Commentary

The South China Sea: Post-Arbitral Policy Considerations

August 23, 2016

Commentary by:

Rear Admiral Michael McDevitt, US Navy (Ret.)

Senior Fellow, CNA Strategic Studies

Cover Image: UnSplash

Global Politics, Maritime Studies

Asia-Pacific, South China Sea

This article represents the author’s personal views and in no way should be construed as the position or views of CNA or the Department of the Navy.

Introduction

“There should be no mistake: The United States will fly, sail and operate wherever international law allows…America, alongside its allies and partners…will not be deterred from exercising these rights…after all turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit.”[1]

Since US Secretary of Defense Ashton Carter added this new formulation to Washington’s South China Sea public policy positions in May of 2015 it has been used repeatedly by US officials, including President Obama. Made initially in reaction to China’s artificially created islands the formulation has become the term of art when US officials speak more broadly about maritime oriented security issues in East Asia. One reason it has become so popular is because it succinctly conveys Washington’s harder-nosed approach to spelling out traditional US maritime interests while implicitly saying no country can keep the US out of East Asia.

When applied to the South China Sea it also conveys a different US public policy perspective than the more traditional statements focused on peaceful resolution and exhortations imploring China to follow a rules based approach to solve difficulties in the South China Sea. These long standing US public policy statements have not disappeared; instead they have been augmented by the more muscular mantra of “sail and fly where international allows.”

Why? Arguably Washington became tired of being ignored for years urging Beijing to be moderate in the pursuit of its efforts to reclaim sovereignty over all the land features in the South China Sea as well assert jurisdiction over huge swaths of the South China Sea. China has been good at ignoring things that do not comport with its version of the law and history. The latest example is its disdain for the long awaited findings of The Hague Arbitral panel. No wonder, most aspects of China’s excessive claims to resource jurisdiction over much of the South China Sea was found to have no basis in the Law of the Sea Treaty.

Arguably, island building in the Spratlys was the straw “that broke the camel’s back” and caused Washington to assume a more overt “hard power” policy approach to China’s activities in the South China Sea. Sailing and flying wherever international law allows is essentially saying the US can operate its air and naval forces anywhere we choose in international airspace and on the high seas and, short of using force to try and prevent it, there is nothing that China, or anyone else for that matter, can do about it. Because diplomatic exhortations have had no impact on Beijing, starting in August 2013, the US Seventh Fleet instituted full time US Navy warship presence, along with periodic aircraft reconnaissance missions, somewhere in the South China Sea. On average there are two USN warships patrolling that body of water daily; something on the order of 700 “ship days” of SCS presence on an annual basis. This compares with 5-6 PLA Navy warships plus some number of Chinese Coast Guard vessels operating on a daily basis in the SCS.[2]

The Island Building Issue

China was very late in establishing footholds in the Spratly Islands. They were left with slim pickings, as all the “best” islands and rocks had already been occupied by Vietnam, the Philippines and Malaysia long before Beijing did the same in 1988. Over the next 20 years, China, like other claimants, modestly expanded its foothold on its seven very small features so that small military garrisons on these remote outposts could be more comfortably housed and communications equipment, radar, and defensive armament could be accommodated. After China joined the Spratly “garrison club” all the claimants managed to coexist in a stable “live and let live” environment.

But by the early months of 2016 Beijing had improved its holdings several orders of magnitude over what existed before, creating de facto (not de jure) islands. The reality today is that China has decisively changed the strategic balance in the Spratly Island chain by creating facilities on the new islands that militarily overshadow the garrisons and defensive capabilities of the features occupied by Vietnam, the Philippines or Malaysia.

What is China up to? Island building is simply the latest step in what has been a long-term multi-decade campaign aimed at recovering de facto control over all the land features in the SCS—a campaign that will continue. Because Chinese sovereignty claims are involved, it is not surprising that Beijing has not backed down despite sustained criticism. Its responses to criticism can be generally characterized as telling everyone, including Washington, to mind their own business—the Spratlys are Chinese territory and they can do what they like.

