China’s Most Dangerous Game

Solving the Policy Puzzle of the South China Sea

KERRY LYNN S. NANKIVELL

Many have been caught off guard by events in the South China Sea. A string of provocative Chinese actions has challenged stability. These include the recent large-scale, land-creation projects on seven features, mainly reefs, in the Spratly Islands and introduction of military facilities and equipment on these artificial sites, as well as others in the Paracel Islands; China’s harassment of USS Impeccable near Hainan in 2009; confrontation of survey vessels contracted by Vietnam in 2011; seizure of the Scarborough Shoal in 2012; and positioning of an escorted oil rig in disputed waters near Vietnam in 2014.

These incidents went largely unanswered by the international community, while regional stakeholders reacted to single events without enacting clear and proactive policies. As a result, the Chinese government has maintained momentum even as regional anxieties increase.

The strategic seascape in the South China Sea presents an unusual policy puzzle for stakeholder governments for at least two reasons. First, the disputes are extremely complex. Consider the math: seven littoral claimants (including Taiwan) with concave coastlines; more than 180 named islands, rocks, reefs and shoals; and a thousand years of regional history from multiple countries’ perspectives. Second, governments struggle to identify policy responses to Chinese provocation because the delicate status quo is predicated on four central paradoxes. A paradox is a situation that is made up of two opposites, and therefore seems self-contradictory. The South China Sea disputes fit this definition in several respects — economic, political, military and legal — that are described in more detail later in the article.

These paradoxes drive the claimants’ behavior and place limits on what policy objectives can reasonably be pursued without assuming unacceptable risk. Strategic assessment of the South China Sea should be seen in shades of gray because of these paradoxes. While Southeast Asian claimants are fearful of China, they’re also deeply interconnected with Beijing. It’s a dispute that is both historical and contemporary. It’s not a military conflict, but it is intensely coercive. Though a few claimants make illegitimate claims, they choose to pursue them using legal language, treaties and forums.

The sheer complexity of the disputes and the fast-moving pace of ongoing developments clearly challenge China’s rivals to mount appropriate responses. However, determining what is appropriate and what is unnecessarily risky is proving a difficult task for stakeholders.

Managing tensions in this context and averting unintended or unnecessary conflict requires not only a nuanced understanding of regional realities but also good doses of ingenuity and agility.

COMPLEXITY DEFINED

What is often referred to as the South China Sea dispute is actually a conglomeration of many disagreements, involving different parties in different places in a single sea. For example, while China, Taiwan and Vietnam all claim the Paracel Islands, Malaysia, the Philippines and Brunei enter the dispute only around the Spratly Islands to the southeast. Indonesia has no territorial dispute in the South China Sea, but it claims maritime zones that overlap with China’s and Taiwan’s dashed-line claims. Since 2009, China has claimed a maritime boundary defined by 10 dashes in a U-shape. Taiwan still draws its claim with an 11-dashed line from the Gulf of Tonkin to the eastern coast of Taiwan, following the original map published in 1947, which officially introduced the Chinese claim but failed to explain its origins or legal basis.

Indeed, there are three different categories of disputes in the South China Sea: territorial, maritime and jurisdictional (see sidebar on page 9). These disputes are interrelated but distinct. They are also governed by different bodies of law. The maritime and jurisdictional disputes are disagreements under the United Nations Convention on the Law of the Sea (UNCLOS), but the question of sovereignty over the land features, including rocks, reefs, shoals and islets, falls under customary international law.

Though all maritime jurisdictions described in UNCLOS are drawn from an identified baseline onshore, the treaty is also written as if ownership of that shore is already well-established. When two countries in a dispute cannot settle basic questions of sovereignty through bilateral negotiation, they can revert to the International Court of Justice to adjudicate on the basis of treaty agreements, customary international law and history.

This kind of judgment is often difficult to make, especially in areas such as Southeast Asia that have been populated for millennia. The claimants to the land features in the South China Sea (China and Taiwan, Vietnam, the Philippines, Malaysia and Brunei) are primarily interested in this territorial aspect of the dispute. Some claimants, though China in particular, base their maritime claims on history rather than contemporary law of the sea, which is why the discussion about the historical record in the region is so deeply politicized.

