China and the Issue of the South China Sea Published Jan. 2, 2020 By J. M. M. Portzer Wild Blue Yonder Abstract In this brief policy commentary, China’s “land reclamation efforts” and the historic origins of the international issue of this territorial dispute are discussed. Following an examination, various possible solutions are examined. Ultimately, a peer-level partnering with China may ultimately smooth the negotiating space to revisit the issues surrounding the South China Sea. However, without engendering a sense of trust, further progress that avoids escalation may be problematic in obtaining. China’s “Land Reclamation” Efforts and Global Stability When China began building man-made islands in the Subi, Fiery Cross, and Mischief Reefs, few noticed the dredging that would eventually shake the foundations of international law, the status quo of world powers, and very notion of global stability.1 By 2015, China had engineered seven separate ‘land reclamation’ projects based around the South China Sea’s (SCS) reefs and its atolls—the respective waters of which are highly contested by multiple countries.2 Initially mere sand and concrete, these artificial islands birthed infrastructure, shelters, and eventually military weapons.3 Where sovereign international military vessels were able to sail and fly without comment years prior, they now are challenged and intercepted.4 In 2016, the International Criminal Court’s (ICC) Permanent Court of Arbitration (PCA) repudiated these actions, finding no legal footing present in China’s assertions of sovereignty.5 For many in the international community this was a relief, as the case—brought forward by the Philippines—appeared to rule in favor of countries such as Indonesia, Malaysia, Vietnam, and Brunei.6 However, this was arguably juridical fool’s gold—shiny, but ultimately lacking in value. Pres. Xi Jinping claimed that the court’s decision was neither valid nor enforceable and refused to recognize the ruling.7 China further issued a counter claim, threatening to arrest those who encroached upon its claimed SCS area.8 The historical arguments for China’s claims are discussed below. Regardless of their validity, it is fair to say China’s efforts have immensely complicated the geopolitical arena. They call into question the legitimacy and power of international bodies such as the ICC and the UN. They call into dispute the legal basis of the UN’s Convention on the Law of the Sea (UNCLOS). They risk setting a precedent where a country may manufacture artificial land masses, claim them as sovereign territory (including the surrounding sea and airspace), and then position both civilian and military entities that may infringe upon the sovereignty of others. Illegitimate Efforts or Historical Justification? UNCLOS establishes territorial waters extending 12 nautical miles (NM) from the shore of a country, and an exclusive economic zone (EEZ) from 12 NM to 200 NM from shore—a zone where a country has the right to explore and utilize resources.9 China’s claim to a historically driven “nine dash line” covers approximately 90 percent of the SCS and claims a much larger area than the UNCLOS EEZ.10 The new artificial islands are significant because the reefs and atolls were previously uninhabitable, and therefore ineligible for the establishment of territorial waters or an EEZ.11 China unilaterally took an internationally contested area of water and inserted man-made land, claiming it as their own. Their disregard for the international treaty is a bold and troubling action. However, in defense of China, it is important to illustrate several counterpoints. The Sino-French treaty of 1887 ceded land “105 degrees 43 minutes east of Paris” to China.12 This would in fact include the Spratlys, so their claim is not historically unfounded. Further, academics have argued that the Chinese narrative understands these islands to have been illegally annexed in 1939; thus, their rejection of the ICC ruling should not be that shocking given that the Chinese premier tried to declare sovereignty in the SCS in 1951.13 In addition, Vietnam once supported China’s claim, and the Philippines’ annexation of the islands in 1971 was under an arguably suspect terra nullius claim.14 Consider further that Vietnam has previously created land by dredging, which did not meet any international resistance.15 Lastly, there is precedent for countries making questionable claims on land paired with artificial manufacture. From the mid-2000s to 2016, Japan’s claim of an EEZ based on the small, uninhabitable Okinotorishima rock formation (fortified by an 8,000 square meter platform) drew international criticism.16 Regardless of China’s