The discussion and debate on the South China Sea (SCS) dispute has fallen into a deadlock between two monological contexts, generally between Chinese commenters and their counterparts from the US and its allies. The main differences focus on three aspects: whether historical claims could play a role in solving SCS disputes; whether the US and China’s maritime interests in SCS are compatible; and who is escalating the tensions.
Through answering these questions, this article argues that the different understandings reflect a dynamic balance of power in Asia rather than an exclusive struggle of interests in the SCS. Hence, the solution to the current disputes lies not only in understanding and respecting each stakeholders’ interests, but also recognizing and tolerating the power transformation in this area.
Could Historical Claims Play a Role in Solving the SCS Disputes?
If we simply make a judgment from the maps, the claimants all seem to have ambitious claims in the SCS. It is not just China which has maritime claims; China’s disputants also have overlapping claims and made contradictory demands on one another. China has the most consistent and long standing claims, and has kept a constant record relating to the SCS issue for a long time. Instead of seeking a peaceful solution, the other claimants, who didn’t have any territorial claims until the 1960s, have occupied many maritime features and explored large amounts of natural resources (energy and fisheries). Additionally, Vietnam, the Philippines, Malaysia, and Taiwan have all built airstrip bases in the Spratly Islands.
China’s recent approach has brought the SCS disputes under the spotlight. In 2014, Beijing changed its SCS strategy from being reactive to proactive through land reclamation, and since then the SCS is rarely out of the headlines. Currently, it is not just the US which has evolved from being a manipulator to an instigator. Other external powers, such as Japan, India, and Australia, have also intervened in the SCS disputes, which makes their resolution more complex. In this case, the SCS issue is not just a technical dispute over the maritime territory, it is also reflects questions of security and the balance of power.
In the search for solutions that may recommend themselves to the littoral states of the SCS and external stakeholders, the United Nations Convention on the Law of the Sea (UNCLOS) has shown itself to be ineffective in resolving the complicated disputes. Among all the claimants, China (including Taiwan) is the only country that has emphasized historical claims in solving the disputes. This is especially obvious when the Philippines unilaterally initiated its SCS arbitration case in The Hague against China, arguing that China’s claims have violated international law.
History and present reality have met in the case of the SCS, and neither history nor an exclusive appeal to UNCLOS will be able to resolve the disputes.
Other claimants, such as Vietnam, have also relied heavily on the law of occupation, including the mode of discovery. This stance cannot be fundamentally understood in terms of treaty law, and has to be considered in terms of customary international law. No treaty, not even UNCLOS, can work beyond the rules of international law, customary law, and the evidence of state practice. These bodies of law (treaties and other rules) work complementarily instead of undermining each other. When UNCLOS cannot exclusively solve the complex situation in the SCS, other rules (including evidence of historical occupation, discovery, and practice) are inevitably introduced for further examination.
The disputes in SCS are intricate as they include occupied maritime features, overlapping waters, and maritime rights generated from land or water. However, UNCLOS only regulates the legal nature of water, and does not deal with the acquisition of sovereignty over land (including islands and rocks). In the case of SCS, the main disputes lie in territorial sovereignty over certain islands groups and the maritime rights surrounding them, which is beyond the jurisdiction of UNCLOS. Without a consideration of historical claims, the ownership of islands within the disputed waters will remain unresolved. In contrast, China’s historical claims reflect Chinese people’s living in these waters generation after generation. These people’s activities hence require broader international rules to ensure their rights, which do not derive from UNCLOS.
Additionally, UNCLOS only provides a legal referent. The claimants’ active expansion in the disputed waters and the increasing involvement of external powers implies the issue is not just a legal dispute, but instead reflects the transformation of regional order from one that was shaped by the US to one that is being shaped by China’s growing awareness of its leading role. Against this background, every state would no doubt have to struggle to maximize its own calculated interests in a period of change. In this case, without a recognition of this geopolitical transformation and the compromised diplomatic approach, UNCLOS, to some extent, has become a driver of confrontation and dispute rather than a mechanism for resolution.
The last few years have witnessed escalating tensions caused by overlapping national claims in the SCS, including claims of territorial sovereignty over maritime features, and jurisdiction over maritime space. The complex situation reflects UNCLOS’ failure to recognize people’s long-standing history of fishing, navigation and other activities in this semi-enclosed sea, the people’s memories of historical grievances (for example, China and Vietnam), and the history of regional recognition or acquiescence of China’s dominance in these waters. The essence of these disputes is the conflict between Asia’s dynamic regional order and framed international norms. History and present reality have met in the case of the SCS, and neither history nor an exclusive appeal to UNCLOS will be able to resolve the disputes. The solution perhaps lies in the intersection of historical territory and modern maritime jurisdiction, and in the balance between customary and current practice.
Are the US’ and China’s Maritime Interests in the SCS Compatible?
Comparing the two positions from China and the US, the US’ interests in the SCS primarily lie in international norms, while China’s main interest in the SCS lies in its disputed sovereignty. Before examining the compatibility, it is worthy to note that the SCS issue itself is not a core strategic interest in the overall China-US relationship, and it is not important enough for both governments to deploy overwhelming attention and resources. However, what makes the problem serious is the leading role of the new Asian order behind this dispute.
