US unwise to escalate South China Sea tensions over Chinese activities

Mark Valencia says US condemnation of Chinese reclamation and construction in the South China Sea is exaggerated and ignores similar transgressions by others, including its own allies

PUBLISHED : Monday, 13 April, 2015, 5:33pm
UPDATED : Friday, 20 May, 2016, 1:59pm

Last month, the leaders of the US Senate committees on armed services and foreign relations sent a letter to US Secretary of Defence Ash Carter and US Secretary of State John Kerry, calling for a "response" strategy regarding what they characterised as China's aggressive activities, including reclamation and construction on features in the South China and East China seas. This letter seems to have stimulated another round of public criticism of China by the US.

It was soon followed by an expression of concern from Admiral Harry Harris, commander of the US Pacific Fleet, that China would use these facilities to advance its military position, and comments last week by Carter condemning China's actions that "seriously increase tensions and reduce prospects for diplomatic solutions". These developments were reported in The New York Times and The Washington Post under alarming headlines. The same week, US President Barack Obama expressed concern that China has been "using its sheer size and muscle to force countries into subordinate positions".

Although some of this criticism of China's actions is deserved, much of it is exaggerated and unbalanced, and ignores the transgressions of other claimants and occupiers of disputed features in the South China Sea.

The Senate letter quotes US Director of National Intelligence James Clapper calling the extent of China's activities, including reclamation work, "an effort to expand its presence and further consolidate policy and conduct to assert its sovereignty claims". China is indeed undertaking such activities. But the other claimants - Malaysia, Taiwan, Vietnam and the Philippines, a US ally - have also undertaken reclamation and construction, which includes building airstrips and harbours that are used by their militaries - and could in certain circumstances be used by the US. Some continue to maintain the airstrips and harbours.

Yes, China's modifications are larger than what others have done, but there are no internationally accepted rules governing the extent of such "modifications". Besides, artificially enhancing a rock or reef does not make it a legal island - if that is a US concern.

Moreover, all the sovereignty claims to the rocks and islands have serious weaknesses under modern international law, which requires continuous, effective administration and control and acquiescence by other claimants. China's sovereignty claims are just as valid or invalid as those of the other claimants.

As for the maritime sphere, China has never clarified what it claims with its nine-dashed line. It would be a big step forward towards resolution of the issues if it did. Nevertheless, some of the Spratly features are legal islands and, under the 1982 UN Convention on the Law of the Sea, could be the basis for claims to an exclusive economic zone of 200 nautical miles, continental shelves and extended continental shelves. Thus, quite apart from its spurious and ambiguous nine-dashed line, China may have legitimate jurisdictional claims in the South China Sea.

Second, the letter implies that China's activities on these features are, or could be, a threat to freedom of navigation and "free and unimpeded commerce". But the US conflates US intelligence, surveillance and reconnaissance activities off China's coast with commercial navigation. China has never challenged commercial freedom of navigation and is not likely to do so. China does object, by word and deed, to what it perceives as US abuse of this right.

US surveillance activities off China's coast probably include active "tickling" of China's coastal defences to provoke and observe a response, interference with shore to ship and submarine communications, abuse of the consent regime for marine scientific research, and tracking China's new nuclear submarines for potential targeting. These are not passive intelligence collection activities commonly undertaken and usually tolerated by most states, but intrusive and provocative practices. Indeed, India, Malaysia, Vietnam and Thailand also oppose some US foreign military activities in their exclusive economic zones without permission.

The letter also refers to the US vested interest in international law that China is challenging. But the US has not ratified the Law of the Sea treaty while China has done so - along with more than 165 other states. Moreover, the US has refused to join the International Criminal Court and it rejected the jurisdiction of the International Court of Justice in a case brought against it by Nicaragua. In that case, the court ruled that the US had violated international law on several counts, including "interruption of peaceful maritime commerce".

The letter then suggests that China's activities might embolden it to declare an air defence identification zone in "all or part" of the South China Sea. This indeed may happen - but it is not illegal in and of itself and follows US precedents for itself, Japan and South Korea. Of course, doing so would be seriously problematic if it included disputed areas in the sea. But it would not be the first to declare such a zone including disputed areas - as did Taiwan and South Korea.

The letter also refers to the "stability and prosperity in the Indo-Pacific" for the last "seven decades" maintained by the "rules-based international order". This statement is absurd in that it ignores various upheavals like the overthrow of dictators the US supported in South Korea, the Philippines and Indonesia, intra-regional clashes and, more significantly, the Korean and Vietnam wars, in which the US was deeply involved.

Hopefully, the Obama administration is still bent on improving ties with China and avoiding a conflict between a rising power and an existing one. If these US senators want to engage in China bashing and promoting conflict, there are better reasons and ways and means to do so - like if and when China really does interfere with commercial freedom of navigation. But "drawing a line in the sand" regarding activities that others - including a US ally - have engaged in appears disingenuous.

A physical conflict between a rising China and the waning hegemon may be inevitable. Such a conflict would threaten the national security of both nations - and of other countries sucked into the vortex. China's reclamation and construction activities in the South China Sea are not a good reason to hasten such an apocalypse.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China