The Debate Concerning US and China Policies in the South China Sea
Photo Credit: AP
By Mark J. Valencia

The Debate Concerning US and China Policies in the South China Sea

Sep. 27, 2018  |     |  1 comments


The National Interest has published US government-supported academic Denny Roy’s critique of what Roy calls “government-affiliated academic” Hu Bo’s recent article regarding China and the South China Sea. I agree with much of Roy’s argument. But his piece also contains some unfair innuendos and errors of fact that I would like to address. Perhaps the most unnecessary and inappropriate innuendo is Roy’s concluding sentence: “Hu also reminds us of how CCP political correctness hampers discussion.” If, as Roy implies, Hu blindly adheres to “CCP political correctness”, then why, as Roy also points out, are some of his main assertions “contrary to current PRC policy”? Roy cannot have it both ways.

 

Roy criticizes China for wanting to negotiate settlement of the South China Sea disputes in “separate bilateral talks between it and each of the other claimants.” But that is what all ASEAN members and China agreed to in the 2002 Declaration on the Conduct of Parties in the South China Sea. The relevant phrase is that the parties will “undertake to resolve their territorial and jurisdictional disputes through friendly consultations and negotiations by sovereign states directly concerned.” Despite some Southeast Asian claimant countries’ apparent attempt with US support to renege, China has held firmly to it. Its view is that it should not have to negotiate with parties that do not even have claims in the South China Sea.

 

Roy also criticizes Hu’s assertion that no country can control or “achieve predominance in the South China Sea.” But here US military experts disagree with Roy. As Ralph Cossa, President Emeritus of Pacific Forum, says: “The South China Sea is not and will not be a Chinese lake and the Chinese, even with their artificial islands, cannot dominate the sea or keep the US Navy out of it.” As for China’s “militarization” of features it occupies there, according to retired Admiral and former Director of US National Intelligence Dennis Blair: “The Spratlys are 900 miles away from China for God’s sake. Those things have no ability to defend themselves in any sort of military sense. The Philippines and the Vietnamese could put them out of action, much less us.”

 

Roy asserts that China believes it “has the right to close areas within the 9-dashed line to military activities at will.” That is a misunderstanding of China’s position. China objects by word and deed to what it perceives as US abuse of the right of freedom of navigation. China believes that some US intelligence, surveillance and reconnaissance (ISR) probes in its Exclusive Economic Zones (EEZ) are not passive intelligence collection activities commonly undertaken and usually tolerated by many states including China, but are instead intrusive, provocative and controversial practices that violate both China’s domestic laws and its rights under the United Nations Convention for the Law of the Sea (UNCLOS). The “violations” concern the regimes of consent for marine scientific consent and environmental protection in the EEZ.

 

China apparently also believes that these ISR activities violate the peaceful purposes/uses provisions in Articles 88, 141 and 301 of UNCLOS. China alleges that the US is “preparing the battle field” and that this, as well as the use of military vessels to “demonstrate” its interpretations in Freedom of Navigation Operations (FONOPs), constitute non-peaceful threats of use of force, which would be a violation of the UN Charter as well as UNCLOS. In sum, China sees the US as wanting to use the South China Sea for non-peaceful purposes such as gunboat diplomacy, military exercises, and provocative ISR probes — all of which in China’s view threaten its national security.  Moreover, the US and other countries declare temporary military exclusion and no fly zones around some of its maritime military exercises and space shots.

 

I agree with Roy that China seeks hegemony in the South China Sea. But so does the US. It wants to dictate the rules for all to follow there and threatens to punish those who defy them. I would say that is a fair definition of “maritime hegemony.”



If compromise is inevitable — and many analysts think it is — would it not be better for all concerned to work it out without violent conflict?



Roy says that the “US Navy assiduously abides by the guideline of the Law of the Sea.” The US has not ratified the UNCLOS and China believes the US regularly violates several of UNCLOS’ provisions. Because the Convention was a “package deal,” non-ratifiers like the US cannot credibly or legitimately pick and choose which provisions they wish to abide by, deem them customary law, and unilaterally interpret and enforce them to their benefit. This is especially so regarding the EEZ regime which UNCLOS introduces as sui generis and which — contrary to US military advice to its naval of officers — does have some restrictions on “freedom of navigation.” They include the duty to pay “due regard” to the rights of the coastal state including its marine scientific research consent and environmental protection regimes as well as its national security. Such due regard in the EEZ is required by UNCLOS for both the coastal state and the user state, but it is undefined. Moreover, China and the US disagree on the meaning of other key terms in UNCLOS relevant to the freedom of navigation like “other internationally lawful uses of the sea,” “abuse of rights,” “peaceful use/purpose,” and “marine scientific research.”


Roy rightly identifies the “real issue” which is a struggle between the two great powers for regional hegemony. But he then hopes that “the two countries can work out a better solution to the problem than reckless and dangerous maneuvering by Chinese ships and aircraft.” I would add to this “better solution” a suspension of provocative US FONOPs and IRS probes in China’s “near seas.”


Roy warns that Beijing might “selectively block the seaborne commerce of particular countries with which Beijing has political disagreements.” I and many other analysts seriously doubt that China would do this — short of war. It simply would not be in its economic and political interest to do so.


I do not understand Roy’s objection to Hu’s claim that a US warship sailing near a Chinese military outpost is “a huge threat to the sovereignty and security of China and Chinese people on these islands and reefs.” Perhaps in an armchair analyst’s view it is not a “huge” threat. But the US has essentially declared China an adversary and the warships are not just sailing by these Chinese military outposts. They are exhibiting a threat of use of force. Perhaps if Roy was a member of the Chinese military on one of these rocks and a potential enemy warship capable of obliterating everyone and everything on it “sailed by,” he might feel threatened too.


Hu makes some good points and some weak ones. He is right that there is a burgeoning anti-China bias in the Western media regarding the South China Sea issues. He is also right that “no power can control the South China Sea regardless of its intention” and that it is not only China that is “strengthening their power presence in the Sea.” He is also correct to say that “sea power and sea control” in a nuclear age means “relative influence and comparative advantage in some maritime areas,” not unilateral hegemony. I also agree with Hu that “both sides will finally find out that there is no choice but to establish a common and inclusive security order with ASEAN Member States and other stakeholders.” Moreover, as Hu says, China has been responding to the policy and actions of Vietnam, the Philippines, and the US since 2015.


However, Hu also puts forward some “alternative facts” that detract from his contributions to the debate. He maintains that there is “no exact evidence that China has obstructed freedom of navigation.” That may be so regarding vessels carrying commercial goods using the Sea. But China’s interventions regarding fishing and petroleum survey vessels are well documented. China may argue that these incidents were a result of disputes over ownership of resources. But since the international arbitration ruling invalidating its 9-dash line claim and EEZ claims from the features, this argument is no longer tenable.


I do agree with Hu that the American security community and media have become obsessed with — and its military overextended in — the South China Sea. I also agree that the US does not yet recognize “the strategic significance of the changing balance of power [in the South China Sea] in China’s favor.”  This is dangerous. As Winston Churchill supposedly once quipped “The Americans will always do the right thing … after they’ve exhausted all the alternatives.” If compromise is inevitable — and many analysts think it is — would it not be better for all concerned to work it out without violent conflict?


Both Hu and Roy make some good points as well as some questionable assertions. They should focus on what they agree on.



1 Comments To This Article

  • Jamesmon
    Jamesmon

    on Nov 01, 2018 at 06:48 PM - Reply

    1

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