The South China Sea has been an area of friction for the last couple of decades with regular flare ups between states that ring this area due to competing territorial and sovereignty claims. The Spratly Islands have often been in the news with contesting claims of China, Vietnam, Malaysia and the Philippines leading to acrimonious incidents and even military action between them, on occasion. The area has consequently drawn the attention of world powers though permanent solutions to its complex problems have been long in coming. The Declaration on Conduct of Parties in the South China Sea in 2002 has also done precious little to reduce the acrimony between the contesting parties. The Spratlys are in focus again in the last few months with the various claimants to its sovereignty indulging in fairly audible pyrotechnics.

China’s Assertive Policies

China’s policy of constructing infrastructure on reefs in this island chain, claiming right to sovereignty over these islands, has been sending temperatures soaring in this region. The construction has involved formation of artificial islands by reclaiming land through dumping of huge amounts of sand on undersea coral reefs coupled with dredging activity. The reclaimed land has been utilized for setting up infrastructure like lighthouses, helipads, surveillance facilities, small ports and now large 3000 m long airstrips. Speculation is rife that these facilities will be used for military activity despite the Chinese President stating that they do not intend to militarise the South China Sea¹. The recent sighting of construction work, indicative of a future airstrip, on Mischief Reef, in satellite photographs released by Washington's Center for Strategic and International Studies (CSIS) think tank in September this year², has given further cause for concern to all the involved parties. The three airstrips, i.e. the one on Mischief Reef along with the ones on Subi and Fiery Reefs, when ready, will permit operation of surveillance aircraft as also fighters. This capability will afford a high degree of military air dominance to China in this strategically important area and allow it to threaten air traffic, making some of the worst fears of its competitors come true. Some countries also fear the promulgation of an ADIZ by China, similar to the one in Senkaku/Diaoyu Islands, in this area, which could further exacerbate the high level of tension.

Chinese leaders have also not hesitated in asserting China’s sovereignty over the South China Sea considering it a ‘historical right’ despite the issue being under international arbitration. The commander of the People’s Liberation Army Navy’s (PLAN) North Sea Fleet, Vice Admiral Yuan Yubai, was quoted as saying that the South China Sea belonged to China during this year’s RUSI International Sea Power Conference in London³. Such assertions by China have been increasing in conjunction with its growing naval power. When viewed in this light against similar claims of sovereignty by the other states, it does appear to lend credence to a feeling of intimidation as opined by some states. In fact, Senator Marise Payne, the new Australian Defence Minister, while speaking at the Pacific 2015 conference in Sydney on 07 Oct 15, said “Australia continues to strongly oppose the use of intimidation, of aggression or coercion to advance any country’s claims to unilaterally alter the status quo”, in the context of the Spratly Islands⁴. The other major player in the area, the US has professed that it does not take any stand on the ongoing dispute in the area.

The claims of sovereignty over these islands are still a matter of international arbitration. It seems therefore that China is buttressing its claims of sovereignty by carrying out construction to demonstrate its ability to exercise full authority over these islands. It is not alone in doing so since Vietnam, the Philippines, Malaysia and Taiwan have also resorted to similar activity, albeit on a much smaller scale. It is the sheer scale of China’s effort which is adding to the discomfiture of the rival parties in the conflict. The airstrips under construction by China have a length of 3000 m which will permit deployment of large reconnaissance aircraft as also fighters. While such construction itself may not be illegal, the doubts of sovereignty over these islands put a question mark on the legality of such construction. Further, implications on the provisions of UNCLOS like the territorial waters and the EEZ, also raise a host of questions. Moreover, construction on submerged formations, like reefs, does not afford the same demarcation of zones, under UNCLOS, as that afforded by islands which further complicates this situation.

China’s has demonstrated increasing assertiveness in its claims of sovereignty through warnings issued to aircraft like the one given to an American P 8A maritime reconnaissance aircraft in May this year when it flew over one of these artificial islands. International law provides for freedom of flight over international waters as also for freedom of navigation. Hence, technically, aircraft and ships can fly and navigate in the vicinity of these reefs maintaining the required safety distances implying that China’s unilateral imposition of sovereignty and ensuing limitations on the freedom of navigation is untenable. This has caused some alarm in the region with states voicing their concern and calling for international action to stem such unilateralism in resolution of disputes.