By contrast, external stakeholders, including the U.S., are generally uninterested in who owns which land feature. They typically only ask that whatever solution is reached to determine sovereignty over the land features, it be reached peacefully, by consensus, and in accordance with international norms.

UNCLOS might seem to be more instrumental in the second category of dispute that pertains to maritime boundaries. In the case of the South China Sea, for example, the U-shaped dashed claims of Beijing are so unusual that any legal claim is tenuous if not specious under any reading of UNCLOS or custom. For the other five claimants with more mainstream claims, however, there still appears to be some ambiguity regarding how the treaty might apply.

While the text is clear about the size and scope of maritime zones, it was written for the ideal coastline and not the irregular one. It leaves open a range of questions in complicated cases. For example, under ideal conditions, the equidistant line between two coastlines is easily measured. When the coastline is fringed by islands or reefs, however, should they be measured from the mainland, from the rock farthest out from the beach or from somewhere in between?

Moreover, although UNCLOS talks about “rocks” and “islands” as different things, it doesn’t provide clear and measurable guidelines about how to distinguish between the two. As a result of these and other particularities, the specifics of many cases are not answered directly by the treaty. They are worked out gradually through state practice and jurisprudence. This isn’t a bad thing, but it does takes time and, in the meantime, leaves governments with little guidance about whether their claims are “reasonable” or likely to be supported by law.

Then there are the jurisdictional disputes, which are different in nature than the other two. The territorial and maritime disputes are disputes under the law. Though they are complicated, there are mechanisms available to resolve these disputes if and when the parties decide to engage. The dispute over jurisdiction, especially with respect to the right to limit the activities of foreign militaries in an exclusive economic zone (EEZ), is a dispute about the law itself. Those that claim unusual jurisdiction to limit freedom of navigation do so on the basis that military activities within 200 nautical miles of a nation’s coast are coercive and nonpeaceful by nature.

The jurisdictional dispute cannot be resolved either by past practice or by UNCLOS, because the disputants call into question the fundamental fairness of these sources themselves. In this sense, the jurisdictional disputes in the South China Sea are as much political and ethical as they are legal.

In the fight to nationalize the South China Sea, China makes the argument for its exclusive jurisdiction most forcefully. Beijing has long accused foreign militaries (including those of its neighbors) of threatening the peace through close-in intelligence, surveillance and collection and military exercises in China’s EEZ.

Major encounters between U.S. assets in the South China Sea are a product of this jurisdictional disagreement, starting with the aerial collision in April 2001 of a People’s Liberation Army Navy J-8IIM fighter and a U.S. Navy EP-3E Airborne Reconnaissance Integrated Electronic System II (a signals reconnaissance version of the P-3 Orion), and continuing today. The outcome of this particular dispute between the U.S. and the claimants in the South China Sea has profound consequences, not only for the mobility of U.S. forces, but also for the international maritime order more generally.

If militaries required the consent of coastal states to operate in EEZs around the world, then 38 percent of the world’s oceans could be closed. This would include some internationally significant areas, including the Mediterranean Sea, Red Sea, Persian Gulf, Gulf of Aden and Arctic Ocean. If, on the other hand, the U.S and others insist on resisting this kind of ocean enclosure, they increasingly risk direct confrontation with China.

A RISK ASSESSMENT: 

COMPLEXITY, CHANGE AND CHINA

It is difficult to determine which facet of these complex disputes is the most dangerous. While the territorial and associated maritime boundary disputes are intensely nationalistic, politicized and sometimes militarized, the jurisdictional dispute brings the United States into open disagreement with China. Both carry destabilizing consequences.

Moreover, since at least 2009, Beijing has launched a comprehensive campaign to tilt the status quo on all fronts. This campaign has most dramatically included a massive land reclamation project on seven submerged features in the Spratly Island group since mid-2014. Since June 2014, China has dumped more than 4.5 million square meters of sand on seven submerged or partially submerged features in the Spratly Islands: Fiery Cross, Subi, Mischief, Cuarteron, Hughes, Gaven and Johnson South reefs, according to accounts and satellite imagery published by IHS Jane’s Defence Weekly. In their natural state, it is likely that none of these reefs break the water’s surface at low tide; now three features already or may in the future include a NATO-standard runway. A runway of that size could support virtually any modern People’s Liberation Army Air Force fighter and other aircraft. The new artificial islands house, or will soon house, other surveillance such as anti-aircraft towers (spotted at Gaven and Hughes reefs), helicopter pads, radars and other communications equipment. All these facilities give the Chinese Navy some badly needed “legs” off its southern coast. All of them greatly increase Beijing’s capacity to enforce its perceived exclusive jurisdiction over the South China Sea at the expense of everyone else.

