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Pavel Gudev

PhD in History, Senior Research Fellow at RAS IMEMO Sector for US Foreign and Domestic Policy, RIAC expert

Igor Mishin

Junior Research Fellow at RAS IMEMO Center for North American Studies, RIAC expert

Apart from the numerous discussions about the U.S.-China trade war, there is one more rivalry between the two countries that unfolded a long time ago and has recently been intensifying in the waters of the South China Sea (SCS) and in the sea areas adjacent to it.

At the beginning of June 2019, the Pentagon officially presented a new report “On the Indo-Pacific Strategy”, in which China was listed among the key U.S. competitors. Calling the People's Republic of China a “revisionist power”, the United States accused Beijing of “seeking Indo-Pacific regional hegemony in the near-term and… ultimately global preeminence in the long-term.” Serious attention was given to the activities of the FONOP (Freedom of Navigation Operations) of the U.S. Navy as the main means of protecting American interests, including the SCS area. "Excessive maritime claims inconsistent with international law, if left unchallenged, threaten the international rules-based order and U.S. interests and those of our regional allies and partners," the report says.

When the Asian Security Summit - IISS Shangri-La Dialogue - was held in Singapore from May 31 to June 2, 2019, the United States gained collective backing from its allies. The Ministers of Defense of Great Britain and France declared that the ships of their states would join their American allies in challenging Beijing’s claims to the islands and waters of the SCS.

In response, the Chinese Minister of Defense struck an uncompromising tone: “Beijing does not threaten anyone; over 100,000 ships annually sail through the South China Sea but none had been threatened in recent years, several countries from outside the region had come to the South China Sea to flex their muscles in the name of freedom of navigation; the issue of stability there should be decided by countries from the region; China had only built limited defense facilities on the islands and reefs for its self-defense, any militarization of disputed territories in the South China Sea is the legitimate right of a sovereign state to carry out construction in its own territory".

It is clear that the practical steps taken by Beijing in the SCS are aimed at ensuring its own regional security as a priority. Any violations of the norms and provisions of the UN Convention on the Law of the Sea (UNCLOS), as well as broad interpretation of its key articles by the Celestial Empire, pursue this very aim.

The presence of surface ships and submarines of the U.S. Navy and its allies remains a major irritaing factor for Beijing. At the same time, all restrictions imposed by the People's Republic of China are connected precisely with the implementation of naval operations and in no way concern merchant shipping.

An alarm bell for China is the fact that non-regional states (Great Britain, France, and others) are now ready to support the U.S. activities as part of the Freedom of Navigation (FON) program. This puts the PRC in a very uncomfortable position: their consolidated pressure will imply that there is a single, universal interpretation of the norms and regulations, and China won’t be able to afford a different vision and implementation. Strengthening of their naval presence in the region may cause Beijing to decide to expand the PLA Navy grouping in the SCS qualitatively and quantitatively in response.

This situation means that the current U.S.-China confrontation at sea carries the risk of local, if not full-scale, clashes between the naval forces of the two largest world powers, which undoubtedly undermines the foundations of the security of the region as a whole. The protection of freedom of navigation by the United States, although explained by the task of ensuring the interests of all members of the world community, does not actually lead to a peaceful settlement of contradictions, on the contrary, it provokes an increase in tension. And the greater the activities under the FON program are, the less chances there will be that at least some kind of “Code of Conduct” will be developed in relation to the SCS.


Apart from the numerous discussions about the U.S.-China trade war, there is one more rivalry between the two countries that unfolded a long time ago and has recently been intensifying in the waters of the South China Sea (SCS) and in the sea areas adjacent to it.

At the beginning of June 2019, the Pentagon officially presented a new report “On the Indo-Pacific Strategy”, in which China was listed among the key U.S. competitors. Calling the People's Republic of China a “revisionist power”, the United States accused Beijing of “seeking Indo-Pacific regional hegemony in the near-term and… ultimately global preeminence in the long-term.” Serious attention was given to the activities of the FONOP (Freedom of Navigation Operations) of the US Navy as the main means of protecting American interests, including SCS area. "Excessive maritime claims inconsistent with international law, if left unchallenged, threaten the international rules-based order and U.S. interests and those of our regional allies and partners," the report says.

