Earlier this month, the United States warned China against the use of force in disputed waters as it reaffirmed its view that Beijing’s assertive campaign in the South China Sea was illegal.
The State Department was voicing “concern” over new legislation enacted by China that authorizes its coast guard to use weapons against foreign ships that Beijing considers to be unlawfully entering its waters.
On February 5, the Arleigh Burke-class guided-missile destroyer USS John S. McCain transited past the Paracel Islands in the South China Sea in what the US Navy described as freedom of navigation operation – the first under President Joe Biden – which China’s military had condemned, adding it had dispatched naval and air units to follow and warn away the ship.
The same US ship involved in the mission earlier this week transited the sensitive Taiwan Strait, drawing an angry response from Beijing.
The busy waterway is one of several flashpoints in Washington-Beijing ties, which include a trade war, US sanctions, Hong Kong and Taiwan.
China has been infuriated by repeated US sailings near the islands Beijing occupies and controls in the South China Sea, with Beijing saying it has irrefutable sovereignty and has accused Washington of deliberately stoking tensions.
The US Navy’s 7th Fleet had said the destroyer USS John S. McCain “asserted navigational rights and freedoms in the vicinity of the Paracel Islands, consistent with international law”.
It said in a statement the freedom of navigation operation upheld the rights, freedoms and lawful uses of the sea recognized in international law by challenging the “unlawful restrictions on innocent passage imposed by China, Taiwan, and Vietnam.”
The Southern Theater Command of China’s People’s Liberation Army said the ship had entered into what it termed the territorial waters of the Paracels without permission, “seriously infringing upon China’s sovereignty and security”.
China took full control of the Paracels in 1974 after a short battle with South Vietnamese forces. Vietnam, as well as Taiwan, continue to claim the islands.
Malaysia, Brunei and the Philippines have claims to other parts of the South China Sea, where China has been building artificial islands and constructing air bases on some of them.
Last month, a US aircraft carrier strike group entered the South China Sea for what the Navy said was routine operations.
Political analysts have said the South China Sea is a region of tremendous economic and geostrategic importance. One-third of the world’s maritime shipping passes through it, carrying over US$3 trillion in trade each year. Huge oil and natural gas reserves are believed to lie beneath its seabed.
To the point, there are at least three chalengesconfronting nations that have conflicting claims in the area.
Under the Law of the Sea Convention, all states have a right to a 200-nautical mile “exclusive economic zone” to exploit the resources of the sea and seabed, as measured from their land territories. Where these zones overlap, countries are obliged to negotiate with other claimants – something that has not fully happened.
The first challenge is the countries claiming parts of the South China Sea cannot agree who owns the Paracel and Spratly islands.
China asserts its sovereignty based on highly disputable evidence from ancient times, as well as more recent claims from 1902-39. Japan occupied the islands during the second world war and later recognized the claim of the Republic of China (now Taiwan) in a 1952 peace pact.
Rival claimants to the islands deny the validity of this evidence. Vietnam has equally credible evidence from the period before and during the second world war.
Then there is the broader question of China’s larger claim to the waters within the u-shaped “nine-dash” line – which skirts the Philippines, Malaysia, Indonesia, Brunei and Vietnam – first drawn by the Nationalist government of China in 1947, with a claim that is baseless in international law, then as now.
A second challenge is that one of the actors in this conflict is Taiwan, which has been in dispute with China over sovereignty issues since 1949.
Analysts say this dispute has meant Taiwan is not formally recognized as a state by most countries and is therefore not a signatory to the Law of the Sea Convention, nor legally entitled to claim territory. But Taiwan occupies one of the islands.
The third is there is a debate in international law about the type of land territory that can generate rights to an exclusive economic zone.
Observers have stressed the Law of the Sea Convention mandates the land must be able to sustain human habitation. In 2016, the international tribunal in The Hague found no islands in the Spratly group which met this criterion.
The same observers noted this was a major blow to China’s claims to resource jurisdiction all the way to the southern limits of the South China Sea.
While the convention settled most international laws governing the sea, it left unresolved some issues related to military activities, especially “innocent passage” by warships in territorial seas.
Under the Law of the Sea Convention, a foreign warship can pass within the 12 nautical miles of another state as long as it takes a direct route and does not conduct military operations.
But states disagree on what constitutes innocent passage. Maritime powers like the US, UK, and Australia routinely conduct freedom of navigation operations, or FONOPs, to challenge what China has referred to as illegal intrusion into its territorial boundaries. (AI/MTVN)