Threat to stability in Asia

Recognizing the gravity of the deepening crisis in the South China Sea, the world’s leading western powers have recently begun to speak out.

During their latest summit in Germany, the Group of Seven (G7) leaders underlined the “importance of peaceful dispute settlement as well as free and unimpeded lawful use of the world’s oceans, and expressed how they strongly oppose the use of intimidation, coercion or force, as well as any unilateral actions that seek to change the status quo, such as large-scale land reclamation.

Obviously, it was too diplomatically provocative to explicitly name China, but it was pretty clear which country the Western leaders had in mind.

Over the past eighteen months alone, according to the Pentagon, China has reclaimed 1170 hectares on a whole host of dispute reefs and rocks, which, in the words of US Secretary of Defense Ashton Carter, is more than all other claimants’ [construction activities] combined and more than in the entire history of the region.

In March 2015, Chinese Ministry of Foreign Affairs (MFA) astonished the region and the broader international community when it chose to reveal its broad objectives in the South China Sea, providing the rationale behind its mind-boggling geo-engineering overhaul of the land features in the area.

Beijing mentioned improving the working and living conditions of people stationed on these islands as among the many supposedly benign purposes of its massive real estate expansion in disputed waters, and claimed China holds a clear and consistent stance on the South China Sea issue.

Astonishingly, China described its construction activities as supposedly normal, since they took place in “our own [Chinese] islands and in our own waters,” therefore, as the argument goes, China is perfectly acting in a “lawful, reasonable and justifiable” manner, and it “hope[s] that relevant part[ies] can take a calm view on this.”

The comments echoed China’s Foreign Minister Wang Yi’s equally combative statements earlier this year, when he said Beijing “does not accept criticism from others when we are merely building facilities in our own yard,” since it has “every right to do things that are lawful and justified [within China’s nine-dash-line].”

Interestingly, and to the consternation of its neighbors, China has put an “international responsibility and obligation” spin to its construction activities.

China claims that its construction activities provide international public goods such as maritime search and rescue, disaster prevention and mitigation, marine science and research, meteorological observation, environmental protection, navigation safety, fishery production service and other areas.

In short, China is (supposedly) doing a favor to the international community by building a sprawling military-civilian complex across heavily disputed waters.

China has reportedly offered, when conditions are right, its facilities on disputed features for search and rescue and weather forecasting purposes to the United States.

China’s navy chief Admiral Wu Shengli asserted that far from impeding freedom of navigation, its facilities improve the ability in these seas of public services like weather forecasting and maritime search and rescue, fulfilling international obligations to maintain the security of international seas.

China is yet to establish an Air Defense Identification Zone (ADIZ), and it ultimately may stop short of formally declaring one. But it has already established the skeleton of an ADIZ, thanks to an emerging network of airstrips and military garrisons on contested features, backed by ever-expanding military and paramilitary patrols across the South China Sea.

China is currently working on at least three airstrips and military facilities across the Spratlys, specifically in Fiery Cross, where it has built a 3-km-long airstrip, Subi Reef, which is close to the Philippine-occupied island of Thitu, and Mischief Reef, which is close to the hydrocarbon-rich Reed Bank off the coast of Palawan.

These facilities provide China the ability to project power from land features under its control, effectively pushing its perimeter of defense from the shores of Hainan all the way to the southern portion of the South China Sea.

These facilities also provide China the increasing ability to choke off the supply-lines or restrict reconnaissance operations by other claimant countries. There are already signs that China is establishing an exclusion zone across the Spratly chain of islands.

On at least six occasions, China has recently demanded (and intimidated) Philippine Air Force and Navy planes to cease patrols in the area. Since 2013, Chinese coast guard vessels have also tried to cut the supply lines of the small Filipino military detachment in the Second Thomas Shoal.

The Chinese Foreign Ministry as well as the deputy chief of the General Staff Department of the People’s Liberation Army (PLA), Admiral Sun Jianguo, has openly expressed China’s openness to imposing an ADIZ in the South China Sea.

China’s latest white paper, which underlines the PLA’s commitment to “offshore waters defense and open seas protection,” has only deepened the sense of alarm in the region.

In fact, as early as 2004, the PLA’s navy and air force were tasked to achieve necessary capabilities for winning both command of the sea and command of the air, while in 2006 the PLA Air force declared its aim at speeding up its transition from territorial air defense to both offensive and defensive operations.

China’s latest white paper places a premium on “winning informationized local wars, highlighting maritime military struggle and maritime PMS [preparation for military struggles],” with the PLA making the following threat: “we will surely counterattack if attacked.”

