The United States faces a major challenge in Asia’s South China Sea. The UN’s Permanent Court of Arbitration (PCA) announced that they will hand down a decision on July 12 concerning a 2013 suit brought by the Philippines against China under the provisions of the UN Convention on the Law of the Sea (UNCLOS). Alarmed by China’s repeated territorial claims, massive land reclamation projects built upon coral mined from the seabed, mineral exploitation surveys and aggressive assertion of fishing rights regardless of Exclusive Economic Zone delineations, the Philippines seek a judgment from the ultimate multinational authority. This court is expected to determine the legal basis—or lack thereof—for China’s expansive territorial claims of indisputable historical sovereignty over 85 percent of the South China Sea enclosed within their ambiguous “nine-dash line”. The court will rule on the maritime entitlements of specific features in the South China Sea and on certain Chinese activities there. The court is expected to decide in favor of the Philippines and in favor of UNCLOS. China is not expected to agree, arguing that the South China Sea is sovereign Chinese territory, and that the court has no jurisdiction. China has in fact repeatedly announced that they will disregard the court’s decision. What is at stake is the access of Asian nations to the international waters and airspace of the South China Sea for transit and trade, and the access of that sea’s littoral nations to fishing areas and seabed minerals.
The United States is reportedly working on a strategy. What might this look like? While a complete analysis of all the conditions shaping any possible strategy is not possible here, we can look at some of the major governing factors.
China already has de facto control over the South China Sea. Proximity means a lot. China’s extensive coastline—washed by both the East and the South China Seas—offers numerous ports and airfields supporting direct and immediate access of Chinese military and maritime auxiliary forces to the seas. China’s vast fishing fleets, increasingly under state sponsorship and control, and increasingly armed, are always close to their support structure.
China’s seaward land reclamation efforts demonstrate China’s ability and will to act as they wish in the South China Sea. These new port and airfield outposts came at the cost of the destruction of more than three thousand acres of coral reefs, the essential nursery of marine life, with as-yet uncalculated cost to sustainability of South China Sea and Pacific marine life. These new features testify to China’s ability to do what it pleases and at the same time extend China’s ability to exercise ever-greater control. Support for military sea and air forces, maritime auxiliary, and fishing fleets has now been extended well into the South China Sea and into the territorial seas of the other littoral states.
Speaking of fish, China’s traditional fishing grounds are severely depleted. China increasingly fishes abroad to sustain their industry. In 2013 and 2014 encounters in Korean waters between Chinese fishermen and Korean Coast Guard forces resulted in the death of a Korean guardsman and a Chinese fisherman in separate incidents over those two years. Without some respect for sustainable fishing practices, we will see more deadly competition and more pressure on already damaged fish populations. Asia well remembers that resource completion, for protein as well as petroleum, can bring conflict.
China has moved to nullify any adverse PCA verdict by creating and asserting their version of international law through the establishment of Chinese jurisdictions complete with local courts with claims to international law authority over vast areas of the South China Sea. Therefore UNCLOS will no longer have any authority in the South China Sea because it is no longer “sea”—it will be declared Chinese territory with China enforcing their version what they will call international law.
China has seized control of the narrative, at least where it counts—with their own population and those of their South China Sea neighbors. Repeated assertions of undisputed historical sovereignty in communications with the UN and in hypernationalistic media raise the stakes considerably. The United States is consistently portrayed as the threat to peace and stability and as a repeated violator of Chinese sovereignty. Challenges to ships and airplanes are becoming more aggressive. Surveillance missions, conducted lawfully from international waters and airspace now endure unprofessional “close aboard” intercepts and acrobatics. PLA Navy and Air Force units in the vicinity are rapidly gaining strength.
The U.S. stance in the face of this is curiously passive. Since May 2015, when we asserted our right to “fly, sail and operate anywhere international law allows”, we performed three announced “Freedom of Navigation” operations. But “Innocent Passage” rules were followed, and the message became confused. Operations of U.S. naval and air forces are a critically necessary response in this situation, but they are not, by themselves, sufficient. A much more difficult challenge is to assure the access of all claimants to the resources of the sea, both animal and mineral. This will require maritime law enforcement means as well as some agreed-upon system for responsible and sustainable resource management.