China rising in sea spat that won’t end

HISTORICAL RIGHTS: Beijing has asserted itself with a growing naval presence in disputed areas, writes Barry Desker

THE risk of confrontation between China and the maritime states of Southeast Asia has increased significantly. On July 12, the Permanent Court of Arbitration (PCA) at The Hague ruled that China’s expansive claim to the waters of the South China Sea enclosed by its “nine dash line” map had no legal basis under the United Nations Convention on the Law of the Sea (UNCLOS) and China could not claim historical rights to resources within the enclosed area.

It criticised China for denying Philippine fishermen access to shared fishing grounds and aggravating the dispute by engaging in extensive land reclamation and the building of artificial islands. In a striking indictment of Chinese actions, the tribunal observed that China had violated the Philippines’ sovereign rights within the Philippine exclusive economic zone (EEZ) by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing within the zone.

The arbitral tribunal noted that the entitlement of islands to a territorial sea and EEZ had to be based on natural conditions, not the result of augmentation through land reclamation. It concluded that none of the features in the Spratlys are islands capable of sustaining human or economic life on their own, including the Taiwanese-occupied Itu Aba, the largest natural land mass in the Spratlys.

The Chinese government rejected the ruling, calling it “null and void”. It had earlier rejected the jurisdiction of the UN arbitral tribunal and declined to participate in the case. Ahead of the announcement, Chinese policymakers engaged in a diplomatic offensive warning that any decision undermining Chinese sovereignty “will increase tension and undermine peace in the region”, and conducted live-firing military exercises in the disputed waters. In remarks published after the ruling, President Xi Jinping told European Union leaders attending the ChinaEU Summit that China “will not be affected in any way by the ruling and case brought by the Philippines”.

Although China has supported calls for an early conclusion to the Asean/China negotiations on a Code of Conduct (COC) in the South China Sea, in practice China has stalled negotiations by insisting on concurrent progress on implementation of the 2012 Declaration on the Conduct of Parties in the South China Sea (DOC) as well as proposing many DOC projects as a distraction. Just as the DOC took 10 years to negotiate, China’s tactics will stretch the COC negotiations.

In the meantime, through its assertive actions, China is changing the facts on the ground. There is a growing Chinese naval and coastguard presence in the South China Sea. China has also engaged in largescale land reclamation, including the building of runways, wharves, a weather observation station and four-storey building on Subi Reef as well as similar developments on Fiery Cross Reef in the Spratlys and Woody Island in the Paracels. Recent years have witnessed sharp exchanges between China and the two most vocal Southeast Asian claimant states, the Philippines and Vietnam.