Boiling Waters in the South China Sea

Lewis Smart - Regular Columnist

Image credits: U.S. Pacific Command

On Saturday 30th January 2016 a United States guided missile destroyer the USS Curtis Wilbur conducted a Freedom of Navigation Patrol in the hotly contested Paracel Islands. The patrol required the Curtis Wilbur to engage in “innocent passage” within the 12-nautical mile territorial zone of Triton Island as allowed under The United Nations Convention on the Law of the Sea (UNCLOS). This patrol is the second Freedom of Navigation patrol undertaken by the United States with the USS Lassen (an Arleigh Burke Class Destroyer like the Curtis Wilbur) having conducted a patrol last October in the Spratly Islands. Whilst this event in and of itself is an interesting case example of the United States trying to reinforce the idea and relevance of international law in the Asia Pacific what is more interesting is the way this event feeds into the larger picture of how China is acting in the region and how actions like these, now more than ever may create situations that spin out of the control of both parties.

China’s View on UNCLOS

The Exclusive Economic Zone

Firstly, it is important to understand what the United States Freedom of Navigation patrol was meant to achieve and more importantly what it was meant to signal. Under UNCLOS a state measured from its coastal baseline is permitted a 12 nautical mile territorial zone, a 24 mile contiguous zone and a 200 mile Exclusive Economic Zone (EEZ). As Raul Pedrozo of the U.S. Naval War College explains:

Within the EEZ, the coastal state enjoys sovereign rights for the purpose of “exploring, exploiting, conserving and managing” living and non-living natural resources, as well as jurisdiction over most off-shore installations and structures, marine scientific research, and the protection and preservation of the marine environment’ (Pedrozo:2014:516).

States are not allowed to restrict the rights of other nation’s vessels in the EEZ as ‘the term sovereign rights in Article 56 was deliberately chosen to clearly distinguish between coastal state resource rights and other limited jurisdictions in the EEZ, and coastal state authority in the territorial sea where coastal states enjoy a much broader and more comprehensive right of sovereignty’ (Pedrozo: 2014:516/17).

China is a state that sees this reading of limited jurisdiction of a state in the EEZ as something that does not fit in with how its interests should be protected. Rather it has taken an expansive view of its jurisdiction in the EEZ and has regularly complained when United States vessels conduct military exercises or collect intelligence (which they are allowed to do under international law) within the 200 mile zone from China’s coastline.

Whilst ‘intelligence collection in the  Exclusive Economic Zone is permitted under Article 58 and Article 87 of UNCLOS as a high seas freedom’ (Pedrozo:2014: 83) this has not stopped China from harassing U.S assets which operate lawfully in the EEZ. The 2001 EP-3 collision along with the USS Cowpens incident in 2013 demonstrate that China has little regard for what International Law permits other countries to do.

The Territorial Sea

Compared to the limited nature of a state’s jurisdiction in respect to the EEZ a state is permitted more freedoms to defend itself in relation to other vessels operating within its 12 nautical mile territorial zone. Indeed ‘a coastal state has full sovereignty over its territorial waters’ (Cheney-Peters:2015). Other states’ ships are still allowed to pass through these waters but only ‘enjoy the Right of Innocent Passage through these waters so long as their passage is continuous and expeditious and not prejudicial to the peace, good order or security of the coastal state’ (Cheney-Peters:2015). This means that the activities of vessels within these waters are tightly controlled with ‘Article 19(2)(c) prohibiting ships transiting the territorial sea in innocent passage to engage in “any act aimed at collecting information to the prejudice of the defense or security of the Coastal State’ (Pedrozo:2014:83).

Freedom of Navigation Patrols

With these matters in mind it is clearly necessary to ask why the United States conducted a Freedom of Navigation Patrol within the territorial zone of Triton Island last Saturday and Subi Reef last October.

Since 2012 China has been on a huge island reclamation building frenzy in the South China Sea and has created huge artificial islands like Fiery Cross Reef which now boasts a 3000 metre runway capable of supporting military assets. Whilst the United States has expressed concern over these activities it has stayed out of the issues concerning sovereignty over the islands and who has a claim to what.

To take sides on this matter would require the United States to side with the smaller claimant states like the Philippines and Vietnam or in an extremely unlikely scenario side with China in its irredentist claims. Either way by siding explicitly in this dispute the United States would lose out. If it supported the smaller states openly in their sovereign claims then it would only aggravate China at a fundamental level with the disagreement becoming a diplomatic focal point. With American support for a sovereignty claim against what China (rightly or wrongly) believes as its rightful territory there can only be a result that this issue would inflame Chinese nationalist sentiment and quickly take over the agenda of Sino-American relations.

