At the joint press conference on 25 September 2015 during Chinese president Xi Jinping’s visit to the United States. President Obama spent 110 words in his speech on the East China Sea and South China Sea, while President Xi used 233 words to present his position only on the South China Sea issue.
Obama conveyed his significant concerns over freedom of navigation and overflight, land reclamation, construction and the militarization of disputed areas, and encouraged a peaceful resolution among claimants. Mr. Xi reiterated the sovereignty of China over islands in the South China Sea since ancient times, as well as Chinese lawful and legitimate maritime rights and interests. He pledged not to pursue militarization in the South China Sea, and stressed that the countries directly involved should address their dispute through negotiation, consultation and peaceful means.
From those speeches, a few observations can be made:
Firstly, President Xi used the word “islands” in two contexts: “islands in the South China Sea since ancient times are China’s territory” and “construction activities that China are undertaking in the island of South — Nansha Islands do not target or impact any country”. That raises the question: does China intend to equate artificial islands with natural islands, and, by extension, does that mean that they also enjoy the legal status of a 12 nautical mile territorial sea instead of a 500 meter security zone?
President Obama indicated the right of the United States to fly, sail and operate anywhere international law allows. However the interpretation of international law by each side is different. China insists that any foreign military ship or aircraft willing to enter 12 nm limits around maritime features must have permission. The United States, however, has the opposite view that vessels and aircraft can sail or fly up to the 500m security zones around the artificial islands.
Recent harassment of American flights by China near the 12 nm limit only reinforces these different views. The Chinese activities have created a fait accompli if the United States is unwilling to take any countermeasures of its own. In all harassment cases, from the USNS Impeccable case in 2009 to recent case in 2015, the Chinese have taken the initiative. Given this, one might argue that the new air to air encounters agreement is more necessary for America’s military rather than China’s.
Secondly, President Xi pledged not to pursue militarization in the South China Sea. On the same day, however, new satellite images unveiled an airstrip on the third artificial island to strength Chinese military capabilities in the contested waters. Is this not part of the ‘militarization’ President Xi had just pledged not to undertake?
In any case, China has already displayed its cunning use of ‘gray zone’ tactics in order to bully other claimants while not escalating the situation to the military level. For instance, China has disguised its military vessels as coast guard and fishery surveillance ships which harass the vessels of other claimants and prevent them from navigating waters and exploiting resources. In doing so, China also hopes to keep out U.S. military ships and aircraft.
China’s use of strategic ambiguity in the South China Sea is well-documented across a range of cases, and it could continue to play out in the future as well. For instance, instead of an air defense identification zone (ADIZ) over the South China Sea, China can use the technology being installed on its artificial islands to declare a Flight Information Region (FIR), to cite just one alternative option short of a full ADIZ that many continue to speculate about.
Thirdly, President Xi proposed “managing differences and disputes through dialogue, and addressing disputes through negotiation, consultation, and peaceful manner, and exploring ways to achieve mutual benefit through cooperation”. This sounds like a reiteration of the formula Deng Xiaoping once advanced focused on “setting aside disputes and pursuing joint development”.
Yet President Xi’s speech showed that China does not even recognize the existence of sovereign disputes in the first place. To him, these are merely misunderstandings other countries have of what is Chinese territory, maritime rights and interests. As for “joint development” and “mutual benefit through cooperation,” these sound like transition measures China is using while it builds up sufficient power to retake all of the remaining “lost” territories from other countries.
While Xi did recognize that China and the United States do share common interests in the South China Sea, in practice China has opposed any U.S. involvement in the issue as external interference. And while Obama was right to reaffirm the fact that the United States is not a claimant to any of the territory in the South China Sea, almost everyone understands by now that even if this is true, Washington does have a stake when it comes to both ensuring rights all countries ought to enjoy such as freedom of navigation and oversight as well as preventing other states including China from undermining the rules-based international system.
Unfortunately, President Obama did not use the opportunity of his meeting with President Xi to publicly criticize China’s illegal nine-dash line. He also did not emphasize the responsibility of a big country like China to both facilitate the implementation the Declaration on the Conduct of Parties in the South China Sea (DOC) and cease its stonewalling of a binding Code of Conduct (COC).
To be clear, features and maritime zones in the South China Sea are not China’s possession, no matter what Beijing says. But if one were to read the statements at the summit, one could be forgiven for concluding that China was handing two concessions to the United States – non-militarization and respect of U.S. freedom of navigation – in exchange for U.S. recognition (or at least lack of U.S. criticism) of Chinese sovereignty over features in the South China Sea and artificial islands.
In the face of Chinese assertiveness, the smaller claimants in the South China Sea want to see a stronger U.S. commitment to safeguard peace, security and international law in the region. Instead, Washington appears to be extracting the benefits of closer relationship with China at the expense of others’ territorial and maritime interests.
Nguyen Hong Thao is an Assistant Professor in Law at the National University of Hanoi and a non-resident fellow at the Center for International Studies (SCIS) at the University of Social Sciences and Humanities in Ho Chi Minh City.