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Can China Seize the Sea?

China’s construction of artificial structures in the South China Sea in an attempt to solidify nautical sovereignty claims has heightened tensions in the South East Asian region. The verdict of the United Nation’s Arbitration decision due tomorrow, July 12, but many countries have already taken their own steps to maintain territorial claims, including the reopening of U.S. arms sales with Vietnam. Can existing international structures assist the affected countries in resolving this dispute?

China’s construction of artificial structures—including some with military capacity airstrips—in contested waters of the South China Sea is escalating a dispute over national sovereignty. Chinese officials argue that this region of ocean has been historically theirs, prompting concern from their neighbors and from United States officials. The United States is currently peacocking its military power in the region in response, but instead the United States should encourage diplomatic routes to resolve the dispute. The United Nations Convention on the Law of the Sea (UNCLOS) and the 2002 Declaration on the Conduct of Parties in the South China Sea, signed by the member states of the Association of Southeast Asian Nations (ASEAN), offer considerable opportunity to reduce tensions.

The region of the South China Sea in question, the Paracels and the Spratlys, is significant due to the $5.3 trillion in global trade that flows through the area, as well as its rich natural gas and oil deposits. In response to China’s attempts to drive other countries out of this valuable area, the Philippines, Japan, Vietnam, and Singapore have been negotiating pacts strengthening their defense relationships with the United States. These countries are determined to assert freedom of navigation in the region, resulting in an agreement allowing the United States to fly P-8 Poseidon planes from Singapore over the construction zone and the October 2015 decision to sail a guided-missile destroyer near the artificial islands. Additionally, the United States embargo on arms for Vietnam that has been in place since 1984—partially lifted in 2014—will be fully lifted to support the country’s defense abilities. The United States must progress carefully as these acts are reminiscent of the spark that drew the United States into the Vietnam War. Short of destroying the islands, the United States cannot force Beijing to stop construction. This is the moment to aim at China’s illegitimate use of power on the international stage, not a time for military intervention.

UNCLOS offers an opportunity for peaceful resolution using the U.N. backed arbitration panel. The Philippines filed a claim to the arbitration panel back in January of 2013 petitioning that the construction on the reefs and China’s nine-dash line (南海九段线) are infringing on their territorial sovereignty under Annex VII of UNCLOS. In September, the panel ruled that it has jurisdiction to hear the case. China has disputed the U.N. process all along and asserted that the case should be solved through bilateral negotiations between the two countries.

The key lies in the exact classification of China’s construction project in the South China Sea. The Court may classify the structures as rocks, low tide elevations, or submerged banks which could allow the Philippines’ right to operate inside of its Exclusive Economic Zone—a 200 nautical mile area from the coastline of a country where exclusionary rights over marine resources can be claimed—laid out by UNCLOS without any further protest from China. If instead the court rules that the construction is an island, China may be able to claim a radius of 12 nautical miles. The ruling is expected July 12, 2016. Although there are numerous critiques that can be made of the U.N. arbitration court, such as the slow pace of the proceeding and the lack of enforcement mechanisms for rulings, it is an opportunity to have an unbiased judgment of the events. If the panel rules against China it gives a rallying point for other countries to help as well as would hurt China diplomatically if it were to disavow the ruling.

Providing a separate opportunity for diplomatic action, the ASEAN member states in 2002 signed a Declaration on the Conduct of Parties in the South China Sea, reaffirming their commitment to working together “to promote a peaceful, friendly and harmonious environment in the South China Sea between ASEAN and China.” Although there has been a current lack of adherence to the proposals, U.N. officials could become the new mediators to assist them in completing the goals they set out for themselves. ASEAN makes an integral partner in this scenario because it offers a multilateral framework for countries in the region to unite. The U.N. would be a better mediator than the United States as it has more gravitas and international support which could help the ASEAN members stand strong together. In April, Chinese Foreign Minister Wang Yi began a tour of ASEAN countries to begin bilateral negotiations regarding the dispute. Although China may be attempting the divide and conquer technique, the United Nations should be encouraging ASEAN to collectively bargain with Beijing, in order to balance the concessions made by all parties since China is more powerful than any individual ASEAN country. Already China and ASEAN nations have set up a communications strategy so foreign ministers can quickly address emergencies in the disputed seas.

In the long term, allowing China to take over this area of the ocean could weaken adherence to international laws and norms. If China, which is active in the United Nations, is able to disregard international law for economic gain due to the significant trade and resources in the South China Sea, then there is less incentive for other countries to follow international norms. Furthermore, if the United States becomes militarily involved, it would also be undermining the diplomatic process and could result in a drawn out engagement. International doctrines and laws exist to help facilitate peaceful resolution of conflicts between countries. Although the UN arbitration court does not have an enforcement mechanism, a ruling in favor of the Philippines would focus attention on China’s disregard for international law, form a stronger coalition, and mobilize robust support if military action is taken in the future. In the case of a ruling in favor of China, however, the United Nations should assist the ASEAN countries in coordinating their position, to ensure the peaceful resolution of tensions in the area.

Image: Claims in the South China Sea (credit: NaturalFlow/Flickr)



Marlena Luhr

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