The South China Sea: How to Manage China-US Differences
Photo Credit: EPA
By Li Yang

The South China Sea: How to Manage China-US Differences

May. 30, 2018  |     |  0 comments

For China-US frictions lately, apart from trade and Taiwan, the problem of the South China Sea is no less contentious, especially when the United States keeps conducting Freedom of Navigation Operations (FONOPs) against China in the Spratlys, Paracels and Scarborough Shoal. It looks like that the United States’ involvement in the South China Sea disputes is still a key component of the Indo-Pacific strategy under the Trump Administration. In the long run, the China-US relationship in the South China Sea will still be in trouble and may even become explosive under certain circumstances.

Points of Disagreement

A series of strategic reports released by the Trump Administration since late 2017, including the National Security Strategy, place China as the US’ number one strategic competitor, and label countries like China and Russia as revisionist powers. Some US scholars thus take a very pessimistic view about US-China relations and believe that this relationship is no longer characterized as cooperation with elements of competition, and that the reverse is true. They see the South China Sea as an important source of US-China strategic rivalry and even assert that the conflicts between the two countries over the South China Sea are inevitable.

Such a view may be an overstatement. Since late 2016 the situation in the South China Sea remains stable and the territorial and maritime disputes have been under control. The South China Sea disputes are temporarily not in the forefront of the agenda of China-US bilateral relations. However, the confrontation between the two countries in the South China Sea is still quietly gaining momentum and the risk of conflict cannot be disregarded.

As perceived by some American scholars, the United States and China have overlapping strategic interests in the South China Sea: the US promotes a free and open maritime order while China is challenging that order. It is a national interest of the US to ensure free access and passage of its military forces in the global public domain, including the South China Sea, while China takes the South China Sea as its “China Lake” and tries to deny the access of the US in the area. One of the priorities of the Indo-Pacific strategy is maintaining the US-centered alliance system and partnership network, while China is seeking dominance and excluding the US influence in the same region through its “Belt and Road” initiative.

Nevertheless, these assumptions come from a zero-sum mentality and are based upon a misreading of China’s strategic intentions. And the conclusion that the US-China conflicts in the South China Sea are inevitable is no more than a self-fulfilling prophecy and will not provide a solution to the problem.

In order to manage and bridge their differences in the South China Sea, China and the United States should not be trapped in this preconceived idea but rather put themselves in each other’s shoes. In this effort, they have to answer three questions:

What should be the US position towards the South China Sea disputes: taking sides or taking no position?

China is the sovereign country of the Spratly islands and a major party to the territorial disputes over the archipelago. Prior to the final settlement of the disputes, China has legitimate concern in defending and preserving its rights and positions, making sure they are not prejudiced. The measures adopted for that purpose cannot be regarded as expansionist or undermining the regional order.

In accordance with its official statements, the United States does not take a position on who has the sovereignty over the Spratly features, but it does have an interest in how the disputes are solved. US officials keep saying that the peaceful settlement of the disputes, which is essential under a rules-based international order, is vital to the national interest of the United States. In addition, the disputes directly involve the Philippines, an American ally. If the disputes escalate into war or military conflict, the US obligation under the alliance might be triggered and its credibility tested. Due to the asymmetry between China and the other claimant states in their national powers, the United States will have to play a role in maintaining the balance.

However, the fact is that China also sticks to a peaceful settlement of the South China Sea disputes. The choice has been made by China on its own out of a strategic calculation of its long-term interests. It also reflects an agreement among all the parties directly concerned in the disputes. It is not a result of pressure from any third party. Anyway, if the goal of the US policy is to maintain peace and stability in the South China Sea, then the difference between China and the United States in their strategic interests in the South China Sea may not be that big or irreconcilable.

The most effective way to solve a territorial dispute is through talks between the parties directly concerned. Giving a dispute too much geopolitical implication does not help. Unfortunately, that is what the United States is doing in the South China Sea disputes. It has also applied its alliance system to the disputes, sending a strong signal that it is actually taking sides. That is what brings uncertainty to the peaceful settlement of the disputes.

The Trump administration has moved its embassy in Israel to Jerusalem. In accordance with the US diplomats, the decision does not prejudge any final status issues regarding the city. However, this statement does not address the concerns that the action is actually altering the situation on the ground and will affect the final status negotiation and further complicate the situation in the Middle East. The South China Sea is not the Middle East. However, there is an analogy here. If the United States, using the same logic and rhetoric, takes certain unilateral actions in the South China Sea, and claims that these will not prejudge the final settlement of the relevant disputes, what consequence will this bring about?

In order to maintain peace and stability and ensure a peaceful settlement of the disputes in the South China Sea, what the United States has to do is not question China’s credibility in solving the disputes peacefully but rather prove the credibility of its own impartiality.

How should the coastal and non-coastal states interact: with cooperation or confrontation?

China is a coastal state to the South China Sea. This not only means that China may enjoy exclusive maritime rights and interests in this area under the international law, but also, as other coastal states do, have direct stakes in the peace, security, stability, free and safe passage of the sea lanes, and the protection of the marine environment of the South China Sea. To play a major role in this regard is a right of coastal states as well as their duty. As China grows stronger, it is expected to make greater inputs. This is beneficial to maintain the regional order and serves the public good of the international community, including the United States.

