By Mark Valencia
As Xi Jinping begins his unprecedented third term as president of China, he has urged his country to fight back against US-led effort to embarrass, isolate, contain and suppress his country.
As a follow-up, in his first press conference, new Foreign Minister Qin Gang said he wants China to be the champion of the developing world and contribute to the improvement of world governance.
As part of its effort to do so, China is determined to upgrade its capability in international law. That should include its capabilities in the Law of the Sea and public diplomacy in this field.
China has been taking a beating in the US and Western press for its alleged violations of international law and the Law of the Sea. To be sure, it has violated it. But it is certainly not the only one, nor is it the most egregious in doing so. However, the superior English-language public diplomacy of the US allows it to control the narrative and make it appear that way in the Western media.
This is quite ironic, because the US openly transgresses the UN Charter prohibition on threat or use of force and its duty to respect the sovereignty, territorial integrity and political independence of other states. Recent and ongoing examples are its invasion of Iraq exactly 20 years ago, its secret operations to overthrow governments around the world and its transnational drone and missile strikes in countries without their permission.
China has learned the hard way that the US has been particularly adept at manipulating the international Law of the Sea, ignoring it when it serves its purpose to do so, and shaping or creating it anew to suit its interests.
This is particularly evident with the Convention on the Law of the Sea (UNCLOS). It has the unmitigated gall to do so even though it is not a party to it.
For example, during the negotiations on UNCLOS, when it appeared that some developing countries wanted the regime of innocent passage in the territorial sea to restrict its navy from getting within 12 nautical miles of their coasts, the US persuaded the Soviet Union to issue a joint statement to clarify and cement Washington’s interpretation of the Convention’s applicable provisions to the contrary.
In China’s view, it was lulled into agreeing to the Convention’s compulsory dispute-settlement provisions. This eventually led to China being dragged against its will before an international panel that invalidated its historic claim to much of the South China Sea.
Now the US and its friends and allies accuse China of not abiding by this international arbitration decision; threatening freedom of navigation there; and bullying rival claimants with the swarming of its maritime militia, fishing boats and Coast Guard vessels in the Spratlys area.
Pushing back
There are many actions China could take to defend itself and turn the tables.
China claims that per UNCLOS, the international arbitration panel did not have jurisdiction because the issues affected its sovereignty, maritime boundary delimitations and military activities. It could try to change international law to be more favorable to it.
Borrowing from the US playbook, it could try to persuade like-minded countries to issue a joint statement of their interpretation of the Convention that broadens the definition of exceptions to compulsory arbitration.
If China could claim exclusive economic zones from high-tide features that it occupies it could legitimately claim a good portion of the area that falls within its historic “nine dash line” claim. But the panel ruled that none of the Spratly features are islands entitled to a 200nm EEZ and continental shelf but just rocks that can only generate a 12nm territorial sea.
China might try to forge a multinational position opposing the part of the arbitration panel’s decision that only features that have a history of a self-sustaining indigenous population are legal islands generating EEZs.
Although technically this decision applies only to China and the Philippines, it does set a precedent. But the US and many other countries around the world violate it.
For the US this includes its claim to EEZs and continental shelves from some of the uninhabited northwestern Hawaiian Islands. The US also claims the same from features in the Pacific that are likely only legal rocks including Midway, Howland, Baker, Johnston, Jarvis, and others.
To bring their claims into accordance with this reasoning and precedent, countries must rescind them, or their opponents must file a complaint under UNCLOS and have it arbitrated. But as China should point out, the US – which has not ratified UNCLOS – cannot be brought to arbitration under the Convention’s dispute-settlement provisions.
In the face of US criticism, China should emphasize its position that is not a threat to freedom of commercial navigation in the South China Sea and that the US military is self-serving and disingenuous when it says it is there to combat that threat. China has not hindered freedom of commercial navigation and is unlikely to do so in peacetime.
It does oppose and protest provocative US intelligence probes in its near waters. But the US conflates freedom of commercial navigation with freedom of navigation for its warships to intimidate and its intelligence vessels and aircraft to spy.
As Beijing should point out, unlike Malaysia and Thailand, China does not ban all foreign military activities in its EEZ without its permission. It does object to what it believes are US practices that are not for peaceful purposes, endanger the environment or constitute marine scientific research without its permission.
As for allegations of bullying, it should point out that the US bullies it and others with its freedom-of-navigation operations with warships and warplanes challenging their claims. It should call on the US to confine its opposition to diplomatic protest that is more consonant with the UN Charter prohibition on the threat to use force.
In sum, China has indeed violated the Law of the Sea. But so have the US and its friends and allies. China should fight back against the US attempt to paint it as a serial egregious violator of UNCLOS. These are just a few of the many ways it could do so.
