Foreign Relations & International Law

Is a U.S.-China “Face-Saving Compromise” Possible in the South China Sea?

Julian Ku
Friday, April 8, 2016, 11:13 AM

As the U.S. government and policymaking community continues to debate how to respond to China’s actions in the South China Sea, it is worth stepping back a moment to look at the emerging dispute from China’s point of view.

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As the U.S. government and policymaking community continues to debate how to respond to China’s actions in the South China Sea, it is worth stepping back a moment to look at the emerging dispute from China’s point of view.

In Chinese eyes, the U.S. is largely responsible for the “media hype” over conflicts in a region. The U.S., according to China, is sowing discord between the Association for Southeast Asian Nations (ASEAN) and China. And in China’s telling, the U.S. has used allies like the Philippines to harass China through unilateral “illegal” arbitration claims while at the same time bullying China with shows of naval force in Chinese territorial waters. China’s island reclamations are merely more elaborate versions of what other regional claimants have done, and China’s militarization of its occupied territories does not threaten other nations or violate any international law or norms. China’s bolstered military presence in the region does not threaten “commercial” freedom of navigation. Rather, China merely objects to U.S. demands for “military” freedom of navigation. Indeed, the U.S. high-mindedly lecturing China on the importance of respecting UNCLOS is hypocritical coming from one of the few nations that has not acceded to the treaty.

Mark Valencia, a U.S. scholar sympathetic to China’s views, summarizes those attitudes here and blames “bellicose nationalists” on both sides (but especially in the U.S.) for the tensions. (For a more aggressive criticism of the U.S., the People’s Liberation Army’s Daily opinion site reliably issues charged that the U.S. is simply lying about everything.) Valencia’s analysis is worth taking seriously, and he suggests that a “mutual face-saving compromise” is needed. In his view, the U.S. should “diminish or cease its provocative, close-in surveillance of China.” In turn, China could pledge not to “overtly militarize” its reclaimed land features and “not declare an air defense identification zone in the Spratlys.”

I am sympathetic to the need to find a “mutual face-saving compromise.” But I think Valencia has too easily bought into the Chinese claim that U.S. FONOPs are “provocative” and that such operations are the source of the problems. While China (and the international media) are hyping these operations as challenges to China’s sovereign claims, such FONOPs do not challenge sovereignty and are part of a long-standing U.S. policy that applies to many countries, and not just China. Indeed, the U.S. conducts FONOPs against Canada to challenge excessive Canadian claims over the Northwest Passage. For the U.S. to pull back on FONOPs that it has every moral and legal right to conduct as long as the Chinese do not “overtly” militarize disputed territory seems less like a compromise than a capitulation.

Meanwhile, the idea that U.S. FONOPs are to blame for even a minor part of the increased tensions in the region is undercut by two more reports of Chinese misbehavior in the region. First, a Chinese coast guard vessel rammed an Indonesian coast guard vessel that had detained a Chinese fishing vessel, thus allowing the Chinese vessel to escape. The incident occurred inside Indonesia’s exclusive economic zone and drew angry protests from Indonesia (but no apology from China). This incident reminds us that Chinese assurances about respecting “commercial freedom of navigation” are about as reliable as Chinese assurances about respecting established jurisdiction to manage fishing rights.

Second, the U.S. Navy reports that Chinese vessels may be surveying the disputed Scarborough Shoal for yet another land reclamation project. When combined together, Peter Dutton of the US Naval War College thinks China’s artificial islands could transform the South China Sea into a “strategic strait” where, among other things, respect for “commercial freedom of navigation” remains wholly within China’s discretion short of an open armed conflict with the U.S.

Sure, this may all be U.S. and media hype. But the overall record of the past four years (when China ejected the Philippines from this same Scarborough Shoal) suggests that it is China, and not the U.S., that is increasing tensions in the region and “changing facts on the ground” (or water). Compromise is indeed needed, but it is China, and not the U.S. nor any of China’s neighbors, that needs to take the first step.

Julian Ku is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University School of Law. He is a co-founder of Opinio Juris, the leading blog on international law.

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