The legal situation regarding China’s claimed features in the South China Sea is messy. The claims overlap with other countries that have also undertaken extensive reclamation works on their occupied features, including building airstrips and adding military fortifications. But the US only appears concerned with what China has done. The US thus risks giving the impression that it has moved away from a position of neutrality in the sovereignty disputes.
Then there are issues associated with the status of the features before reclamation works were undertaken. Some were previously submerged at high tide, in which case — under international law — they are only entitled to a 500-metre safety zone around them. Others may have had a few rocks or sandbanks above water at high tide, which means they are entitled to a 12-nautical-mile territorial sea with no right of overflight above them. Some land features could even be large enough to justify wider claims to maritime zones. The situation is further complicated by the fact that some of China’s occupied features are in close proximity to features occupied by other countries.
The status of particular features in the South China Sea has long been a vexed issue for geographers. In undertaking FON operations, the US is going to have make decisions on a case-by-case basis about what type of challenge is being made around each feature. Is it exercising a right of innocent passage through a possible territorial sea, or is it flying or sailing close by a feature that is only entitled to a 500-metre safety zone? A clear judgment is possible with some features but uncertainty surrounds others.
Further problems arise if the US decides to exercise innocent passage around features that may have a legitimate territorial sea. Patrolling into another country’s territorial sea, loitering in the territorial sea, or diverting from the normal passage route between points A and B just to demonstrate a right of passage, do not constitute innocent passage. The UN Convention on the Law of the Sea (UNCLOS) makes clear that innocent passage should be ‘continuous and expeditious’, and should not involve ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State’.
FON operations are inherently dangerous. They may lead to close encounters both between warships and between aircraft. Before embarking on more assertive activities, the US must be confident that its ship and aircraft captains are capable of exercising the high standards of seamanship and airmanship required. But this may not be the case. Even in the best run organisations, adrenalin can start flowing with a close encounter and misjudgements occur without top-level skills and experience. Manoeuvring a warship safely near to other vessels requires different skills to those needed for operating its weapons and systems.
Then there’s the issue that just like on the road, a good driver can still be involved in an accident caused by a bad driver. The US has often criticised Chinese vessels for lacking professionalism and failing to follow the international rules for preventing collisions. But the US Navy has experienced several accidents in recent years as a consequence of its own navigational errors and poor seamanship.
In the air, an error of judgment by one pilot can lead to a collision and both aircraft crashing. But while the US and China have agreed to a supplementary agreement relating to rules of behaviour for managing encounters between surface ships, they have not yet come to a similar agreement for air encounters. This is unfortunate as air encounters carry the highest operational risks.
Politically, while more aggressive US actions might play to the American domestic audience, there is no certainty that regional audiences will be as supportive. After initial reports of more assertive FON operations by the US, a spokesman for the Vietnamese foreign ministry urged all parties concerned to respect the sovereignty and jurisdiction of coastal states in accordance with international law and not to further complicate the status quo. Both the US and China may have been his target. With its own excessive claims to maritime jurisdiction under international law, Vietnam is often also the target of American FON operations.
As we have seen in the past with the littoral countries’ reaction to the Regional Maritime Security Initiative in the Malacca Strait, and regional implementation of the Proliferation Security Initiative, the US can fail to appreciate regional sensitivities to maritime sovereignty and law of the sea issues. More assertive FON operations could similarly be regarded as an overbearing unilateral assertion of rights by Washington. The US is particularly vulnerable to these criticisms because it is not a party to UNCLOS.
The US may be giving insufficient consideration to the impact of more assertive FON operations in the South China Sea on regional stability. By provoking China in such an aggressive and unnecessary manner, it can only make the current situation worse. For all these reasons, I hope that Washington will tread carefully on the issue of implementing a more aggressive FON program in the South China Sea. It was encouraging in this regard that US Secretary of Defense Ash Carter took a less confrontational tone in his address to the recently concluded Shangri-la Dialogue in Singapore.
Sam Bateman is an adviser to the Maritime Security Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University.
