After months of anxiety about uninhabited, mostly submerged rocks and reefs in the South China Sea, the Chinese Foreign Ministry Spokeswoman Hua Chunying finally answered the numerous calls for a more transparent communication of intentions behind China’s land reclamation activities.
Yet, it is questionable if China’s “normal activity” – or as Hua further put it, the “relevant construction, which is reasonable, justified and lawful” – does any good to China’s cause. That the country acknowledged a military and strategic purpose to its constructions is an important step towards increased transparency, but has not been received well among its concerned neighbors.
Policy wonks worldwide have tried to find a response to China’s activities and doing so did not get easier with increased transparency about its intentions. After the announcement, some analysts have warned that China might strive to impose an Air Defense Identification Zone or will eventually use its capabilities to interfere with freedom of navigation in the region. Due to the importance of the major sea lanes of communication passing through the South China Sea, there is the danger of a chain reaction following such a policy decision. Especially given the U.S. willingness to defend its right to operate its warships wherever is “legal”, such Chinese actions could open Pandora’s box and lead to unintended consequences.
Clearly these are worst-case scenarios that make no rational sense, the least so for China. Its current salami-slicing tactic is seen as a careful attempt to stay below the clear provocation threshold that would trigger more than just a verbal response from the other parties involved. Policy advisors across the region point to China creating facts on the ground that will soon have to be accepted due to the lack of a response. Militarily, the installations on disputed territories are currently not much more than target practice and will not (yet) provide China with a substantial strategic benefit during a hot conflict scenario involving the U.S. However, just by building the installations throughout the South China Sea, China might longer term achieve its goal of avoiding any outright confrontation, while scaring its neighbors to the point that they give up their claims over those features. At least theoretically such tactics are found in China’s warfare literature. To counter such concerns, those dealing with worst-case assumptions call for a legally binding Code of Conduct (CoC). But what good would this do?
Looking at the impact of two existing legal means, one looses optimism about the actual potential of such a CoC. Oftentimes, they seem to be nothing more than another arrow in the foreign policy quiver of rival parties with disputes about right and wrong getting blurry when the underlying legal norms are seen as shallow guidelines. On an international level, this is well reflected in the debate about the legal status of some of the features in the South China Sea under the UN Convention on the Law of the Sea (UNCLOS). According to Art. 121 of UNCLOS, islands have to be naturally formed areas of land, above water at high tide. To generate an Exclusive Economic Zone, granting the rights to explore resources, they have to be able to sustain human habitation or economic life of their own. Any such Chinese claim – as discussed among some Chinese legal scholars – would be bogus, especially given that China argued the opposite with regard to the Japanese Okinotori Atolls. When Japan handed in its submission to the Commission on the Limits of the Continental Shelf in 2008, China highlighted alongside South Korea that the rock of Okinotori, in its natural conditions, obviously cannot sustain human habitation or economic life of its own and thereby does not generate any special rights in the 200 nm zone. The recommendations by the Commission did however not end the dispute about the legal status of the Okinotori Atolls.
Yet, while there is little merit in claiming island status for artificially created submerged rocks and reefs based on a strict interpretation of UNCLOS provisions, such type of lawfare might serve its purpose when not directed at the international legal community, but at a domestic audience with limited legal understanding. This audience might see a denial of rights as unfair and unjust treatment, strengthening nationalist Sentiments.
Assessing legal means on a regional level, China’s unprecedented land reclamation has blatantly ignored the provision of the Declaration on the Conduct of Parties (DoC) in the South China Sea that calls for the parties to “exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.” This is not to argue that any of the other claimants has been a self-restraint poster child, especially as several of them have been or still are engaged in land reclamation activities. However, being the biggest player among the claimants with ever-growing power projection capabilities, China will be and has to be held to different standards. So while the calls for a CoC are well-intentioned, there is no guarantee that this would be any more successful than the current legal regimes. Clearly a CoC would have teeth compared to the DoC, but ultimately it can easily be used as another stalling tactic in the process of finding a real solution without having to stop ongoing activities.
Nevertheless, there should be ways to make use of China’s small communication offensive to foster regional stability. Legal cases such as the one by the Philippines and Vietnam against China are a valuable tool that despite the limited chances for success raises international attention and does not further escalate the situation. This is however as far as its impact goes. Beyond that, ASEAN needs to proof all the critics wrong and find a common position regarding the land reclamation activities or the claimants will be forced to look for other platforms to address their common Problem.
But aside from that? Criticism by U.S. officials such as U.S. Pacific Fleet Commander Admiral Harris Harris Jr. claiming that the pace of China’s construction of artificial islands “raises serious questions about Chinese intentions”, does little to calm the situation. Given the U.S. naval supremacy in the region, referring to the asymmetry between China’s capabilities and those of its smaller neighbors to vilify the “Great Wall of Sand” appears hypocritical. It only serves Chinese policy makers in arguing that the U.S. wants to deny China its rightful Claims.
Ultimately, it would be wiser to make use of the sudden Chinese transparency in a new way. The Chinese Ambassador Cui Tiankai just highlighted the ability to safeguard its sovereignty as the precondition for China to take greater responsibilities for international stability. While the land reclamation surely brings little benefits to the littoral states, at least the new perceived strengths of China might encourage it to become a more responsible stakeholder. And even though few of China’s neighbors have been looking for this, it gives China the opportunity to prove those wrong that doubt its intentions, while actually making use of the new installations for disaster relief and maritime rescue missions. This potential for future cooperation could be the right direction to exit a continuous and dangerous downward spiral for regional maritime security.
(Picture taken from South China Morning Post, where it was provided by AFP.)
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