When the Asian Security Summit - IISS Shangri-La Dialogue - was held in Singapore from May 31 to June 2, 2019, the United States gained collective backing from its allies. The Ministers of Defense of Great Britain and France declared that the ships of their states would join their American allies in challenging Beijing’s claims to the islands and waters of the SCS.

In response, the Chinese Minister of Defense struck an uncompromising tone: “Beijing does not threaten anyone; over 100,000 ships annually sail through the South China Sea but none had been threatened in recent years, several countries from outside the region had come to the South China Sea to flex their muscles in the name of freedom of navigation; the issue of stability there should be decided by countries from the region; China had only built limited defense facilities on the islands and reefs for its self-defense, any militarization of disputed territories in the South China Sea is the legitimate right of a sovereign state to carry out construction in its own territory".

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AP / Lolita Baldor
Acting U.S. Secretary of Defense Patrick Shanahan shakes hands with Chinese Minister of National Defense Wei Fenghe during a meeting on the sidelines of the 18th International Institute for Strategic Studies (IISS) Shangri-la Dialogue

As part of the Freedom of Navigation (FON) program, the United States systematically challenges China’s claims to land formations in the SCS and to the extension of China’s sovereignty and jurisdiction over the water areas adjacent to them.

On January 7, 2019, the first event in the FON program framework was held: U.S. Navy's Arleigh Burke-class guided-missile destroyer USS McCampbell sailed near the Paracel Islands, a disputed territory in the South China Sea claimed by Vietnam, Taiwan, and China.

Despite this, Beijing used a Nine-Dash line to indicate all waters within the islands as internal waters, bringing them under total state sovereignty, including airspace, seabed, and the subsoil. Accordingly, the implementation of any activities here, from the Chinese point of view, requires permission from Chinese authorities, and of course, neither the United States nor other countries in the region can agree with this.

Moreover, the PRC traditionally insists on maintaining authority over the passage of foreign warships through its territorial seas and tries to limit all types of foreign naval activities within its own exclusive economic zone (EEZ), including the disputed territory of Paracel Islands, which is a direct violation of Regulations and Provisions of the 1982 UN Convention on the Law of the Sea (UNCLOS).

On February 11, 2019, two U.S. guided-missile destroyers USS Spruance and USS Preble, passed 12 nautical miles of the Mischief Reef of the Spratly Islands, which by decision of the Permanent Court of Arbitration in the South China Sea Arbitration, the Philippines v. China, were not recognized as islands, as insisted by Beijing, but as lowtide elevations that do not generate entitlement to maritime zones [1]. Accordingly, the passage of warships at any distance from them, as well as the implementation of any naval activities cannot be limited.

It is necessary to clarify that in accordance with Art. 121 UNCLOS only “a naturally formed area of land, surrounded by water, which is above water at high tide“ can be considered an island. Only these “formations” are equated with the land area and can have marine areas as stated in UNCLOS (territorial sea, contiguous zone, EEZ, and continental shelf). Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf (Article 121 (3)), with only a 12-mile territorial sea around them.

The third category includes such “formations” that are not endowed with any rights in relation to the marine spaces around them. This may include low-tide elevations, banks, reefs, and atolls. This category roughly includes artificial islands, around which only safety zones can be established (Article 60 of UNCLOS).

However, almost all the states of the South China Sea region have tried and are trying to prove, through the effective occupation of various rocks, reefs, banks and lowtide territories, that these formations are suitable for life and economic activity in order to establish their legal qualification as fullfledged islands. In recent years, the PRC intensified its attempts in creating artificial islands, turning them into supposedly “fullfledged” islands with the “right” to establish all kinds of sea zones indicated by UNCLOS.

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The FON activities were complemented by joint U.S.-British naval exercises in the SCS, taking place on January 11–16 and February 18, 2019. This format has not been used since 2010, and the United Kingdom, after verbal promises made in 2018 to support the U.S. position in the SCS, actually materialized in practical actions.