” The claims overlap with other countries that have also undertaken extensive reclamation works on their occupied features, including building airstrips and adding military fortifications. But the US only appears concerned with what China has done.”. An attempt at a straw man fallacy as if no one noticed in 18 months, China’s reclamation already multiplied 2,000 times and larger than all existing landmasses combined – how can other’s reclamation works be mentioned as “extensive” in that context since their occupations either 1970’s (most) or 1950″s (few)? Are other airstrips currently, capable of accommodating advanced fighter jets like the Chinese, no doubt built? As far as “adding military fortifications”? Does Sam Bateman really think China is going to station a couple of dozens soldiers to match Filipino occupiers in wooden houses or are they as a routine, always outran those hundreds of Vietnamese who could justify their presence based on the 1988’s 78 deaths and Chinese invasion of 7 rocks, reefs, atolls? This therefore, is not a matter of mistaken apple-and-orange comparison but, a blatant distortion of fact!
Sam Bateman also is not ashamed in presenting complex UNCLOS legal terms for different features, knowing full well that all 7 Chinese superficial islands were originally, rocks with 4 submersible and 3 above high tide. None qualifies for anything but 500-meters safety zone which no American ship would physically, get near! Like the US Secretary of Defense said the FON tests of flyovers and patrol ships will steer clear of 12 zones, so what is the problem?
Speaking of Vietnamese reaction to US assertive FON move: rest assured that it was what they have been hoping for and their Foreign Ministry’s statement simply, used the code words “all parties” to mean China and “further complicate the status quo” to mean “Chinese territorial expansionist aggressions”. Elementary clue for all international analysts, including Sam Bateman: Vietnam always shows China respect in verbal language and readiness in body language – has not changed in 4,000 years!
Finally, when was the last time this author write about Chinese actions in the South China Sea with words like “By provoking China in such an aggressive and unnecessary manner” or “Washington will tread carefully on the issue of implementing a more aggressive FON program”… or is that a done deal that China owns these waters and could do what it pleases?
In 2013, a US congressional advisory panel warned of China’s military buildup. They predicted by 2020 China could possess the largest fleet of modern submarine and combatant ships in the western Pacific. China has already surpassed the US to become the world’s largest economy. Within 15 years it is predicted to be larger by a factor of 50% ($36 trillion c/f $25 trillion). This would be less problematic if China (as highlighted by author John Garnaut) were not a Leninist-totalitarian state, and there was some consistency between its claims of a “peaceful rise” and world-first ‘development of anti-ship ballistic missiles, anti-satellite missiles and other platforms for projecting military power far from its shores’. China has the openly-declared intention of bumping the USA from the Asian-Pacific region and dominating the South China Sea region. Why? Firstly, it is an oil and gas rich region. Secondly, half the world’s commercial shipping traverses the sea. He who controls the shipping lanes controls the world. Thirdly, the USA effectively blocks the Chinese totalitarian regime from coercing its Asian Pacific neighbours (Australia, Indonesia, Philipines, Malaysia, Vietnam, etc) into tributary status, as well as blocking them from a Tibet-style takeover of Taiwan and Japan. Take the USA out of the region and China will transform the region into a series of tributary states, as well as starve Taiwan and Japan of the resources they require to defend themselves. Thus, China has commenced building military bases on strategic (and disputed) reefs located 1000kms south of the Chinese mainland. They ignore international law and human rights norms. No moderating political opposition is permitted. China’s clear objective is to incrementally establish totalitarian/authoritarian control (that is, to conquer) nationally, then regionally (‘Sun Zi: ‘so in war, the way is to avoid what is strong and to strike at what is weak’), and finally, globally. That is, world domination. The USA will have to defend itself from this inevitable challenge, either on its doorstep, or in the Pacific. The Chinese will employ the tactics espoused by Sun Zi (Art of War) hundreds of years ago. That is, stealth, deception, and in particular, incrementally subduing the enemy without having to fight – at least until victory is certain. Clearly, winning the economic battle against a politically-gridlocked, and increasingly isolationist USA forms part of this strategy. Removing the USA from the Pacific is the next essential step in this process. Major General Zhang Zhaozhong (military theorist, PLA) describes this strategy as the ‘cabbage leaf’ policy – layering one territorial assertion over another. First might be fisherman, then maritime surveillance, navy, military bases bases, naval and air exclusion zones, and so on. There is no end to these coercive excursions into the South China sea other than world domination. Premier Xi Jinping is already exhorting Chinese-born technologists residing in western nations to ‘contribute to the motherland’ and ‘build a pro-socialist coalition outside the country.’ The evidence is crystal clear. At a time when the Chinese Premier is is increasingly assuming the power of Emperor, the risk is that they will adhere to their maxim “In the Heaven there can only be one Sun; on Earth there can only be one Emperor”. This is the very real challenge faced by a pluralist West. Sam Bateman has failed to grasp the big picture because of his pre-occupation with high tides/low tides, submerged rocks, exposed rocks and maritime law. Obviously, China is not interested in international legalities, and will only respond to that which it completely understands and respects – opposing force. Sadly, until totalitarianism is eradicated from the Chinese political scene, Chinese back-downs (when they inevitably occur) will be strategic, and temporary not permanent.
