Tension in the South China Sea may make policy makers on both sides think about going to war. As China seeks to exercise its control over disputed islands and maritime waters it may seek to block US warships and military aircraft from crossing through large swathes of the South China Sea. This restriction will prove unpalatable to the US who considers it a legal right to cross these waters.
By Dr. Ian Ralby
It is no secret that the South China Sea is an area of conflict and controversy, but understanding the interests and role of the United States in that region is not intuitive. The situation centers on competing territorial claims by China, Vietnam, Taiwan, Brunei, the Philippines and Malaysia over several sets of islands. Attempts by these nations to control the disputed territories have become increasingly intense, bordering on violence, and vessels have narrowly avoided collision in recent displays of hostility. As the BBC reported on 15 October 2014, it even appears as though the United States is practicing for war with China in case the conflict heats up. Most articles on the subject explain that what is at stake is a mix of territory, fishing rights, mineral rights and control of shipping lanes. It is understandable why, given the economic value of those rights, the states competing over the claims would be willing to resort to violence, especially since a number of the claims involve emotionally charged historical ties and concern national identity and pride. But why would the US, which is already facing potentially extensive engagements in Eastern Europe and the Middle East, be at all inclined to enter a naval war with one of its closest peers in terms of economic resources and military might? The full answer involves a number of different justifications, but one of the most important ones has received very little attention. As it requires a nuanced understanding of international maritime law, most articles and reports on this simmering conflict in Southeast Asia have failed to even mention it. Simply put, if China gains the disputed territory, it may be able to block access of US Naval vessels and aircraft through most of the South China Sea.
There are a number of obvious reasons why the US would not want China to succeed in the various territorial disputes. Unequivocal Chinese hegemony throughout the South China Sea would be a considerable setback in the Obama Administration’s “Pivot to Asia”. It would also greatly increase China’s maritime domain and access to fisheries and mineral resources. The US often focuses more on the process of resolving the disputes rather than the outcome. The one thing worse than unequivocal Chinese hegemony would be Chinese victory in the territorial disputes on account of bullying, hostility and force. So in an ironic twist, the US, which is not party to the United Nations Convention on the Law of the Sea (UNCLOS) – the most extensive treaty ever drafted, and the principle instrument in international maritime law – nevertheless encourages China, which is a party to UNCLOS, to abide by the Convention’s dispute resolution processes. The US recognises most of UNCLOS as customary international law, but does not itself submit to the jurisdiction of the International Tribunal of the Law of the Sea (ITLOS), which would be called upon to resolve the maritime territorial claims in the South China Sea.
A basic understanding of the international maritime system as espoused by UNCLOS is crucial to making sense of the US interest in the South China Sea. For thousands of years, there has been an ongoing debate concerning the freedom of the seas. On the one hand, many advocate the free movement of vessels throughout the global maritime domain. On the other hand, states seek to exert sovereign jurisdiction over some maritime territory so they can control movement of goods and people into their territory, police the seas adjacent to their land, and access the living and mineral resources in the maritime space off their shores. UNCLOS sets forth a system whereby coastal, island and archipelagic states are granted the right to twelve nautical miles of territorial sea in which they have complete sovereign control, and from twelve to two hundred miles, an exclusive economic zone (EEZ). States have the exclusive right to harvest and control the living and mineral rights within their EEZ. The mounting tension between the US and China concerns their respective interpretation of these fundamental rules.
Under its professed reading of UNCLOS, China does not believe that the principle of free seas applies to foreign warships or military aircraft transiting EEZs. It has tried to stop naval vessels, including one from India, from transiting what would be its EEZ if it won the territorial disputes and took legal possession of the various islands in the South China Sea. It has further claimed that American military maneuvers, surveillance flights, taking of hydrographic surveys (useful in antisubmarine warfare) and other activities in China’s EEZ violate UNCLOS. Additionally, a September 2014 incident involving a near collision between an aggressive Chinese fighter jet and a US Naval surveillance plane made clear that China is seeking to claim sovereignty over the would-be EEZs of the disputed islands.
UNCLOS, however, does not expressly clarify this legal point. Since the Convention does somewhat limit the movement of warships within territorial waters, the US interprets that to mean that there are no such restrictions on naval vessels or military aircraft within the EEZ. China is effectively claiming complete sovereignty concerning foreign warships and military aircraft in the entirety of the two hundred mile zone. If, therefore, China won the disputed territory, the US, under the Chinese interpretation of the law, would have to obtain Chinese permission to sail its naval vessels through or fly its military aircraft over most of the South China Sea. From a strategic standpoint, the US cannot afford to lose such freedom of movement through a vital transit point between the Pacific and Indian Oceans.
As much as the US may want to block the territorial expansion of China, prevent its further enrichment through access to plentiful resources, and curb its hegemonic influence, one of the main reasons the tension in the South China Sea could mount to the point of open conflict between the world’s two largest powers is a disputed interpretation of international maritime law. The free movement of American warships and military aircraft through the South China Sea is of sufficient strategic importance that the US would be prepared to fight for it. In many ways, this matter is actually more fundamental to US interests than the situation in Ukraine or the rise of ISIS in the Middle East. That is why the US may be willing to go to war over the interpretation of an international convention to which it does not belong.
Dr. Ian Ralby is Founder and Executive Director of I.R. Consilium through which he and his team work with governments and organizations on solving complex security-related problems. He has worked extensively with governments in West Africa, the Caribbean, and the Balkans among others. He holds a BA in Modern Languages and Linguistics and an MA in Intercultural Communication from the University of Maryland, Baltimore County; a JD from William & Mary Law School; and both an MPhil in International Relations and a PhD in Politics and International Studies from the University of Cambridge.
This article was originally published by OpedSpace and is available by clicking here.