China’s contemporary land-creation projects are perhaps a long-overdue answer to the construction projects already undertaken by other claimants. While China has dominated the disputed Paracel Islands since 1974 and the Scarborough Shoal since 2012, it has long been outnumbered and outgunned by its smaller neighbors in the relatively far-off Spratlys.

LAND CREATION

Before 2014, only Brunei and China didn’t own significant military facilities in the Spratly archipelago. Vietnam occupies the most positions in the island group, with 29 possessions, including Spratly Island itself. Spratly Island is Vietnam’s most hardened feature, equipped with a short runway, a helipad and a few outbuildings. Taiwan holds the single largest natural island, Taiping, which is also known as Itu Aba.

Taiping is the only feature in the Spratlys that boasts fresh water. It proved its strategic value as a Japanese submarine base throughout World War II. The Philippines holds the second-largest Spratly Island at Thitu and operates a small naval station there, including a short, unpaved runway. Thitu is within sight of China’s Subi Reef and reportedly needs a lot of repair. None of Manila’s other nine holdings in the eastern Spratlys pack much punch either. For instance, Second Thomas Shoal is naturally submerged, but in 1999, Manila ran a ship aground at that location.

The rusted, grounded ship has provided a toehold for a small Armed Forces of the Philippines garrison of 10 marines ever since. Starting in 2013, Beijing has made it difficult for Manila to resupply the ship, putting even this toehold in jeopardy.

Malaysia holds a few features on the southern fringe of the island group, including Swallow Reef, which is home to a short airstrip, a naval station, a marine research station and a tourist resort. After occupying Swallow Reef in 1983, Malaysia embarked on China-style reclamation, enlarging the island from a few hectares to 0.2 square kilometers. The project created more square meters on Swallow Reef than China has on Gaven, Hughes, Cuarteron or Johnson South reefs. Although the reef is home to several dozen military personnel, as well as anti-ship and anti-air guns intended to defend Kuala Lumpur’s territory, Malaysia’s project provides multipurpose uses. Meanwhile, China’s projects have predominantly military purposes.

Making straight-faced comparisons with the current Chinese buildup in the South China Sea and the military development activities of other regional states that came before is difficult. Until 2014, Beijing occupied only seven features in the Spratly Islands, while China’s neighbors each had a garrison and an airstrip in the area. China has compensated for that dearth since June 2014, and gone well beyond to establish clear and unquestionable dominance. The scale of the land creation has drawn much criticism for that reason.

U.S. Pacific Command (PACOM) Commander Harry B. Harris Jr. condemned China for its “great wall of sand,” and even the Association of Southeast Asian Nations (ASEAN), which normally prefers more subtle and accommodating language, averred that the reclamations have “eroded trust and confidence and may undermine peace, security and stability in the South China Sea,” Channel News Asia’s website reported in April 2015.

China responded that its activities in the Spratly Islands are “fair, reasonable, lawful. … It is beyond reproach.” This official response illustrates how deeply impervious Beijing has become to criticism on this issue. Not only is it patently untrue given the current disputes, but even if Chinese sovereignty over the waters in question were established, massive military construction in such close proximity to the mainland coasts of the Brunei, Malaysia and Philippines could never be “beyond reproach.”

As it is, Chinese sovereignty is not clearly established, and moreover, the parties to the dispute have agreed in writing to “exercise self-restraint in the conduct of activities that would complicate or escalate disputes” as part of the Declaration on the Conduct of Parties in the South China Sea signed in 2002. Clearly, there are legitimate concerns about the legality and the strategic intent of Chinese activity.

CENTRAL PARADOXES

Beneath the jurisdictional complexity at play, the South China Sea disputes are bounded by at least four central paradoxes: economic, political, military and legal. The policy boundaries set by the paradoxes leave little room for effective response to Chinese coercion. Learning to work effectively within a narrow band of policy space is the primary challenge facing those that seek to influence events in the South China Sea.

