2016-11-23 By Danny Lam
The South China Sea “Sea Grab” is no less an egregious violation of international law than a “Land Grab” by Russia in the Ukraine.
Both cases are virtually identical in that a treaty defined international boundary or limitation was violated. Though in the SCS case, it was, a priori, violated by multiple overlapping claimants.
Both cases upended the post-war norm that international boundaries should not be altered by force.
Yet the international community’s response has been tepid and limpid in SCS when it involves China’s island creation on features and formal military occupation. The result is hardly any different from Russia’s “green men” seizing control of the Crimea, running a “referendum” and then annexing the territory.
Negotiations with Beijing and the competing claimants, Creating Codes of conduct, Lawfare, Strengthening regional allies Brokered settlements, FONOPs by the US have all been tried to moderate the behavior of the competing parties and none of these have worked for any length of time or to any degree.
There are substantial differences in Chinese behavior in the SCS compared to other territorial disputes with India, Pakistan, Taiwan, Japan, Korea, and Russia.
In theory, the “unequal treaty” and “century of humiliation” propaganda narrative of the CCP would suggest that the claim over 1 million km2 of resource rich land lost to Russia would be highest on their “recovery” priority after Taiwan.
But in practice, there is little or no correlation between Beijing’s priority from any number of rational actor calculations and how and what particular issues are pursued.
ADIZs are imposed over East China Sea and not followed in SCS. Island hopping and land reclamation is not pursued in disputes with Japan and Korea. No action is taken against Russia. That speaks to the importance of local factors and interests.
That begs the question of what are the local interests driving PRC behavior in the SCS beside Beijing?
While certain issues are clearly local, such as the rapid depletion of fishing stocks concomitant with explosive growth of highly subsidized fishing fleets or the existence of oil and gas resources. Other issues revolve around securing the approaches to the Hainan Island naval base have strategic dimensions.
The formal “take over” of the Republic of China narrative and claim only happened in the 1990s after the PRC signed and acceded to the UNCLOS, which should have in theory, extinguished the ROC claims and also provided a framework for negotiated settlements with other claimants. Yet that is not to be.
Today, the PRC is at once, the largest beneficiary of rights of freedom of navigation around the world granted under UNCLOS, and the largest single beneficiary of protection given to Chinese shipping by the US and Allies around the world.
China, in that respect, is the largest and most egregious free rider in the world. China benefits immensely from UNCLOS worldwide, but when it comes to Chinese obligations under UNCLOS in the South China Sea, their failure to deliver on treaty obligations is obvious.
Whereas Russia was immediately and in no uncertain terms condemned and sanctioned for their behavior in the Crimea and Ukraine, China, to date have suffered no consequences whatsoever for the same behavior beyond an unfavorable ruling from the Permanent Court of Arbitration (PCA) in The Hague, and a few minor diplomatic slights.
The question then is how can such Chinese behavior be sanctioned, and done so in a way that do not just aimed at Beijing, which has proven ineffective. But sanctions targeted at the Southern Chinese, or coastal interests that are the largest beneficiaries from the rights and privileges granted by UNCLOS.
FONOPs challenges by US warships and aircraft have been infrequent and fraught with risks of accidents or mistakes that can quickly escalate to a major international incident. Moreover, to date, close allies of the US have been reluctant to participate. It also play to the CCP narrative of “century of humiliation” that can result in a propaganda victory and strengthen the Beijing CCP regime domestically.
Militarily, passages of US warships and aircraft give the PLA/PLN the opportunity to practice detection, intercepts, drill, and ready for the day when conflict will break out in an area where Chinese A2/AD capabilities are the strongest and the US the weakest. A different approach is needed.
Rather than a military challenge to the Chinese claims, a civilian based challenge may be far more effective. Most ocean going vessels on international voyages are fitted with vessel based Automatic identification system (AIS). This is in turn supplemented by satellite based AIS that together, enable most major vessels to be tracked around the world. Vessel position and voyage data is routinely collected and archived by governments.
The US and allies can effectively transform every civilian vessel equipped with AIS into a FONOPs operation by unilaterally enacting a new regime to discourage unlawful claims under UNCLOS.
For example, in the case of particularly troubling Chinese claims like the Spratly Islands close to busy shipping lanes that have been found to be invalid by the Permanent Court of Arbitration, the US can unilaterally declare that shipping that transit through unlawfully claimed seas (even though they are allowed passage by the), will be barred from entry into US territorial waters.
Enactment of such a policy and its enforcement will lead to neutral shipping giving the unlawful Chinese claims a wide berth. Chinese flagged shipping that transit run the risk of being refused entry if they are chartered to US ports.
Should the claims expand, the “no go” area expands.
These moves will induce a real, quantifiable cost to the Chinese maritime and trade dependent coastal Chinese community that is likely to alter the calculations and behavior of southern Chinese provinces.
Danny Lam is an independent analyst based in Calgary.
Editor’s Note: Danny Lam is one of the VERY few foreigners who called the Trump election months before it happened.
Indeed, three weeks before the election, he sent a forecast to us with regard to the electorcal colleage vote for Trump, which was, it would turn out to be, exactly right.
