Mark J. Valencia

Adjunct Senior Scholar

National Institute for South China Sea Studies

Hainan, China

On December 7, China’s Ministry of Foreign Affairs released a white paper on the “Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines.” It is an articulation of China’s legal and political position regarding the issues surrounding its maritime disputes. The paper argues that the questions of territorial sovereignty and maritime delimitation are central to the case and that the arbitral tribunal has no jurisdiction over such issues. Moreover it alleges that the Philippines is abusing the compulsory dispute settlement procedures and that it has violated agreements with China to settle their disputes through direct negotiations.

 

Whether or not the paper satisfies China’s legal and political critics, it is a significant document that implicitly recognizes existing international law and addresses some of the concerns and criticisms of its neighbors. As such it confounds its more severe critics and moves the argument into the arena of international law – where the issues can be debated ad infinitum. In doing so it enhances China’s political standing in the region.

 

China has been taking a bashing by many analysts for its policies and actions in the maritime sphere. Indeed some Asian governments and their nationalistic analysts and media seem to be on a “blame and shame” campaign that demonizes China as an arrogant and dangerous bully. But like many countries, China’s maritime policies and behavior have been a mix of good and bad.

 

Unlike the United States, the home of some of the China-bashing, China has joined the 164 countries in ratifying the 1982 UN Convention on the Law of the Sea (UNCLOS). China has not abided by all its provisions but neither have many other states. UNCLOS is young, having come into force only in 1994, and adherence to it, its interpretation, and state practice are still evolving. Some key terms like “freedom of navigation,” “peaceful purposes,” “abuse of rights,” “due regard,” and “marine scientific research” are ambiguous and undefined in the Convention and thus have been interpreted differently by different countries. China has also begun to fulfill its duties under the Convention by promulgating and enforcing – the latter so far mostly in its near-shore waters – pollution, environmental protection and fisheries laws and regulations.

 

China has also joined the anti-piracy effort off Somalia. Despite allegations by the U.S. and others, China has not interfered with freedom of commercial navigation – and in fact has publicly endorsed the concept. How it is defined and whether it includes intrusive, provocative intelligence gathering or maritime interdiction are subsidiary issues to be negotiated.

 

China has reached a creative boundary agreement with Vietnam in the Gulf of Tonkin that includes a joint fisheries zone and with Japan in the East China Sea on sharing of fisheries, prior notification of marine scientific research in disputed waters and, at least in principle, joint development of parts of the contested area. It has reached a similar agreement with North Korea although the details are unknown. Moreover China has agreed to an ASEAN Declaration on Conduct of the Parties in the South China Sea (DOC) and is discussing with ASEAN a more formal Code of Conduct for activities there. And when China feels it needs to enforce its jurisdiction and regulations it uses mostly civilian vessels.

 

These “good” policies and actions have been tarnished by alleged “bad” policies and behavior that have been trumpeted by some media. Some of this criticism may be deserved but much is exaggerated or heavily biased. For example, China has taken actions that appear to be contrary to UNCLOS and to the DOC. So have many other states involved in the South China and East China Sea imbroglios and this article could well have been written about any one or more of them. But some government supported analysts and media have by and large chosen to ignore others’ negative policies and behavior such as unilateral activities in disputed areas. China, as an emerging great power, generates great expectations – and great fears. This accounts for much of the seemingly biased treatment.

 

China’s most problematic behavior for other countries and for regional peace and stability is its refusal to clarify its claims in the South China Sea in a manner all can understand. Its ambiguous claim there is perceived by some to be reminiscent of China’s imperial rule over much of the region. It also blocks any possibility of negotiating boundaries. China’s declaring and publishing closing lines around the Paracel Islands in the South China Sea and the Senkaku/Daioyu Islands in the East China Sea violates UNCLOS. And its claim to the Macclesfield Bank as an island borders on the ridiculous. The submerged bank at its shallowest is covered by some 30 feet of water. Of course China may claim it as part of its extended continental shelf but it has not yet done so.

 

China’s actions have at times been “ugly.” First and foremost, what is perceived as its unreasonable and even intimidating public relations tone and tenor on these issues has created frightened neighbors rather than friends. This white paper should be seen as an effort to replace implied and direct warnings and threats with an emphasis on reasonable arguments. There are many that China could make and it has been a puzzle that it has not done so. The paper may mark a transition from policy and actions seemingly reflecting an imperial attitude to those based on current international law, including UNCLOS. It specifies, clarifies and rationally defends its interpretations of various UNCLOS terms and provisions. Again, whether they hold up or not in the court of international opinion is another matter. Moreover it points out other claimants’ transgressions by emphasizing its positive policies and actions and contrasting them with the “bad” behavior of others.

 

China’s military exercises and expeditions in the South China Sea have not sent a politically positive message, Ditto its harassment and intimidation of other states’ vessels and aircraft with both civilian and military vessels and aircraft, including its skirmishes with Japan’s coast guard vessels and surveillance aircraft in Japan’s claimed territorial sea. Yes, China is only responding to what it sees as aggressive actions by Japan but these confrontations are dangerous and have alarmed all countries concerned – not just Japan. Finally China’s blatant violations of the DOC’s call for “self restraint” and “no inhabitation of uninhabited features,” with military exercises, unilateral activities in disputed areas and reclamation on disputed features are in your face and diplomatically ugly. Yes, other claimants have taken similar actions – but China should seize and hold the diplomatic high ground. This latest white paper is a step in that direction.

 

Unfortunately for China, some governments, analysts and media have chosen to ignore its good, emphasize its bad, and sensationalize its ugly. This is driven by a fundamental fear that China may be challenging the international system. Again, the white paper is a step towards alleviating that notion.

 

In short, China needs a charm offensive in the China seas, and this is a good beginning. This doesn’t mean that giving up its national territory, rights and claims, but Beijing does need to tone down of its rhetoric and actions. If it fails to do that, it risks playing right into regional – if not global – anti-China public policy strategies. That is in turn likely to fan nationalistic sentiments in China and produce negative reactions in other countries. A dynamic of reactive nationalism will enhance the possibility of hostilities, hot or cold.

 

In that context, let’s hope this white paper signals the beginning of a more positive Chinese foreign policy towards the region.

 

Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies in Hainan, China.