Essay: China’s Actions in the South China Sea and the Consequences they have on a Rules-Based International Order

Conflicting territorial claims in the South China Sea (SCS) make it one of the most divisive regions in contemporary geopolitics. Disputes over both maritime boundaries and islands involve several countries and regularly raise tensions within the region. The sea holds enormous global economic significance; more than $3.3 trillion of trade passed through it in 2016. It also holds an abundance of natural resources, including vital fish stocks as well as vast oil and gas reserves (CFR 2018). Seeking to expand its influence in the region, China has asserted its position and claim through the reclamation and militarization of islands, provoking U.S. and international attention. China claims to have administered the region “since ancient times”, claiming sovereignty over an area now marked out by what is commonly referred to as the “nine-dashed” or the “U-shaped” line. The line encompasses the majority of the sea and most of its terrestrial features, conflicting with claims made by Brunei, Malaysia, the Philippines, Taiwan, Vietnam and Indonesia (Hayton 2016). As a signatories of the United Nations Convention of the Law of the Sea (UNCLOS), China and other claimant countries are obligated to respect the delimitations of territorial sea in conjunction with laws protecting freedom of navigation through international waters (United Nations 1982). Despite this, China’s ongoing efforts to assert its sovereignty opposes this notion and continues to spark conflict in the region, drawing consistent media coverage and prompting the U.S. to conduct regular freedom of navigation operations (FONOPs) (Hutchens 2018).
In recent times, the conflict has further escalated into a crux in the power politics between the U.S. and China. With China growing more confident of its hand in the SCS, U.S. concerns have been heightened. Through bilateral diplomacy, China is attempting to sway old U.S. allies in the region, with the promise of economic reciprocity (Robles 2018). The increasing appeal of Chinese partnership erodes U.S. influence in the region and draws others to question the legitimacy of international law. China’s largely unchecked defiance and growing military capacity within the SCS reveal the broader implications of Chinese insurgency on a rules-based order. Comprehensive control of the SCS would demonstrate a seismic shift away from international norms and U.S.’s ability to enforce those norms, if it so chooses, bringing political consequences in the region and beyond. At present, the U.S. recognises China’s actions as a major threat to its strategic, political and economic interests, with former Secretary of Defence Jim Mattis describing great power competition as “the primary focus of U.S. national security” (Paquette 2018).
Through a growing appetite for military expansion and an influential hand in bilateral diplomacy in the region, China will continue to pursue its goals in the SCS. Coupled with a cooling of diplomatic relations with Washington, China’s actions make it increasingly difficult to envision a multilateral solution being agreed upon and raise questions over the consequences that Chinese hegemony in the SCS would have for the notion of a rules-based international order. By delving into the context of China’s claim to sovereignty, providing an analysis of its actions, including the reclamation and militarization of islands, as well as the diplomatic approaches it has taken to impose its claim, and finally evaluating its actions and the consequences they have on the imposition and legitimacy of international law, this paper seeks to gain a detailed understanding of the situation in the SCS and provide knowledgeable insight as to where the ongoing developments may lead.
Background to China’s Claim:
Stretching from the Karimata and Malacca Straits in the southwest to the Strait of Taiwan in northeast, the South China Sea (SCS) forms the maritime borders of eight different states and territories (International Hydrographic Organization 1953). The waters have two main clusters of islands: the Paracel Islands in the northwest, and the Spratly Islands in the southeast. Other significant landforms include the Scarlborough Shoal off the western coast of Luzon, the largest island of the Philippines (Hayton 2016) . The Paracel Islands are claimed by China, Taiwan and Vietnam, while the Spratly Islands are contested by China, Taiwan, Vietnam, the Philippines and Malaysia. Scarlborough Shoal has been a key point of conflict between China and the Philippines after China’s de facto seizure in 2012, as well as multiple disputes with Filipino fishermen and Chinese interference with official survey (Storey 2016).