Regional responses

Next to Vietnam, which controls approximately 21 features, the Philippines controls the greatest number of features (8) in the Spratly chain of islands.

For decades, it has occupied the Thitu Island, the second largest naturally-formed island in the area, which hosts a small Filipino community and an airstrip.

Back in 2014, Manila was deeply alarmed over reports that China, potentially through the PLA Navy’s South Sea Fleet, was planning to seize the prized feature.

Now, the Philippines is worried over whether it can, over the long run, resupply its personnel and refurbish its facilities on Thitu island, if and when China decides to expand and more decisively operationalize an exclusion zone in the Spratly Islands chain.

The Obama administration has prevaricated on whether it would come to the Philippines’ rescue if direct clashes erupt in the area, but the Philippine-US Mutual Defense Treaty (MDT) could be activated if Filipino vessels and military personnel are directly attacked.

But it is not clear how far Washington will go in pushing back against any Chinese attempt to cut Filipino supply-lines short of triggering direct armed clashes, since China will most likely do its best to keep any escalation in the gray zone to avoid the activation of the MDT.

Of course, down the road, one can’t rule out the possibility that China’s calibrated escalation will get out of control, as competing claimant states push the boundaries of confrontation. By relying on an armada of fishermen-cum-militia forces, which may not possess the professionalism of conventional armed forces, China’s maritime strategy can go astray.

In many ways, China’s construction activities, patrols, and military maneuvers in the South China Sea have gained a momentum of their own. Slowing them down or striking an alternative course would demand significant political capital on the part of the Xi Jinping administration, which is heavily occupied with a high-stakes reform agenda at home.

At some point, China may confront a classic principal-agent problem, if overweening subordinates, with their own personal and institutional interests, push for alternative and more dangerous ideas on the ground.

But one thing is clear: No more hiding its claws, no more biding its time, China has unquestionably entered a new era of assertiveness, casting aside Deng Xiaoping’s decades-long call for moderation, humility, and calculation in foreign policy.

China is slowly but surely moving from consolidating its claims on features it has been occupying for decades to dominating the entire South China Sea, gradually achieving the capability to fully drive out Southeast Asian claimant states from other features under their control.

When it comes to regional security, China has become a polarizing force, gradually threatening freedom of navigation in one of the world’s most important Sea Lines of Communications (SLOCs), the South China Sea, not to mention its dangerous jostling with Japan in the East China Sea; provocative maneuvers against India along contested Himalayan territories; and relatively obscure but intensified disputes with South Korea in the Yellow Sea.

The United States and other Asian countries have responded to China’s assertiveness through various strategies.

Washington has stepped up its freedom of navigation missions close to China’s artificially-created islands in the South China Sea, but it has fallen short of piercing into their 12 nautical miles territorial sea radius, even if international law doesn’t grant those artificially-created features (originally low-tide elevations, which can’t be appropriated) any maritime entitlements of their own.

Any eventual decision by Washington to challenge China by coercively entering their territorial sea clearly runs the risk of escalation.

With little signs of compromise on the horizon, the Philippines and Japan, two of America’s closest allies, have stepped up their security cooperation.

As a proponent of proactive pacifism, Abe has eagerly sought to ease decades-long restrictions on Tokyo’s ability to project force beyond its immediate waters.

Under the principle of collective security, Japanese Self Defense Forces are expected to expand their perimeter of operations and assist allies, particularly the United States, across Sea Lines of Communications (SLOCs) such as the South China Sea.

In a direct statement of support for the Philippines, Abe has reiterated that Japan shares serious concern about large-scale [Chinese] land reclamation and that we oppose any attempt to unilaterally change the status quo.

Japan is considering the export of advanced defense assets such as P-3C anti-submarine reconnaissance aircrafts and radar technology to the Philippines.

Under a $150 million deal, thanks to a Japanese soft loan, Tokyo is expected to deliver ten multi-role patrol vessels to the Philippine Coast Guard.

As the Philippines’ largest source of Overseas Development Assistance (ODA), Japan has been assisting its Southeast Asian partner to achieve greater domain awareness and develop a minimum deterrence capability in the South China Sea.

Meanwhile, the Philippines and Vietnam, which have both strengthened their security ties with Japan and the United States, have moved towards a strategic partnership, expected to be signed on the sidelines of the APEC summit this year, while Indonesia-particularly in terms of joint maritime patrols -and Singapore-particularly in terms of the permanent stationing of American Littoral Combat Ships-have fortified their security agreements with the United States to hedge against any contingencies.