Economics

Economic development drives both cooperation and conflict among the claimant states. On the one hand, greater economic interdependence suggests that the claimant states should be increasingly unwilling to confront one another militarily over insignificant rocks and reefs. Indeed, China is the largest trading partner of each of the claimants, accounting for a much larger share of trade with each member state of ASEAN than members do with one another. This also describes the relationship between the U.S. and China, whose two-way trade in 2014 accounted for U.S. $600 billion in goods and services. Logically, no party to this dispute should be willing to risk direct confrontation or escalation. Despite its overwhelming military advantage, even Beijing has not tried to resolve its disputes with Southeast Asia through military action. Beijing has not acquired new territory in the Paracels or the Spratlys since 1995, and even then, the territory it acquired was unoccupied. The only exception to this is the Scarborough Shoal, which was absorbed into China’s effective control in 2012, even though no Chinese military assets were deployed. Direct military confrontation has not been initiated by any party to any dispute in the South China Sea since Vietnam did in 1988, probably because of the desire to safeguard the economic gains of good relations.

Even as the region develops together, the South China Sea disputes are getting no closer to resolution. Rising gross national products (GNPs) have clearly emboldened littoral countries to use their growing national strength (and growing military budgets) to reassert control over territories that they believe are rightfully theirs. It could be that rising incomes have led to domestic overconfidence, while interdependence facilitates underestimation of the other stakeholders’ resolve to risk economic advantages to secure sovereign rights.

More practically perhaps, because most of the regional economies are disproportionately dependent on export-led growth, rising GNPs have also prompted a greater interest in access to and security of regional sea lanes. The sea lanes of the South China Sea are important globally, but they are a matter of economic survival to the rising economies of the littoral states. Thus, they all seek to maximize their exclusive control over these waterways, and to varying extents, they are.

Economic development also drives competition to the living and nonliving resources in the sea. It might be debatable whether there is a true “scramble” for the sea’s oil and gas wealth, but it cannot be denied that there is intense competition already underway for the last of the South China Sea’s fish resources. In 2013, China enacted a unilateral seasonal fishing ban throughout the South China Sea, and year-round, it regulates the activities of foreign fishermen wherever they are found inside the 10-dashed line.

Beijing has reorganized and recapitalized the Chinese Coast Guard to get it done. In the past two years alone, Beijing has grown its Coast Guard fleet by 25 percent. It now operates more ships than its counterparts in Indonesia, Japan, Malaysia, the Philippines and Vietnam combined. Other regional fishing nations are also rushing to safeguard their fishing interests in disputed waters, led by Indonesia.

The new Jokowi regime in Jakarta has reacted to increased competition for fish in the sea by demonstrating new resolve to enforce what it defines as its own exclusive fishing jurisdiction. Authorities have started using the Navy to sink foreign vessels caught poaching in Indonesian waters. All of this increased enforcement activity has heated up the fishing dispute in the South China Sea and increased the risk of unintended escalation between rival law enforcement organizations asserting their jurisdiction to disputed areas.

Military

The economic paradox leads to a military one: The South China Sea disputes have given rise to a military competition without military contest. The 20th-century history of the South China Sea has been one of a scramble for islands and reefs by regional navies. In this context, the rapid and impressive development of China’s People’s Liberation Army Navy (PLAN) over the past two decades has inspired real fear among China’s neighbors that China will soon use its navy to take the occupied features by force.

If China does intend to start a shooting war, the Southeast Asian claimants will not be able to resist, even as a coalition. China, however, has thus far been reluctant to use direct military force in the South China Sea, even though it has long enjoyed a substantial military advantage. The last direct military-to-military confrontation took place before China’s naval modernization program really began. In 1988, the PLAN clashed with the Vietnamese Navy in a bid to take unoccupied features in the western Spratlys, including Fiery Cross.

Since then, confrontations between China and other claimants have been more indirect or have involved armed law enforcement vessels primarily. For example, when China deployed the Haiyang Shiyong oil drilling rig to disputed waters near Triton Island in May 2014, it was accompanied by up to 80 vessels, almost all law enforcement. Hanoi reciprocated, confronting the flotilla with ships from its Coast Guard, the Fisheries Surveillance Force, and even the commercial fleet but not the Vietnamese Navy.