There are a range of motivations behind the various claims in the SCS. Being home to some of the most important trading routes in the world, the SCS accounted for the transportation of 21 percent of global maritime trade in 2016. The large quantity of goods transported make the sea crucial for many of the world’s largest economies (China Power Team 2017). Maintaining these transit routes or sea lines of communication (SLOCs) are essential to provide for energy and consumer demands and failure to do so would result in ships having to circumnavigate the region, lead huge costs for the world economy. For China itself, the sea is also crucial. Nearly 40 percent of China’s trade transits the SCS, making it the country’s most significant trade route by far. Two crucial goods make the transit routes even more important: natural gas and oil. According to the U.S. Energy Information Administration, over half of the world’s liquefied natural gas (LNG) trade and almost a third of global crude oil passes through the SCS. These figures are expected to rise further as Asia’s energy demand continues to grow (U.S. EIA 2013). As well as being vital for trade, the sea itself it rich in natural resources. An estimated 11 billion barrels of untapped oil and 190 trillion cubic feet of natural gas lie under the vast expanse of ocean (CFR 2018). The waters are also valuable fishing grounds, with fishing rights also being highly contested for within the region. Due to a lack of regulation around fishing rights, there is a growing concern amongst environmentalists saying that the region is being fished unsustainably. Disputes have also broken out over fishing rights and licensing of oil and gas reserves. The economic significance of the sea is undeniable, and the ongoing disputes pose a constant threat. Independent U.S. thinktank, Council on Foreign Relations recognises this significance, saying that if not managed wisely, the SCS could go from being “thriving channels of maritime trade” to “arenas of conflict”, with estimates of it costing the global economy $167 million per month to pay for war risk premiums if conflict was to break out.
The heavily contested region has a rich history of maritime navigation, exploration and trade dating back to as early as 5,000 years ago. Many of the sea merchants in the region’s early history would have rarely gone on the land. In fact, as late as in the 1960s these indigenous “sea gypsies” continued to live most of their lives out at sea. The region possesses a legacy of trade has been international throughout history: the spread of Islam around the region through Arab navigators in the 8th and 9th century, Chinese navigation in the early 15th century, as well as the spice trade throughout the colonial era all reflect a complex historical background of cultural diffusion and socioethinc diversity. Inconsistent map evidence has also added to the ambiguity of who owns the islands. The earliest maps often cited the islands as a threat to ships, warning sailors of potential dangers. Even navigational maps drawn by famous navigator Zheng He showed the islands as areas to avoid. Many maps in the colonial era inherited a lot of these traits, with many depicting a chain of non-existent islands in areas which ships would often avoid (Hayton 2016). Up until the 20th century, there was very little interest in the islands, but as countries in the region gained independence, founded new governments and established their claims, new sources of tension emerged. Many of the modern claims result from each country adapting the region’s history in their favour, for example, arguing that their nationals have been fishing around the islands or parts of the sea for centuries. But due to the highly interrelated histories of the region, no sole claimant has been able to provide conclusive historical evidence of exclusive control over the sea or islands, thereby invalidating claims that supersede modern delimitations (Mirski 2015).
In accordance to UNCLOS, coastal and archipelagic states are subject to territorial sea extending 12 nautical miles from their coastline, in which sovereign territorial rights are exercised. In addition to this, states are subject to an Exclusive Economic Zone (EEZ) which extends 200 nautical miles from their coastline (see Figure 1). Within an EEZ, a state has sovereign rights to natural resources, both living and non-living, and have exclusive rights to build artificial islands (United Nations 1982). The scope and basis for China’s nine-dash line claim are relatively ambiguous and have not defined in terms of sovereignty claims or maritime jurisdictional claims. Despite this, aggressive military expansion in the region suggest signs of China pursuing jurisdiction over the entire area demarcated by the nine dashes (Maritime Awareness Project 2019). The Chinese claim first appeared on official maps in 1948, after a period in which China was determining many of its national borders. As others have also laid claims in the contested sea, disputes have broken out over both islands and sea space. Over time China, the Philippines, Vietnam and Malaysia have all built on islands in the Spratlys to further project and justify their claims, but China’s advance has been the most significant in recent times, drawing widespread international attention (Hayton 2016).
International Tribunal:
After decades of failing to resolve their dispute with China over the Spratly Islands and Scarborough Shoal, the Philippines initiated an international tribunal, submitting a total of 15 disputes regarding the compatibility of China’s claims with UNCLOS, the status of geographical features in the SCS, and whether Chinese activities within the Philippines’ EEZ had violated its sovereign rights. This was the first instance of another claimant country bringing its claim against China under UNCLOS (CFR 2018). Despite China’s refusal to be involved, the arbitral tribunal was convened in The Hauge on June 2013 and constituted 5 experts on the law of the sea. The tribunal ruled in favour of the Philippines in July 2016, ruling that China’s nine-dash line claim was incompatible with UNCLOS, that none of the features in the Spratlys were entitled to an EEZ, and that China had violated the Philippines sovereign rights within its EEZ through reclamation work and interfering with Filipino fishing boats.
