Pivoting Toward the South China Sea?

South China SeaThe highly publicized dispute between China and the Philippines over the Scarborough Shoal in recent weeks has become yet another reminder of the ongoing tensions in the South China Sea. The upheaval began when a former U.S. coast guard ship refitted by the Philippines navy attempted to detain Chinese fishermen off the shoal. The situation intensified when two Chinese Marine Surveillance craft arrived on the scene, leading to a two-day standoff. Finally the Philippines navy withdrew, but the countries have continued their political attacks on one another.

The United States has pledged to monitor the situation, and for the time it would appear the Philippines and China have backed down from allowing the conflict to escalate. But the recent row highlights some of the difficulty the United States will face as it seeks to reengage itself in the region.

The war in Iraq is over. NATO operations and U.S. troop deployments to Afghanistan are due to wind down and come to a halt earlier than anticipated. And although Iran and Syria continue to give Washington cause for concern, the Obama administration is indeed striving to undertake the foreign policy “pivot” toward East Asia outlined last year. This pivot denotes more a shift in focus than a realignment of resources or manpower. “I don’t really see this as a pivot,” said Sen. James Webb (D-Va.), chairman of the Senate Foreign Relations subcommittee on East Asia and Pacific affairs. “What I see now is a return to a necessary normal.”

But the pivot still poses some challenges. Calls for increased naval activity or troop deployments, while not directly destabilizing the region, may nevertheless act to further alienate China and pose a greater risk for conflict to break out. Additionally, U.S efforts to maintain involvement in yet another region of the world would appear to come up against current economic constraints.

Behind the Pacific pivot lies an economic motivation, particularly in the South China Sea. Nearly $1.2 billion of U.S trade traverses the Western Pacific and Indian Oceans through the South China Sea. In terms of global trade, 90 percent of all commercial goods are shipped from one continent to another. Of this nearly half of all gross tonnage and one-third of all monetary value is sent through the South China Sea. Additionally the sea holds an abundance of minerals, fish stocks, natural gas, and oil reserves. The United States is not actively seeking direct access these resources. But they are of vital importance to a number of U.S. strategic partners and allies in the region.

China and the South China Sea

Recent years have seen a flurry of discussion surrounding China’s claim to the South China Sea and its much-touted “nine-dash line.” Although uncertainty still surrounds just what this line indicates, the line symbolizes China’s claimed territorial waters. China has tried to enforce territorial claims throughout the waters enclosed by the line, which encompasses nearly the entirety of the South China Sea, including the Paracel Islands and the Spratly Islands. Control of this area would give China effective control over vital sea-lanes as well as potentially important energy resources.

China has masked much of its policy in the region through a “talk and take” approach. That is to say that China has by and large maintained its fundamental approach to enforcing its claim over the South China Sea while making tactical adjustments when its actions are called into question. For example, after facing diplomatic backlash from labeling the region as a “core interest” on par with Taiwan or Tibet, the PRC has refrained from using similar language.

Although increased maritime disputes between commercial actors and China’s recently established civil maritime law enforcement agencies have led to increased militarization by all nations in the region, disputes have for the most part remained less volatile than in the past. Moreover, China has maintained essentially the same territorial claims in the region for decades, having moved in recent years to simply assert more influence over disputed waters and disrupt the economic actions of other states. This would seem to imply that, at least for the time, China has little interest in expanding beyond those territories it has claimed, although its 2011 sabotage of a seismic survey vessel seeking to explore oil reserves within the Philippines’ Economic Exclusive Zone (EEZ) points to a potential shift in policy.

The Role of International Law

A second issue relates to the PRC’s increased ambivalence towards current international maritime laws. The PRC’s claims to this large swath of territory have little or no international legal basis and directly contradict the legitimate claims of other states. Instead, China’s claims of sovereignty have most often tended to echo longstanding historical claims. As China has for the first time since the Ming Dynasty of the 16thcentury begun to experience long-term stability, it has sought to enforce these distant claims. China has argued that the islands in the South China Sea were originally discovered in the 2nd century BCE during the Han dynasty, and later on mentioned in a mission in the 3rd century CE. However, such arguments have no legal basis within the current international legal order outlined in the United Nations Convention on the Law of the Sea (UNCLOS)

In general terms, UNCLOS has helped to outline how states determine the waters that fall under the auspices of a state’s maritime zone or Exclusive Economic Zone (EEZ). These waters are determined by extending out from established baselines, which according to articles 5 and 7 of UNCLOS are deemed to be the low-water mark of a nation’s shore. EEZs in turn allow states to regulate the economic activity that occurs in those waters, but does not grant a state the right to disallow foreign vessels from entering said waters. Backed by the contractual nature of UNCLOS, EEZs have become enshrined within public international law.

In contrast to these principles, the PRC tends to assert its maritime claims and EEZ from baselines that far exceed the limitations put forth by articles 5 and 7, opting to rely on the historical claims outlined above. Although Vietnam is also at fault for this, it has sought to reintroduce new baselines in accordance with UNCLOS. Additionally, China has sought to implement EEZs from contested features in the Paracel and Spratly Island chains.

