March 11, 2016

The South China Sea has lately evolved from a territorial and maritime dispute between only China and the other claimants to a showdown between the United States, as a strong maritime power and user of the South China Sea, and China, as a growing regional maritime power pursuing its maritime interests as a coastal state. China and the United States both have legitimate interests in the South China Sea, but diverge on issues including freedom of navigation, the Philippines-China arbitration case, state practice of international law, approaches to maritime dispute management, and land reclamation activities. The question is, will these divergences beat the two nations' common interests and lead to a violent confrontation? My analysis suggests no.

Freedom of Navigation

Recent patrols by the USS Lassen and Curtis Wilbur were based on the U.S. policy of asserting freedom of navigation in the South China Sea. Both China and the United States view freedom of navigation as vital to their national interests, but they differ on the question of whether certain activities fall within the scope of freedom of navigation. China does not regard certain types of military activities within its exclusive economic zone as falling within the scope of "freedom of navigation," including those potentially having an impact on its marine environment and those which could be categorized as marine scientific research without prior permission from the coastal state.

China and the United States also differ on whether warships enjoy the same right to innocent passage within another nation's territorial sea as commercial vessels. The United States does, while Chinese domestic law requires prior permission for warships exercising innocent passage within its territorial sea. Article 30 of the UN Convention on the Law of the Sea (UNCLOS) stipulates that a coastal state may require a foreign warship to leave its territorial sea immediately if the ship does not comply with the laws and regulations of the coastal state. Despite this difference in interpretation, both sides acted in a cautious and lawful manner during the recent U.S. Freedom of Navigation Operations.

China's official protests to the U.S. patrols was mostly driven by political and security concerns rather by the interpretation of international law. So, is freedom of navigation really an issue between China and the United States?

International Law and Dispute Settlement

The United States has called on China to act in conformity with international law and norms. But what principals under international law has China breached? It has not violated Article 2 of the Charter of the United Nations calling for "peaceful means" of dispute settlement or Article 4 of 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea on not "resorting to the threat or use of force." Instead China has proposed since the 1980s to shelve sovereignty disputes and pursue joint development.

When the United State insists on China respecting international law, it is reflecting a difference in attitudes toward the state practice of managing or settling international disputes. The United States has explicitly endorsed the Philippines' decision to pursue third party compulsory dispute settlement through arbitration. China has rejected that approach for a number of reasons, including doubts about the jurisdiction and admissibility of the case, and its preference for other means of dispute settlement. Beijing also doubts that the final award in the arbitration case will solve the real problems between China and the Philippines in the South China Sea, and fears the case will only escalate tensions.

China certainly does not want to be portrayed as the regional "bully" disrespecting international law. But it is rational for a state to choose the method of problem solving with which it is most comfortable. Compulsory dispute settlement has a role to play in the international system, but there are many other state practices of dispute management including confidence-building, joint development, negotiation, and mediation. The United States in 1986 decided to pull out of the case brought against it by Nicaragua in the International Court of Justice after the court ruled it had jurisdiction. Nonetheless, China’s refusal to participate in the Philippines' case puts it in a vulnerable situation because it now has no chance to present its legal evidence.

Land Reclamation

China’s land reclamation will not strengthen its claims to sovereignty over the features in the South China Sea. It will not enhance China’s maritime claims either. Artificial islands do not generate territorial seas or other maritime zones under UNCLOS because they do not possess the status of islands. Nor does the presence of artificial islands affect delimitation of the territorial sea, the exclusive economic zone, or the continental shelf between states.

Nevertheless, China could be blamed for ignoring its duties under UNCLOS for "due notice," "appropriate publicity," and "undertaking environmental impact assessments" related to the creation of artificial islands. The Ministry of Foreign Affairs has suggested that China has conducted environmental impact assessments and is continuing to monitor the impact of its reclamation activities. But it seems necessary for China to make these assessments public and acknowledge its duty to cooperate with potentially affected states. China should also give due notice of further construction, maintain a permanent means for giving warning of the presence of artificial islands, and publish appropriate information about their depth, position, and dimensions. While it defends its land reclamation as a means of improving capacity to deliver maritime public goods, China needs to show evidence that it is using its new facilities to maintain maritime safety and security, support search and rescue, and undertake scientific research.

The United States' concern about military facilities on China’s reclaimed features is understandable. It is rationale for other claimant states to question China’s growing maritime capacity and its potential impact on the status quo in the South China Sea. But China has repeatedly stated that it will stick to the principle of no use or threats of force. As Foreign Minister Wang Yi said during a speech at CSIS in late February, "There is no expansionism in China’s genes." The increasing presence of U.S. warships, and calls for joint patrols with other Australia, Japan, India, and other countries, will only make China feel threatened and trigger fears of containment. That will lead to a further military buildup on its features in the South China Sea for defensive purposes.

Avoiding Confrontation

Sino-U.S. differences do exist on these issues. But China and the United States tend to forget their common interests in the South China Sea: the safety and security of sea lanes of communication, and a peaceful and stable political environment. The current cycle of actions and counteractions will lead to nothing but a security dilemma.

In order to resolve this paradox, China and the United States need to engage each other and maintain regular consultations on how they can coexist. Despite the chance of a regional power shift, the United States needs to acknowledge China's rise and its core interests. Similarly, China must respect the legitimate interests of the United States in the South China Sea, especially freedom of navigation in line with UNCLOS, which is also in China's interest. Developing better maritime cooperation could work in both nations' favor.

From:

http://amti.csis.org/managing-sino-u-s-disagreements-in-the-south-china-sea/ 

Dr. Nong HONG heads the Institute for China-America Studies (ICAS), an independent, non-profit academic institution launched by the Hainan Nanhai Research Foundation. She also holds a joint position of research fellow with National Institute for South China Sea Studies (NISCSS) and China Institute, University of Alberta (CIUA).