The author wrote:
“But the US only appears concerned with what China has done. The US thus risks giving the impression that it has moved away from a position of neutrality in the sovereignty disputes.”
However, the fact remains that the US has been, is, and will be neutral on the sovereignty disputes, and rightly so.
Perhaps (a) the fact that China’s reclamation has over taken other claimants’ by 10 times and is still steaming ahead, (b) the fact that China’s capability to project power and seize control far surpasses other claimants’ might be valid reason for the US’s concerns?
Furthermore, the author’s statement “But the US only appears concerned with what China has done” is contrary to fact. In reality, the US has asked Vietnam to halt its reclamation activities.
Carter: “There should be no mistake: the United States will fly, sail, and operate wherever international law allows, as U.S. forces do all around the world. America, alongside its allies and partners in the regional architecture, will not be deterred from exercising these rights – the rights of all nations. After all, turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit.”
Once again USG is making an incorrect interpretation here. The overflight regime for low tide elevations (features that are submerged at high tide only) and submerged features is not necessarily identical. China’s artificial islands are built on LTE’s, NOT submerged features. Incorrectly alluding to them as an ‘underwater rock’ and then insisting on right of overflight is both provocative and legally dubious.
On top of this Carter wants countries to suspend land reclamations – i.e. suspend their treaty-enabled rights when the U.S. hasn’t even acceded to the treaty! What’s going on here ….
What’s going on here ….
What’s going on here has nothing to do with UNCLOS. The US isonly looking for a strawman, for whatever a strawman will do, such as the late notorious one of holding a tube with identified powder inside suspiciously looking like washing powder then calling it “the smoking gun” of WMD inside the UN chamber.
It all depends on how many dissemblers, hyprocrites, sheep, and willing fools, oh sorry, I meant allies, this strawman will gather using the 99 per cent of MSM the US controls.
In reality, the US wants to militarily control SCS itself just for the thrill of cutting off China’s main energy transport channel to threaten and/or blackmail China whenever it wants. No sensible person will actually believe what Carter said – essentially meaning that Chinese navy will disrupt “commercial freedom of innocent passage” of made-in-China containerships between their own Chinese ports and the rest of the world – that’s what more than 80 per cent of SCS’s daily traffic is all about.
It is becoming increasingly difficult for countries around the world to turn a blind eye to China’s unlawful grabbing of territories in the South China Sea. It was much easier to ignore it back when it was just uninhabitable reefs and shoals within the Philippines’ Exclusive Economic Zones that were being unilaterally annexed by a China.
No one cared. Not even the United States wanted to get involved in something that seemed so trivial, despite being a Philippine defense treaty ally. Only now is it becoming apparent that something much bigger is going on.
Just to put things in perspective, China agreed to and became a signatory of the United Nations Convention on the Law of the Sea or UNCLOS way back in 1982.
UNCLOS defines a country’s territorial waters as a belt of coastal waters extending at most 12 nautical miles (22.2 km; 13.8 mi) from the baseline (usually the mean low-water mark) of a coastal state. The territorial sea is regarded as the sovereign territory of the state, although foreign ships (both military and civilian) are allowed innocent passage through it; this sovereignty also extends to the airspace over and seabed below.
UNCOS also prescribes Exclusive Economic Zones (EEZ) so that each coastal state has special (read “exclusive”) rights regarding the exploration and use of marine resources, including energy production from water and wind. The EEZ stretches from the baseline out to 200 nautical miles from its coast.
UNCLOS also carefully defines what can be defined as true “islands” as opposed to “artificially reclaimed islands,””reefs” and “shoals” and what, if any rights to sovereignty or exclusivity they may be entitled to.
Artificial islands are under the jurisdiction of the nearest coastal state if within its 200-nautical mile EEZ. Artificial islands are not considered islands for purposes of having their own territorial waters or exclusive economic zones, and only the coastal state may authorize their construction within their own EEZs.
