The South China Sea: Defining the 'Status Quo'
Chinese dredging vessels at work on Fiery Cross Reef.
Image Credit: REUTERS/U.S. Navy

The South China Sea: Defining the 'Status Quo'

 
 

As East Asia’s maritime disputes continue to bubble, concern with the “status quo” is emerging as a staple component of many countries’ official policies on the South China Sea. This raises several questions worthy of careful consideration. When and how did the term come to prominence? What exactly is the status quo in the South China Sea? How is the term used in practice, and how useful is it in relation to these disputes?

The term’s broad-brush vagueness – it simply means “the existing situation” – may make it appealing for practitioners of diplomacy, but the lack of clarity limits its usefulness as an analytic tool. More troublingly, being such an all-encompassing term, its use as a normative standard is inevitably selective, resulting in inconsistencies that risk breeding misunderstanding and mistrust. Unless used with care and nuance, it is a term that is more likely to undermine than underpin a “rules-based order” in maritime Asia.

The U.S. position on the East and South China Sea disputes, as Defense Secretary Ash Carter and other officials have frequently reiterated in recent months, is that it opposes changes to the status quo made through force or coercion. Senior U.S. military and civilian officials have used this standard formulation frequently since mid-2013, most prominently in relation to the PRC’s East China Sea Air Defense Identification Zone (ADIZ), and its well-publicized island-construction project in the South China Sea.

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Claimants in the disputed seas have also embraced the idea of defending the status quo from Chinese advances. The leaders of Japan and the Philippines on June 4 affirmed their opposition to “unilateral attempts to changes the status quo.” Vietnam maintains a slightly subtler position that stops short of outright opposition, as typified by Prime Minister Nguyen Tan Dung’s call for countries to refrain from “actions that would complicate the situation and change the status quo of rocks and shoals.”

 

Rising status

Before 2013 the “status quo” rarely featured in the diplomatic lexicon on Asia’s sea disputes – though an important post on this site by leading scholar M. Taylor Fravel in November 2012 used the term to describe China’s significant gains in the Scarborough Shoal and Senkaku/Diaoyu crises. Today, powerful multilateral groupings like the G7 build their collective positions around it.

The Japanese government was an early adopter of the term, with a position paper from December 2012 specifically accusing China of “challenging the status quo” in the East China Sea. The current U.S. formulation began to take shape in January 2013, when then-Secretary of State Hillary Clinton stated that the U.S. opposed any unilateral actions that would seek to undermine Japanese administration over the Senkaku/Diaoyu Islands. Then-Defense Secretary Chuck Hagel’s address to the Shangri-la Dialogue that year refined the focus to “coercive” actions, but expanded the scope to cover any attempts to alter the status quo, in either the South or East China Sea.

In October 2013, Australia joined Japan and the U.S. in a coalition of status quo defenders via an October 2013 trilateral joint communiqué. The communiqué itself attracted plenty of attention, but it was the PRC’s announcement of an ADIZ in the East China Sea that catapulted the term into widespread usage in media and commentary. Japan and Australia used the term in their harsh criticisms of China’s ADIZ, as did U.S. officials as senior as Vice President Joe Biden.

Ironically, it may have been China’s own shrill condemnation of the Japanese government’s purchase of disputed islands in September 2012 that kicked off the recent diplomatic struggle over the status quo in maritime East Asia. China loudly proclaimed that the Noda administration’s purchase of five of the islands overturned a “consensus” to shelve the disputes dating back to the 1970s. As Japan drew attention to Chinese government ships’ new regular patrolling activities in the disputed waters, Chinese officials on numerous occasions retorted that it was Japan who changed the status quo first by nationalizing the islands.

