Creating a 'new normal' in the South China Sea

China’s artificial islands in the South China Sea raise a number of issues, legally and strategically. If not checked, these developments can go on to pose much larger problems in the existing world order. One of the crucial strategies to note is that China’s developments on its own do not seem noteworthy enough to attract a significant response. But, look at the developments over the past five years, and the picture that emerges is of a rising China attempting to change the ground realities and in effect destabilise the status quo. If the global community stands by for the entire picture to complete, it will perhaps be too late to make any changes and an armed conflict will be inevitable. In this context, it is worth exploring these changes briefly over the last few years in order to map out the on ground changes that have taken place in the SCS.

To begin with, the fundamental problem lies in the fact that China does not even acknowledge that it is in dispute with other nations in the South China Sea. Hence, in accordance with its own laws, Beijing’s actions within the nine dash line are justified and legal, despite the islands being miles away from its coastline. Since 2014, China has been actively and at a rapid pace reclaiming land, building structures and creating artificial islands. Two points that stand out are, first, the Spratly islands- where China is engaged in reclaiming land- are way more than 200 nautical miles away from Beijing’s nearest coastline. Second, even if China has authority over those islands, “artificial islands” under the UNCLOS does not enjoy the same legal status as naturally formed islands- that is, it does not have a territorial sea or an Exclusive Economic Zone (EEZ). Article 60 (8) of the UNCLOS states that ‘Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf’.

The first point is important, because as per UNCLOS article 60 (1), a state has the right to create an artificial island only in its EEZ, which extends to a 200 nautical mile zone from the coast line. According to international laws, either way, building these artificial islands does not constitute China’s ‘right’ or fall in its sovereign jurisdiction. Pictures released by IHS Jane and the Asia Maritime Transparency Initiativeshows the development of an airstrip large enough to accommodate any Chinese military aircraft along with developing port facilities to dock military vessels. It is unknown how and when Beijing aims to use these facilities which make it difficult to underplay such significant developments. Whether they intend to or not, these structures on the artificial islands validate Chinese claims in the region and are a way to consolidate its claims. It appears as though Beijing is continuously altering the ground realties and changing the status quo regarding the disputes in the SCS. When questioned about construction of artificial islands, Chinese officials are quick to point out about the already existing artificial islands and structures created by Vietnam, Philippines and Malaysia. In fact, China is the last country to take to these constructions among the disputing nations — all of which is true.

What is worrying in this scenario is China’s assertive behaviour around the disputed waters and the pace it is taking in completing the construction work on the Spratly islands. Additionally, China asserts that apart from building these structures for the global common good, it is doing so in its own sovereign territory and is therefore completely legitimate. The SCS is international waters and home to some crucial Sea Lanes of Communications (SLOCS). If China manages to assert its claims in the nine dash line, these waters can also be subjected to China’s domestic laws creating massive problems in the standing world order.

Now, China says that it will never hamper or block another nation’s vessel in the SCS and will treat it as international waters. However, a quick look into the developments over the past five years will help provide just a preview of how China can use these waters to its advantage in the future.

One of the intense standoff in the five year period has been over the Scarborough Shoal between China and the Philippines in 2012. After a series of diplomatic warnings and heightened tension between Beijing and Manila, the two sides agreed to withdraw their coast guard and patrol vessels from the shoal. While the Philippines withdrew its vessels, China continues to maintain its presence on the shoal claiming it as its own. As of 2012, the Scarborough shoal is under Chinese control. Intimidated by a much stronger Chinese Navy, the Philippines lodged a formal complaint regarding its disputes with China in the Arbitral Tribunal of the United Nations Convention on the Law of the Sea in January 2013. China has refused to participate in the proceedings and issued a position paper in December 2014 outlining how the dispute does not lie within the jurisdiction of the UN tribunal court. China refuses to use any international forums to resolve the dispute simply because it asserts that there is no dispute and China has indisputable sovereignty over the islands within the nine dash line.

Over the years, China has blocked Philippines navy from reaching its own garrison on Second Thomas Shoal, placed a controversial oil rig in Vietnam’s EEZ, rammed Philippines and Vietnam coast guard ships and fired them with water cannons, challenged other military ships in international waters – including India. China is also known for imposing its domestic laws in the SCS such as the fishing ban that falls within the EEZ of other countries.

Chinese actions may as well be Beijing’s way of testing the waters to get a real sense of how the international community will respond to these actions and how far will they go. China is well aware that none of its relatively smaller South East Asian neighbours have the power to go on a military stand off against Beijing. At the same time, it is important for the political circle in Beijing to know if another country outside of the dispute is willing to put up a fight and if yes, how far will they go in fighting someone else’s battle.

If the international community wait to see the end game of the Chinese strategy, it may be too late to de-escalate a military confrontation. Given the trend so far and based on the white paper that the PLA just released, China is only going to be more assertive in its claims in the SCS and will do whatever it can in its might to consolidate these claims. The international community must undertake urgent actions to show that its unilateral actions in international waters will not be watched without consequence. The risk of cautious responses to Chinese actions in the SCS is unimaginable and would have serious implications for the security order in the Asia-Pacific region.

Courtesy : ORF – Creating a ‘new normal’ in the South China Sea

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