Someone may suspect that China’s highlighting its coastal state identity is evidence that it is seeking domination in the South China Sea and trying to keep out the United States. However, this is not the truth. China is cooperating with other coastal states in managing the South China Sea affairs. China and ASEAN countries have signed a Declaration on the Conduct of Parties in the South China Sea (DOC) and are negotiating a Code of Conduct in the South China Sea (COC). China is also promoting the idea of establishing a mechanism for cooperation between the South China Sea coastal states in accordance with Article 123 of the United Nations Convention on the Law of the Sea (UNCLOS), which stipulates that states bordering closed or semi-enclosed sea should cooperate with each other.

Whether the two countries could explore a way of positive interaction depends upon their ability to overcome the lack of mutual strategic trust and to find common interests based upon agreed norms.

In terms of the relationship with non-coastal states, there are no signs that China is denying the latter’s legitimate rights and interests in the South China Sea. In fact, UNCLOS stipulates that coastal states, when cooperating with each other, shall endeavor to invite, as appropriate, other interested states or international organizations to cooperate with them. The provision reflects the leading role of the coastal states as well as the role that non-coastal states could play. In this sense, China and the United States are not destined to confront each other in the South China Sea, and instead have ample room to cooperate with each other in the region.

In the meantime, US military operations in the South China Sea and other sea areas adjacent to China, and the differences between the two countries regarding the legality of these operations, do affect the environment for constructive cooperation. They are also taken as evidence for US-China strategic rivalry in the South China Sea.

When emphasizing its own strategic interest in the South China Sea, the United States has to understand that China, as a coastal state, also possesses legitimate security interests in the area. China’s security concern is defensive in nature and is not targeted against any specific country. Nor does it obstruct freedom of navigation and overflight enjoyed by any non-coastal state, including the United States, in the international sea lanes of the South China Sea.

The problem is that the US military presence — including FONOPs and other military deployments — in close vicinity of China’s territory, is manifestly targeted against China. Even the US does not deny it. In this case China has to react.

In order to constructively address the problem, what the United States should do is prove to the coastal states of the South China Sea, including China, that their security will not be affected when the United States exercises its freedom of access and passage in the area, especially by its military forces.

How should China and the US view the global maritime order: with more common ground or more disagreements?

In international maritime affairs, China is a typical geographically disadvantaged state and a developing sea power.

Most of China’s territory, apart from Taiwan Island, does not face the open ocean, but is rather locked by a chain of marginal seas. In order to sail to the open seas, China has to pass through straits or narrow sea lanes either under the sovereignty of other countries or close to them. Fortunately, under the existing rules of the law of the sea, geographical disadvantages do not deprive a country of its right to go to the oceans. China, with 1/5 of the world’s population, naturally has growing interests in global marine governance, including the use and protection of the high seas and the international seabed area.

In the modern era, China’s development, the extension of its overseas interests and the re-awakening of its maritime consciousness, all signify that China is now more capable of ocean-going and it is necessary for the country to do so. At the same time, China is still a developing country, and falls behind the countries which have more advanced technologies for using and managing the sea. Under such circumstances, free and open marine space is more in China’s interest than other countries.

Since the new millennium, Chinese delegates, when addressing agenda item of the Oceans and the Law of the Sea of the United Nations General Assembly, have been calling for respect for legitimate and peaceful use of the oceans by all countries, demanding the promotion of the opening of the sea, stressing that the laws and regulations of coastal states shall not damage the freedom of navigation, and suggesting that new international maritime legislative process shall not prejudice the navigational and other rights of states under international law. These positions are not in conflict with the “free and open” concept promoted by the United States. Instead the two sides should have more potential for common ground.

Every sovereign state may participate in international lawmaking process. And blaming any other country for being revisionist is not constructive. History tells us that the major revision of the rules of modern law of the sea after its conclusion was actually triggered by the concern from the United States. Upon the completion of the negotiation on UNCLOS in 1982, the United States was dissatisfied with Part XI, (i.e. provisions governing the international seabed area), voted against the document, and did not ratify the Convention. The United Nations Secretary-General later convened an informal consultation and in 1994 adopted an “implementation agreement” of UNCLOS, containing substantial modification of the relevant provisions.

UNCLOS is a package deal reached by over 160 countries through negotiation. As a result, it does not allow for any reservation unless expressly permitted by its other articles, and provides for specific procedures for the amendments. Therefore, modifying a treaty through an implementation agreement constitutes a classic case in international rule-making. Anyway, in international legislation, it is natural for every participating country to raise its concern and leave its footprint in the process. The US has such experience of its own.

In conclusion, China and the United States do not necessarily walk towards conflicts in the South China Sea. They do have divergent interests, and quarrels and friction will always happen. Whether the two countries could explore a way of positive interaction depends upon their ability to overcome the lack of mutual strategic trust and to find common interests based upon agreed norms under the idea of building a new international relationship and a community of a shared future for mankind.

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