In the South China Sea, however, the PRC has had little if anything to say in favor of the status quo. In fact, on May 29, Foreign Ministry spokesperson Hua Chunying explicitly denounced it: “China does not recognize the so-called ‘status quo’ of the Philippines’ and some other countries’ occupation of relevant Nansha islands and reefs through illegal means.” On June 9, FM spokesperson Hong Lei was even more firm, saying that “the Chinese government has never recognized the so-called ‘status quo’ of Diaoyu Dao and its affiliated islands as well as some maritime features of the Nansha Islands that were illegally seized and occupied by other countries.”

The idea of the status quo has actually long been central to China’s relations with the outside world. The “One China Policy” – recognition of which is a non-negotiable prerequisite for all countries’ diplomatic relations with Beijing – hinges on maintenance of the status quo across the Taiwan Straits. Despite being a classic example of diplomatic finesse, however, this cross-straits status quo actually refers to a fairly concrete state of play, namely, that the island remains constitutionally part of China, being governed by the Republic of China that fled there in 1949. In this case the concept is useful because all sides are clear on what the status quo actually is.

In the South China Sea disputes, by contrast, defining the status quo is much more complicated. To begin with, the disputes involve multiple states claiming territorial features with a range of legal identities – islands, rocks, low-tide elevations, underwater reefs, and artificial installations – as well as resource rights and control over maritime spaces. The status quo there encompasses all of these aspects, and this is important to keep in mind if the concept is to provide analytical clarity.

In breaking down the various components that comprise the status quo in the South China Sea, the most basic distinction to make is between territory and maritime space. For the former, identifying the territorial status quo is far from simple; for the latter it poses some almost insurmountable challenges.

 

Maritime territory

A logical starting point for the definition of the status quo in any international dispute is territory. This includes more than just the physical occupation and control of land; each side’s facilities or infrastructure in the disputed area, and the domestic legal status of the disputed possessions are also important.

The South China Sea’s disputed territories include two archipelagos, plus the isolated Scarborough Shoal. One island group, the Paracels, is a bilateral dispute between China and Vietnam (Taipei also makes a claim as the Republic of China). Scarborough Shoal is also a bilateral dispute, contested by the Philippines and China. The Spratlys are claimed in full by China, Vietnam and Taiwan, and in part by the Philippines, Malaysia, and Brunei.

In the Paracels the territorial status quo is relatively simple: China occupies the entire island group, having attacked and defeated South Vietnamese remnants in 1974. Infrastructure on the islands has changed frequently ever since that time, with the PRC building ports, roads, communications networks, and an airstrip, as well as a range of military installations. Most recently, this has included a school to service a growing civilian population, and an extension of the runway to accommodate larger (presumably military) aircraft. A major shift in the Paracels’ legal status quo occurred in May 1996 when China announced straight baselines around the entire archipelago, designating all the waters within to be territorial seas. Scarborough Shoal is not occupied, but Chinese ships have exercised significant, if not total, control over access to its lagoon since mid-2012.

The Spratly archipelago has the most complicated territorial status quo, being made up of several hundred geographical features, such as islands, rocks, sandbanks, reefs, and shoals. The legal identity of these features varies significantly. The UN Convention on the Law of the Sea (UNCLOS) distinguishes three kinds of features:

–          “Islands”: naturally formed land areas capable of sustaining human habitation or economic life, which are entitled to a 12nm radius of territorial waters, and up to 200nm of Exclusive Economic Zone;

–          “Rocks,” or high-tide elevations: areas of land that are above the waterline at high tide, but incapable of sustaining human habitation or economic life. These can generate 12nm of territorial waters, but no EEZ.

–          “Low-tide elevations” & sunken reefs: features that do not break the surface of the water at high tide, and thus cannot be claimed as national territory. Artificial installations on such features, however, are entitled to a safety zone 500m in radius.

No international court has yet ruled on what conditions are required to sustain human habitation or economic life, so the distinction between islands and rocks is still unclear. In addition, the forces of nature can have dramatic effects, especially on shifting sandbanks, potentially altering a feature’s territorial status quo overnight.

