29 October 2015
On 26 October 2015 a US warship deliberately cruised close to one of China’s new artificial islands dredged up from shallow waters of the South China Sea. Beijing immediately objected and called the transit ‘deliberate provocation’ and accused the US of ‘threatening Chinese sovereignty and security interests’ in the region.
Does the US have every right to sail near China’s artificial islands? Does this represent a change to a more assertive US policy? If so, is the US making a tense situation worse? The answers depend not only on one’s interpretation of international law but also on one’s prioritisation of the Realist principle of ‘prudence’.
The UN Conference on the Law of the Sea of 1982 (UNCLOS) set out the rights of states to claim territorial waters out to 12 nautical miles (nm) and an Exclusive Economic Zone (EEZ) out to 200 nm from their coasts. Coastal irregularities, islands, rocks, low tide elevations, artificial islands, continental shelf extensions, and adjoining claims complicate the UNCLOS formulae.
- Coastal irregularities are smoothed out by drawing baselines from which the 200 nm zone is projected out to an adjoining state’s 200 nm claim, in which case a median line is drawn between the two.
- A continental shelf can extend a state’s jurisdiction over seabed minerals beyond 200 nm or until it intersects a neighbouring claim, with again a median line drawn to separate the claims.
- Islands are habitable land (i.e. with fresh water and vegetation) from which territorial waters and a 200 nm EEZ may be claimed.
- Rocks are not habitable and a state may claim only a 12 nm zone of exclusion.
- Low tide elevations sustain no claims under the UNCLOS.
- And those who construct artificial islands on a low tide elevation can claim only a 500 metre safety zone.
The United States uses these UNCLOS definitions to justify sailing close to, and overfly, China’s artificial islands, as it did in May, for example. China in contrast claims 200 nm from the artificial islands and objects to US military patrols in the Zone even though under UNCLOS any ‘innocent passage’ through a EEZ is legal.
The relatively clear UNCLOS formulae are further confounded by China’s claims to the entire South China Sea. In 1942 the Republic of China (now on Taiwan) drew a ‘nine-dash line’ claiming maritime territory that overlaps the 200 nm EEZs claimed by Philippines, Malaysia, Brunei, and Vietnam. In 1949 the Peoples Republic of China adopted this claim but has not specified exactly where the ‘nine-dash line’ lies, making negotiation and compromise difficult. Nor will China negotiate with the ASEAN grouping, or acknowledge jurisdiction of the International Tribunal on the Law of the Sea (ITLOS) to which the Philippine government has appealed.
The Taiwan-based Republic of China’s claims are identical to those of the PRC, and Taipei is reinforcing Taiping Island which it has long occupied. But, in contrast to PRC President Xi, ROC President Ma has proposed de-escalation, negotiations, and resource sharing in his South China Sea Peace Initiative. And the ROC has not expanded its military presence to any other part of the South China Sea.
The United States refuses to take sides in the dispute, asserting the overriding principle of ‘freedom of navigation’ which it has asserted since the birth of the Republic, against British interception of US merchant ships in the War of 1812, for example, or the attacks by Barbary pirates in the early nineteenth century.
In a press conference after the latest episode the US Secretary of Defence was firm in the assertion of freedom of navigation but careful not to escalate the rhetoric to the level being projected by Beijing.
China’s leaders note that the US is allied to the Philippines and has a good working relationship with Vietnam and Malaysia. The US is also allied to Japan, which has an island dispute with China in the East China Sea, and has deliberately flown B-52 bombers over the disputed islands in defiance of China’s proclaimed ‘Air Defence Identification Zone’. These alliances doubtless make Chinese strategists suspicious that the US is not neutral but trying to ‘contain’ China’s rise.
Given that China is an ambitious (some would say revisionist) regional power with an increasingly active and capable navy, President Obama and Secretaries Kerry and Carter are faced with a dilemma: whether to back up legal claims under UNCLOS with force if necessary, or to err on the side of prudence, keeping a safe distance away from China’s artificial islands, thus yielding de facto to China’s claims. The former risks military escalation and confrontation, and the latter risks loss of credibility in the eyes of the Republican Party and US allies. Chinese leaders face a similar dilemma, having constructed the claims as a matter of national sovereignty and pride.
What now? Three scenarios may be envisaged.
- The status quo with the US and China each standing firm on their claims but taking care to avoid a direct military clash.
- Chinese military action to impede US ship transits and air overflights followed by a robust US response possibly leading to an exchange of fire, an interruption of maritime commerce, and open rivalry between the two great powers.
- A US decision to yield, foreshadowing the emergence of China as the regional hegemon, a resurgence of Japanese military power to counter China, and the decline of the hegemonic stability that has been underpinned by the United States since the end of World War II.
The least bad outcome must be the indefinite continuation of the ambiguous status quo… however inconclusive and uncomfortable that may be for all claimants.
Stephen Hoadley is Associate Professor in Politics and International Relations at the University of Auckland.