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Who Is Behaving ‘Badly’ In The South China Sea? – Analysis

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The South China Sea is a nexus of the China-U.S. contest for hard and soft power dominance in the region. In the heat of this struggle, the U.S. has frequently accused China of all sorts of bad behavior there.  Specifically, it has called China’s actions ‘militarization’; ‘assertive’; ‘aggressive’; and even ‘bullying’–—sometimes deservedly so. https://www.reuters.com/article/us-usa-china-idUSKCN1NE2C4https://www.scmp.com/news/china/diplomacy/article/3019461/us-calls-china-stop-bullying-behaviour-south-china-sea   These are serious allegations with serious political and legal implications.  But the U.S. is also guilty of behavior there that can be described with these very same adjectives.

Indeed, the U.S. withdrawal from its treaty with Russia that banned intermediate range nuclear and conventional ground-launched ballistic and cruise missiles and its announcement that it will soon place such missiles in Asia only makes its hypocrisy more obvious.

 The U.S. accuses China of militarizing the South China Sea (the Sea) by deploying jet fighters and missiles on features it occupies. ‘Militarization’ can be defined as lending a military character to a place or situation. In China’s view—as well as that of several Southeast Asian countries—it is the U.S. that has militarized the Sea by assertively and aggressively projecting power there. The U.S.–unlike China- has long had military bases or ‘places’ in countries bordering the South China Sea– in its military allies the Philippines and Thailand–and more recently in Malaysia and Singapore for its Poseiden submarine hunters and electronic warfare (EW) platforms targeting China’s assets. Moreover, the U.S. has recently significantly increased its naval and air force presence and operations in and over the South China Sea including its Freedom of Navigation Operations (FONOPs) .

US FONOPs challenge China’s territorial and jurisdictional claims with warships and war planes. China sees US FONOPs as ‘gunboat diplomacy’ or more bluntly–‘bullying’.  Given that US FONOPs are directed against the claims of almost all South China Sea coastal countries, this perception is not confined to China.  As a senior US naval officer put it, the Freedom of Navigation exercises are ” _ an  in your face, rub your nose in it operation that lets people know who is the boss”. https://icps.gwu.edu/sites/g/files/zaxdzs1736/f/downloads/Etzioni_Freedom%20of%20Navigation%20AFS.pdf Another US activity that lends a military character to the situation and the region is its frequent military intelligence probes of China’s mainland defenses along its South China Sea coast.  China views these probes as threats to its security. 

In general, ‘militarization’ as well as ‘assertive’ and ‘aggressive’ actions increasingly depend on context, capabilities and vulnerabilities as judged by the beholders.  Both China and the U.S. argue that their actions are for defensive purposes only – -and a reaction to the actions of the other. The US intent to base intermediate range missiles in Southeast Asia—assuming it can find agreeable hosts—is clearly a contingency against China’s land based missiles that may endanger US ships operating in the South China Sea. https://www.militarytimes.com/news/pentagon-congress/2019/08/04/esper-us-to-soon-put-intermediate-range-missile-in-asia/

The U.S. claims that China’s installation of missiles and placing of jet fighters on some of its artificial islands is an offensive military action.  The missiles include the HQ 9 – a long-range, high performance air defense system designed to combat enemy aircraft.  https://www.cnbc.com/2018/11/10/us-presses-china-to-halt-militarization-of-south-china-sea.html   But China claims that these weapons are defensive and that their deployment was prompted by increased US military threats from the Sea.  

 Of course defensive weapons can also be used offensively. Indeed, the US assessment of and reaction to China’s actions seems focused more on what China might do with its military assets – and on this basis it is setting up a ‘pre-emptive defense’. This reasoning could lead to an actual act of “pre-emptive self-defense” –“the use of armed coercion by a state to prevent another state (or non-state actor) from pursuing a particular course of action that is not yet directly threatening, but which, if permitted to continue, could result at some future point in an act of offense.” https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1215&context=vlr