justification for its island fabrication and rejection of the PCA’s ruling, both must be challenged internationally. To allow a country to conduct such actions unchecked risks the establishment of ‘customary international law’ in favor of China’s claims, which could effectively make the disputed territory and sea theirs in fact. (US Air Force photo by SSgt Joshua Smoot) Figure 1. US training in the SCS. A US Air Force B-1B Lancer assigned to the 9th Expeditionary Bomb Squadron, deployed from Dyess Air Force Base, Texas, flies a 10-hour mission from Andersen Air Force Base, Guam, through the South China Sea, operating with the US Navy’s Arleigh Burke-class guided-missile destroyer USS Sterett (DDG 104), 8 June 2017. The joint training, organized under INDOPACOM’s continuous bomber presence program, allows the Air Force and Navy to increase interoperability by refining joint tactics, techniques, and procedures while simultaneously strengthening their ability to seamlessly integrate their operations. In Search of a Definitive Solution and Maritime Cooperation The US military response has been to exercise Freedom of Navigation Operations (FONOP), sailing and flying close to these islands to challenge China’s claim, due to the aforementioned concern regarding customary international law. However, its efficacy is questionable.17 While China may decry these actions, these FONOPs have no effect on China’s reclamation efforts or what scholar Weston Konishi dubs the cabbage strategy—“wrapping disputed islands in layers of civilian, paramilitary, and military protection.”18 Even if such operations allow the continued use of the waters in question for the next several years, that does not address the threat posed to international order (and who is to say if such use would be continually tolerated given the current economic tensions between the United States and China). Other solutions thus warrant further investigation. While China has made gargantuan strides in ship production to enlarge its fleets, the United States could always try to match might with might, as Konishi points out.19 However, this likely is not feasible. The Department of Defense has financial restraints not extant in China, and the military is only now breaking free from the effects of sequestration. Investing in joint weapons and military effects across the land, air, and sea domains certainly has strategic import; however, this too runs the risk of an arms race that the US congressional body is unlikely to entertain. While recently the United States has withdrawn from the Intermediate Range Nuclear Forces Treaty, it does not necessarily follow that we will now aim to outpace two peer-competitor nations in materiel accrual.20 Along those lines, Konishi also notes the possibility of mimicking China’s “cabbage tactics.” Yet, playing checkers with dredgers could potentially lead to land-based blockades, which would rapidly escalate tensions. While this assertion is contested by certain regional experts, it seems both an unnecessary risk and expenditure if the same outcome might be otherwise achieved.21 Perhaps what is needed is an aggressive lean into collaborating with China regarding maritime security. Bolstering bilateral military exercises and fostering goodwill can construct a space for dialogue for a better Western understanding of the Chinese sociohistorical issues at play. The land reclamation efforts are an existential issue for China. We gather this in reading their military strategy white paper—confronted with a Western ‘pivot to the Pacific,’ they are de facto playing defense.22 The resources and seas that were once acknowledged theirs by certain international audiences are now seen as having been taken.23 China finds the ICC ruling illegitimate because they construe it as a US-orchestrated ploy for power, and as an opinion rather than a ruling.24 These points do not exonerate China’s escalatory military responses, but they do frame the problem in a less adversarial manner. Forging a continuing peer-partnership with China on the seas would demonstrate a commitment to compromise. History shows that China has been willing to make concessions when needed.25 They need evidence that compromise in the SCS doesn’t demand an existential crisis. Perhaps if this compromise was demonstrated as politically tenable to China, then they would be able to accept the international ruling and not feel that it was an orchestrated shot across their bow. US naval leaders have looked to fostering collaboration with Association of Southeast Asian Nations member states to promote stability within the region.26 What happens if they now do so with China directly? China has taken a