High Tensions over Low-Tide Elevations in the South China Sea
By Xiaodon Liang
January 13, 2016
Tensions were high in the South China Sea in 2015, with China's dredging activity to expand low-tide elevations and inhospitable rocks posing a new challenge to fellow claimants, the Philippines and Vietnam, and proponents of maritime rights, such as the United States. Land reclamation activity, focused on the Spratly Islands, has both military and legal implications. The construction of runways and military facilities on the disputed islands, rocks, and reefs of the South China Sea could extend the range of Chinese naval and aviation assets while allowing for easier resupply of outposts in the disputed area. At the same time, the expansion of previously small outposts could obscure their status under the law of the sea, impeding the future settlement of the maritime disputes underlying regional tensions.
China's Land Reclamation Program
In May 2014 the government of the Philippines released images showing the gradual expansion of the Chinese presence on Johnson South Reef. Reclamation activity was detected in September 2013; to date, at least seven reefs have been expanded. Satellite images suggest China has been building military features on the reclaimed land, including possible anti-aircraft towers on Hughes and Gaven Reefs, a helipad on Cuarteron Reef, a radar facility on Johnson South Reef, and an airstrip on Fiery Cross Reef. While a spokesperson for China's Ministry of Foreign Affairs stated in November 2014 that the military improvements were intended primarily to improve living standards and search and rescue capabilities, the United States has expressed its concern that they also extend the People's Liberation Army's ability to apply coercive force in neighboring waters.
In June 2015, China declared that it would soon complete land reclamation and move to constructing structures that would facilitate a range of military and civilian activities. The total amount of land reclaimed by China since December 2013 equals more than 2,900 acres. Over the last 40 years, Vietnam, Malaysia, the Philippines, and Taiwan have reclaimed a combined total of 172 acres. The land reclamation programs touch on three legal problems. First, the features on which China and other claimants are reclaiming land are the subject of territorial disputes, and the reclamation activity could make future adjudication of those disputes more difficult. Second, China has expanded maritime features that did not previously qualify as islands under the United Nations Convention on the Law of the Sea (UNCLOS) into much larger territories. Third, the Philippines has argued that China's land reclamation activities also violate obligations under UNCLOS to protect the marine environment.
UNCLOS denies a twelve-nautical-mile territorial sea or two-hundred-nautical-mile exclusive economic zone (EEZ) to features submerged at high tide, even if expanded artificially into an island; uninhabited rocks can claim a territorial sea but no EEZ. China's land reclamation program may have made it more difficult to demonstrate indisputably whether the new land bodies were previously islands, rocks, or submerged features. Indeed, among the claims filed by the Philippines against China in their ongoing UNCLOS arbitration case is the request that the arbitrators find that the Chinese outposts are not islands and not entitled to an EEZ. The arbitral panel is still some time away from ruling on Manila's arguments, having only recently issued in October a decision affirming its jurisdiction to consider the claims. China has refused to participate in the arbitration, even to argue against the panel's jurisdiction.
Responses to China's Activities
In August 2015, in the face of Beijing's objections, the Association of Southeast Asian Nations (ASEAN) called for all claimants to halt land reclamation activities in the South China Sea. The United States has declared its opposition to the militarization of the land features and conducted in late October a freedom of navigation operation around one artificial island built on Subi Reef to emphasize its maritime rights. Both the United States and China recognized the destabilizing potential of incidents at sea when they agreed on a set of relevant confidence-building measures in November 2014 following a visit by President Barack Obama to Beijing. In September 2015, during President Xi Jinping's reciprocal visit to Washington, the two leaders finalized two new annexes covering air-to-air encounters and crisis communications.
The animosity generated by China's land reclamation activities fits into a broader pattern of Chinese activity, including the placement of an oil rig in waters disputed with Vietnam in 2014, confrontational incidents at sea, and nonparticipation in UNCLOS arbitration. Its commitment in the nonbinding Declaration on the Conduct of Parties in the South China Sea of 2002 to not complicate or escalate disputes appears to have been sidelined. The other claimants have responded. In July 2015, the secretary general of the Communist Party of Vietnam visited Washington—a first. The Vietnam People's Navy is taking delivery of six Russian submarines and equipping them with supersonic anti-ship cruise missiles, giving it a limited ability to deter Chinese action. The Philippines for the first time began operating air and naval assets out of the former U.S. military base at Subic Bay, which is located closer to Scarborough Shoal and the Spratly Islands than other Philippine facilities. President Benigno Aquino proposed a 25% increase in the defense budget for 2016 in July. The Enhanced Defense Cooperation Agreement signed in 2014 between Manila and Washington will enable U.S. troops to begin rotating deployments across the island nation's military bases.
Other regional powers have signaled a new attentiveness to the South China Sea disputes. In May, Australia's defense minister spoke out against the militarization of the islands and affirmed his country's interest in defending freedom of navigation. Japan may go further: the government of Shinzo Abe has been weighing proposals to patrol the South China Sea and has expanded cooperation—including military exercises—with the Philippines, and a Japanese warship may soon conduct drills with Vietnamese forces. Taiwan launched a diplomatic initiative to establish a framework for sharing resources in the disputed areas.
Even if China terminates its land-reclamation program as promised, the South China Sea will remain a volatile region due to the parties' unwillingness to resolve their territorial and maritime disputes through either negotiation or arbitration. In particular, China's nine-dash line, an ambiguous claim to most of the sea with little basis in contemporary maritime law, raises questions about the country's ambitions. As both the Philippines and Vietnam have made progress in recent years to rationalize their South China Sea claims with UNCLOS, the question of whether China will move in that direction as well is critical for understanding its long-term intentions in the region. The long-standing clash of principles underlying U.S. and Chinese interpretations of the right to freedom of navigation will also continue to generate occasional crises. With more freedom of navigation operations on the horizon, the pattern of Chinese responses to these perceived provocations will be a key indicator of the capacity for restraint in the U.S.-China relationship. Given this context, the tense maritime security environment in 2015 will continue to pose a significant challenge for crisis managers over the next year.