Comments on: China narrows the South China Sea https://www.policyforum.net/china-narrows-south-china-sea/ The APPS Policy Forum a public policy website devoted to Asia and the Pacific. Sun, 20 Aug 2017 03:40:28 +0000 hourly 1 https://wordpress.org/?v=6.1.7 By: Caleb Jones https://www.policyforum.net/china-narrows-south-china-sea/#comment-9623 Sun, 20 Aug 2017 03:40:28 +0000 http://www.policyforum.net/?p=12435#comment-9623 The Republic of China’s (‘China’)position appears to be that the applicable law for the South China Sea (‘SCS’) predates construction of the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’) and that its validity survives the creation of this new maritime legal architecture. China believes that it has valid legal claims under customary international law and could apply forms of historical title and/or historical rights (tantamount possibly to internal waters claim), and the application of which renders conflicting UNCLOS articles moot. Given that UNCLOS was constructed after these rights were already in place, they remain in law historically according to China’s legal opinion.
The upshot here is that international law does matter for China and enables its foreign policy, but this view is entirely at odds with contemporary opinion. It has been suggested that historical titles and rights were removed or superseded by UNCLOS. Furthermore, the vast majority of international legal experts have concluded that China’s claims based on historical claims are invalid. Many ambiguities arise from the notion of historical claims as a basis for claiming sovereignty and is inherently ambiguous. The first appearance of China’s Nine Dash Line with apparent official Chinese government endorsement was in a government internal atlas in 1947, which was then published as a Chinese atlas in 1948. The nine-dash line that appears on Chinese maps encompasses almost the entirety of the SCS but includes no coordinates.
Of critical importance is the fact that the July 2016 arbitration in the International Court at the Hague which ruled unanimously in favour of the Philippines in its case against China’s extensive claims in the SCS set in motion the ‘legalization of the dispute,’ making law the dominant frame through which all states’ actions have been evaluated. China is now caught within a legalized regional community and its policy has been significantly and materially modified, triggering an intense island reclamation process now underway. There is evidence that China has nearly completed structures intended to house surface to air missile systems on its three largest outposts in the disputed territory as part of a steady pattern of its militarization. Such structures have come up at Fiery Cross reef, Mischief reef and SubiReef, all man made islands dredged by China and are now home to military-grade airfields. China started construction of these buildings in September 2016 and have built eight buildings on each of the three outposts. China claims that these measures are in accordance with the nation’s security requirements and are the legitimate right of a sovereign state.
Some observers characterize China’s approach for asserting and defending its territorial claims in the SCS as a ‘salami-slicing’ strategy that employs a series of incremental actions, none of which by itself is a casus belli, to gradually change the status quo in China’s favour.
In essence international law has facilitated policy change by forcing China to act within a tight policy space. China have realised that they need the cover of the law to provide legitimacy and credibility to their maritime claims. Given the industrial capacity of the claimant states (Taiwan, Philippines, Brunei, Malaysia and Vietnam), an aggressive foreign policy grounded in a logic of defensive action has become its most promising action. None of the claimants are in a position to confront China militarily, they look at Washington and other stakeholders who do not have direct involvement in the dispute but respect global rules to come to their rescue to prevail upon China from pursuing such an aggressive approach.
China’s actions for asserting and defending its maritime territorial and EEZ claims in the SCS raise several potential policy and oversight issues for US Congress, including whether the United States has an adequate strategy for countering China’s ‘salami-slicing’ strategy, whether the U.S. has taken adequate actions to reduce the risk that the U.S. might be drawn into a crisis or conflict over a territorial dispute involving China, and whether the United States should become a party to the UNCLOS.
In a major development, China and Southeast Asian countries agreed on 18 May 2017 to a draft framework on the outline of a legally binding Code of Conduct (‘COC’) designed to prevent clashes in the SCS. It should be noted that mid-2017 was the timeline set by China and the leaders of ASEAN. The draft framework was agreed upon before that date though details of the contents are not yet revealed and no date has been given for the adoption of a full COC. It should also be noted that fifteen years ago, China and the members of ASEAN had committed to draft a COC but were unable to do so because of differences.
On August 7 2017 during the 50th ASEAN ministerial meeting — U.S. Secretary of State Rex Tillerson and his counterparts Julie Bishop and Taro Kono met in Manila for the seventh ministerial meeting of the Trilateral Strategic Dialogue (TSD) and jointly issued a statement that included a paragraph demanding that China and the Philippines abide by the 2016 arbitral ruling on the SCS. The statement further addressed China directly: the ministers called on China and the Philippines to abide by the Arbitral Tribunal’s 2016 Award in the Philippines-China arbitration, as it is final and legally binding on both parties. The ministers urged ASEAN member states and China to fully and effectively implement the 2002 Declaration on the Conduct of Parties in the SCS (DOC). After the meeting, in an attempt to tout its cooperation with ASEAN, China was particularly satisfied that the ASEAN states had approved the framework for the COC for the SCS. Yet, even on this ‘positive’ result, the three-country statement had a different opinion: the ministers acknowledged the announced consensus on a framework for the COC for the SCS. The ministers further urged ASEAN member states and China to ensure that the COC be finalized in a timely manner, and that it be legally binding, meaningful, effective, and consistent with international law.
The inability of the ASEAN members to resolve the SCS dispute has been cited as the result of the kind of pressure China has applied on ASEAN leaders. China’s participation in the talks has prevented any real progress, allowing China to continue its activities in the contested Paracel and Spratly Islands without contest from any mutually agreed-upon framework (except the non-binding 2002 declaration).
It is therefore, of critical importance that a COC be put in place to resolve the dispute in accordance with international law. Until this happens, China will continue to militarize the disputed territories without any consideration of smaller nations who have their own legitimate claims. China will also continue to stall on the COC, which will grant them more time to seal in its advantages in the SCS, with new man-made islands and facilities that can easily be converted or operationalized for military use. Until China is satisfied with its position in the SCS, we may not see real progress on the COC. Unfortunately, that may be years from now.

]]> By: Fay L. Dumagat https://www.policyforum.net/china-narrows-south-china-sea/#comment-7450 Sun, 28 Aug 2016 11:15:37 +0000 http://www.policyforum.net/?p=12435#comment-7450 American policy makers and military leaders have been too engrossed in containing conflicts in the Middle East and in Eastern Europe to protect Israel, to control Russian threat in Eastern and Western Europe and Iranian threat in the Middle East, at the same time insuring the flow of oil from Russia to Europe and Middle East oil to America, Japan and other industrial nations such that it left a power vacuum in Asia which the Chinese exploited for their military control of the Asian Region. Now, the Democratic Party in power in the US like in World War II, is unwilling to confront the Chinese challenge. In the face of this realities, the bigger Asian states like India, Indonesia, and Japan, including Australia and New Zealand must enter the picture to stop China in her aggressive drive to dominate the region. The proliferation of nuclear missiles to small states in Asia and Southeast Asia will be a worse nightmare than nuclear Iran or North Korea. The US cannot hesitate to face off China because it could be

misinterpreted as weakness by both China and Russia.

]]> By: All Atatime https://www.policyforum.net/china-narrows-south-china-sea/#comment-7444 Fri, 26 Aug 2016 23:00:07 +0000 http://www.policyforum.net/?p=12435#comment-7444 Violence begets violence. China will now arm Pakistan to the teeth. And possible Sri Lanka eventually. Now that is encirclement of India. Why can’t we just talk. Everybody has a price.

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