stand against international piracy in places such as the Gulf of Aden. Partnering with China through combined naval operations out of Djibouti would provide a neutral ground to begin this partnership. Renewing an effort for officer exchange programs would afford grassroots engendering of goodwill. No matter the method, with many of the conflicts materializing in the military sector, perhaps this is where the advent of mutual understanding should begin. This would make the entering argument for global cooperation much more powerful, as well as extending a branch of trust. Conclusion This piece should not be understood as an apologist’s rendering of China and the SCS conflict. International decorum and order are quintessential partners in maintaining global stability. China should not simply get a free pass for thumbing their nose at the international community’s ruling. However, it is prudent that we often take a step back and ask ourselves if our current position is effective. The beauty of the military is that we are a results-oriented organization. Yet, that means that we must consistently ensure we are getting the results that we are seeking. If we are not (whether be it at all, or perhaps not as quickly as we would like), then we need to employ innovative strategic thinking. Much like a philosophical argument, if one does not like the conclusion one is heading toward, then she need only take a step back and re-evaluate the premises. So long as the logic is sound, then the conclusion likely changes itself. LT Josh “Minkus” Portzer, USN Lieutenant Portzer is a naval flight officer in the P-8A Poseidon in the United States Navy. He currently is a politico-military masters scholar at Princeton University. His focus is on national security, strategy, and the Middle East. Notes 1Kirrily Schwartz, “China Will Be Able to Deploy Weapons with Terrifying Efficiency,” NewsComAu, 5 Apr. 2017, http://www.news.com.au/world/asia/south-china-sea-controversy-heats-up-as-manmade-islands-are-almost-complete/news-story/84aa8664ef1f147d704b8f1e78e62516; and Associated Press, “China Proceeds with Building Artificial Islands on Reefs Claimed by Philippines,” Guardian, 27 June 2015, http://www.theguardian.com/world/2015/jun/27/china-proceeds-with-building-artificial-islands-on-reefs-claimed-by-philippines. 2Associated Press, “China Proceeds with Building Artificial Islands”; Mobo Gao, “Geopolitics and National Interest II: The South China Sea Disputes,” in Constructing China: Clashing Views of the People’s Republic (London: Pluto Press, 2018), 227–240, http://www.jstor.org/stable/j.ctv3mt8z4.16; and Bruce A. Elleman, “China’s Spratly-KIG Maritime Dispute with the Philippines,” in China’s Naval Operations in the South China Sea: Evaluating Legal, Strategic and Military Factors, vol. 3, (Folkestone, UK: Renaissance Books, 2018), 54–74, http://www.jstor.org/stable/j.ctt1zqrn98.10. 3Schwartz, “China Will Be Able to Deploy Weapons.” 4Associated Press, “China Proceeds with Building Artificial Islands.” 5Jane Perlez, “Tribunal Rejects Beijing’s Claims in South China Sea,” New York Times, 12 July 2016, http://www.nytimes.com/2016/07/13/world/asia/south-china-sea-hague-ruling-philippines.html. 6Ibid. 7Ibid. 8Elleman, “China’s Spratly-KIG Maritime Dispute.” 9“United Nations Convention on the Law of the Sea of 10 December 1982,” United Nations, http://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm. 10Perlez, “Tribunal Rejects Beijing’s Claims.” 11South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, ICGJ 495 (PCA 2016), 12th July 2016, Permanent Court of Arbitration [PCA]. 12Elleman, “China’s Spratly-KIG Maritime Dispute.” 13Gao, “Geopolitics and National Interest II.” 14That is to say, that the land was legally uninhabited and thus the occupation of said land was not an encroachment on another nation. 15Ibid. 16Ibid. 17Weston Konishi, “China’s Maritime Challenge in the South China Sea: Options for US Responses,” Chicago Council on Global Affairs, 10 January 2018, http://www.thechicagocouncil.org/publication/chinas-maritime-challenge-south-china-sea-options-us-responses. 18Ibid. 19Ibid. 20Idrees Ali, “After INF Treaty’s Demise, U.S. Seeks Funds for Missile Tests,” Reuters, 2 August 2019, http://www.reuters.com/article/us-usa-russia-inf/after-inf-treatys-demise-u-s-seeks-funds-for-missile-tests-idUSKCN1US0FJ. 21Konishi, “China’s Maritime Challenge.” 22The State Council Information Office of the People’s Republic of China, “China's Military Strategy,” USNI News, 26 May 2015, https://news.usni.org/2015/05/26/document-chinas-military-strategy#MST. 23Gao, “Geopolitics and National Interest II.” 24Ibid. 25Ibid. 26Konishi, “China’s Maritime Challenge.”