There are not many authoritative sources on the occupation or territorial status of the Spratly Islands. The commonly cited Digital Gazetteer of the Spratly Islands is a good starting point but it’s around 15 years old, based on scattered secondary sources, and is incomplete in parts. Maps depicting the various countries’ outposts appear regularly online, but few are large enough to precisely depict and label all the relevant features, and many contain errors.

The numbers below have been confirmed by cross checking existing sources, particularly the U.S. National Geospatial Intelligence Agency’s 2004 sailing directions, with a collection of around 800 recent and historical photographs of the Spratlys sourced from Vietnamese, Filipino, Malaysian, and Chinese websites. Most of the pictures were taken by local media, tourists, or the occupying militaries themselves. Based on this available evidence, the status quo in the Spratlys is as follows:

–          Vietnam occupies a total of 21 features: five are natural islands, and at least four more are rocks or sand banks above the water at high tide. In total, up to 17 features may have territorial status. The remainder are low-tide elevations or sunken reefs. Vietnam also has more than a dozen observation rigs in other parts of the disputed area.

–          The Philippines occupies nine features: five islands, three high-tide elevations and one underwater reef.

–          The People’s Republic of China occupies seven features, at least one of which (Fiery Cross Reef) was naturally above the surface of the water at high tide. The remaining six may only ever have been low-tide elevations. All seven have now been turned into sizeable artificial islands.

–          Malaysia occupies five features, one of which (Swallow Reef) is a rock. Another three may also be high-tide elevations, though photographic confirmation is lacking.

–          Taiwan (the Republic of China) occupies one island, and controls a neighbouring high-tide elevation.

–          Brunei is not known to hold any territorial features in the disputed area, though it may have oil and gas platforms there.

This list is a reminder of why China considers the status quo in the South China Sea to be so unfavorable: with the exception of the Taiwan-controlled Itu Aba (Taiping) Island, from China’s perspective all of “its” genuine islands, and dozens more territorial features, are currently under foreign occupation. Furthermore, the last time the PRC attempted to change the occupational status quo was in 1995, when it occupied Mischief Reef. Since that time Malaysia and the Philippines have both occupied additional features, most recently in 1999. This is what the PRC’s representatives have in mind when they insist, straight-faced, that they have been acting with “great restraint” in the South China Sea.

For Southeast Asian countries and interested third parties, the territorial status quo in question has been the total area of land under occupation, and the facilities positioned atop the occupied reefs. By these measures the PRC is indeed making enormous changes. Satellite and aerial imagery shows China has created nearly a square kilometer of artificial territory at Fiery Cross Reef, making it easily the largest landmass in the archipelago. According to AMTI’s Island Tracker, the total area reclaimed at the seven sites is well over two square kilometers. China is also constructing at least two, and possibly three, airstrips long enough to allow military jets to land, as well as new ports and multi-story buildings. U.S. intelligence has publicized two motorized artillery pieces spotted on one of the new islands, though it is still too early to tell whether long-range weapons that could significantly alter the balance of power will be installed.

Despite the magnitude of the Chinese undertakings, the breadth of the status quo concept makes it difficult for its defenders to maintain consistency in their policy positions. Vietnam, for example, has in recent years reclaimed sizeable tracts of land at several locations, built new civilian infrastructure including docks, multi-storey buildings and mobile phone towers, and reinforced its island defenses. But as the Vietnamese ambassador to Manila told Philippine media, “Our construction and embellishment do not change the status quo.” Defense Minister Phung Quang Thanh recently described the new areas of land infill observed on Vietnamese controlled islands as “consolidat[ion].” Malaysia, for its part, has starburst surface-to-air missiles installed on at least two of its outposts, and the Philippines has recently built new structures on at least one feature, sponsors civilian migration to the Spratlys by offering free food and accommodation, and plans to upgrade its airstrip.

