KANEOHE, HAWAII – We are witnessing another round of China-bashing — this time because of its reclamation activities on islands and submerged reefs in the South China Sea. The U.S. Department of
Defense has accused China of undermining the status quo and generating instability; being out of step with international rules and norms; and “militarizing” these locations, known as “features.”
U.S. Secretary of Defense Ashton Carter has specifically alleged that “turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit.” Other claimants like the Philippines and Vietnam have said a lot worse, the former even likening China’s actions to those of Nazi Germany prior to World War II.
This article is not a defense of China’s actions and policies. Indeed, given China’s assertive rhetoric and actions — and its refusal to clarify and explain them — it is understandable that the U.S. and others think that China has committed — or is about to commit — a litany of sins.
Indeed, its actions are perceived as not commensurate with its rhetoric and previous commitments and this generates suspicion, and worst-scenario “mights” and “maybes.” A deep worry is that China will use its reclaimed features to bolster its military presence and control over the Spratly area and in particular declare and enforce an air defense identification zone (ADIZ) there. To the U.S., the concern is that such “control” may be used to “inhibit freedom of navigation.” In this worst scenario it would be “game on.”
Let’s try to separate fact from fancy.
China claims all the features in the South China Sea. So do Vietnam and Taiwan. The Philippines and Malaysia claim some. Under the modern international legal “sovereignty” standard of continuous, effective occupation, administration and control, all these claims have weaknesses. None has been adjudicated more valid than others.
There are several “legal islands” in the Spratlys including Spratly and Taiwan-occupied Taiping. China does not occupy them. But occupation alone does not equate to sovereignty, and China does claim them. These islands appear to be able to support human habitation and have an economic life of their own — which would qualify them to generate 12 nautical mile (nm) territorial seas, 200 nm exclusive economic zones (EEZ) and continental shelf out to as much as 350 nm. Of course their sovereignty itself and the extent of such zones would have to be negotiated with other claimants to them and nearby features in the Spratlys. Nevertheless, China may be claiming some of the submerged features as being in its EEZ from these legal islands. This would not convey sovereignty, but it would convey a right to undertake construction of artificial structures in its claimed EEZ.
Another possibility is that China is claiming that the submerged features it is building on are encompassed by the territorial sea of its claimed legal islands and come within baselines drawn around the islands. They and the territorial sea from the baselines would thus be under its sovereignty. This is a stretch — and an argument that could be used by other claimants as well — but it is within the realm of possibility. The problem is we do not know exactly what China claims and why. But the U.S. legal position is not a “slam dunk.”
The point is that under the “within the baselines” scenario, China could have a plausible claim to some submerged features and a 12 nm territorial sea from the baselines. Thus U.S. Secretary of Defense Carter’s allegation is debatable.
At the very least, “artificial structures” in China’s claimed EEZ would be entitled to a safety zone of 500 meters. Presumably the zone extends to overflight. China’s warnings to foreign military aircraft they were approaching a “military alert zone” may have been reasonable.
As for China’s claims from and reclamation on China-occupied “legal” islands (Cuarteron Reef, Fiery Cross Reef and Johnson South Reef), it presumably claims a territorial sea and the right to ban overflight that goes with it. Thus U.S. overflight of the feature and its territorial sea could be seen as a challenge to China’s claim to sovereignty. Perhaps the U.S. position is that sovereignty is unsettled so no sovereign is recognized. Or perhaps the U.S. intends to challenge China’s regime of prior notification for foreign warships to enter its territorial sea. But Vietnam has a similar regime and should draw similar challenges. The point is that it may not be clear-cut as to what it is challenging and why, and could easily be misinterpreted by China.
What about the charge that China is not adhering to regional norms? All claimants have reclaimed land around their occupied features, maintained them, and allowed use by their militaries. Yes, the scope and scale of China’s reclamation exceeds that of all the other claimants combined. Presumably China feels that its responsibility for managing civilian issues in the area should be commensurate with its size, population and economy. It should not be a surprise that its vision of its regional responsibilities and its capabilities greatly exceed that of small countries.
Can/should China declare an ADIZ over the area? There are no international legal bases for such zones and their “rules” — except perhaps the general principles of “self-defense” and “freedom of overflight” — and the former will always take precedence for any country. The U.S. established the precedent of an ADIZ and its rules — for itself and Japan, Taiwan and South Korea — after World War II, and apparently thinks that all other nations’ ADIZs should be based on its model. But being first does not justify dictating the rules for all, especially in the absence of an international agreement.
China could declare a zone out to, say 200 to 250 nm off its coast but not including any disputed islands or maritime space except the Paracels and possibly Pratas Island. That should be grudgingly accepted by most of its critics although its theoretical requirements and their enforcement may create other problems. A legitimate worry is that China’s ADIZ would contain similar rules and regulations to the one it established in the East China Sea. This includes a controversial requirement of prior notification for foreign aircraft entering the ADIZ even if they are only transiting it and not destined for China’s territorial airspace. But China has so far not enforced this requirement. Moreover Japan has a similar requirement for Taiwanese aircraft entering its ADIZ, as do Australia, Myanmar and Taiwan for foreign aircraft entering their ADIZs. The point is China has a right to declare an ADIZ and if it does not include multicountry disputed areas it would in itself not be destabilizing.
However a Chinese ADIZ that includes some disputed Spratly islands and their maritime space could be very problematic. It would be a manifestation of the worst fears of the U.S., Japan and Southeast Asian nations that China wants to control the South China Sea, including its air corridors and sea lanes. This would in their eyes be tantamount to a threat to “freedom of navigation” and may be a “red line” for the U.S.
The conclusion is that China’s actions are in principle commensurate with what others have done. Moreover the U.S. does not appear to be neutral on the sovereignty question and the other claimants criticizing China are hypocrites.
Perhaps the most salient question is who or what is altering the status quo and “destabilizing” the region? Is it China’s reclamation activities or is it the U.S. military rebalance and its perceived challenge to China’s political and military ambitions — and specifically to its claims? Do such U.S. policies and their implementation help solve the disputes and maintain peace and stability — or do they exacerbate the situation?
All claimants have probably violated the arbitral tribunal’s precedential ruling in the Guyana-Suriname case that no claimant should undertake unilateral action that alters the physical nature of a disputed area. This presumably applies to disputes over island sovereignty as well. Moreover it is an open question whether third parties like the U.S. or Australia should act unilaterally in such disputed areas.
An anonymous U.S. official opined about China’s reclamation activities that “there is no military threat — it is about the symbolism.” This statement is perhaps the most accurate of all.
Courtesy Mark J. Valencia, an adjunct senior scholar, National Institute for South China Sea Studies, Haikou, China.
This article first appeared in The Japan Times