Whilst America acts with caution in the sovereignty dispute it stands firm on the issue of the due regard that states should have for international law. Even if states are building islands that are rightfully or wrongfully theirs the United States does not accept the idea that states can then restrict the rights of other nations in surrounding waters.

China’s Reaction

So far the Chinese reaction to these patrols has been as expected in the rhetoric department. The foreign minister Wang Yi is carted out to express Chinese outrage and how this is a threat to Chinese sovereignty and to the rights of the PRC.

Whilst this is the normal diplomatic bluster made by China which has been seen many times before, in this author’s opinion it now comes at a time when China may be more sensitive to actions like these than it was a year ago.

The two legitimising values of the Communist Party in China are nationalism and economic growth. With China’s economy experiencing a bumpy ride and U.S. warships starting to contest Chinese ideas of sovereign rights in the SCS the CCP is in a very delicate balancing act. How it acts to these events will be keenly observed by its citizens and if it appears weak then the fervent nationalists can be expected to demand action.

Whilst it is in China’s interests to respect international law and rational to concede the point the United States is trying to make, the art of diplomacy is to see the pressures operating on your opponent. In the future when more freedom of navigation patrols will be carried out (as Admiral Harry Harris has indicated) we cannot predict how much pressure the CCP will be under and how they will respond. The possibility for escalation is ever present and this is something the U.S. should be aware of.

The Bigger Picture

Whilst the United States has decided to use its military assets to enforce the idea of international law this does not mean that it has decided to abdicate completely in regard to the island reclamation activities in the South China Sea by China. Rather than siding openly with the smaller claimant states America is steadily but surely building up their capabilities to ensure that these states can contest the idea of a Chinese Monroe doctrine coming into force in the SCS.

America over the last few years has been doing what it does best and that is to craft alliances. At the level of grand strategy America has the upper hand in the region. The United States has taken advantage of a recalcitrant Chinese foreign policy to engage with states that fear Chinese hegemony.

Recently the Philippine constitutional court ruled that the Enhanced Defence Co-operation Agreement (EDCA) between itself and the U.S. was legal which will once again make the Philippines a focal point for American military engagement in the region.

Also The Economist notes that ‘just last week Vietnam approved an Indian satellite-tracking centre on its soil to share imagery, including pictures of the South China Sea’ (The Econmoist:2016:49). The blossoming Vietnamese-American strategic partnership is the true indicator of how concern by smaller states in the region regarding China’s ambitions have allowed the United States to craft a grouping of states that are opposed to Chinese ambitions and who will support each other in various ways to prevent Chinese supremacy.

Taking a broader view of the region an Indian-American-Japan trilateral relationship is also something that is taking root, something China must view with unease.

Conclusion 

Whilst this Freedom of Navigation patrol is one single event that raises headlines about America’s willingness to support the idea of international law in the region it is just one square on the chess board. This move is but one part of the wider Sino-American idea of the future of the Asia-Pacific region. Whilst the pawns are moved and sacrificed with little fanfare there may come a day when more important pieces come into play. Both sides had better proceed with caution.


Sources:

  • Cheney-Peters, Scott (2015), Asia’s Maritime Disputes 101: A Legal Primer, The National Interest, Source: http://nationalinterest.org/blog/the-buzz/asia%E2%80%99s-maritime-disputes-101-legal-primer-12004
  • Pedrozo, Raul (2014), Military Activities in the Exclusive Economic Zone: East Asia Focus, International Law Studies, U.S Naval War College, Volume 90
  • Pedrozo, Raul (2014), The Bull in the China Shop: Raising Tensions in the Asia-Pacific Region, International Law Studies, U.S. Naval War College, Volume 90
  • The Economist (2016), (January 30th- February 5th 2016 Edition), Page 49, The South China Sea, Making a Splash.
About Lewis Smart 7 Articles
Lewis is passionate about all things Asia-Pacific, in particular he has concentrated on China's military and economic modernization and completed his dissertation on Chinese civil-military relations. He is an avid reader of military strategy and the use of force in pursuance of political goals. He is looking to start a career in International Law but for the meantime works in the property sector. He worked on the 2015 general election campaign, speaks French, Italian and Mandarin to a reasonable level and has a healthy distrust of the media. You can follow Lewis on Twitter @SmartSmart63