The Naval Commander of the United States Indo-Pacific Command, Admiral Phil Davidson, for his part, expressed interest in more large-scale involvement of the allies and partners in future missions. His words were supported by Randall Schriver, Assistant Secretary of Defense for Asian and Pacific Security Affairs. Speaking in April in Kuala Lumpur, he said: “our NDS and NSS identify the Indo-Pacific as the priority theater. There should be little doubt that much of the Chinese behavior is demonstrating objectives that run counter to our objectives for a free and open Indo-Pacific. We hope that they will not deploy additional military systems and in fact remove the military systems on the outposts. It’s our intent to make sure that no one country can change international law or the status of the South China Sea. The United States is also encouraging its allies and partners to increase their own FONOPs in the Western Pacific.”

Indeed, the growing militarization of the SCS is pushing non-regional countries to take action. For example, in April-May 2019, the French Navy conducted their own marine expeditions in the SCS, aimed at challenging Beijing’s claims to the Paracel Islands and the Spratly Islands.

Moreover, on April 6, the French patrol frigate Vendemiaire sailed through the Taiwan Strait. And although it was a routine operation that the French Navy performs almost every year, this fact evoked an extremely negative reaction from Beijing. Beijing withdrew the French Navy’s invitation to participate in the naval parade to commemorate the 70th year of the People’s Liberation Army Navy accusing France of "illegally entering Chinese waters."

Despite suggestions that Senior Colonel Ren Guoqiang, spokesperson for the Chinese Ministry of National Defense, may have “misspoke”, many people still had doubts: is the Taiwan Strait, separating Beijing and Taipei, now being viewed solely as the waters of the PRC?

From the point of view of UNCLOS, it is clear that this is an international strait connecting the South China Sea with the East China Sea, where the right of transit passage in straits applies and is used by both civilian ships and warships of absolutely all states without any restrictions. However, taking into account Beijing’s claims on Taiwan, stringently voiced once again during the Shangri-La Dialogue, and on most issues regarding the SCS water area, the situation does not look so good. It is quite possible, however, that such a reaction is a response to the strengthening of the French and other non-regional presence in the region. France, for example, having overseas territories in the Pacific and Indian oceans with a population of about 1.5 million people does not hide its interest in strengthening its influence here.

Nevertheless, Ren Guoqiang’s speech did not go unnoticed. On April 28, 2019, two U.S. Navy Arleigh Burke-class guided missile destroyers, USS Stethem and USS William P. Lawrence, transited the Taiwan Strait in order to verify the validity of China’s claims. In addition, the Americans actually managed to hold this transit in conjunction with the 40th anniversary of the “Taiwan Relations Act”, enacted on April 10, 1979, which was especially significant in connection with the provocative flight by Chinese fighter jets, the first time in 20 years, to the east of the so-called median line of the Taiwan Strait that is regarded as Taiwanese territory.

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On May 6, 2019, two U.S. Navy warships conducted a freedom of navigation operation near features held by China in the South China Sea (Arleigh Burke-class guided missile destroyers, USS Preble and USS Chung Hoon), sailing within 12 nautical miles of Gaven and Johnson Reefs. China is trying to turn these "formations" into island by adding soil to them. The United States raised its concerns that with the help of artificial islands, Beijing places a significant number of anti-ship cruise missiles and ground to air missiles at the outposts of the Spratly Islands, thereby strengthening the militarization of the South China Sea [2].

At the same time, the decision of the PCA of 2016 stated that no artificial island-building can change the initial legal status of the island formations, that were classified as “rocks" [3], which cannot sustain human habitation of their own, and there has been no available evidence of human habitation there since occupation by China in 1988.

All attempts to supply (for example, fresh water) to such “formations” from the mainland, arranging infrastructure facilities for the purpose of legally classifying them as islands were considered illegitimate. Moreover, the PRC’s island-building activities were assessed as leading to a negative environmental impact and damaging the biological diversity.