When harassment by these vessels didn’t persuade Beijing to remove the rig, Hanoi turned to land-based tactics, allowing protesters to loot and burn Chinese factories in Ho Chi Minh City in the worst outbreak of public disorder in Vietnam in years. If Hanoi could not coerce Beijing into removing the rig through a show of paramilitary force, it would use economic, commercial and diplomatic pressure instead.

China’s land creation activities reflect the same paradoxical pattern. The activities themselves are indicative of a military competition, but don’t involve direct confrontation. Rather than seize strategic territory in the Spratly Islands to establish dominance, Beijing has opted to build its way to the top on those features that it already occupies. Competing claimants are left with a difficult policy choice: Either directly obstruct the construction through use of military assets or seek nonmilitary responses. Predictably, all claimants have chosen the course of action that is the least escalatory, and international stakeholders such as the United States have followed suit. It seems that all parties agree that a direct military contest is a bad thing in the South China Sea, though only Beijing has found a way to coerce its rivals without crossing over into a direct military contest.

Politics

Overlaying the economic and military paradoxes, a political paradox looms at the heart of the disputes. The claims being made are anticolonial in nature, but they have intra-Asian primary effects. A nuanced understanding of the disputes has to place Southeast Asia’s colonial past at the center of contemporary politics.

The only nation to effectively occupy the Paracel and Spratly islands for exclusive use was Japan during World War II. With that precedent in mind, all claimants have sought to control the islands since that time, if only to deny their use for attacks on their mainland coasts. Before the arrival of the Japanese, the ungoverned space of the South China Sea was also an invitation to foreign domination by European powers. Though none of the European colonizers of the region permanently occupied both island groups, officials from Britain, France, the Netherlands and Spain used and mapped the sea much more effectively than any of the resident authorities.

In fact, when France claimed all of the Paracels and Spratlys in 1933, the Chinese Embassy in Manila asked the U.S. Embassy exactly where these “Spratly Islands” were on the map. Though Chinese, Malaysian, Philippine and Vietnamese Sailors used the South China Sea for centuries before the Europeans arrived, their governments didn’t survey or map the area well enough to be able to defend it. Their omissions left the backdoor open to foreign coercion.

This history of foreign domination of the South China Sea means that the politics of the South China Sea dispute are deeply intertwined with national self-determination and sovereignty. It also explains why all the claimants seek not only to consolidate their territorial holdings but also to establish their right to limit foreign military activities in their maritime zones. The inconvenient fact is that, because all claimants are pursuing this same anti-colonial policy, they are pressing against one another more than against external powers. China’s attempts to control transit and overflight in the South China Sea may be primarily directed at the United States, for example, but they have the most immediate impact on its Southeast Asian neighbors. China’s claim seeks to limit U.S. access to China’s southern coast, but it encroaches on its neighbors’ territories and jurisdictions at the same time. China restricts its neighbors’ military mobility and ability to exercise partnerships and alliances far more than it restricts the U.S. Navy. This anti-colonial policy with primary intra-Asian effects creates tense and hard-to-read politics.

The land creation is a case in point. It seems clear that China intends to use these footholds in the Spratly Islands to contest U.S. presence in the seas. The newly built capabilities far outstrip the minimum of what is required to defeat any regional rival; the more likely intent is to demonstrate overwhelming capability to intimidate others to concede without contest. The NATO-capable runway, the anti-aircraft towers, and the radar and missile accoutrements that will likely come with these territories are wasted on Southeast Asian states. They are clearly directed at a more capable rival. If China succeeds in establishing a defensive, consent-based zone throughout the 10-dashed line, U.S. interests will be importantly affected. That is nothing compared to the existential blow that will be dealt to Vietnam. Cut off from the wider world by a Chinese-controlled sea, virtually all of Vietnam’s seaborne commercial and military partnerships will be subject to Beijing’s whim.

The fact that China’s anti-U.S. posturing carries threatening implications for Southeast Asia means that the conditions are now right for easier alignment of Washington and Southeast Asia. However, the fact that China and Southeast Asia share a colonial past indicates that the United States will not be uncritically accepted by the region as its savior. As Washington and Southeast Asian governments work together to build stronger maritime relations, both parties should be appropriately sensitive to this tension.

