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Merely Avoiding Conflict in the South China Sea Is Not Good Enough
Image Credit: U.S. Navy photo

Merely Avoiding Conflict in the South China Sea Is Not Good Enough

 
 

At the 2017 Shangri-La Dialogue, a panel of security experts discussed practical ways to avoid conflict at sea, which could arise from a number of the territorial and maritime disputes existing in the Asia-Pacific region. One of the military panelists, Zhou Bo, offered an insightful perspective from the People’s Republic of China, which he subsequently published as an opinion-editorial in China’s Global Times. At first glance, a number of his ideas were positive and constructive. Unfortunately, a number of them either overlook, oversimplify, or exploit fundamental elements of the existing rules-based international order. Because Zhou’s commentary appears to reflect recurring talking points from Beijing, such rhetoric deserves closer examination and scrutiny.

First, all Asia-Pacific nations share a converging interest in maintaining regional peace and stability in order to further their economic development, as Zhou accurately recognizes. But he is under-inclusive in recognizing the types of risks that could impact peace and stability. When he assesses “there is no realistic threat of a massive conflict at sea,” he is correct in the historical sense of world wars involving direct engagement between conventional military forces. Yet the region is not free from the risks of confrontation, escalation, misunderstanding, and unplanned skirmishes at sea, particularly arising from the deliberate and increased use of unconventional forces.

When he assures us that “China hasn’t used its increased military strength to trigger any territorial disputes or conflicts,” he is telling only part of the story. Outside observers have noted China’s “salami-slicing” tactics, defined as “the slow accumulation of small actions, none of which is a casus belli, but which add up over time to a major strategic change.” These tactics include China expanding its Coast Guard to a new normal: a large fleet of white hulls dwarfing the gray-hull navies of Asia-Pacific neighbors with whom it has competing claims. They also include China mobilizing its Maritime Militia as an instrument of national power: these part-time fishermen are tasked by the Communist Party of China, the PLA Navy, and the China Coast Guard to directly participate in international maritime incidents. What these Chinese actions have in common is they seek to achieve national objectives through coercive means, while deliberately attempting to avoid the rules-based “triggers” of international armed conflict. Such unconventional actions, however, must not violate other international rule sets that apply during peacetime, as discussed below.

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Second, Asia-Pacific nations have an obligation to resolve their territorial and maritime disputes by peaceful means, which Zhou expressly acknowledges. But he ignores one of the legitimate ways to resolve those disputes. Specifically, he declares that such disputes “must be resolved through peaceful consultations and negotiations.” While negotiations are definitely a legitimate way to resolve such disputes, there is another legitimate way that exists: the rules-based, third-party mechanisms of international courts, tribunals, and arbitration.

For many years, other Asia-Pacific nations have been submitting their disputes to these third-party mechanisms. Presumably, China recognizes these venues as legitimate. Why else would China have been providing its judges for decades to serve on both the International Court of Justice and International Tribunal for the Law of the Sea? Why are these forums not equally legitimate for resolving the territorial and maritime disputes between China and its neighbors?

Viewing this another way, consider the practical viability of negotiations as a means for resolving these disputes. Is there any evidence or argument that Bandar Seri Begawan, Hanoi, Jakarta, Kuala Lumpur, Manila, or Tokyo could present across a negotiating table that would persuade Beijing that their claims are correct? On the other hand, is there anything that Beijing could present across the table to persuade these governments that its claims are correct? If the answer to both questions is no, then none of these disputes will ever be resolved through negotiations. As long as Beijing continues to dismiss rules-based, third-party mechanisms as wholly illegitimate, other nations could reasonably conclude that China is biding time to leverage its growing military might and “One Belt, One Road” economic incentives into overwhelming bargaining power at the negotiating table someday.

