Diplomacy and managing conflict in troubled waters

Dredgers deposit sand on the northern rim of the Mischief Reef, located 216km west of the Philippine island of Palawan, in this image provided by the Centre for Strategic and International Studies (CSIS) Asia Maritime Transparency Initiative on
Dredgers deposit sand on the northern rim of the Mischief Reef, located 216km west of the Philippine island of Palawan, in this image provided by the Centre for Strategic and International Studies (CSIS) Asia Maritime Transparency Initiative on Feb 1, 2015. -- PHOTO: REUTERS

Since last year, China has attracted tremendous regional and international attention through its land-reclamation activities in some features of the Spratlys which it controls, namely Gaven Reef, Cuarteron Reef, Johnson South Reef and Fiery Cross. While many have criticisms and concerns, China feels this reclamation is necessary in order to keep up with others in the Spratlys who have earlier occupied features in the disputed islands and built up military and civil facilities since.

Very little can be said against China's reclamation activities from the perspective of the United Nations Convention on the Law of the Sea (Unclos). Article 60 provides coastal states exclusive right to construct, operate and use artificial islands, installations and structures in their Exclusive Economic Zone (EEZ). Pending the maritime delimitation of the EEZ and continental shelf in the South China Sea, land reclamation has been conducted within 12 nautical miles of the four mentioned features, an area which may be defined as within a state's sovereignty in its territorial sea around these features.

More importantly, the artificial islands, installations and structures would not interfere with the legal status of these features. Nevertheless, China may still be blamed for ignoring the duties of "due notice", "appropriate publicity" and "undertaking environmental impact assessments".

But a legal justification does not address the political implications and strategic calculations in this messy portrait of the South China Sea. What puts China "morally on trial", in addition to explicit criticism from other claimant states, especially the Philippines and Vietnam, is overwhelming concern from the United States, which sees itself as a strategic ally of many countries in the region, a protector of the freedom of navigation, and strategic competitor with China in the Asia-Pacific.

In the most recent report released by Centre for New American Security, Preserving The Rules: Countering Coercion In Maritime Asia, Mr Patrick Cronin proposes adopting cost-imposing measures to address China's reclamation in the South China Sea. In this report, several recommendations are presented. These include: Further institutionalising high-level military and civilian engagement with China; mobilising regional and international opinion when states use coercion; mobilising support for positive efforts to foster a rules-based order; building up maritime domain awareness; raising the non-military costs of coercion by moving forward with a binding code of conduct; building the naval capacity of friends and partners.

There are many important points that could be derived from the above statements. Though the US has openly welcomed a rising China as a constructive competitor and responsible stakeholder in the existing international order, the long-standing territorial and maritime disputes in the South China Sea have put China in an awkward position in which it has to deal with the US as an important stakeholder, in addition to its existing burden with other claimant states. Reclamation is not the only, or even the major driver, of the gradual tension in the disputed South China Sea. The divergent legal interpretations of "the legitimacy of military activities in the foreign EEZs" and the perception gap between the legal culture and maritime dispute settlement mechanisms and what they imply for the South China Sea disputes are specific long-standing issues that need to be addressed by China and the US. The land reclamation activities just add another keyword to this existing talk show.

It is certainly not in China's interest to be labelled a maritime coercer, nor in its interest to see formed a code of conduct that falls outside the framework of China-Asean centrality. An increasing US military presence in the South China Sea, in the name of responding to maritime coercion, and an enhanced alliance between other claimant states and non- claimant states led by the US in the name of taking cost-imposing measures does not line-up with China's desire to solve the South China Sea issues through negotiations among the claimant states, be they bilateral or multilateral. What then is the best strategic choice for China?

At the February meeting of the United Nations Security Council this year, the Foreign Minister of China spelt out the elements which China subscribes to in the conduct of its foreign policy: peace and not conflict, cooperation and not confrontation, justice and not hegemony and a win- win and not a zero-sum approach.

However, these ideas are easier said than done. The Chinese believe firmly in the above statement and principles. But how to deliver this message to the inter- national community is an important, but challenging task. China's image has been jeopardised by an international public relations campaign in which China has not done well enough in comparison to other claimant states (states which could easily win the moral high ground as smaller and weaker nations) in the long-standing territorial and maritime disputes in the South China Sea. Tremendous legal and diplomatic efforts are needed to achieve China's strategic goal.

China could unlock the impasse in the South China by using soft power and diplomacy. In 2011, China announced a China- Asean Maritime Cooperation Fund, with a first paid-up capital of 3 billion yuan (S$657 million), primarily to support marine scientific research, connectivity and navigational safety in the South China Sea. In 2013, Chinese President Xi Jinping proposed to Asean that China would be willing to work together with Asean to build a "maritime silk road in the 21st century". Last year, China called for cooperation proposals from Asean states for the second round of competition for projects for the cooperation fund.

China and Asean have also declared 2015 the "Asean-China Year of Maritime Cooperation". There are two Chinese strategic considerations behind these concepts: to shape a new pattern of diplomatic relations with neighbouring countries, and to create favourable conditions for better maritime cooperation, which in turn will create a benign environment so that China can build itself into a substantive maritime power.

As suggested by the above multilateral proposals, despite potential challenges, there is great hope for China and Asean to solve their differences in the South China Sea in their preferred ways. But for China and the US, it is a different story. Although the US has expressed concern with China's current land reclamation policy, it will do nothing that will undermine its bilateral relations. Washington may, however, upgrade its regional offensive capabilities (presence, operations, force structure, building partner capacity) beyond the strategic pivot policy if China continues its current approach in the Spratlys.

In order to resolve this paradox, China and the US have no choice but to engage each other and maintain regular consultations on how they can coexist with their respective core interests. After all, the Asia-Pacific is big enough for both countries to share and exert their respective influence without constantly being at each other's throats. While China's rise stands a good chance of triggering a regional power shift, the US needs to acknowledge China's rise and its core interests.

Similarly, China must respect the legitimate interests of the US in the South China Sea, especially freedom of navigation in line with Unclos, which in any case is also in China's common interest. What would work practically in the favour of both countries is to explore the fields of developing maritime cooperation between China and the United States. Joint efforts in anti-piracy in the Gulf of Aden have provided one successful example.

Providing search and rescue at sea and humanitarian assistance would be the areas for both countries to take a lead in this region with their naval capacity. It will be in China and the US' interests to initiate a regional mechanism in line with the safety and security of navigation, for example, an Incidents at Sea Agreement or a Code for Unplanned Encounters at Sea in this region.

The writer heads the Institute for China-America Studies, an independent, non-profit academic institution launched by the Hainan Nanhai Research Foundation. This article first appeared on the website of the Asia Maritime Transparency Initiative of the Centre for Strategic and International Studies (http://amti.csis.org/)