In recognition of the detrimental appearance of inconsistency in the United States’ position, Secretary Carter’s Shangri-La address deliberately called for a halt to reclamation by all countries, not just China. At the same time, Carter and other officials from status quo-defending states have also argued it is not the nature of China’s land reclamation activities, but rather the scale that is changing the status quo. Senior Australian defense official Dennis Richardson recently pointed out that China has reclaimed four times the area that the other claimants have. The Southeast Asian claimants’ actions may be insignificant in comparison with China’s, but they nonetheless raise a fundamental question for those with an interest in a rules-based Asian maritime order: which changes to the territorial status quo are acceptable, and which are not?

One criterion by which regional states have tried to distinguish acceptable from unacceptable status quo changes is the use of “force or coercion.” Chinese actions around Scarborough Shoal have clearly been coercive, but many of the PRC’s most prominent status quo altering actions don’t obviously fit this definition. Beijing is indeed changing aspects of the territorial status quo in the South China Sea with its island-building activities, but it’s not visibly doing so by military force; rather, it’s doing so through industrial and logistical power. The divergent territorial “status quos” that exist in maritime East Asia, and the logical leaps required to define changes to it as illegitimate, make it unlikely to facilitate much clarity of communication over the issue.

Maritime space

Despite the complexities noted above, the status quo in disputed territories is relatively clear-cut. Land features, land area under control, the geographical positions, each claimants’ facilities, and the domestic legal status of specific territories are all discrete and accessible variables. However, when it comes to vast expanses of disputed maritime space, the status quo can become much slipperier.

First, it is worth noting the various aspects of the status quo in maritime spaces can be easily defined. The presence or absence of resource development activities is an aspect of the maritime status quo that is generally observable and measurable. In the South China Sea, Vietnam and Malaysia both operate numerous offshore oil and gas fields in the disputed area, something Chinese sources are quick to emphasize the PRC has never managed. Changes in levels of fishing activity could also, at least in theory, be measured if reliable reporting of catches could be instituted. Likewise, changes to the legal status quo of disputed maritime areas, such as China’s East China Sea ADIZ and baseline announcements, are clearly identifiable.

The movement of vessels presents the greatest difficulties with defining the status quo in disputed maritime areas. Take the example of a naval vessel with long-range weapons able to threaten remote targets: its arrival into, or activities within, a disputed area would at face value alter the status quo. But applying a longer timeline, it could be doing just the opposite. If the vessel were on a routine patrol or participating in training drills that had taken place previously at comparable times, it would constitute a continuation of the status quo. Thus, as Secretary Carter argued last week, in contrast to the PRC’s reclamation activities, U.S. military air and sea operations in the South China Sea are “not new facts.”

However, Carter’s argument is only true insofar as the U.S. maintains its previously established pattern of actions. If, as Washington is reportedly considering, those patrols become more frequent, introducing greater capabilities, or encompassing new areas (such as territorial sea areas around disputed islands or rocks) then the status quo in that maritime space will have changed after all. Indeed, this would be precisely the point of such a move; merely following an existing pattern would hardly answer the growing calls to punish China for its “bad behavior.”

This is just one example of the fluidity of the status quo in Asia’s disputed maritime spaces as they concern one navy from a non-claimant state. The complexity multiplies once we factor in the evolving activities and capabilities of other navies in the region, notably those of China, Japan and the Southeast Asian claimant states. This alone renders the status quo a challenge to define, and thus difficult to communicate or negotiate clearly about.

But the naval dimension is just the tip of a jagged iceberg. In addition to military vessels with coercive power, a multitude of ostensibly unarmed or lightly armed paramilitary patrol ships, government-sponsored politicized fishing boats, and various forms of support vessels also operate in Asia’s disputed maritime spaces with the objective of strengthening their country’s claims to jurisdiction – that is, altering the status quo.