Acrimonious Neighbors

The Philippines has been fairly vociferous and the government has said that "failure to challenge false claims of sovereignty would undermine this order and lead China to the false conclusion that its claims are accepted as a fait accompli"⁵. This sentiment has also been echoed by the United States which has been trying to generate suitable options to protect freedom of navigation and overflight in this area. In fact, Secretary of Defence Ash Carter had proclaimed that the US “would fly, sail, and operate wherever international law allows” and noted that “turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit”⁶. This message was reiterated by Admiral Scott Swift, the US PACOM, in an address at the RAN Seapower Conference on 06 Oct 15 where he stated that the Pacific Fleet remains committed to freedom of the seas and will protect it through freedom of navigation operations. The Freedom of Navigations Patrols (FONOPs) are intended to demonstrate non-acquiescence of the USA to excessive maritime claims asserted by coastal states⁷. The US Navy had stopped FONOPs in 2012, after which interestingly, there has been a spurt in Chinese land reclamation activity in this region. In the past two years, China has added 3,000 acres of new land to small and submerged features in the South China Sea. As Andrew S. Erickson and Kevin Bond have noted in the National Interest, “China has managed to create more than 17 times more land in 20 months than all of the other claimants combined over the past 40 years, accounting for 95% of all artificial land in the Spratlys”⁸. These events coupled with China’s approach to the existing dispute in the Spratlys has forced the US to re-evaluate the option of carrying out the freedom of navigation patrols in the South China Sea.

Chinese Duplicity

A recent event has further precipitated public opinion in favour of resumption of US FONOPs in the South China Sea. Five PLAN warships comprising three surface combatants, an amphibious warship and a fleet oiler, which were part of a seven ship group which had earlier exercised with the Russians, entered the Bering Sea via international waters via a passage between the Russian Kamchatka peninsula and the American Attu island and crossed into U.S. territorial waters in early September heading south out of the Bering Sea. “The five PLAN ships transited expeditiously and continuously through the Aleutian Island chain in a manner consistent with international law,” according to a statement provided by U.S. Northern Command⁹. The US did not make an issue of this “innocent transit” thereby underscoring its commitment to respect international law and uphold the freedom of navigation enshrined in UNCLOS. China, on the other hand has consistently undermined these freedoms by its overly aggressive behavior. In fact, the Chinese Foreign Ministry spokesperson Hua Chunying has expressed 'serious concern' about reports of the US FONOPs in the South China Sea¹⁰. Such duplicitous behaviour by the Chinese raises justified suspicions of the nature of Chinese actions in the South China Sea despite their repeated assurances to not militarise the area. Of course, the concept of ‘militarisation’ as understood by the Chinese and other nations in the South China Sea may also be at variance.

Issues in Focus

The continuing narrative of events in the South China Sea brings two issues clearly to the fore. The first concerns the issue of sovereignty of the Spratly Islands. With as many as six nations laying claim to these islands, an early resolution is unlikely to be forthcoming in the foreseeable future, especially in a climate of aggression being exhibited by all the players in the current scenario. The ‘Declaration on the Conduct of Parties in the South China Sea’ signed by all the concerned states expressly states that “the Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law”. However, the “threat or use of force” is abundantly evident in the actions of the Chinese during incidents like the one with the oil rig HD 981 in May 2014. The other states have also not shied away from the use of force when de-escalation was warranted in such situations. The code of conduct also makes it incumbent on the parties to exercise restraint in further complicating the situation as also refrain from inhabiting the features of the Spratlys. The pace of construction activity in the Spratly seems to continue unabated and recent statements from the various governments also reinforces the notion that this stipulation has been discarded. If anything, it seems to be a catch up game for land reclamation between the various claimants though the other countries have been left far behind in this race by China. China’s apparent assumption of regional leadership in this area, especially when it talks about the “Maritime Silk Road’, requires it to shoulder the responsibility of returning a sense of calm and security to this strategic area. Revitalising the “Code of Conduct’ along with the interested parties like Vietnam and Philippines, would serve China well. The available infrastructure that it has built up will give it a surveillance capability for effective monitoring of this area and further construction can only cause alarm. Defusing the current situation is necessary for any progress towards settlement of the existing disputes. India also supports a peaceful resolution to this dispute as stated in the Joint Statement issued during the Third India-Philippines Joint Commission on Bilateral Cooperation on 14 Oct 15. In fact, Philippines has cited the peaceful resolution of India’s boundary dispute with Bangladesh as an example in this statement¹¹.