This is a very contentious concept. Proponents cite the language in the UN Charter that protects “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations” (Article 51).  But opponents argue that the “article clearly conditions a defensive action on the previous occurrence of an attack, not on the perception of the possibility of an attack.”  Particularly worrying is that the U.S. has implemented this concept rather frequently – – for example, with its invasion of Iraq and its drone strikes in many countries

The U.S. may apply this concept to cyber warfare against China from the South China Sea.  Cyber probing of foreign networks can be conducted from vessels or aircraft like the U.S.’s most advance electronic attack asset (EA-18 Growler) that it has deployed to Clark Air Base in the Philippines.   Growlers specialize in the denial and manipulation of communications.  A legal question is whether some of the EW activities conducted in or above the Exclusive Economic Zone violate the UN Charter and the peaceful purposes clauses of the UN Convention on the Law of the Sea (UNCLOS).  At the least, they could be considered ‘aggressive’ ‘ militarization’ of the situation.

The Law of the Sea (Article 59) provides that in cases where it does not specifically attribute rights or jurisdiction to the coastal or other states within areas under its jurisdiction, any dispute between the states parties should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.  So the question for the ‘international community’ is ‘which is more equitable or more valuable’–  the right to ‘prepare the battle field’ –as China calls it when it protests these actions—that is, the right to assess the threats and vulnerabilities of the enemy– or is it the right to ban such activities in areas under the coastal state’s jurisdiction? This provision was retained by UNCLOS negotiators in the face of a proposal to delete it. The rejected proposal argued that “it was unnecessary because the Convention clearly gives only resources jurisdiction [in the EEZ] to the coastal state.” https://books.google.com/books?id=CdS1CwAAQBAJ&pg=PA55&lpg=PA55&dq=%E2%80%9Cit+was+unnecessary+if+the+Convention+clearly+gives+only+resources+jurisdiction+%5Bin+the+EEZ%5D+to+the+coastal+state.%E2%80%9D&source=bl&ots=nhk2kGlHmN&sig=ACfU3U21ZCP1rDqB6c_3u0eT5QeYKXaVlw&hl=en&sa=X&ved=2ahUKEwiD4_rb14PkAhXSqZ4KHQKeBNQQ6AEwAHoECAAQAQ#v=onepage&q=%E2%80%9Cit%20was%20unnecessary%20if%20the%20Convention%20clearly%20gives%20only%20resources%20jurisdiction%20%5Bin%20the%20EEZ%5D%20to%20the%20coastal%20state.%E2%80%9D&f=false

The point is that what constitutes militarization with ‘offensive’ intent, ‘aggressiveness’, ‘assertiveness’, and ‘bullying’ is in the eye of the beholder and cannot be unilaterally defined by any one country. As the old adage goes “Those who live in glass houses should not throw stones”. 

This piece first appeared in the South China Morning Post.  https://www.scmp.com/comment/opinion/article/3023431/us-china-problem-south-china-sea-one-mans-militarisation-another



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Mark J. Valencia

Mark J. Valencia

Mark J. Valencia, is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles and Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China

2 thoughts on “Who Is Behaving ‘Badly’ In The South China Sea? – Analysis

  • Avatar
    August 20, 2019 at 10:15 pm
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    I have been following the South China Sea crisis for some time now, I remember China declaring that the build up of artificial islands was for new tourist destinations. China has claimed all of the South China Sea and parts of the East China Sea as China’s sovereign territory. According to international law, a body of water cannot be claimed as sovereign territory. China has bullied and bought its neighbors in strong arm tactics. The US upholds freedom of navigation in the contested waters. China has repeatedly rammed and sank ships as well as the Chinese coastguard have shot at fishermen well within their own territories. There is no doubt in China’s intentions, if one believes otherwise, then they are poorly educated in the matter.

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  • Avatar
    August 22, 2019 at 7:33 pm
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    They’re not over here threatening us. We’re over there threatening them – and have been for the last 70 years. China is the largest nation on earth; they have the most people. They’re the largest trading nation on Earth. Nearly all of their trade with Europe, Africa, and the Middle East, passes through the South China Sea. That’s their lifeline. Why shouldn’t China defend its shipping lanes? Why shouldn’t they defend their lives?

    Reply

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