And there are growing hopes that India will begin to play a more robust role in preserving an optimal balance of power in Asia, as it fortifies its ties with ASEAN states such as Vietnam and major powers such as the United States, Japan, and Australia.

Rule of law

Meanwhile, the Philippines has stepped up its legal warfare, dubbed as lawfare against China. After more than two years of hard work and extensive preparations, culminating in the thousands-page-long memorial, Manila in June this year concluded a hearing, before an Arbitral Tribunal at The Hague, where it argued that the United Nations Convention on the Law of the Sea (UNCLOS) can serve as a basis to help resolve the disputes in the South China Sea.

More specifically, the Philippines argued that the Arbitral Tribunal can exercise jurisdiction vis-à-vis its compulsory arbitration (under Art. 287, Annex VII) maneuver against China.

The ultimate aim is to ensure all claimant countries honor their treaty commitments under prevailing international legal regimes, particularly the UNCLOS, which has been ratified by the Philippines (1984) and China (2006) alike.

Although China has refused to engage the legal proceedings, claiming inherent and indisputable sovereignty over almost the entire South China Sea and invoking Article 298 to exempt itself from any third party arbitration on the issue, the UNCLOS (under Art. 9, Annex VII) has not barred the resumption of the arbitration efforts, which kicked off in early 2013.

Beijing knows it would be very difficult to justify its notorious nine-dashed-line doctrine, which has been universally (with the exception of China) dismissed as inconsistent with modern international law.

Instead it has chosen to sabotage the Philippines’ arbitration efforts by raising technicality-procedural questions. China has deployed three related arguments that aim to put into question whether the arbitral tribunal should exercise jurisdiction at all.

China cites that the UNCLOS does not have the mandate to address sovereignty-related (title to claim) questions, while, invoking Article 298 China has opted out of compulsory arbitration on issues that concern its territorial claims, among others.

China also claims that it is premature to resort to compulsory arbitration, since alternative mechanisms have not been fully exhausted.

The Philippines’ savvy legal team, however, has tried to address the jurisdiction issue by eschewing the sovereignty question, instead focusing on two major issues.

First, the Philippines has emphasized the importance of clarifying (under Art. 121 of UNCLOS) the nature of disputed features: Whether they are low-tide or high-tide elevations or islands, since this has a huge implication on whether the features can be appropriated at all or can generate their own 200 nautical miles Exclusive Economic Zone (EEZ).

Perhaps the most important argument of the Philippines is that the arbitral tribunal should examine (and ultimately invalidate) China’s nine-dashed-line claims, which are based on pre-modern, questionable, and vague notion of historical rights/waters.

In short, the Southeast Asian country wants to make sure all claimant countries harmonize their claims and maritime behavior along modern, internationally-accepted legal principles-not obscure doctrines.

Crucially, if the Philippines overcomes the jurisdictional hurdle, then Vietnam and other like-minded countries will more seriously contemplate the option of leveraging UNCLOS to rein in Chinese belligerence.

Some scholars have raised the possibility of establishment of a “conciliation commission” (under Annex V of UNCLOS) as another mechanism to peacefully resolve dispute.

Practically everyone, however, agrees that China has to first clarify sweeping territorial claims, which are neither consistent nor precise.

Up to this day, it is not clear whether China is claiming the entire South China Sea or only the features and fisheries and hydrocarbon resources in the area.

And if China does not even clarify the precise coordinates of its claims, it would be almost impossible to have any viable joint development scheme among claimant countries.

Ultimately, however, multilateral regional bodies, especially the Association of Southeast Asian Nations (ASEAN), have to step up to the plate and play a much-needed mediation role, which it has woefully fallen short of fulfilling in recent decades.

While there is an agreement among all major members of the ASEAN-Vietnam, Malaysia, Singapore, Indonesia, and the Philippines-that a legally-binding Code of Conduct (CoC) is the logical way forward, the regional body’s consensus-based decision-making structure, specifically in politico-security matters, has undermined its ability to forge a coherent and effective response to the South China Sea disputes.

At the very least, however, the ASEAN has been increasingly vocal about its “serious concern” vis-à-vis China’s destabilizing behavior in the area.  What is at stake is no less than freedom of navigation and maritime security in Asia, without which the whole region’s prosperity-if not security-could be severely affected.
(The Author is associated with De La Salle University, Faculty of Political Science, The Philippines)