China in the South China Sea: back to the future?

China’s actions hark back to pre-United Nations days where might was right and disputes were settled by force

Alison Pert

International relations, Law, National security, South China Sea | Asia, Australia, East Asia, South Asia, Southeast Asia, The Pacific, The World

3 March 2016

China’s actions in the South China Sea have irritated many nations in the region, but they also threaten the preservation of the UN Charter system, Alison Pert writes.

Until very recently, China was insisting that its newly-created “islands” in the South China Sea were not for military purposes. Those assurances, always unconvincing, have now been abandoned following publication of the satellite photos showing the nature and extent of the facilities being constructed, and China’s display of military strength designed to coincide with the last month’s ASEAN meeting in the US.

China’s rhetoric has now shifted to claiming that the installations are necessary for self-defence against “aggressors” such as the US and Japan. Whatever its true intentions, there is a real prospect that China will seek to control the entire South China Sea for as-yet unclear purposes, using military force if necessary.

Apart from the obvious direct threat to any state challenging China’s right to control this vast area, there is another underlying concern here: the effect that these actions may have on other states’ adherence to international law, and on the UN collective security system in particular. One of the primary reasons for the creation of that system in 1945 was to prevent the forcible seizure of territory.

China regularly refers to the importance of international law, but of course insists that these activities are all taking place within its own territory and are therefore a matter of purely domestic concern. This, however, begs the question. China’s exorbitant maritime claims – the legal nature which has still to be explained – are inconsistent with the UN Convention on the Law of the Sea (UNCLOS), to which it is a party, and are vigorously contested by many other states in the region.

Under UNCLOS, islands – naturally formed land, above water at high tide – can be claimed as territory by states. But most of the maritime features in the SCS are submerged reefs or, at best, low-tide elevations, above water only at low tide. It is extremely doubtful in international law that these can be acquired as territory by any state. UNCLOS permits a state to build artificial islands in its own exclusive economic zone (EEZ), on its continental shelf, or on the high seas, but artificial islands do not generate a territorial sea or other maritime zones.

China may well be able to establish title to particular islands, and that some of the artificial islands are legal because they are not within any other state’s EEZ or continental shelf. But given the longstanding competing claims from other states in the region, the proper approach, of a state that respected international law, would be to submit the disputes to international adjudication. This is what the Philippines has done, by referring China’s exorbitant maritime claims to an international arbitral tribunal under UNCLOS. China has refused to participate, despite having agreed to such arbitrations by becoming a party to UNCLOS. If it was so convinced of the soundness of its claims, it should have no fear of international adjudication.

China has already used force to reinforce its territorial claims in relatively minor skirmishes, but the recent construction makes it clear that greater force is threatened, over a far wider area. As China well knows, international law permits force to be used only in the face of an armed attack, and not, for example, against a foreign ship or aircraft merely traversing what other states consider to be international waters and airspace.

More on this:080530-N-2179W-263
SOUTH CHINA SEA (May 30, 2008) The Tarawa-class amphibious assault ship USS Peleliu (LHA 5) steams through the South China Sea. Peleliu is the flaghsip of the Peleliu Expeditionary Strike Group and is on a scheduled deployment. U.S. Navy photo by Mass Communication Specialist 2nd Class Scott Webb (Released) Maritime muscle in the South China Sea | Sarah Kirchberger.

China is not only a powerful nation, but also one of the permanent members of the UN Security Council, which is charged with the responsibility for maintaining international peace and security. On its present trajectory China looks like becoming the second permanent member of the Security Council to be currently acting in flagrant violation of international law, the first being Russia in its seizure of Ukrainian territory. As permanent members, China and Russia can veto any resolution condemning their actions, and there is obviously no possibility of the Security Council ever contemplating more robust action. The harsh reality is that the Security Council is unable to police its own.

Does this matter? Cynics may say this is nothing new, that there have been many instances of permanent members of the UN Security Council (P5) violating the UN Charter since 1945, one of the more recent being the invasion of Iraq in 2003. Optimists might chime in that at that time there were serious doubts that the Security Council could recover from the blow to its authority and credibility, but rather to everyone’s surprise it did recover and resume its previous standing.

But the current situation feels qualitatively different. On the positive side, both Russia and China refer to international law in defending their actions, however implausible those defences might be. On the negative side, China is apparently seeking to dominate, by force, a huge area that includes unquestionably (except to China) international waters and some of the world’s major shipping routes.

It is tempting to conclude that China is dragging us back to the 19th century when might was right, and territorial claims and international disputes were settled by force – the very situation the UN, and the League of Nations before it, were created to avoid.

There is no magic solution, but it is essential that at the very least, China’s claims are refuted loudly and often, by as many states as possible. The freedom of navigation patrols should be continued and expanded, and repeated visibly by other states, to ensure that there is no acquiescence in China’s claims. Prolonged public denunciation of China’s (and Russia’s) behaviour in this way will provide some hope of maintaining respect for international law and the preservation of the UN Charter system.

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3 Responses

  1. Charlie Batchelor says:

    China being China,they have had no respect for their own people let alone their neighbours.Their role in the Security Councilis an insult to the United Nations Charter as is the antics of USSR.
    But Australia’s & New Zealand’s policys of allowing them to buy up farms,properties & businesses shows a complete lack of support to the UN & it’s mandates. A very sad state of affairs.
    Many thanks for writing such a concise picture of how China & Russia are using their positions to bully less powerful nations

  2. Renato Perdon says:

    Your statement ‘The freedom of navigation patrols should be continued and expanded, and repeated visibly by other states, to ensure that there is no acquiescence in China’s claims’ is the best and suitable action that all nations in the area should resort to at this stage before it is too late. But the main question is that which country in the are would spearhead the move. Even Australia has a huge economic and trade interest in China would not want to head the action

  3. Andres Bonifacio says:

    At this point in time, China is now busy lobbying support from mostly African States and in Asean (eg.,Cambodia & Laos) to show that a lot of nations supports their case (Nine Dash Lie). Ironically, these countries are indebted to China.

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Citation

Pert, A. (2016). China in the South China Sea: back to the future? - Policy Forum. [online] Policy Forum. Available at: http://www.policyforum.net/china-in-the-south-china-sea-back-to-the-future/

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