On May 9, 2019, the U.S. format of presence in the region became even more collective: the United States, the Philippines, India, and Japan conducted joint quadrilateral exercises in Changi Bay, located on the waterway from the Strait of Malacca to the SCS. A naval expedition headed by the U.S. Navy’s USS William P. Lawrence (DDG-110) made a transit in route to Singapore where ASEAN+ Defense Ministers Meeting was being held. Before that, countries had participated only in bilateral or trilateral exercise formats. A reasonable question arises in this regard: what if the United States succeeds in implementing the project to create a multilateral coalition of the above mentioned states together with Great Britain, France, Australia, New Zealand, and Canada to challenge the PRC claims in the SCS? Where will the process lead? To a decrease in China’s ambitions, or to an even greater deployment of PLA Navy in the region?

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The growing militarization of the SCS is pushing non-regional countries to take action.

The Philippines continues to play a special role in the U.S.-China confrontation. Rodrigo Duterte, President of the Philippines, is hesitant between the United States and the China, which is strange: having won a lawsuit in the PCA against China, Manila decided not to push hard on Beijing in terms of fulfilling the provisions, inflicting only reputation damage to China and having tried to establish closer economic cooperation. Now it tends to cooperate with the United States again, modernizing its navy with the help of the latter.

The reason for the deterioration of China - Philippines relations is obvious: since 2018, the PRC has doubled its military presence in the SCS area. In March 2019 it was reported that during the first quarter of the current year, hundreds of Chinese ships and military boats were maintaining their presence near the strategic Thitu Island, the Spratly Islands, in order to put pressure on the Philippines’ authorities. This is an island formation, qualified by PCA as a “rock”, since the 1970s controlled by the Philippines [4].

The second, but not the last, object of the dispute is the Scarborough Shoal. It is located within the 200-mile EEZ of the Philippines, however, China and Taiwan also dispute its national jurisdiction. Moreover, China still views it as a fullfledged island with the right to establish all kinds of sea zones indicated by UNCLOS in order to extend its sovereignty and jurisdiction to very large maritime spaces.

In April 2012, the territorial dispute almost turned into an armed conflict after Beijing imposed a sea blockade of the shoal, preventing the Filipino fishermen from catching fish. The situation changed for the better only after PCA’s decision in 2016, which supported the historical rights of Filipino fishermen to fish there. At the same time, the Arbitration, as in the case of Thitu, did not try to establish the owner of this island formation, only qualifying it as a “rock” and supporting the Philippines rather than China on this issue.

The United States tends to support Manila in this dispute. On May 19, 2019, guided missile destroyer USS Preble passed within 12 nautical miles from Scarborough Reef, exercising the right in conformity with the Convention on innocent passage through the territorial sea. The maneuver occurred while the joint U.S.-Philippines Coast Guard exercises and the first in the history of the two countries search-and-rescue training procedures were held near the reef. This fact, if not directly, then indirectly, may indicate that the role of the U.S. Coast Guard in the region can be strengthened.

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Beijing’s attitude to the norms of international law (including maritime law) is largely due to historical reasons. China can be characterized by a rather skeptical attitude towards its provisions. China views international law as a product of Western civilization, aimed primarily at serving the interests of the most powerful and influential states.

It is clear that the practical steps taken by Beijing in the SCS are aimed at ensuring its own regional security as a priority. Any violations of the norms and provisions of the UN Convention on the Law of the Sea (UNCLOS), as well as broad interpretation of its key articles by the Celestial Empire, pursue this very aim.

There is no doubt that such a position was firmly entrenched in the minds of the Chinese elite and the expert community during the 3rd UN Conference on the Law of the Sea (1973–1982). Beijing repeatedly expressed a different point of view on various issues, but only few people considered it, and more often, it was simply ignored. For example, China initially insisted on the need to restrict the right of innocent passage through the territorial sea for warships of foreign countries, but this approach did not meet the interests of the largest naval powers of the time — the USSR and the US. Later these provisions were repeated by China upon ratification of the 1982 Convention and were incorporated into China’s domestic law.

