JEFFREY FU revisits the South China Sea dispute to explore how the interplay of international law, economic power, and territorial ambition may be transforming China’s strategy.
On September 30, 2018, a Chinese Luyang-class destroyer cut across the bow of an American destroyer, the USS Decatur, coming within 45 yards of collision before the Decatur maneuvered to avoid catastrophe. Such brazen disregard for maritime safety and American power would have been unthinkable in 1990, when former leader Deng Xiaoping famously called for China to “keep cool-headed [… and] hide our capabilities and bide our time, never try to take the lead.”
The near collision occurred in the South China Sea, where China has made contested territorial claims and pursued a program of island-building and militarization. One neighboring nation embroiled in the South China Sea territorial dispute, the Philippines, brought an arbitration case against China under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) in 2013. By studying the arbitral tribunal’s 2016 ruling and China’s subsequent response, it is possible to develop a historical understanding of why China’s international approach and image are shifting.
When the arbitral tribunal was convened, China took the position of “no acceptance, no participation, no recognition, and no implementation,” arguing that the tribunal’s decision is attempting to rule on territorial issues beyond the jurisdiction of UNCLOS. Indeed, it is difficult to imagine that the Philippines would have initiated arbitration on the status of the specific Chinese-occupied land features in the South China Sea in the absence of a territorial dispute with China. China will clearly still be able to maintain its control over the disputed features by virtue of its greater military and economic capabilities. This means that any tribunal rulings downgrading the status of features would heavily restrict Chinese maritime entitlements in the region, to the benefit of the Philippines.
In tandem, these considerations suggest that the purpose of Philippine claims is in fact to decide on territorial issues. This would render the matter beyond the jurisdiction of the tribunal if it were to decide based on the spirit of the law. Instead, the tribunal chose to address this argument by drawing on the letter of the law: it ruled that the specific claims raised by the Philippines did fall under the jurisdiction of the tribunal, regardless of whether conclusions had implications for broader decisions on territorial issues. This first decision signaled the tribunal’s intention to arbitrate the case strictly based on the law and evidence rather than policy and intent.
China’s second argument against the tribunal’s legitimacy is grounded in Article 298 of UNCLOS, which allows China to opt out of arbitration on disputes involving “sea boundary delimitation” and “military activities.” If regional maritime features such as Itu Aba are classified as islands, they generate 200 nautical mile exclusive economic zones that overlap with the Philippine exclusive economic zone, creating a dispute that requires sea boundary delimitation to resolve, and thus restricting the tribunal from ruling on many of the Philippine claims. Similarly, if Chinese construction on the Spratly Islands constitutes military activity, the tribunal cannot award itself jurisdiction over many of the Philippine claims. The tribunal’s ultimate decision that the regional maritime features (including Itu Aba) are not islands (and thus do not generate overlapping exclusive economic zones) and that Chinese activity on the islands were non-military, seem to deviate from the legalist approach the tribunal initially signaled.
For a maritime feature to be classified as an island instead of a rock (and therefore to generate an exclusive economic zone), UNCLOS states that the feature must be able to “sustain human habitation” and “economic life” of its own. The tribunal’s ruling that even Itu Aba–the largest and most vibrant of the features–does not constitute an island, raises questions about the justness of the tribunal’s standards. On first glance, the standards seem quite reasonable, requiring that the feature be able to sustain “a stable community of people for whom the feature constitutes a home and on which they can remain,” and that economic activity not be “dependent on outside sources or purely extractive in nature without the involvement of a local population.”
However, evidence seems to suggest that Itu Aba meets these conditions. Itu Aba has its own freshwater supply and is thus not entirely dependent on desalination facilities, has sustained a population of more than 100 people, produces a variety of agricultural goods including corn, sweet potatoes, mangoes, and guava, has its own hospital and facilities, and even has distinctive diverse flora and fauna. Highly qualified scholars of maritime law such as Noel Ludwig, Robert Beckman, and Clive Schofield generally agree that Itu Aba meets and exceeds the conditions for a feature to be an island and not a rock. The tribunal, in discarding the work of numerous experts and failing to adhere to its own standards, thus made a questionable ruling on Itu Aba that casts its jurisdiction into question.
China has not only transformed reefs into artificial islands, it has also constructed military-length airstrips, concrete structures with retractable roofs housing surface-to-air missile batteries, radar facilities, and other military installations on those islands. Satellite images and expert analysis available to the tribunal clearly indicates the military nature of Chinese activities on disputed maritime features. Yet, the tribunal “decided that it would not deem activities to be military in nature when China itself has repeatedly affirmed the opposite,” as stated in its press release. On this subject, the tribunal used public statements from a state that is not officially participating in proceedings over neutral, concrete evidence to award itself jurisdiction. This is despite the fact that the tribunal had previously indicated a commitment to the letter of the law and evidence-based decision-making and dismissing the intentionality of the involved parties as irrelevant to the tribunal’s jurisdiction. This inconsistent approach again calls into question the impartiality of the tribunal and the rigor of its methodology.
When international courts and tribunals decide whether they possess jurisdiction over contentious disputes, they should err on the side of caution to avoid tarnishing their legitimacy and discouraging states from recognizing future rulings. Although it may not be clear whether this is best done by adhering to the letter or spirit of the law, the chosen standard should, at the very least, be consistent throughout the arbitration of a case. The tribunal that arbitrated the South China Sea dispute, despite its reasonable defense of its decisions, has demonstrated troubling inconsistency, especially in its rulings on the status of Itu Aba and Chinese activities in the region. This bolsters China’s fear that international deliberative bodies are driven by Western agendas and incentivizes China to act unilaterally instead of respecting multilateral institutions.
In the aftermath of the tribunal’s ruling, China declared the tribunal’s ruling “null and void” and refused to abide by the findings. Instead, China pursued a bilateral solution with the Philippines based on large promises of economic cooperation and investment. Mere months after the tribunal’s ruling, Philippine President Rodrigo Duterte announced his “separation from the United States,” declaring this separation to be in both military affairs and economics, and that “America has lost.” This solution has persisted to the present day, with 29 additional agreements between China and the Philippines being announced on November 21, 2018. In President Duterte’s words, “China is already in possession. [The South China Sea is] now in their hands. So why do we have to create frictions, strong military activity that will prompt response from China?”
Due to the failure of international law and the success of bilateral action, China learned in the South China Sea dispute that assertiveness, not humility, may be the key to realizing its territorial ambitions. Consequently, China has continued to militarize islands in the South China Sea and contest American freedom of navigation operations, leading to the confrontation between Chinese and American destroyers. In the microcosm of the South China Sea dispute, it can be observed how the interplay of international law, economic power, and territorial ambition may be transforming China’s disposition from that of Deng’s vision of China as a responsible stakeholder, to Xi’s vision of world power. Unless America can navigate this political quagmire, it is unlikely China will deviate from its path of growing assertiveness or support the liberal international order.
Jeffrey Fu can be reached at email@example.com.