In short, no country legitimately claim “indisputable sovereignty” over submerged, uninhabited sea features across international waters from their coastline. Also, any artificial/man-made islands are not entitled to sovereignty or EEZ and technically belong to the nation in whose EEZ they have been constructed in–regardless of who constructed them.
China agreed to and signed off on all of this in 1982. But ever since China became the 2nd biggest economy in the world a few short years ago, it has decided that none of this really applied to them, all the while warning other countries to stay out China’s UNCLOS-defined EEZs.
Today, China is using its newly found economic and military muscle to foist “indisputable sovereignty” claims throughout the East and Southeast China Seas based on a mythical 9-Dash Line map that was never legally or historical recognized or officially heard of, by the international community.
For centuries Spain, the UK, Portugal, France and the Netherlands occupied, colonized, drew and redrew the maps of East and Southeast Asia without ever coming across a hint that there was such a thing as China’s “historical” 9-Dash line.
When the French claimed and occupied the Spratly islands (which China now claims have long been theirs) in the 1930s, the Chinese even had to consult American coastal and geodetic surveys in Manila to find out where the Spratlys actually were. China did not even know that the Spratlys were different from the Paracels.
Even as late as the 1980s, US aircrews from Clark and Subic routinely used Scarborough Shoal (which China now claims to have been theirs since time immemorial) for live bombing practice. Yet not once did China even bring up its supposed “historical” ownership, based on any 9-Dash line map.
Even just last year, German Chancellor Angela Merkel graciously gave a gift to PRC strongman Xi Jinping. It was an 1735 map of China at its historical peak. Absolutely nowhere on the authentic historical map can any 9-Dash line be seen. The genuine historical map however, very clearly showed that the southernmost point of China being Hainan Island–not the Paracels, not the Spratlys, not Fiery Cross Reef nor Johnson Reef nor Mischief Reef nor Scarborough Shoal.
It is now very hard to ignore the speed and scale of China’s land reclamation on disputed reefs and other features, as it races against a combination of upcoming eventualities that can stop China from illegally claiming international waters, as if they were its own internal lake:
The International Tribunal for the Laws of the Sea (ITLOS) will soon give its official ruling on the legality, or should we say, the illegality of China’s 9-Dash Line faerie tale map.
The Chinese economy is no longer what it once was and it is becoming apparent that it will no longer be able to sustain the Chinese Communist Party’s and the PLA’s dream of being able overtake the United States anytime soon. (Of course China’s propagandists will stoutly claim that this unprecedented slowing down of the Chinese economy are all according to their plan of a “New Normal.” Right. Tell that to all the Chinese millionaires scurrying to find safe haven elsewhere around the world.)
The upcoming US elections will surely see a new American President that is less likely to cower before an increasingly bellicose and intransigent China.
And to top it all off, the PRC knows that Taiwan’s next elected officials will not be as pro-Beijing as the Kuomintang’s Ma Ying-jeoh. The KMT suffered a serious drubbing at the polls in the local 2014 elections due to the KMTs unpopular kowtowing to Beijing. What if Taiwan’s new leaders were to somehow appear more “independent”-minded than Ma?
Beijing already once mistakenly sensed that Taiwan was moving towards independence in 1995-96. A furious PLA then conducted a barrage of live artillery and missile firing tests and amphibous assault exercises to intimidate the Taiwanese people. In response, the U.S. sent the USS Nimitz and her carrier battle group through the Taiwan Strait, cooling off the situation albeit embarrasingly for the PRC. The PRC have sworn to never again be humiliated in such a fashion when it next decides to throw a tantrum over Taiwan. This has resulted in the PRC adopting Anti-Acess and Area-Denial strategies to keep US forces at bay, the next time Beijing wants to go “ballistic.” This includes the completion of artificial islands throughout the South China Sea, whether by hook or by crook.
In short, China’s period of Strategic Opportunity is coming to an ignonimous end.
The thought that Beijing is actually employing “Salami Slicing” and “Cabbage” Strategies in order to gain control of “First,” Second,” and “Third” Island Chains radiating all the way to the Hawaiian Islands to compliment China’s dream of a “String of Pearls” all seemed so ridiculous and laughable just a few short months ago. Not so anymore.
It is therefore not a surprise that more and more well-meaning nations are voicing out their concerns about China’s reckless foray against international maritime laws and conventions.
Thank you very much.
The comments on my original piece generally confirm my fears that there are high political, legal and operational risks involved if the US continues to escalate its rhetoric and actions in the South China Sea. China’s possible military use of its reclaimed features in the South China Sea is largely media speculation at present, but greater military use will surely eventuate if the US continues with its current plans.