Clearly Beijing wants the Spratlys along with fish and hydrocarbon resources inside the erstwhile Nine Dash Line because it firmly believes they are Chinese territory to which it has “historic rights” to resources. (China’s historic rights arguments were found to be not legally sound by the arbitral panel.) There is also a sensible strategic rationale at work. Intimidation is obviously one strategic reason to build island bases. Perhaps other claimants will conclude their military position is hopeless and decide to leave. More practically, PLA strategic planners must consider the possibility that the Spratlys could be a foothold that another country might use to interfere with trade destined for China, or as bases to facilitate operations against PLA capabilities on Hainan. In fact, the proximity of the Spratlys to traditional trade routes has been on the minds of western geo-strategists since the end of World War I. It was anxiety about an aggressive Japanese threat to its Indochina colonies that triggered France to annex the both Spratlys and Paracels in the 1930s.

Controlling these islands is the best way for China to make certain no one else controls them. Doing so greatly improves China’s surveillance of its maritime approaches. Finally, since China is hugely dependent on the maritime trade routes that pass to the west of the Spratlys, including trade that will travel via the much-touted 21st Century Maritime Silk Road, it is not a surprise that China blends strategic interests with an economic and nationalist narrative of recovering lost territory in its rationale for seeking control of all the Spratlys.

Scarborough Shoal and Island building

When it comes to the South China Sea, Washington should not announce policies it is not prepared to back up; in other words, no bluffing. US military activity around Scarborough Shoal in the spring of 2016 is a case in point. Washington apparently feared Beijing would start island building there. It dispatched a US carrier strike group that remained in the immediate vicinity for several weeks in addition to initiating the rotational presence of a US Air Force aircraft detachment that includes capable air-to-ground fighters. Was this a bluff, or was it a signal to Beijing that Washington considered Scarborough as being different from the Spratlys with its own unique strategic significance? The legal reality is that Scarborough was a “rock” that for decades had been treated by Washington as Philippine territory. It was different from Philippine claims in the Spratlys. It has a strategically significant location as well. Was Washington then “saying”—in deeds if not words—that Scarborough Shoal should be treated by Beijing as if it was covered by the Mutual Defense Treaty? Perhaps China never had any intention of starting to build a new island, or perhaps they were dissuaded from doing so—this isn’t clear. But so far no construction has been attempted.

So, What Should Washington Do?

First, Washington should not announce policies it is not prepared to back-up. The situation is too tense for bluffing. Washington should review the arbitral findings very closely, and when warranted be very specific in publicly identifying where China is in violation of the Law of the Sea. In addition, policy should incorporate the following principles:

The South China Sea is not the central strategic element in the overall US-China relationship. Keep the South China Sea in perspective.
US focus now should be managing Scarborough and Spratly developments by restoring the geostrategic balance as a way to buy time, awaiting a permanent solution.
The US government should remain sensitive to the efforts of littoral states to entangle the United States more deeply in supporting their claims—acting as their counterbalance to China.

Meanwhile, the only apparent way to reintroduce some element of stability in the southern half of the SCS is to assist the other claimants who desire help to look after their own holdings. The goal should be to return some sort of strategic equilibrium to the Spratlys; Vietnam is the claimant best equipped to accomplish that. Hanoi gives every indication it will fight to hang on to its holdings; it should be encouraged to improve its defenses. The other contribution to keeping the peace is the US-Philippine Mutual Defense Treaty itself because of its potential applicability if Filipino servicemen are harmed. The United States also needs to be completely committed to a very long-term and dedicated effort to improve the maritime capabilities of the armed forces of the Philippines. This will take patience and money.

Finally of course, the reality is the newly elected Philippine President Rodrigo Duterte may make a deal with Beijing over access to Scarborough and the submerged Reed Bank area, thought to be a source of gas and oil, by taking steps that permit Manila and Beijing to diplomatically ignore the arbitral findings and reach an understanding on exploitation of fish and hydrocarbons. However, no matter how artfully constructed such a deal might be, it will not undo the arbitral findings. As long as Beijing continues to ignore this new addition to international law, it will be stuck with the reputational consequences of being seen as a South China Sea lawbreaker.