Avoiding conflict in the South China Sea

When a US Navy P8-A surveillance aircraft recently flew near Fiery Cross Reef in the Spratly Islands in the South China Sea, it was warned eight times by the Chinese Navy to leave the area. Chinese Foreign Minister Wang Yi said that, “China’s determination to safeguard its sovereignty and territorial integrity is as firm as a rock.” US Defense Secretary Ashton Carter replied that, “(T)here should be no mistake about this: the United States will fly, sail, and operate wherever international law allows us, as we do all around the world.” So, is a USChina conflict in the South China Sea imminent?

In 1995, when I was serving in the Pentagon, China began building structures on Mischief Reef, which is claimed by the Philippines and lies much closer to its shores than to China’s. The US issued a statement that we took no position on the competing claims by five states over the 750 or so rocks, atolls, islets, cays, and reefs that comprise the Spratlys, which cover a vast area — 425,000 square kilometers (164,000 square miles) — of the South China Sea. We urged that the parties involved settle the disputes peacefully. But the US took a strong stand that the South China Sea, which includes important sea lanes for oil shipments from the Middle East and container ships from Europe, and over which military and commercial aircraft routinely fly, was subject to the United Nations Law of the Sea Treaty (UNCLOS).

To back up its territorial claim, China relies on a map inherited from the Nationalist period — the socalled “nine-dashed line,” which extends nearly a thousand miles south of mainland China and sometimes as close as 40 or 50 miles from the coastline of states like Vietnam, Malaysia, Brunei and the Philippines. All of these states claim the 200-mile exclusive economic zones granted under UNCLOS.

When the dispute over Mischief Reef erupted, Chinese officials failed to clarify the meaning of the nine-dashed line, but, when pressed, they agreed that the dashes demarcated areas where China had sovereign claims. At the same time, they agreed that the South China Sea was not a Chinese lake, and that it was governed by the UN treaty. On this basis, the US and China avoided conflict over the issue for nearly two decades. But China did not avoid conflicts with its maritime neighbors. Although it pledged to adhere to a code of conduct negotiated by the Association of Southeast Asian Nations in 2002, it used its superior military might in disputes with the Philippines and Vietnam. In 2012, Chinese patrol vessels chased Philippine fishing boats away from Scarborough Shoal off the Philippine coast, and the Philippine government has taken the dispute to the International Tribunal for the Law of the Sea (ITLOS), which China claims has no jurisdiction. In 2014, after China stationed an oil rig in waters claimed by Vietnam, ships from the two countries engaged in ramming and water-cannon battles at sea; anti-Chinese riots in Vietnam followed.

The region’s smaller states sought American support. But the US remained careful not to be drawn into the competing claims over sovereignty, some of which are tenuous, while on others China sometimes has a stronger legal position. Moreover, the US had to focus on larger issues in its relationship with China.

This began to change when China initiated an active policy of dredging sand to fill in reefs and build islands in at least five locations. Earlier this year, analysts released images of what is expected to be a 10,000-foot (3,000-meter) runway on Fiery Cross Reef. The US argues that UNCLOS grants foreign ships and planes free access beyond a 12-mile territorial limit, while China claims that military flights cannot cross its 200-mile economic zone without its permission. If China claimed such a zone for each of the sites it occupies, it could close off most of the South China Sea. As one US official put it, China seems to be trying to “create facts on the ground” — what Admiral Harry Harris, the US commander in the Pacific, calls a new “great wall of sand.”

China correctly declared that it was within its sovereign rights to dredge, and that it was merely following the lead of its neighbors, whose governments had also been creating structures to bolster their claims.

But American suspicions were heightened by the fact that in 2013, in a separate dispute between China and Japan over the Senkaku/Daiyou Islands in the East China Sea, the Chinese government unilaterally declared an Air Defense Identification Zone without prior warning. The US response was to fly two B-52 bombers through the unrecognised zone. This set a precedent for the recent naval reconnaissance flight (which had a team of CNN reporters on board).

The US response was designed to prevent China from creating a fait accompli that could close off large parts of the South China Sea. Nevertheless, the original policy of not becoming embroiled in the sovereignty dispute continues to make sense. The irony is that the US Senate’s failure to ratify UNCLOS means that the US cannot take China to ITLOS over its efforts to convert reefs into islands and claim exclusion zones that could interfere with the right of free passage — a major US interest.

But, because China has ratified UNCLOS and the US respects it as customary international law, there is a basis for serious direct negotiation over clarification of the ambiguous nine-dashed line and the preservation of freedom of the seas. With properly managed diplomacy, a US-China conflict in the South China Sea can and should be avoided.