South China Sea: China faces hard choices as US support for rivals grows

Enforcing its claims harder risks international opprobrium and war while easing off to focus on commercial resource-sharing deals risks domestic criticism
But not choosing is also counterproductive as US military ties with other Asian countries continue to deepen

Mark J. Valencia

Published: 3:30am, 23 Feb 2023

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China is facing a point of decision in the South China Sea. Supported by the US, rival claimants Indonesia, Malaysia, the Philippines and Vietnam are resisting China’s attempts to implement its historic claim over much of the South China Sea.

They are responding to China’s intimidation and harassment by building up their military presence and capability, and some have enhanced cooperation with the United States. The most significant recent example is the Philippine agreement to allow the US more troops and equipment on its soil.

As Liu Weidong, a Sino-US affairs expert at the Chinese Academy of Social Sciences, said, China needs a long-term plan to counter the deepening military ties between the US and other Asian countries. But China’s options are limited and each has significant pros and cons.

China has two types of claims in the South China Sea – one to the features, some of which lie below high tide on others’ legitimate continental shelves, and one to jurisdiction over the waters and their resources. China’s territorial claims to high-tide features and their 12 nautical mile territorial seas are particularly difficult to resolve.

So this analysis focuses on its jurisdictional claim that has been found illegal by an international court.

The easiest and more likely option is to resist harder. China could step up enforcement of its claims, including to resource rights in others’ exclusive economic zones, by using its “maritime militia” and coastguard to harass other claimants’ petroleum exploration, back up its illegal fishermen and swarm the area.

A satellite image of Chinese vessels accused of swarming Whitsun Reef on March 23, 2021. The Philippine government expressed grave concern at the presence of more than 200 Chinese militia boats in the reef. Photo: EPA-EFE/Maxar Technologies handout

This would be interpreted as bullying and hegemonic behaviour, and is likely to drive China’s rivals deeper into the US embrace.

China has to decide if the long-term costs are worth the access to the resources and its military presence there. If so, the outcome is likely to be continued conflict with rival claimants and increased US military involvement to support them – eventually resulting in military clashes and possibly war.

This enhanced enforcement could be accompanied by a withdrawal from the UN Convention on the Law of the Sea (UNCLOS), which its jurisdictional claim violates.

It is my understanding that China ratified this convention on the incorrect assumption that its third-party dispute settlement mechanisms could be avoided by direct negotiations to settle maritime jurisdictional disputes.

This is probably why it insisted the 2002 Declaration on the Conduct of Parties in the South China Sea stipulates that the parties concerned should try to resolve their territorial and jurisdictional disputes “through friendly consultations and negotiations by sovereign states directly concerned”. It continues to insist the parties implement this provision.

Notably, any withdrawal from the convention would take effect one year after notification and China would still be subject to the international tribunal decision that found in favour of the Philippines.

04:04

Fishermen in South China Sea are at the centre of territorial crossfires

There would be serious political costs for China. Withdrawing from the convention would result in a wave of international opprobrium and a propaganda coup for anti-China factions in the West – and Asia. It would also create fear, even instability, in the region and probably push rival claimants closer to the US to balance against China.

Moreover, China would lose the major propaganda advantage it enjoys over the US – that the US never ratified the convention and therefore has no legitimacy or credibility to cite, interpret and enforce its provisions in its favour.

But China would gain advantages too, in being legally free to “pick and choose” the convention’s provisions and interpret them in its favour, just as the US does, without being subject to its dispute settle mechanisms.

Expect more close calls, high tension in South China Sea in 2023

While China’s withdrawal from the convention would weaken it and reopen bilateral negotiations on particularly critical points, this may be to its advantage if it wants to negotiate changes to the international order. It would give notice that it is dangerous to ignore China’s concerns and that it will not be “taken advantage of” by small Asian countries. It would serve as a warning to be careful not to push China into being what its rivals fear most – a rogue country that uses might, rather than right.

Alternatively, China could back off on its threats of the use of force and hope its good behaviour and economic clout will eventually persuade rival claimants to agree to share the resources through commercial arrangements that prioritise China.

In return, China might provide its technology for finding and harvesting enormous next-generation methane hydrate deposits on their continental slopes.

Chinese scientists retrieved a sediment core from the South China Sea through deep-sea drilling in this undated photo. Chinese technology could be a valuable resource in a project to exploit marine resources. Photo: Xinhua

Such access would also legitimise China’s military presence in the area. The problem is that China’s leadership may receive significant criticism from domestic nationalists for appearing to soften its claim to part of the motherland – a concept drilled into its populace.

But in this scenario, its leaders can argue that other claimants, in sharing access, tacitly recognised its claim. This option could go a long way towards ameliorating tensions and reducing opportunities for the US to meddle. It might even help conclude a code of conduct to stabilise the South China Sea and cement the China-Southeast Asia relationship.

China would have to decide if the long-term strategic and resource benefits outweigh the costs of domestic criticism. Of course, this assumes its rival claimants would buy into the deal. Moreover, it would still have to deal with the US as a strategic competitor in the region.

It’s a choice between Scylla and Charybdis, each with serious consequences. But the present policy is counterproductive and not choosing means continued anarchy and conflict in the South China Sea.

Mark J. Valencia is a non-resident senior research fellow at the Huayang Institute for Maritime Cooperation and Ocean Governance