In terms of US freedom of navigation operations (FONOPs), the US insists on the right of its warships to undertake innocent passage without notification in other countries’ territorial seas and conduct military activities in other countries’ exclusive economic zones (EEZs). In order to safeguard this principle, Washington has conducted routine patrols in waters it considers “international” as well as surveillance and military surveys in EEZs. Some incidents have happened in the SCS, such as the expulsion by five Chinese vessels in 2009 of the USNS Impeccable which was conducting undersea surveillance, and China’s warning the US Navy’s P-8 patrol in 2014. Yet, the tensions caused by FONOPs are under control, as the current differences do not harm the core interests of either country and both governments are learning to handle these conflicts.
On one hand, the US has clearly issued a red line to protect its FONOPs through the balance of provocation and restraint. It has conducted this kind of patrol for years against its rivals, including the USSR, as well as its allies, including the Philippines and Japan. Washington has accumulated experience with its military adventures of navigation.
On the other hand, the US has emphasized that it has taken no position in the current sovereignty claims, which do not challenge China’s territory directly. At the same time, China has started to communicate in incidents of stalemate. For instance, in 2015 when the USS Lassen was patrolling within the 12 nautical mile territorial limit around Subi Reef, instead of increasing tensions, a Chinese naval vessel followed the American vessel in a friendly and restrained way.
In pursuit of keeping its dominance and balance in the SCS, the US has supported its international and regional allies’ involvement in the issue.
However, the control of FONOP activities in the SCS between the US and China has not cooled down the disputes in the SCS, as more and more external powers have become involved in this issue, and the ASEAN countries are seriously concerned about security in the SCS. It reflects that the tension over the SCS is not only the struggle for interests, but is also a struggle between powers. In pursuit of keeping its dominance and balance in the SCS, the US has supported its international and regional allies’ involvement in the issue and backed ASEAN littoral countries’ right to patrol and monitor their territorial waters. Additionally, it has set the agenda for the debate over the SCS through patrols from the Spratly Islands to the Paracel Islands. Further evidence may be seen from its recent patrol within 12 nautical miles around Triton Island in the Paracel Islands.
In response, China has installed military facilities on this island. Although this action has protected China’s territorial interests, it has also reflected China’s inability to dominate the agenda in the SCS. Even if it attempts to conduct a proactive approach through land reclamation and the construction of military facilities, the discourse over the SCS continues to be shaped by the US.
Additionally, China is confronting a dilemma, that is, the balance between its SCS territorial claims and its relationship with ASEAN. On one hand, without a clear and reasonable approach to protect its SCS interests, China cannot grow its reputation in this area. On the other hand, China’s leading role in the region depends highly on the support of its neighboring countries, and the Chinese government has deployed economic resources to maintain its periphery diplomacy. The tough and aggressive approach in the SCS will harm its relationship with the countries of ASEAN.
So far, China’s actions in the SCS have not affected its economic clout, as the littoral countries still seek to improve their relationship with Beijing. However, considering China’s approach to its SCS claims tends to be unappreciated by ASEAN (though partly due to misunderstanding and miscommunication), China has to avoid the repercussions of its actions and statements in the SCS that may increase fear and distrust from the ASEAN countries which might lead them to seek a stronger US presence.
In short, China’s current approach of safeguarding its territory through land reclamation and construction of military facilities is nothing special compared to the approaches of the other claimants. It neither has the capability to directly violate the US’ FONOPs in these waters, nor has it the intention of harming the China-ASEAN relationship. Yet, China’s activities are used by Washington to shape hotly-debated news headlines. It reflects the US’ concern of its dominance in the SCS, and its worries of its loss of power to China.
Who is Escalating the Tensions?
Although the current attention has focused on China’s nine-dash line, the SCS issue is not launched by China, and the solution does not lie in China’s hands. Currently, the issue is not only a multilateral and overlapping dispute, but also includes concerns over geographic strategy and security.
The attention on China in the SCS has grown the regional dispute into strategic and security concerns from China and the other claimants. Most of the SCS commentary has taken it for granted that China and the ASEAN claimants are asymmetric in favor of China, and that Beijing’s land reclamation may affect freedom of navigation. However, it is the ASEAN claimants who have taken the majority of maritime features and explored the SCS’ resources for a long time. Hence China has had to take measures to protect its maritime interests and prevent further losses. These activities were interpreted as security threats by the littoral countries, who hence sought security alliances with the US.
This interpretation has created a securitization competition between China and the ASEAN claimants: China reclaimed lands and constructed military facilities following its long history of losses in the SCS, and this triggered fears from ASEAN that these actions threatened the status quo (which, to some extent, had been exaggerated and misunderstood), and that this required the involvement of external powers to counterbalance China. The involvement of yet more external powers in turn has challenged China’s security in terms of its territory, energy, power, and reputation. This has forced China to seek greater security for itself through assertive approaches which have inflamed the SCS disputes and undermine diplomatic efforts and attempts by regional organizations to resolve the crisis.
In essence, the disputes in the SCS are not as serious as stated in news headlines. However, the tensions will not cool down, as they reflect the transformation of the balance of power between the US and China. On one hand, the US is trying to maintain the status quo to protect its dominance in the region. On the other hand, a rising China requires and deserves consideration and a place in the SCS resolution. While the increasing involvement of external powers and the broadened and deepened anti-China alliances in the region will help to counterbalance China in favor of the ASEAN claimants, both China and the ASEAN countries have been forced to seek greater securitization, thereby degrading the littoral countries’ voices in solving the disputes.