Law

The final paradox that lies at the heart of the South China Sea disputes is a legal one. To varying degrees, all claimants in the South China Sea pursue patently illegal claims using legal institutions and legal systems. All parties, including Beijing, would like to achieve their national strategic goals by legally defensible means. As the dispute intensifies, this tension is resulting in different policy choices in different capitals.

In the Philippines, for example, Manila modified its more unusual claims to the Kalayaan Islands in the eastern Spratlys to better conform with the legal principles of UNCLOS. The Philippines no longer claims that Mischief Reef is an island entitled to a maritime zone (it is naturally submerged). Instead, it makes the more clear-cut legal claim that Mischief Reef falls under Philippine jurisdiction because it lies within the Philippine EEZ, as drawn from its main islands. This shift meant relinquishing some jurisdictional claims, but it gained Manila some legal authority in return.

China asserts its patently illegal claim to the water space enclosed by the 10-dashed line through use of legal language and legal institutions in a policy termed “legal warfare.” Rather than officially reject the validity of the law, Beijing instead has formally questioned the UNCLOS arbitration panel’s jurisdiction and accused the Philippines of ignoring its legal obligations under the 2002 China-ASEAN agreement to refrain from unilateral moves to change the status quo. It will be up to the judges to consider the validity of China’s arguments, but China has not ignored the legal discussion. To the contrary, China has implicitly asked the arbitration panel to give legal endorsement to China’s immunity from the court’s jurisdiction.

The fact that China signed and ratified UNCLOS, given its longstanding claims that run counter to several principles of the treaty, is evidence that China wants to remain part of the current international legal order as long as possible. It’s unclear how long such a contradictory policy will be able to hold, but for now, China is going to great diplomatic lengths to argue its case within the law without sacrificing its ultimate strategic goals.

The other claimants face a similar dilemma. Indonesia, Malaysia and Vietnam all make illegal claims to be able to limit foreign military activities in the waters beyond their territorial seas. Vietnam’s claim to islands in the Paracels and Spratlys are not well defended by the historical record and might be excessive in terms of the maritime jurisdictions that Hanoi draws for itself. Malaysia bases its claims to the southern Spratly Islands on the fact that they fall within the country’s EEZ. That is fine for submerged features and those only visible at low tide, but international law is clear that sovereignty over islands is the basis of sovereign rights at sea, and not the other way around.

In a situation where nobody’s hands are entirely clean, hesitation and diplomatic maneuvering are at work. None of the parties want to ignore the law altogether because compliance brings tangible benefits. Yet none of the claimants want to concede their more unusual sovereign claims either. The result is a situation where many parties, China primary among them, continue to pursue exceptionalist legal claims through increasing engagement with the law and legal institutions.

POLICY RECOMMENDATIONS

The South China Sea disputes present a uniquely challenging policy puzzle. Understanding how complexity is piled on paradox does not provide easy answers, but it does suggest four corollary parameters for an acceptable way forward.

The fact that Southeast Asia’s increasing economic interdependence with China drives both competition and cooperation in the South China Sea means that economic relations between states can no longer be viewed as separate and distinct from territorial and maritime rivalries. For the United States, this means recognizing that China is a preferred economic partner to Southeast Asia, and so must be part of any solution in the South China Sea. For Southeast Asia and China, it means that economic relations should be managed critically, and in view of the pulls toward conflict or coercion that they sometimes carry.

As a military competition without direct contest, all stakeholders need to calibrate their activities in the sea with respect to the upper and lower limits of acceptable behavior. That is, they should avoid the temptation to escalate through direct military activity, even in response to the perceived direct military activities of others. Instead, parties should signal their resolve by nonmilitary means and strengthen their civilian administration of their claims. For the United States, engagement of the region should be directed within those limits as well.

The paradoxical politics of a rising East Asia’s internal relationships with the globalized West put firm limits on the amount of unanimity that policymakers in any country can expect from their partnerships. For some issues an easy agreement can be struck among Asian states, while there are issues upon which the United States and Southeast Asia will more naturally align. There are even issues that China and the United States will increasingly agree on, as major global economies and militaries. For now, the political landscape is messy and complex. There are no easy divisions between “good guys” and “bad guys,” and most relationships will carry some element of partnership and some element of rivalry at the same time.

