China Must Refrain From Using Force In The Spratly  BA Hamzah

The Spratly comprises a few hundred features, mostly under water, in the South China Sea. Numerous attempts to negotiate the overlapping territorial claims there have failed. China, Taiwan, Vietnam, Philippines and Malaysia have stationed troops on features they have occupied in the Spratly.

The Spratly is also a scene of many showdowns between the United States of America (US) Navy and the China’s People’s Liberation Army (PLA-Navy) over the last ten years. The US Navy has the habit of regularly challenging what it considers to be China’s “excessive maritime claims” in the Spratly vide its Freedom of Navigation Operation programmes.

The most recent FONOP challenge took place in February 2019 at Mischief Reef where China has built extensive military facilities, including a runway. According to one source, Beijing has also installed anti-ship cruise missiles and surface-to-air missile systems on the Reef that it has occupied since 1995.

Since 2012, China has fortified military garrisons on six other expanded man-made island features in the Spratly, which the US claimed are in violation of international law.

The most recent attempt to resolve claims in the Spratly was in 2013, when the US pressured the Philippines to challenge China’s extensive claims. An International Tribunal at the Permanent Court of Arbitration (PCA) at The Hague, Netherlands, was established as a special purpose vehicle to hear the case. The Tribunal delivered ruling in 2016; as expected, it favoured the Philippines.

Writing in Foreign Affairs Journal ten days after the ruling, Mira Rapp-Hooper, an American scholar, complained that the Tribunal’s ruling has created an immediate problem for China. The defeat was so crushing, in her view, that it left “Beijing few ways to save face”. It was, as if, the entire “legal” exercise was intended to deny presence and ridicule China for all its activities in the Spratly and the South China Sea (SCS).

While it is true that China’s nine-dash- line “boundary” violates contemporary international law, surely other activities like fishing and territorial claims are legitimate and negotiable under international law, where China has a locus standi in the Spratly.

Although Mira Rapp-Hooper did not admit it openly, the whole entire proceeding was a set-up, intended to teach China-a major power- a lesson. Unfortunately, this lesson has backfired with China ignoring the decision. By staying on course in the South China Sea, doing much the same thing it has done before the Tribunal’s ruling it has caused great embarrassment to US. The embarrassment has further ruffled feathers among the neo-conservative policy makers at Washington DC.

The SCS issue is not only about international law but about rights as well as responsibilities of states and humanity. It is also about politics and giving space to contending states to save- face before their respective communities. But more importantly, the SCS is also about how states can get together to establish a regional mechanism to acknowledge each other’s rights at sea without resorting to the use of force, intimidation and bullying.

This mechanism is critical to maintain a semblance of order in the enclosed sea and should uphold, among others, the Asian value of face- saving. What ails the geostrategic environment in the SCS is power politics and one-upmanship. It is clear that the US is not interested in looking for a peaceful solution in the SCS because to do so would mean diluting all forms of pressure on China, its adversary.

Nonetheless, China should not remain traumatized by the decision of the Tribunal. Being the largest and strongest military and economic power in the region, China should turn around this “defeat” into victory by leading the process of restoring confidence in the SCS. China can redeem itself by respecting each other’s rights and by restraining from the use force in its relations with other claimants in the in the disputed Spratly.

China’s assertiveness in the Spratly has been a cause of concern not only to the claimant states but also to other users of the ocean space. The Spratly is rich in oil and gas, fish and other resources. Some US $ 5.3 worth of goods passes through the Spratly annually. So long as China does not interfere with the right of other states using the area to exercise the freedom of navigation no one can take Beijing to task for non-compliance with customary international law.

China’s reluctance to accept the Declaration of Conduct of Parties in the SCS, which the member states of the Association of Southeast Asian Nations (Asean) proposed since 2002, is viewed by many as an unfriendly act. By dragging its feet, China hopes to bide for time. China’s reluctance to adhere to a potential Code of Conduct that covers the entire SCS is understandable. Beijing’s preference for bilateral approach in the Spratlys makes sense; however, many see this as cherry- picking. Why should China deal with non-claimant ASEAN member states in the COC process when the dispute is mostly over overlapping territorial claims in the Spratly?

From the claimants’ vintage, they need to draw strength from friends in the region to negotiate with China to keep their occupied territories in the Spratlys. They too, like China, need some face- saving solutions. They too are under pressure from their people to stand up or be seen to stand up to any form of bullying and intimidation by stronger powers like China. This is the reality of domestic politics that China must learn to appreciate. Both sides should come to mutually agreed terms to bury the hatchet in the Spratly.

Among others, one challenge to the disputing parties in the Spratly is how to achieve a credible face-saving solution mechanism?

The following is my two-cent worth of face -saving proposal to prevent conflicts in the Spratly via a crisis communication network that places premium on the agreed rules of engagement between the disputing parties. For lack of a better term, let us call this project “The Spratly Islands Project (SIP) for peace.”

The goal for SIP is to establish an informal Information Exchange Centre to prevent tensions at sea. Under this crisis prevention mechanism, all Commanders (Navy, Marines, Coast Guard, Fisheries Enforcement Units, Police and Air Contingents) on the ground can advise each other of the movements of their ships and aircraft in the area, to avoid unnecessary suspicions. A simple trusted hot-line communication facility between the Commanders on the ground (at sea) will go a long way.

The Commanders could use the existing set of rules of engagement and international regulations to facilitate the freedom of navigation and overflight, to prevent collisions and to ensure safety at sea, among others.

All Navies of the claimant states have already adopted the Code of Conduct on Unplanned Encounters at Sea (CUES) as operational guidelines since 2015. All the claimant states have also signed up to the 1974 International Convention for the Safety of Life at Sea (SOLAS) and the 1972 International Regulations for Preventing Collisions at Sea. Most significantly, all the claimant states in the Spratly have ratified UNCLOS-the mother of all public international law treaties on the uses of the ocean.

Missing is the political will and leadership. Beijing could lead the way.