017 may see competition between China and a US-led coalition escalating through a series of military skirmishes, sanctions, and obstructions.
For China and ASEAN it is of increasing importance to find peaceful ways to manage the South China Sea
However, the extent of the damage to China’s reputation as a world power remains to be seen. ASEAN is divided and Russia and India, at their trilateral summit with China held just prior to the court decision, together called for the dispute to be addressed ‘through negotiations and agreements between the parties concerned’, in apparent support of China’s position. Since the ruling, there has been some speculation about renewed bi-lateral talks between China and the unpredictable new president of the Philippines, Duterte. For China and ASEAN it is of increasing importance to find peaceful ways to manage the South China Sea as their plans for the cooperative development of the martime Silk Road advance.
Now faced with China’s unceasing rise, the US, using the Philippines’ case as its proxy, demands China’s commitment to a rules-based order defined on US terms. Taken alongside Abe’s efforts to remove Japan’s constitutional peace clause so as to permit collective defence, the challenge to China’s historic rights in the South China Sea can be seen more clearly as part of a wider reshaping of the post-war order in the Far East. Together they cement in place the Cold War San Francisco Treaty arrangements just as US milita-risation under ‘Asian pivot’ creates a ‘bloc of aggression’ as predicted by the USSR and China at that time.
Jenny Clegg is a UK China scholar and prominent member of the Campaign for Nuclear Disarmament. She was a senior lecturer in Asia Pacific Studies at the University of Central Lancashire but is retired
now. Publications by her include: China’s Global Strategy, towards a multipolar world (Pluto Press, 2009), and Fu Manchu and the ‘Yellow Peril, the making of a racist myth (Trentham Books, 1994).
Professor Clegg is a board member of the Society for Anglo-Chinese Understanding (SACU) and serves on the editorial board of the World Review of Political Economy.
In pushing at the boundaries of the sovereign rights of states, the UNCLOS court ruling plays into US efforts to reframe the UN as an instrument of its own domination following the opposition on the Security Council to the Iraq war. It would seem that the UN’s founding principles of non-interventionism and sovereign equality, the guarantees against war and militarism, are being put ever further at risk.
On the other side of the globe, amidst a wave of xenophobia, the UK Brexit vote signals a fracturing of the Trans-Atlantic order with the UK, itself a considerable global military power. possibly hitching closer to the US, and Europe left weakened. Despite Cold War division and frequent and longstanding regional conflicts, the post war world order was one which maintained the peace between the major powers and stifled fascism. But if this status quo is now beginning to fragment, the question is what might take its place?
The current situation is giving way progressively to war and militarism as the US pursues its military-based primacy. In that case Russia and China might form a closer military alliance. Far better to take White’s second option of negotiations on power-sharing, in the direction of multipolarity. To give the UN a chance to realise its original promise of peace based on equal partnership, the UNCLOS court’s ruling should be set aside.
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