However, it can be assumed that as China transforms from a regional power into a country with global interests, its perception of the norms and provisions of international maritime law may change. The creation of the Blue Ocean Navy, capable of solving problems across the oceans, will lead to a more responsible attitude of the PRC to the existing Convention regime. This is due to the fact that Article 60 of the Vienna Convention on the Law of Treaties of 1969 allows other countries not to comply with the norms of an international agreement regarding the state that violates them. Accordingly, in the future, China may become more interested in the application and protection of universal norms related to the innocent passage of warships through the territorial sea, freedom of military navigation within the EEZ, etc. This is the path, from full/partial non-recognition to recognition that all the major naval powers took, including the USSR and the U.S. Hopefully, Beijing will be no exception in this regard.

∗∗∗

The presence of surface ships and submarines of the U.S. Navy and its allies remains a major irritating factor for Beijing. At the same time, all restrictions imposed by the People's Republic of China are connected precisely with the implementation of naval operations and in no way concern merchant shipping. That is why no one would deny the position of the Ministry of Foreign Affairs of the PRC: “The difference between China and the United States is not a difference between freedom of navigation. We are very clear that we support freedom of navigation in accordance with international law, not only in the South China Sea, but also other parts of the world. The difference is that we think the United States takes freedom of navigation as an excuse. What their ships and planes have been doing is actually a close surveillance of China’s coastlines and islands and reefs. ”

It is clear that the practical steps taken by Beijing in the SCS are aimed at ensuring its own regional security as a priority.

Beijing has always pointed out that the United States has not yet joined UNCLOS, and therefore does not have special rights and powers to monitor the implementation of its norms and regulations by other states. Acting in this way, they assume the role of the sole arbitrator who solely decides where and to what extent the norms of international maritime legislation have been violated or have been misinterpreted. Practically, having a U.S.-centered perspective provides for the U.S. using FON to preserve the role of a global leader throughout the world’s oceans.

Indeed, many experts have always posed questions: why did the United States, and not international institutions like the United Nations, call for respect for the international legal order in the oceans? Why are most of the measures under the FON program carried out by U.S. naval capabilities rather than by diplomatic means? Why are other countries, including partners and allies of the United States, not actively participating in the implementation of this program?

An alarm bell for China is the fact that non-regional states (Great Britain, France, and other) are now ready to support the U.S. activities as part of the Freedom of Navigation (FON) program. This puts the PRC in a very uncomfortable position: their consolidated pressure will imply that there is a single, universal interpretation of the norms and regulations, and China won’t be able to afford a different vision and implementation. Strengthening of their naval presence in the region may cause Beijing to decide to expand the PLA Navy grouping in the SCS qualitatively and quantitatively in response.

This situation means that the current U.S.-China confrontation at sea carries the risk of local, if not full-scale, clashes between the naval forces of the two largest world powers, which undoubtedly undermines the foundations of the security of the region as a whole. The protection of freedom of navigation by the United States, although explained as the task of ensuring the interests of all members of the world community, does not actually lead to a peaceful settlement of contradictions, on the contrary, it provokes an increase in tensions. And the greater the activities under the FON program are, the less chance there will be that at least some kind of “Code of Conduct” will be developed in relation to the SCS.

1. Spratly Islands were not recognized as islands, but as lowtide elevations that do not generate entitlement to maritime zones. Read more: The South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic OF China). The Hague, 12 July 2016. URL: https://pcacases.com/web/sendAttach/1801.

2. Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2019 (https://media.defense.gov/2019/May/02/2002127082/-1/-1/1/2019_CHINA_MILITARY_POWER_REPORT.pdf).

3. Conventional status of "rocks" was assigned to the entire Johnson Reef, and only to the northern part of the Gaven Reefs. PCA also concluded that Gaven Reef (South) is, or in their natural condition was, exposed at low tide and submerged at high tide and are, accordingly lowtide elevations that do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf.

4. In total, the Philippines claims the 53 island formations of the Spratly Islands, but managed to occupy only 9 of them.


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