KANEOHE, HAWAII – China is getting bashed by a perfect storm of its own counterproductive public relations, its actions and reactions, and what China perceives as the harmonized public diplomacy strategy of its detractors.
Both the situation and the “blame” for it are more complex and nuanced than journalists and “experts” would have it. Nevertheless, this bashing will likely end badly, with a smarting, angry and relatively politically isolated China.
That will not be good for peace and stability in the South China Sea or the region as a whole.
The latest imbroglio involves China’s placement of a petroleum drilling rig within Vietnam’s claimed 200-nautical- mile Exclusive Economic Zone and on its claimed continental shelf. U.S. Secretary of State John Kerry allegedly called this move “provocative.”
The rig was accompanied and protected by a large fleet. Vietnam protested vehemently and sent coast guard and police vessels to the site to prevent the rig from drilling.
U.S. and Japanese officials have criticized China’s actions. However, the Association of Southeast Asian Nations — which is closer to the situation and its ramifications — has not blamed China, at least not specifically, directly and collectively despite lobbying by both Vietnam and the Philippines for it to do so.
Nevertheless, China’s unilateral action has certainly raised tension and probably violates the spirit if not the letter of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, particularly the provision stating that “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned (italics added), in accordance with universally recognized principles of international law, including the 1982 U.N. Convention on the Law of the Sea.”
The DOC also “commits” all (italics added) parties to “undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability. …”
It should be stressed that the DOC says that disputes such as those between China and Vietnam and China and the Philippines should be resolved between “sovereign states directly concerned.”
China believes the Philippines has violated this provision and that Vietnam may be on the verge of doing so. This means that there is a fundamental disagreement on the meaning of the DOC’s key provisions.
China would probably argue that in any case the DOC does not apply to the Paracels and to areas disputed only by it and Vietnam.
Moreover, the DOC is after all a second-best nonbinding political stopgap measure to contain a festering dispute and it is rather “leaky.” It has been violated by almost all South China Sea claimants at one time or another.
In other words, China and perhaps others do not view it as hard and fast law. Rather it is a statement of ideals and intent and has been interpreted by all claimants for their own convenience and in their own interest.
Further, China has occupied, inhabited and administered the nearby Paracel Islands at least since 1974 (the northern islands since 1950) when its forces defeated and evicted South Vietnamese forces there. China thus has a U.N. Law of the Sea-based claim to a 200-nautical-mile exclusive economic zone and continental shelf from the islands.
Vietnam disputes Chinese sovereignty over the islands and any maritime claims from them. This means that this dispute is probably not the result of a claim by China outside of UNCLOS such as its infamous nine-dashed line but a sovereignty claim and boundary dispute solely between China and Vietnam.
Moreover, this type of dispute cannot be solved by recourse to the UNCLOS dispute settlement mechanism. Indeed, as Australian analyst Sam Bateman has suggested, Vietnam might have gained more by accepting China’s sovereignty over the Paracels in return for fishing rights and joint development of petroleum in the disputed area.
It is questionable whether the Paracels can generate a full EEZ and continental shelf versus Vietnam’s claims from its mainland baselines. But that is to be determined — not assumed and pre-judged.
The Paracels may well have some effect on the placement of a boundary depending on the owner thereof. For what it’s worth, the drilling rig is situated only 17 nautical miles from Triton Island in the Paracels and is certainly on China’s side of a median line between the Paracels and Vietnam’s coast.
Unfortunately China has chosen not to make clear the specific basis of its claim. China does not recognize Vietnam’s claim to the Paracels. It obviously assumes there is no question regarding its right to drill there and thus like many other countries elsewhere has simply proceeded to do so.
According to the International Court of Justice’s decision in the Guyana-Surinam case, such unilateral actions are a breach of the obligation under UNCLOS articles 74(3) and 83 (3) “to make every effort to enter into provisional arrangements of a practical nature and, during this transition period, not to jeopardize or hamper efforts to reach agreement.”
But in the Guyana-Surinam case the ICJ found that both parties violated this provision. This may well be the case here with Vietnam and China.
Moreover, if ramming by ships and use of high pressure hoses are a “use of force,” then both parties appear to have violated the U.N. Charter, UNCLOS, the 1976 Bali Treaty of Amity and Cooperation and the DOC.
The two ideological soul mates obviously need to go back to the negotiating table and work out a provisional arrangement of a practical nature.
By the same token, the May 6 arrest and detention of a Chinese crew and vessel near Half-Moon Shoal by the Philippines may also be a violation of UNCLOS and the DOC. The alleged “offense” and arrest took place in a disputed area claimed by both.
But criticism of the Philippines other than by China has been mysteriously muted. China has demanded that the ship and crew be released.
According to UNCLOS, “the vessels and crews should be promptly released upon the posting of reasonable bond or other security.” But of course posting of bond may be interpreted as an acknowledgement of Philippine jurisdiction over the disputed area.
The point here is that all parties in these disputes share some blame. The United States and even Japan have heaped hyperbole and hypocrisy on China. Daniel B. Russell, U.S. Assistant Secretary of State said “we oppose any act of intimidation by vessels particularly in disputed areas.”
Of course, this could apply to both countries but by context it was clearly aimed only at China. And a group of U.S. Senators called China’s actions “deeply troubling” and urged their colleagues to pass a senate resolution reaffirming U.S. support for freedom of navigation and peaceful resolution of the dispute.
Whatever China’s transgressions, they do not appear to be a “serious threat to freedom of navigation” as some have alleged. Meanwhile China views these actions by Vietnam and particularly the Philippines as provocations encouraged by the U.S.
Some may argue — as China does — that these disputes are not U.S. business — at least directly — unless of course the U.S. considers itself an “exceptional country” that the region must obey.
Others say China’s action coming so soon after U.S. President Barack Obama’s “reassurance” visit to the region is a direct challenge to U.S. credibility-particularly the “pivot.”
This may be reading too much into it. But what makes these criticisms particularly galling to China is that they come on the heels of a barrage of hypocritical attacks regarding China’s declaration of an air defense identification zone in the East China Sea.
To China, this spate of attacks in the Western press seems part of a preconceived plan to demonize and isolate it. Hopefully cooler and more balanced heads within governments, the press and the commentariat will prevail and this latest clash of wills will be worked out peacefully — perhaps to the surprise and even regret of some.
But for those who really want an angry, frustrated and isolated China and eventually perhaps war — and I am afraid there are influential warmongers on all “sides” — this continuous cacophony of China-bashing is certainly setting the stage.
Mark Valencia is a maritime policy analyst.