The response to the tribunal varied, with most claimant countries issuing statements acknowledging the ruling but failing to call China to abide by it. China said the ruling was null and void, calling it a “mere scrap of paper” and saying it would not accept it “under any circumstances” (Aljazeera 2016). Taiwan, whose claims mirror that of China’s, also rejected the ruling, reiterating its sovereignty claim. In contrast to this, extra-regional powers including the U.S., Japan, Australia and many EU countries said that the ruling was legally binding and should be followed by both countries (Storey 2016). According to international law, the ruling is binding on both parties and cannot be appealed, but in practice there is no way to enforce such a ruling. Since the tribunal, the legal legitimacy that backs the Philippines’ position has slowly waned to the ever-increasing reality of Chinese militarization. China’s advance continues amidst U.S. countermeasures such as FONOPs, and although the Chinese claim may not hold legal integrity, China’s influence in the region has allowed it to largely overlook the tribunal’s ruling.
From a diplomatic perspective, attempts to call China to follow the ruling have failed, largely discrediting international law. Other possible diplomatic attempts to impose the tribunal ruling (or parts of it) could come through the warming of relations and the building of a multilateral framework between China and ASEAN. Many ASEAN countries in the region a hope to establish a set of rules that are “legally binding, meaningful, effective and consistent with international law” (Reuters 2017). This would ensure the stability of the region and the prevent escalating conflict. Observing nations place their hope in the long awaited SCS Code of Conduct that China and ten ASEAN members are trying to negotiate. Initially signed in 2002, the ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC), has yet to be fully implemented (YingHui 2017). Slow progress on resolving the disputes has given way to some agreement, with leaders from all sides agreeing to a framework for the Code of Conduct (COC) in May 2017. The framework outlines what China and ASEAN call ‘consultations’ on the issue, allowing both parties meet to negotiate an agreement. This ongoing commitment shows that all sides have a desire to find a resolution thereby significantly reducing the risk of military clashes, but many are sceptical of China’s position in the negotiations, saying that it simply wants to buy time to consolidate its military power. Despite calls from several ASEAN countries to ensure that the COC is legally binding, enforceable, and provides a dispute resolution mechanism, many accuse China of using its hefty influence to shape the agreement in its favour. Australia, Japan and the U.S., all of whom advocate for a legally binding resolution, have expressed strong opposition to China’s “coercive unilateral actions that could alter the status quo and increase tensions” (Reuters 2017). This comment conveys the threat China poses to a rules-based status quo by refusing to come under multilateral jurisdiction from both UNCLOS and a the potentially binding COC agreement.
China’s Militarization:
Since December 2013, China has added 2,900 acres of new land in the Paracel and Spratly islands through island reclamation; more than all other claimants combined in the past forty years. This has given China a total of twenty outposts in the Paracel islands and seven in the Spratlys. Satellite imagery shows that China has constructed helipads, airstrips, piers, radar and surveillance structures on many of the islands. By continuing to build artificial islands and improving infrastructure China is increasing its potential power projection capabilities in the region, helping to bolster its claim (CFR 2018). As the capabilities of these islands become more sophisticated, concerns are growing in the region and beyond, triggering a range of responses.
China has occupied part of Paracel islands since the 1950s and has controlled the entire Paracel archipelago since 1974 (Maritime Awareness Project 2019). More recently, China has expanded its 20 outposts in the Paracels through land reclamation. Contrary to official narratives, reclamation has increased the size of Tree Island and has rebuilt a part of land bridge between North Island and Middle Island that had been destroyed by Typhoon Sarika in October 2016. As well as continuing land reclamation in the Paracels, China also continues to upgrade its military infrastructure on the island chain. Duncan Island, Woody Island and Tree Island now have protected harbours that can host significant numbers of naval or civilian vessel (see Figure 2). Four smaller harbours have also been constructed on Lincoln, Money, Pattle and Triton islands, including a fifth that is being built on Drummond Island. The air capabilities such as helipads and helicopter bases that exist on multiple islands as well as airstrips, hangars and deployment of HQ-9 surface to air missile batteries on Woody Island show that China is committed to power projection in the region (AMTI 2017). Lying just over 200 nautical miles off Hainan Island, China’s presence in the Paracels is a significant source of tension with contesting claimant, Vietnam. Having once been occupied by both countries, clashes between Chinese and Vietnamese forces in the 1974 resulted in China gaining control of the islands (Maritime Awareness Project 2019). Today, of the claimant countries, Vietnam has been the least swayed by Chinese influence, and came closest to calling on both China and the Philippines to abide by the tribunal ruling (Storey 2016). With neither side offering each other diplomatic niceties, both countries remain in sharp conflict with one another over the islands. The long-term Chinese occupation of the Paracel islands has resulted in tensions between China and Vietnam, straining a relationship that has sparked violence in the past.