Third, China has resolved a number of its border and boundary disputes with neighbors through negotiations, as Zhou properly highlights. But he overlooks a unique obstacle that did not exist in those disputes: China’s nine-dash line. Beijing has never clarified the meaning of that line. Last year, an international arbitral tribunal ruled that it is invalid as a maritime claim under the United Nations Convention on the Law of the Sea (UNCLOS). No government outside of China has endorsed the line as representing a lawful maritime claim. As a more practical problem, negotiation theory and case studies show that parties to a dispute can reach a bargain only if there is a “zone of possible agreement” – that is, when there is an available outcome within the realm of possible options that can satisfy the interests of all parties concerned. Given that the nine-dash line extends China’s claims over every other South China Sea claimant’s exclusive economic zone (EEZ) without corresponding claims into China’s EEZ, the nine-dash line is a practical barrier to any opportunity to resolve the South China Sea disputes.

Zhou highlights how China and Vietnam resolved their maritime boundary dispute in the Beibu/Tonkin Gulf in 2000 through negotiations. What is different about that South China Sea maritime boundary dispute? In the 1950s, Beijing erased two dashes of the original 11-dash line, those located in Beibu/Tonkin Gulf. Until Beijing takes a similar, good faith step of erasing the remaining nine dashes, it is impossible for the claimants to find rules-based options that would resolve the territorial and maritime disputes.

Fourth, the concept of maritime freedom is worth preserving, as Zhou notably affirms. But when he implies that divergent perspectives on the scope of that freedom are simply a genuine difference of legal opinion, he selectively summarizes state practice and international law associated with those perspectives. As a factual matter, he complains that “certain countries” (an oblique reference to the United States, presumably) conduct surveillance and reconnaissance in the EEZs of other countries, which he characterizes as activities that “could be perceived as unfriendly or even hostile.” But his complaint omits that China’s military has also been conducting activities, including surveillance and reconnaissance, for the past several years in the EEZs of other countries, including those of Australia, India, Indonesia, Japan, the Philippines, and the United States. (In fact, during the 2013 Shangri La Dialogue, Zhou Bo himself confirmed that China had been conducting military activities in the U.S. EEZ around Guam and Hawaii.)

As a legal matter, his presentation this year quotes a provision of UNCLOS suggesting that countries have an obligation to comply with any law a coastal nation might enact for its EEZ. Unfortunately, he violates one of the fundamental rules of treaty interpretation: he takes that legal provision out of context. More specifically, he omits a precondition in the remainder of that treaty clause, which states that those national laws must be “in accordance with the provisions of [UNCLOS] and other rules of international law.” Duplicitous views of state practice and specious citations of law can raise doubts about a genuine, rules-based commitment to maritime freedom.

Fifth, all nations need to follow the existing, rules-based standards of maritime safety, as Zhou positively exhorts. Specifically, he highlights that all nations must implement the 1972 International Collision Regulations (COLREGs), a binding treaty which nearly ever Asia-Pacific nation is a party. He also calls upon all of the 21 member states of the Western Pacific Naval Symposium to honor the Code for Unplanned Encounters at Sea (CUES), a non-binding set of safety protocols adopted in 2014. Many Asia-Pacific nations have made significant strides in implementing these existing international standards of maritime safety, but there is definitely more work to be done.

Hopefully, Zhou recognizes that the international standards of the COLREGs apply to not only military and other government vessels, but also non-government vessels — including the fishing boats of China’s Maritime Militia, which have violated those standards during encounters with foreign vessels. Additionally, coast guards in the region should either adopt the CUES or develop a similar set of safety protocols to reduce the risk of escalation between white hulls. In short, having rules “on the books” alone is insufficient. Effective implementation of rules-based maritime safety never ends: all flag states must not only ensure that all mariners are properly trained and qualified to these standards, but also vigilantly report, investigate, and discipline personnel when they violate these standards.

One thing we know for certain: the territorial and maritime disputes of the Asia-Pacific region will not be resolved anytime soon. To be sure, the measures that nations utilize to manage these disputes in the near term and resolve them eventually must be practical. But they must also conform to the rule sets that are the foundation of the established international order.

Jonathan G. Odom is a Military Professor of Law at the Asia-Pacific Center for Security Studies.  Previously, he served as the Oceans Policy Advisor in the Office of the U.S. Secretary of Defense. The views expressed are his own and do not necessarily reflect the positions of the U.S. Department of Defense or any of its components.

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