Although the PRC can legitimately lay claim to the Paracel Islands, having controlled them since 1974, less can be said about the Spratly Islands, of which China only controls a small part. Moreover, given the physical composition of the Spratly Islands, they would most likely be ineligible to apply for an EEZ given the criteria outlined in Article 121 (3) of UNCLOS, which determines an island’s ability to qualify for an EEZ. Additionally, legal precedent on the matter can be drawn from the case between the Ukraine and Romania over Snake Island, which holds many of the same characteristics of the Spratly Islands. Snake Island’s EEZ was called into question and found to be illegal under UNCLOS since it failed to meet the criteria outlined in Article 121 (3). Even if China were to gain sovereignty over the Spratly Islands, the EEZ China would project from the islands would most likely be invalidated. In turn, much of China’s famed “nine-dash line” challenges the international legal order and challenges the EEZs of all other nations in the region.

U.S. Interests

The United States has waded into the legal squabbling of states driven by nationalist and economic interests largely for security reasons. China maintains an anti-access policy within its territorial waters, even in those sections challenged by other states. One of the essential elements of globalization and maritime trade is the ability to maintain free access to waterways and a legal framework to maintain freedom of navigation, a right enshrined in Article 58 of UNCLOS. However, China has openly criticized this legal principle and has refused access to its EEZ to foreign ships. This includes the May 2011 cable-cutting incident in the Philippines EEZ and the May 2009 confrontation with the USNS Implacable, 75 miles off the coast of China.

However, as with so many other elements of international law, the United States must be careful in its criticisms. Although China is indeed a signatory of UNCLOS and thus technically bound to uphold and enforce it, the United States has failed to sign the accord. As such, China views U.S. arguments based on international law regarding Chinese maritime claims as hypocritical. Still, should China continue to flout UNCLOS, it might use a similar legal interpretation to disrupt the sea lanes of communication so vital to the U.S. economy as well as the numerous East Asian markets intrinsic to America’s ongoing prosperity.

To address Chinese actions, the United States has forged a patchwork of tacit alliances among South East Asian countries, enhancing cooperation against would-be aggressors in the region. Accordingly, the United States is shifting away from previous alliance structures such as NATO or those formed with Japan, Australia, and South Korea. Such structures are unrealistic given the makeup of Southeast Asia, the competition among states, and the potential to disrupt U.S.-Sino relations. Instead, the United States has supported such efforts as the annual Southeast Asia Cooperation Afloat Readiness and Training program (CARAT) and the Proliferation Security Initiative. Meanwhile ASEAN, the ASEAN Defense Ministerial Meetings, and the U.S. Pacific Command’s annual Chiefs of Defense Conference have all helped to forge inter-regional cooperation despite misgivings these countries may have about each other in other realms.

Much of the work has focused on counter-piracy tactics, search and rescue operations, disaster response, non-proliferation, and smuggling. Indeed such issues are also a cause of concern for China, especially piracy in the Gulf of Aden. This in turn can be used as a positive overture to the PRC and help bring China into the fold. An increase in limited cooperation could in turn forge platforms for diplomatic solutions to potential crises, as well as facilitate better communication and understanding. Such positive engagement, especially involving China, should remain the current goal for U.S. policy in the region. It will allow the United States to address legitimate security concerns in the region, reassure allies of continued U.S. involvement, and reassure China of U.S. intentions.

Meanwhile the United States must avoid the urge to revert to the “heavy footprint” model of military installations and investment. Excessive military investment should be avoided in countries such as Vietnam and the Philippines to allay China’s fears in the region and avoid providing a pretext for Chinese expansion. Moreover, no real strategy currently exists for the implementation of a build-up in U.S. forces. Although much talk has surrounded the new notion of Air-Sea Battle, there exists no cohesive strategy for its implementation — a point noted by T.X. Hammes, a former Marine officer and fellow at the National Defense University. Highlighting this shortcoming, Hammes instead argues the United States should move away from a threatening offensive stance and focus on strengthening relationships in the region that would be purely defensive in nature. Rather than press for offensive capabilities, the United States should instead use the geographic advantage of the first island chain of Japan, Taiwan, and the Philippines and maintain defensive capabilities less threatening to China.

This argument stands in stark contrast to what many in the United States have championed, namely maintaining strong offensive forces in the region capable of attacking China’s anti-access military hardware and inland military sites in the event of conflict breaking out. Obviously the latter would require significantly more resources and force allies to openly oppose China through a strong alignment with the United States. The more defensive approach would cost much less, would focus on cooperation with allies rather than forcing them to side against China, and would be far less threatening to China.

Accordingly, the United States must be careful not to go beyond the bounds of regional forums at the risk of alienating China. The United States should realize that it can’t be a leader in these efforts and must cooperate with all countries in the region. Washington must focus on helping ASEAN and other countries help themselves in establishing their own security.

Derek Bolton is a contributor to Foreign Policy in Focus.