Chinese militarization in the Spratly Islands has proven much more contentious in recent years as they have seen both rapid island reclamation as well as the introduction of unprecedented military capabilities. Moreover, the Spratly Islands are contested by China, Vietnam, Taiwan, the Philippines and Malaysia, and all have established constructions on some of the islands. China has been by far the most active in the expanding and equipping its islands, including the construction of large anti-aircraft guns. Experts also suspect that close-in weapons systems (CIWS) have been introduced to some of the islands to protect against cruise missile strikes. The placement of these defences shows how China is willing to defend these islands and are prepared to respond in the case of an attack. Of the islands China has developed, Fiery Cross, Mischief and Subi Reefs are the by far the most advanced (see Figure 3). Each has enough hangars to accommodate 24 combat aircraft and four larger transport planes, bunkers to house missile launchers, as well as radars that allow for the monitoring of the surrounding area (AMTI 2017). By March 2018, China had verifiably landed military transport aircraft on all three of its main islands in the Spratlys marking a major milestone in developing its military capabilities in the region. According to U.S. intelligence, China also deployed YJ-13B anti-ship cruise missiles and HQ-9B surface to air missiles on the 2nd May. Offensive capabilities such as air power, radars and missiles give China a sizable advantage in the region, causing concern for both the U.S. and other claimant countries.
Overall, China’s military capabilities in the SCS are unparalleled, with Admiral Philip Davidson, Head of US Pacific Command stating that “China is now capable of controlling the South China Sea in all scenarios short of war with the United States” (CNN 2018). Figure 4 shows the observed, reported and expected capabilities China has or is likely to have from its four most equipped islands: Woody island in the Paracels and Firey Cross, Mischief and Subi Reef in the Spratlys. Once these capabilities are fully operational, China will have comprehensive control over the region. This military capacity gives China the upper hand in diplomacy and as of present, has granted it immunity from abiding to international arbitration. Further militarization has shown China’s commitment to its sovereignty claims and the lack of commitment it has to abiding by UNCLOS. The long-standing failure to comply with international law sends a signal that China does not see it as legitimate. Moreover, China’s increasing military confidence in the region suggests it does not fear U.S. or multilateral attempts to impose it.
Despite China’s assertive position in the region, this has not stopped U.S. intervention. In reaction to the reclamation and militarization of islands, the U.S. has conducted several FONOPs throughout the region. By sending its military vessels within 12 nautical miles of the Chinese reclaimed islands, the U.S. seeks to excise the right to freedom of navigation in international waters and demonstrate the illegitimacy of China’s claim to territorial seas. Since May 2017, the U.S. has conducted a total of six FONOPs, triggering aggressive responses from China on multiple occasions (CFR 2018). Most notably, in September 2018, a Chinese warship, Luyang sailed within 45 yards of U.S. destroyer, the USS Decatur, while it was conducting a FONOP around Gaven Reef in the Spratly Islands. The move was met with condemnation, with U.S. Pacific Fleet spokesman, Commander Nate Christensen saying the Chinese destroyer had approached in “an unsafe and unprofessional manoeuvre in the vicinity of Gaven Reef in the South China Sea” (Hutchens 2018). China’s defence ministry responded saying that the operation was a “serious threat to China’s sovereignty and security, seriously damaging Sino-U.S. military ties and seriously harming regional peace and stability” (BBC 2018). The U.S. sees FONOPs as vital in maintaining its interests in the region, and increased commitments to the Asia-Pacific region have shown a willingness to engage in the region. U.S. PACOM Commander, Chief Admiral Harry B. Harris JR, expressed a continued support for FONOPs, saying, “the United States will continue to fly, sail and operate wherever international law allows, and support the right of all nations to do the same” (CFR 2018). Continued U.S. commitment to operating in the region reveals that although China’s military capacity and influence have grown significantly, it has not grown beyond U.S.’s willingness to be involved, suggesting that the notion of rules-based international norms, although weakened, still exists in the SCS.