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A Recipe for Disaster in the South China Sea

 
 

Since the Trump administration assumed power, there has been a surge of proposals from analysts urging a more muscular U.S. approach in its relations with China — particularly regarding the South China Sea. Some of these proposals are outright dangerous. Two recent examples are the double whammy of a proposal for a blockade of the China-occupied features by Alexander Vuving with a cross-reference to an attempt at a legal justification for doing so by James Kraska. These recommendations — particularly in combination — are a recipe for political if not military disaster.

Vuving proposes that a “less-U.S. centric coalition” of the United States and its allies and “friends” implement a full spectrum of actions including diplomatic negotiations, economic sanctions, and “kinetic” constraints. For “kinetic actions,” Vuving recommends “cabbage” tactics in which a U.S.-led coalition would use “three layers, surrounding the target islands with private civilian boats in the inner circle, followed by law enforcement vessels in the outer circle, all protected by warships over the horizon.”

According to Vuving  his proposal for “access denial” would “mute the casus belli and discourage Beijing from going to war.” He assumes that U.S. allies and “friends” will commit the necessary assets to this task. These assumptions are seriously flawed. It is highly likely that China would respond forcefully to such aggressive action. As for the “coalition,” as Admiral (ret) Michael McDevitt has written, “Any U.S. policy maker who builds a strategy around the assumption that our friends and allies will be with us in a shooting war with China is a fool.”

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Yes, some may allow their territory to be used as a staging area for U.S. attacks on China and its forces. However even this is not a given because it obviously would invite retaliation by China. If China attacks these “friends and allies” then they may do more to help the United States, but even that is a “maybe.” Failing a direct attack by China on their forces or territory perhaps the most that can be counted on is intelligence sharing and moral support

Nevertheless, Vuving argues that analysts proposing caution “misunderstand the complex realities of the South China Sea.” But it may be Vuving that misunderstands the limits of U.S. economic and political leverage. Does Vuving really think that economic sanctions would deter China’s leadership from its long-term vision for the South China Sea?

Moreover is it realistic to think that China’s leaders would risk their legitimacy by defying the pressure and power of nationalists inside and outside of government, particularly those in the People’s Liberation Army? China’s leadership has essentially staked its support and perhaps thereby its tenure on defending its territorial claims in the South China Sea. It is highly unlikely that China’s leaders would back down now. Military leaders and nationalists would probably not “let” them even if they wanted to do so.

Vuving goes on to refer to and echo James Kraska’s argument that a U.S. blockade of the Chinese-occupied features would be “fully consistent with international law.” But Kraska’s essay is reminiscent of the Bush 43-era legal memos justifying torture — convoluted and dangerous.

Kraska argues that the U.S. can lawfully “challenge China’s rights to access its artificial islands as a lawful countermeasure in international law to induce China to comply with its obligations of the Law of the Sea Convention and customary international law.” In particular, Kraska says that “China does not respect UNCLOS rules governing … high seas freedom of navigation and overflight of military vessels and aircraft in its EEZ.”

But he neglects to mention that the United States is not a party to UNCLOS (the 1982 UN Convention on the Law of the Sea). As a non-party to this deal, the U.S. has little credibility and legitimacy in insisting on its interpretation of key terms relevant to freedom of navigation and adherence thereto, let alone unilaterally trying to enforce them.

According to Kraska, such countermeasures flow from the customary international law of state responsibility as reflected in the International Law Commission’s “Article on State Responsibility.” But this is at best “soft” law and certainly not agreed by all states. Also, that Article provides that “countermeasures must be proportionate … and not involve violation of preemptory norms,” presumably including freedom of navigation. Kraska argues that such action may be “a lawful measure short of coercion.” But how can the United States deny China’s access to its claimed features “short of coercion” — direct or indirect?

Specifically, Kraska urges the U.S. to withdraw recognition of China’s rights under UNCLOS to navigate freely throughout the South China Sea to the extent that Beijing does not respect reciprocal rights. Should this policy apply only to China or throughout the world? Just in Asia alone many countries have legal regimes that limit U.S. military activities in some waters under their jurisdiction — including Malaysia, India, Indonesia, Thailand, and Vietnam. Since the United States remains outside UNCLOS, Sourabh Gupta of the Institute for China-America Studies points out, “What if other states enact a similar policy, i.e., they agree to respect U.S. claims only if the U.S. respects their claims?”

Kraska also states that China’s “interference with U.S. warships and military aircraft in the South China Sea constitutes a breach of its legal obligations under UNCLOS and customary international law.” But if the U.S. follows Kraska’s advice it would be breaching the same laws and even worse, perhaps the UN Charter. Already some U.S. activities in China’s EEZ may be in violation of UNCLOS. But we will never know because the United States has not ratified UNCLOS and thus its actions cannot be challenged through the UNCLOS dispute settlement mechanisms.

Naval blockades are acts of war under international law. A country can only legally use a blockade if it is acting in individual or collective self-defense — the standard requirements for going to war — or if the UN Security Council has proclaimed the action necessary to maintain international peace. The Philippines might legitimately launch a blockade around Mischief Reef if it chose to kinetically challenge China’s occupation of the originally low-tide elevation feature on its continental shelf. But that is probably the only such feature that so far fits the self-defense criterion.

Yes, five of the features China has built up and on are claimed by others. But China’s claim to them is as reasonable as that of the others. In its view it has built up and on its own features — just like other claimants to features in the South China Sea like Malaysia, the Philippines, and Vietnam.

China would likely interpret U.S. attempts at denial of access to its claimed features as a violation of its “core interests” regarding territorial integrity and sovereignty. In China’s eyes, the U.S. would also essentially be taking a position on the sovereignty claims on which it has heretofore repeatedly claimed to be neutral. Further it would re-raise the question of just who is militarizing the South China Sea. Worse it would confirm the views of China’s hawks that despite its frequent denials, the U.S. goal is to dominate, contain, and constrain China.

Vuving concludes that the specter of an “ever-looming war with China” is a myth that “creates self restraint that is not only unnecessary but also strategically disastrous.”

This is dangerous thinking. On the contrary, I think U.S. implementation of his proposal for a “cabbage” type of blockade and its adoption of Kraska’s argument for its legality would lead to a hot or cold war between the U.S. and China that few — if any — of Washington’s allies would “kinetically” support.

Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies in Haikou, China.

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