The second issue that emerges from the current imbroglio is far more important for the global community at large. The world’s oceans are a global commons meant to be utilized for the furtherance of the global commerce. Imposition of restrictions, on the free movement of commerce and shipping which is enshrined in the UNCLOS, is tantamount to usurpation of the global commons. Freedom of navigation of shipping should be preserved at all costs since the South China Sea carries vital cargo for the entire globe. No nation can unilaterally impose restrictions on this freedom, especially when its sovereignty is disputed in such areas. Notwithstanding the arguable jurisdiction over such areas, ‘innocent passage’ is a right guaranteed to all shipping so long as they adhere to good order at sea. The Americans can rightfully claim the high moral ground in the current scenario when they did not make an issue of the transit of the Chinese fleet in their territorial waters. Resumption of Freedom of Navigation patrols in the South China Sea, when approved by the US government, will send the right message to the Chinese that these freedoms are non-negotiable and intimidatory tactics do not provide legality to their claims of sovereignty. India has rightfully highlighted the importance of safeguarding these freedoms in the joint statement with Philippines¹².

The disputes of the South China Sea are unlikely to be resolved in the immediate future. However, it is important that the current high level of tensions be reduced to accommodate and progress talks on issues concerning resolution of these disputes. The area can ill afford any conflict which could destabilize the region and have a ripple effect across the larger Indo-Pacific. China seems to be taking steps in this direction when it offered to hold joint drills with ASEAN nations during an informal summit at Beijing on 15 Oct 15¹³. China needs to do much more to assuage the feelings of its neighbours in the South China Sea and provide clarity on its stated intentions of not militarising this area.

Endnotes

1. China’s President Pledges No Militarization in Disputed Islands, http://www.wsj.com/articles/china-completes-runway-on-artificial-island-in-south-china-sea-1443184818, Accessed on 19 Oct 15,
2. http://www.ndtv.com/world-news/china-building-third-airstrip-on-disputed-south-china-sea-islets-expert-1217641?utm_source=ndtv&utm_medium=top-stories-widget&utm_campaign=story-8-
   http%3a%2f%2fwww.ndtv.com%2fworld-news%2fchina-building-third-airstrip-on-disputed-south-china-sea-islets-expert-1217641, Accessed on 15 Sep 15
3. http://thediplomat.com/2015/09/chinese-admiral-south-china-sea-belongs-to-china/, Accessed on 21 Sep 15.
4. http://www.heraldsun.com.au/news/national/senator-marise-payne-says-australia-opposes-intimidation-in-the-south-china-sea/story-fni0xqrb-1227561097847, Accessed on 09 Oct 15
5. http://www.ibtimes.com/philippines-backs-us-navy-plan-test-chinese-claims-south-china-sea-2138665, Accessed on 15 Oct 15.
6. http://thediplomat.com/2015/10/why-we-need-south-china-sea-freedom-of-navigation-patrols/, Accessed on 06 Oct 15
7. U.S. Department of Defense Freedom of Navigation Program Fact Sheet
8. http://www.nationalinterest.org/feature/america-must-take-stand-the-south-china-sea-13779, Accessed on 07 Sep 15
9. http://news.usni.org/2015/09/03/chinese-warships-made-innocent-passage-through-u-s-territorial-waters-off-alaska, Accessed on 16 Oct 15 at 1515 h
10. http://news.xinhuanet.com/english/video/2015-10/10/c_134698562.htm, Accessed on 12 Oct 15
11. Joint Statement: Third India-Philippines Joint Commission on Bilateral Cooperation, http://www.mea.gov.in/bilateral-documents.htm?dtl/25930/Joint_Statement__Third_IndiaPhilippines_Joint_Commission_on_Bilateral_Cooperation, Accessed on 15 Oct 15
12. Ibid.
13. http://www.scmp.com/news/article/1868814/china-offers-joint-drills-asean-south-china-sea-check-us-plan-send-warships, Accessed on 16 Oct 15.

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Published Date: 21^st October 2015, Image Source: http://www.southchinasea.org
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)