Bogged down in the South China Sea

Tensions in the South China Sea have reached new heights following China’s militarisation of its artificial islands with missile systems. Imogen Saunders asks if we can we still hope for a peaceful resolution between the sea’s claimants.

Five years ago, Mischief Reef was fully underwater at high tide – a ring of submerged coral in the middle of the ocean, approximately 125 nautical miles from the Philippine island of Palawan. A further 100 nautical miles into the ocean sits Fiery Cross Reef – five years ago, the biggest dry feature was two-foot rock jutting up above the waves at high tide.

These features – along with five others in the South China Sea – have since been drastically transformed by China, which has dredged millions of tons of sand and coral to build artificial islands. These islands are equipped with functional runways, radar domes and hangars. Recently, it has been reported that China has added anti-cruise ship missiles and surface to air missiles on three of the artificial islands; this despite a promise in 2015 from Xi Jinping not to do so.

This move to further militarise the artificial islands was met with international condemnation. But what can the international community do next?

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Any route through international dispute resolution mechanisms will be difficult to navigate. Indeed, it has been done before, with little practical effect. In 2013, the Philippines brought arbitral proceedings against China pursuant to the United Nations Convention on the Law of the Sea (UNCLOS). The convention, unlike many international treaties, provides for a compulsory dispute resolution mechanism.

China rejected the jurisdiction of the Arbitral Tribunal and refused to participate directly in the proceedings, instead publically issuing a series of ‘position papers’. These included an argument that any disputes between China and an ASEAN member regarding the South China Sea needed to be settled by negotiation in light of the 2017 China-ASEAN Declaration of Conduct (‘DOC’) in the South China Sea: a document the Arbitral Tribunal held to be political in nature, and not legally binding.

The tribunal was then free to determine the merits of the case. It found that China’s artificial island building on Mischief Reef was a breach of Article 60 of UNCLOS, which gives the Philippines the exclusive right to construct artificial islands within its exclusive economic zone. Further, it found that China had breached its environmental obligations because of the “devastating and long-lasting damage to the marine environment” caused by the construction activities.

Despite this, China has continued construction and fortification of the artificial islands. There are no mechanisms to enforce the tribunal’s decisions, but the Philippines could have used it to exert greater diplomatic pressure on China. Instead, the election of President Rodgrigo Duterte a mere 2 months earlier has seen a softer, more friendly approach towards Beijing from Manila, and the Philippines has largely stepped away from pressing its claims from the award.

Other countries could take advantage of the same UNCLOS procedures, but the most strident criticism of China in this area comes from the US, which is not a party to UNCLOS and therefore cannot bring China to a dispute resolution in this way.

For those states that are party to UNCLOS, further challenges arise as China has excluded consideration of maritime boundary delimitation from any compulsory dispute proceedings. Because of the location of the artificial islands, and the lack of settled boundaries in the disputed areas, it is unclear whose territorial zone of water many of these artificial islands are located in.

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Even if another country decided to use the UNCLOS provisions – perhaps to challenge China on ongoing breaches of its environmental obligations – the practical effort of such proceedings is questionable. It seems unlikely China would participate in the proceedings, and any decision against it is not subject to enforcement.

Under international law, disputes can also be resolved through the International Court of Justice: a forum which does have limited enforcement options. However, such options are only available through a United Nations Security Council resolution which, given China’s veto power, would seem impossible. Moreover, as China has not accepted the compulsory jurisdiction of the Court, it would have to agree to have the case heard: again, a seeming impossibility.

So where to now? The US and the UK continue to undertake ‘freedom of navigation’ operations around the disputed features. Other countries such as Australia, India and Vietnam have issued public statements of support for these operations. However, given that artificial islands do not generate a territorial sea of their own, maritime operations are of little use in disputing the status of features based on low-tide elevations (such as Mischief Reef). They do serve a purpose around features with a territorial sea (such as Fiery Cross Reef) and more importantly, they challenge Beijing’s assertion of sovereign control of the disputed area more generally.

Unless the international community wants to be accused of acquiescence to China’s activities, such ongoing freedom of navigation actions are fundamental.

China has proved receptive to cooperating with ASEAN in the past. The ASEAN-China Declaration of Conduct is just a stepping stone in a long process to a negotiated binding Code of Conduct between the two parties. A commitment to this process from all the ASEAN nations, coupled with an ongoing rejection of China’s claims of sovereign rights over the artificial islands, is perhaps the best possibility for achieving a peaceful, negotiated outcome in an area rife with division.