The continuing saga of China’s pursuit of power in the South China and East China seas and islands has been well-researched and summarized in a U.S. Congressional Research Service Report published on May 24. The report, “Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress,” excellent for its detailed overview of the subject, is equally as interesting for what it reveals about both American and international inaction to confront the issue, and for how that may be changing.
Importantly, the report also outlines in clear language the inconsistencies in the “interpretation” of international maritime law which China takes advantage of to support its unilateral control over South China Sea and East China Sea waters, while at the same time taking advantage of access to the exclusive economic zones (EEZs) of other nations under exactly the same law.
While the United States does not take a position “on competing claims to sovereignty over land features,” it does take the position that such claims “should be resolved peacefully, without coercion, intimidation, threats, or the use of force, and in a manner consistent with international law.”
Most importantly, the United States believes, “like most other countries,” that nations “have the right to regulate economic activities in their EEZs (exclusive economic zones), but do not have the right to regulate foreign military activities in their EEZs.” Therefore, while the United States can send its air force and navy into China’s EEZ, China can do the same in the U.S. EEZ.
The rub is that China has promulgated domestic “laws” prohibiting certain military activities, such as those that “threaten national security” in its EEZ. Having created the laws to fit the situation, China, according to China maritime legal specialist Isaac Kardon, “then interprets the EEZ articles in the United Nations Convention on the Law of the Sea (UNCLOS) as granting a coastal state jurisdiction to enforce [such] domestic laws.”
This splendid piece of sophistry, a type familiar to most China hands, results in China being able to take the position, without a hint of irony, that your interpretation of UNCLOS allows me to sail my warships and fly my fighters in all but 12 nautical miles of your 200 nautical mile EEZ, but my interpretation of UNCLOS doesn’t allow you to do the same in my EEZ. Thanks for the access.
The report lists only 27 countries that take a similar position to China on UNCLOS, agreeing with Beijing that a state may regulate both economic as well as foreign military activities in their EEZs. Two of those countries, Malaysia and Vietnam, are in dispute with China over South China Sea islands, perhaps providing an added wrinkle to their respective positions.
In the meantime, the report points out, the U.S. response to China’s increasingly aggressive moves in the two seas, including militarizing the South China Sea islands under dispute, has historically been largely verbal. The United States would “reiterate” its positions on claims, and express “strong concerns” about land reclamation, making “call[s] for a halt” to these activities.
The United States also countered China by “taking steps to strengthen… cooperation” with other Asian countries, by “expressing support” for Japanese patrols, and by “stating… support” for a South China Sea multinational patrol by ASEAN countries.
Not surprisingly, China continued its activities wholesale.
Finally, after much reported hand-wringing, the Obama administration conducted four Freedom of Navigation Operations (FONOPs) in 2015 and 2016. In late May 2017 the new Trump administration reinstated the conduct of regular FONOPs. More importantly, in September 2017, it was reported that:
The Pentagon for the first time has set a schedule of naval patrols in the South China Sea in an attempt to create a more consistent posture to counter China’s maritime claims there… The U.S. Pacific Command has developed a plan to conduct so-called freedom-of navigation operations two to three times over the next few months, according to several U.S. officials, reinforcing the U.S. challenge to what it sees as excessive Chinese maritime claims in the disputed South China Sea.
And, just prior to the publication of this CRS report, the United States took a decisive step, and disinvited China from the biennial RIMPAC, “a U.S.-led, multilateral naval exercise in the Pacific involving naval forces from more than two dozen countries.” By denying China a “reward” for its ongoing flouting of international maritime norms, the United States has sent not just strong words but a strong signal that inappropriate behavior has real-world consequences.
Finally, the extensive bibliography of this 100+ page report is in itself a gold mine of information and insight. Two articles, among others, are worth mentioning.
First, there is the article “America: China Doesn’t Care about Your Rules-Based Order”, published on August 17, 2017, by National Interest. In the article, author Koh Swee Lean Collin elegantly writes, “There were attempts to socialize Beijing into the mainstream practice on freedom of navigation and overflight.” But Koh correctly analyzes China’s indifference and even contempt for international criticism of its South China Sea behavior. “Only historical grievances matter,” he writes. “Such pent-up resentment translates into strength to challenge those perceived wrongs.”
Second, for the darkest view, the venerable Australian journalist Stan Grant has written “Are We Sleepwalking to World War III?” He cites the remarks of Admiral Chris Barrie, who headed up the Australian Defence Force from 1998 to 2002. The admiral believes that “Australia is plunging headlong into catastrophe and we are utterly unprepared… our economy will be devastated, our land seized, our system of government upended.” Grant goes on to bolster this doomsday view with references to Graham Allison’s book, Destined for War: Can America and China Escape Thucydides’ Trap? Allison “fears the world is lurching towards conflict unseen since World War II.” And historian Michael Auslin, in his book, The End of the Asian Century, believes that “the entire Asia region is a tinderbox.”
In summary, one can ask, can China even be blamed for behaving according to its character? Law as the international community defines it plays little role in governing the country. Regulations and Party edict are far more important. Nations should stop trying to expect China to negotiate reasonably on the basis of law. It is tantamount to asking a cat to reasonably negotiate the consumption of a bird on the basis of animal rights. It is simply not in his nature, and there is a much more compelling and competing claim on his interests: Hunger.
Governments would be well-advised to approach China on its maritime territorial takeover of the South China Sea and beyond in terms that matter to China, most of which are obvious (think technology and access to foreign financial, stock, and export markets). Counter resolve with resolve. It does not need to tip to war. But don’t count on concepts of fair play and law to embarrass China into giving up ambitions that are fueled by an eternal hunger to redress the shame of past humiliations.