A prime example is China’s “regular rights defense patrols” (定期维权巡航), which have been incrementally altering the status quo for almost a decade. Since their initiation in the East China Sea in 2006, and the South China Sea in 2007, the number of these patrols has steadily increased, and the scope has steadily expanded out to the edges of China’s claimed jurisdictional area. The “great white fleet” China has deployed on these patrol missions has been civilian rather than military in nature, and quite deliberately lacking in visible weaponry. Thus, like China’s land reclamation, this important change to the status quo in the disputed area over the past few years is difficult to cast as “coercive.” Indeed, the most popular response around the region has been to follow suit.

Not surprisingly, China’s rivals are now bolstering the presence of their own civilian law enforcement fleets in the disputed areas. In the process they too will technically be altering the status quo. In terms of balance, increased Japanese, Vietnamese and Filipino patrols in disputed areas will merely be attempting to return to an earlier status quo, before China’s patrols increased. The question then turns to: which status quo ante is the true status quo? In some land-based disputes like those in eastern Ukraine, the existing borders were precisely defined and more or less universally recognized, so the status quo ante can be defined and articulated coherently, enabling collective action in favour of its restoration. In Asia’s maritime disputes, by contrast, there is no clear answer to this question, for two main reasons.

For one thing, the construction activities on all sides, and the constant movement of state and non-state vessels over such large disputed maritime spaces over many years, offers an almost limitless selection of “status quo antes” to choose from. Indeed, the PRC ambassador to the US, Cui Tiankai, recently claimed that China’s island-building activities are “restoring” the status quo. One possible rules-based point of reference is the signing of the ASEAN-China Declaration of Conduct (DOC) in 2002, but the parties to the document did not forswear changing the status quo as such – only the occupation of presently uninhabited features – an omission that all sides have availed themselves of since.

But perhaps most importantly, state claims over maritime spaces beyond 12nm derive from an international legal regime that came into effect only 20 years ago, meaning no side’s claims have ever enjoyed widespread international acceptance. As such, the alleged inaction of multilateral groupings such as ASEAN on Asia’s maritime disputes may be less a result of non-confrontational cultural “values” or institutional dysfunction than a lack of appropriate common conceptual understanding. The issue is simply not sufficiently clear-cut to take a stronger position – and emphasizing the need to defend the “status quo” can do little to help resolve this.

 

Conclusion

Shortly after Hagel’s initial articulation of the U.S. position on the status quo in 2013, PACOM Commander Samuel Locklear stated, bluntly: “We will oppose the change of status quo by force by anyone.” In practice, so far, the only status quo alterations to be publicly denounced have been the PRC’s, and little regard has been paid for whether or not China has actually used force in the process. The “status quo” – at least the way it has been used thus far – may appeal as a rhetorical instrument for criticizing China and sending messages of reinforcement among non-Chinese allies, but it is ill suited to precise, succinct analysis or the promotion of “rules-based order” in Asia.

A simpler and more concrete normative concept, around which such rules might be more likely to coalesce, is that of coercive versus non-coercive actions. Coercive actions are violence or threats against another state’s assets, as typified by unilateral oil drilling operations backed by armed escorts, the use of violence against fishing boats, and old-school gunboat diplomacy. Such actions are inherently escalatory because they require the adversary to choose between backing down or escalating a situation. It is these actions that all, or nearly all, the region’s states have a fundamental interest in forestalling.

It is not useful to view changes to the status quo as deviant acts of rule-breaking “bad behavior” requiring corrective punishment. Such actions are certainly undesirable in that they may encourage other claimants to respond in kind. But they are widely committed, and not inherently escalatory like coercive actions, and in most cases they don’t clearly contravene international law. What would challenge Asia’s rules-based order is the potential use of new “facts on the water” for coercive purposes. It is this possibility that interested parties in Asia’s maritime disputes should focus on defining as unacceptable.

Andrew Chubb is a PhD candidate in International Relations at the University of Western Australia and the author of the South China Sea Conversations blog.

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