The continued recourse to legal language and legal institutions to pursue illegal or unusual claims means that all parties need to move beyond treaty texts in their dialogue with one another. What is required is not dismissal of UNCLOS nor an uncritical defense, but a more transparent conversation about why the treaty was written as it was in the first place. All parties could use a reminder that the preservation of the freedom of military navigation alongside the creation of the EEZ was part of the grand bargain that made the final treaty possible. It was an exchange of concessions between oceangoing states like the United States and developing nations like China and others in Southeast Asia. It represented then, and still represents now, the best possible negotiated outcome for a globally accepted constitution for the oceans. The choice at hand is not whether to respect the customary rules governing the oceans; the choice is whether to respect the existing agreements or revert to the regulatory disorder at sea that prevailed in previous centuries. No legal action can facilitate this kind of open dialogue between the parties, but an ongoing political conversation about the law might.

CONCLUSIONS

All parties to the South China Sea disputes would be wise to devise policy that falls within the broad boundaries set by the paradoxical strategic realities at hand. Identifying appropriate responses and executing them smartly will not be easy, nor will it result in comfortable alliances. It is, however, more likely to result in the peaceful management of the disputes than any alternative.

To fall outside these parameters is to either risk unnecessary escalation into unintended conflict or the loss of sovereign rights and the erosion of the international principles reflected in UNCLOS and customary law. As none of those risks is acceptable to any party, it’s clearly time for all governments to start thinking creatively about how to operate effectively within the paradoxes that they face.

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Three Types of Disputes

The South China Sea disputes can be grouped into at least three categories

Territorial Disputes

This category of disputes concerns who owns what land features.

Maritime Boundary Disputes

These disputes involve general disagreement about where to draw limit lines in the water. Maritime boundary disputes show that there is no specific agreement on which features generate exclusive economic zones (EEZ) under the United Nations Convention on the Law of the Sea (UNCLOS), which are entitled only to a territorial sea, and which don’t generate any maritime zones. Because of the generous size of the allowable EEZ under UNCLOS, this can be the difference between owning 125,000 square nautical miles of EEZ, 450 square nautical miles of territorial sea or owning nothing at all.

Even when ownership and entitlement to maritime zones are not in dispute, because the features lie in such close proximity, maritime boundary disputes are also about determining the “right” dividing line between one country and its neighbors. In some places, maritime boundary disputes are also a result of China and Taiwan’s unusual dashed-line claims, which enclose most of the South China Sea and conflict with all of the littoral states’ more conventional EEZ claims.

Jurisdictional Disputes

This class of disputes in the South China Sea is primarily but not limited to disagreement about what regulatory rights are conferred within which zones. Many of the rivals in the South China Sea claim they are permitted to regulate the activities of foreign militaries in their EEZ, wherever those are ultimately drawn. Such a regulatory right is not recognized under UNCLOS, nor claimed by the vast majority of states.

In the South China Sea, however, all claimants except the Philippines and Brunei believe that they have the right to limit the operation of foreign military vessels in their EEZ. A recent spat between Malaysia and China, for example, highlights this subregional practice.

On June 3, 2015, the Chinese Coast Guard (CCG) patrol vessel Haijing 1123 was spotted lingering in waters near the disputed South Luconia Shoals, and reporting on June 19 suggested another vessel might be anchored nearby. Both ships were described as “intruders” by Malaysian authorities, though they were anchored more than 80 nautical miles from the Malaysian coast. At this distance, the vessel was comfortably far from Malaysia’s territorial sea, the only zone in which Kuala Lumpur has the right to limit foreign military movements.

Of course, if the CCG vessel was within 12 nautical miles of an islet or rock near the shoal, Kuala Lumpur would retain jurisdiction. Some of the reefs at Luconia Breakers may be above water at high tide. The precise location of the ship in relation to those smaller features was not included in the news reporting, so it is hard to determine if Kuala Lumpur might claim jurisdiction on that basis. Reports seem to suggest that Kuala Lumpur is basing its jurisdiction on the vessels’ proximity to the north Borneo coast.

This interpretation of UNCLOS, which confers wide-ranging rights to the coastal state to limit the freedom of navigation for passing navies, is not supported by the treaty text. It also contradicts orthodox interpretations of international law.