The story of the South China Sea over the last six years or so has been one of action and reaction, but identifying who started each step of the process is difficult. Triggers for the downturn since 2009 could just as well have been the submissions by Vietnam (including a joint one with Malaysia) to an outer continental shelf in the South China Sea and the concurrent first announcements of the US ‘pivot’, as any action by China. More recently, the Philippines arbitration case could have been a trigger for China’s large-scale reclamation works.
None of this is to deny that China must accept a large part of the blame for the current situation. It’s just a plea for a rather more balanced approach by all concerned. It also helps to think about how the ‘hawks’ in Beijing must view US statements. They are being fed ammunition by the US in the same way as China’s actions are feeding the ‘hawks’ in Washington – and, as we have seen over recent weeks, there’s no shortage of them!
All the protagonists in the South China Sea can accept some responsibility for the current situation. If it were a damages case, blame might be awarded as follows: China 35%, US 20%, Vietnam 20%, Philippines 15%, and Japan about 10% (for now getting involved and spreading tensions in NE Asia into SE Asia).
The aim of all parties in the South China Sea should be to de-escalate the current situation and to de-militarise the South China Sea. The only people to gain from the way the situation is developing at present will be the arms manufacturers of the world and with the US as still the major arms exporter (31 % of all arms exports according to recent SIPR data), perhaps that’s what Washington wants!!
Sam,
the territorial claims in the SCS are not “messy”, but quite clear. China has no valid legal claim to any SCS island. Those islands were unknown to Chinese and did even have official names in Chinese until the 1930s, when the ROC government simply transliterated the English names into Chinese. For all of Chinese history until 1909, maps of China produced by governments of China all showed Hainan Island as the southernmost limit of China, also defined by the official dynastic histories. This wave of expansion began when Chinese thinkers decided to re-conceptualize the Manchu Qing Empire, which had incorporated China and many other regions, as “China” and its peoples and territories as “Chinese”. The result has been long wave of expansion that has seen Beijing grab Tibet, Xinjiang, and lay claim to Japan’s Senkakus, Taiwan, Arunachal Pradesh, and other places.
Thus, the issue is China’s territorial expansion, is the root cause of the problem. It is stealing the territories of other nations. This expansion is bringing it into confrontation with the US along its entire littoral, because Japan (Senkakus) and Philippines (Scarborough Shoal and increasingly, the Bashi Channel, recently declared a new operations area by China) are US allied states with defense treaties, and because other threatened states such as Indonesia and Vietnam want the US brought in as a counterweight.
We are, at the moment, heading for a probable series of blowout hegemonic wars, because China will not give up its expansion. We are going to have war, the only question is what kind and where.
Simply put, your piece is focused on the wrong nation. The US is not the only problem in the SCS, and were it to leave, the war problem would still exist. Proper identification of the problem is the first step in resolving it.
Michael Turton
“Triggers for the downturn since 2009 could just as well have been the submissions by Vietnam (including a joint one with Malaysia) to an outer continental shelf in the South China Sea and the concurrent first announcements of the US ‘pivot’, as any action by China. More recently, the Philippines arbitration case could have been a trigger for China’s large-scale reclamation works.”
I am very sorry that I must disagree with Sam Bateman’s way of apportioning blame, which I think is quite biased.
Settling a legal dispute at court is in fact quite a civilised approach, much more civilised than what China is doing. If China is in the right, it should give the court the necessary jurisdiction to resolve the dispute. It is not reasonable to blame the Philippines’ case as a trigger for what China is doing.
Regarding the continental shelf submissions in 2009, making such submission is in fact part of the obligations of UNCLOS signatories, and the procedure is without prejudice to territorial and maritime disputes.
Furthermore, Sam Bateman forgets that (1) China pressured BP to withdraw from Vietnam’s Nam Con Son Basin in 2007, (2) it enforced a unilateral fishing ban in early 2009, acting brutally against Vietnamese fishermen. These took place before Vietnam and Malaysia’s continental shelf submissions in 2009.
Well Sam Bateman, you seem to have everyone apoplectic at you regarding this matter, so I think you’re actually hitting a pretty neutral tone.
Also, for people accusing him of using a straw man… actually look up the definition of straw man before you throw that around. It just makes you look dumb if you say that with no regard to the actual definition.