Despite all the advancements in technology and land-based infrastructure, about 90 percent of global trade is still carried through maritime routes. The South China Sea is an artery of global trade, facilitating $5 trillion in international trade, $1.2 trillion of which is bound for the United States. It also serves as a key transit route for the bulk of the energy imports of major Asian economies such as Japan, South Korea and China. Unlike the Persian Gulf, which is also a major transit point for hydrocarbon trade, the South China Sea is vital to the global food supply, accounting for as much as 10 percent of world fisheries’ supply.
Hundreds of millions of people across the region depend on the South China Sea for their daily diet.
Though Washington has not ratified the United Nations Convention on the Law of the Sea (UNCLOS), thanks to the intransigence of some members of the U.S. Senate, the USN observes the relevant provisions of the UNCLOS as a matter of customary international law. No wonder, then, that Washington has allowed Chinese military vessels to pass through its EEZ in the Pacific as well as twelve nautical miles’ territorial sea off the coast of its Alaskan territories. Together with its allies, Washington has undergirded freedom of navigation across the globe, securing the foundations of unimpeded international trade and maritime security.
China, the world’s leading trading nation, has been the biggest beneficiary of this American-led order. Ironically, Beijing has also emerged as the biggest challenger to this order. For much of the twentieth century, China was preoccupied by internal political upheavals, resistance against external predators and protection of its continental borders. The twenty-first century, however, has seen the emergence of a more maritime-oriented Chinese juggernaut, which has focused on gradually pushing the United States out of its near seas.
Although China is a signatory to the UNCLOS, it has repeatedly sought to impose restrictions on the entry and movement of foreign military vessels and aircrafts well beyond its territorial sea. And in clear contravention of UNCLOS (see Article 60), it has engaged in a sweeping reclamation activity across the Spratly chain of islands, permanently altering the nature of disputed features well beyond its EEZ and continental shelf. In the past two years, China—utilizing state-of-the art technology—has artificially reclaimed 20 times more land than all other claimant countries combined in the last four decades. There is no moral, legal and technological equivalence between China’s reclamation activities and that of other claimant states (i.e., Malaysia, Vietnam, Brunei, the Philippines and Taiwan) in the area.
The Impending Showdown
Against the backdrop of the glaring gap between China’s actions and its legal obligations, the United States (a non-signatory to the UNCLOS) is, quite ironically, invoking UNCLOS as a basis to challenge China’s sovereignty claims in the area. On paper, the United States professes neutrality on the sovereignty claims of competing claimant states in the South China Sea. But its recent decision to conduct freedom of navigations operations, deploying surveillance vessels and possibly even reconnaissance aircrafts, within the twelve-nautical-mile radius of China’s artificially created islands represents a de facto rebuke of China’s territorial claims in the area.
The UNCLOS (Art. 18, Sec. 3, Part II) provides “continuous and expeditious” right for innocent passage for foreign vessels within the territorial sea of a coastal state. But this principle doesn’t apply to activities that are “prejudicial to the peace, good order or security of the coastal State”, including “any act aimed at collecting information to the prejudice of the defense or security of the coastal State.” In short, the UNCLOS doesn’t provide American military vessels the right to engage in surveillance operations within the twelve nautical miles of Chinese-occupied islands. China considers such activities as prejudicial to its interests.
“There is no way for us to condone infringement of China’s territorial sea and airspace by any country under the pretext of maintaining the freedom of navigation and overflight,” the Chinese Foreign Ministry warned in response to America’s decision to conduct freedom of navigation operations within the twelve-nautical-mile radius of Chinese-held features. This means the United States is essentially challenging China’s sovereignty claims to these islands.
China has been engaged in reclamation activities practically across all the features (Fiery Cross, Hughes, Cuarteron, Gaven, Subi, Johnson and Mischief Reefs), under its control in the Spratly chain of islands. None of them are considered by legal experts as naturally formed “islands” (see Art. 121 of UNCLOS), with at least three of them (Gaven, Subi and Mischief reefs) considered as low-tide elevations, which are not entitled to any territorial sea of their own (see Art. 60, Part V and Art. 13, Sect. 2, Part II of UNCLOS). Deploying freedom of navigation operations within the twelve-nautical-mile radius of these features doesn’t violate international law, since they were originally low-tide elevations.
Allies such as the Philippines have warmly welcomed America’s recent decision, with Foreign Secretary Albert F. del Rosario underscoring the necessity to confront China’s “false conclusion that its claims are accepted as a fait accompli.” Strategic partners such as Singapore, however, have expressed reservations, with Defense Minister Ng Eng Hen cautioning, “It does no good for the region if there are incidents.” Washington has the option of deploying littoral combat ships or, to send a clearer message, up the ante by relying on Arleigh Burke–class destroyers to conduct the operation. The duration frequency, and depth of these operations will also determine China’s countermeasures.
Beijing has a wide range of options to respond to America’s challenge. It could buzz American vessels with jet fighters, or deploy an armada of paramilitary forces backed up by conventional naval forces. The two powers have a wide range of sticks to stare down each other without triggering all-out conflict. Historically, the USN conducts freedom of navigation operations away from the limelight. But this time is different, especially with the world carefully watching America’s next action. This also means that China’s leadership is bound to come under tremendous pressure to respond accordingly. The stage is set for potential confrontation, and the future of Asian order hangs in the balance.
Richard Javad Heydarian is an Assistant Professor in international affairs and political science at De La Salle University, and previously served as a policy advisor at the Philippine House of Representatives. As a specialist on Asian geopolitics and economic affairs, he has written for or interviewedbyAl Jazeera, Asia Times, BBC, Bloomberg, Foreign Affairs, The New York Times,Wall Street Journal, The Huffington Post, The Diplomat, The Financial Times, and USA TODAY, among other leading international publications. He is the author of How Capitalism Failed the Arab World: The Economic Roots and Precarious Future of the Middle East Uprisings (Zed, London), and the forthcoming book Asia’s New Battlefield: US, China, and the Struggle for Western Pacific (Zed, 2015).