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UN law could resolve US-China sea contest

2015-05-21 15:33:50       source:The Straits Times


As US Secretary of State John Kerry was winging his way to Beijing to prepare for the US-China Strategic and Economic Dialogue next month, the United States and China seemed to be on the verge of a political and possibly military showdown in the South China Sea. How and why did the situation get this bad and what if anything can be done to avoid a confrontation?

Ever since the US announced and began to implement its political and military "rebalance" to Asia, China has viewed it as a way and means to constrain if not contain its rightful rise and influence in Asia. Thus, it is no surprise nor accident that the two have now come face to face over what may seem like a small issue.

But why is this happening in the South China Sea? Over the last year or so, China has conducted reclamation work at seven sites in the Spratlys and is constructing an airstrip that can be used by its military. Constant squawking by US ally the Philippines has drawn world attention to it and the extreme dire possibilities. To some degree, the Philippines has prodded the US into taking a more robust position than it might have. But it is also an "opportunity" for the US to show its resolve. The US fears that this reclamation and its militarisation will advance China's capability to control the area and deny access to others, including itself.  It also thinks this may be a prelude to a Chinese declaration of an air defence identification zone (ADIZ) in the area similar to China's declaration for the East China Sea in 2013. So the US has decided to signal to China and the world that China's recent activities have gone "too far".

It has been announced or "leaked" that the US is considering challenging China's claims and actions with military vessels and aircraft. This raises the more fundamental issue of what is "too far" and who has the right to decide what the rules are or should be. This is all occurring in the context of a supposed "new relationship" between a rising power and the lone superpower. According to the US, the issue is "freedom of navigation" and China's aggressive and "bullying" tactics in enforcing its claims in the area. But strictly speaking, China has done little or nothing to interfere with freedom of navigation or overflight in the Spratlys. US and others' concerns are all maybes and might-bes.

Nevertheless, the US believes that it must physically contest China's claims and policies lest they become "customary international law" through "state practice". The US maintains that if a state persistently objects to a new norm as it is being developed, it cannot be bound by it. This is the raison d'etre of its Freedom of Navigation Programme, through which it physically contests maritime policies and practices of many other states with warships and military aircraft. Ironically, the US maintains, in the words of Mr Daniel K. Russel, Assistant Secretary of State, that it "opposes the threat of force or use of force or coercion by any claimant". But isn't such "gunboat" diplomacy also a threat of use of force? Moreover, China has not yet declared such an ADIZ and it is not even clear what jurisdiction it claims from the features it is "reclaiming".  More awkward, the US has not ratified the 1982 UN Convention on the Law of the Sea (Unclos), which it claims to be enforcing.

 China insists that it has sovereignty over the features in question and that it has the right to do as it pleases on and with its own territory. Also, Chinese Foreign Ministry spokesman Hua Chunying has declared that "freedom of navigation does not give one country's military aircraft and ships free access to another country's territorial waters and airspace". She added that "we demand the relevant side talks and acts cautiously and does not take any actions that are risky or provocative, to maintain regional peace and stability". As for the news of the possibility that the US would physically challenge China in the area, she said: "The Chinese side will take resolute measures to safeguard national sovereignty and safety, we will keep an eye on the situation in relevant waters and airspace, and respond to any violation of China's sovereignty and threat to China's national security."

A more peaceful and civil option would be for the US to ratify Unclos and then use its dispute-settlement mechanisms. The US may also take the issue before the UN Security Council and have it assess the problem and recommend what to do about it. This approach would be preferable to the "might makes right" principle and the precedent it sets.

Besides the obvious dangers of this approach, this option is also fraught with legal and political difficulties.

Apparently the US wants to "test" China's claims to some features as islands.

But even if they are - or were before - reclamation-only rocks, they are still entitled to generate a 12-nautical-mile (nm) territorial sea. The only features that China occupies that are - or were - neither legal rocks nor islands are Hughes, Mischief and Subi reefs, which do not stand above high water. The US challenge would presumably focus on these features and their supposed territorial seas.

Other features that China occupies and on which it is undertaking reclamation work - Fiery Cross Reef, Gaven Reefs and Johnson South Reef - do generate a 12nm territorial sea. This means that aircraft have no right of overflight without permission and warships must comply with the innocent passage regime. For example, submarines must surface and show their flag. These complexities could cause many a misunderstanding.

Moreover, China requires prior permission for innocent passage of foreign military vessels to enter its territorial seas - as do Myanmar, India, Indonesia, Iran and, more relevant, other claimants Taiwan and Vietnam. This means that a US warship presence in China's claimed territorial sea would be challenging not only China's sovereignty claim but also its territorial sea regime. This would make the US action particularly provocative.

This confrontation could be avoided by dialogue and face-saving compromise. China could clarify its claims in the South China Sea - at least privately - in a manner that doesn't undermine Unclos or the current international order. And the US could - perhaps also privately - cease conflating freedom of navigation with intelligence, surveillance and reconnaissance activities. These would be big concessions for nationalists on both sides and, thus, are unlikely. But anything less is papering over fundamental differences and simply postponing the inevitable.

If a showdown, political or otherwise, is not avoided the hope for a "new relationship" between an emerging power and the status quo power will look a lot more like the past than the future.

The writer is Adjunct Senior Scholar, National Institute for South China Sea Studies in Haikou, China

This article is available at http://www.straitstimes.com/news/opinion/more-opinion-stories/story/un-law-could-resolve-us-china-sea-contest-20150516