China Abandons Small-Stick Diplomacy?

So seagoing forces from Vietnam and China scrapped this week in the Paracel Islands. China’s state-run oil and gas firm CNOOC positioned an oil rig in waters claimed by both Beijing and Hanoi, prompting Vietnam’s leadership to send ships. No shots have been fired, thankfully. Ramming and dousing one another with water cannon have been the tactics of choice. How the contest will unfold remains to be seen.

China has controlled the Paracels for forty years now, since a mixed force of naval units and fishing vessels pummeled a South Vietnamese flotilla in the waning days of the Vietnam War. And, of course, it claims “indisputable sovereignty” over the islands and adjoining seas. It has rebuffed pleas to mediate or adjudicate maritime territorial disputes in the China seas. Hence the visceral reaction the rig elicited in Vietnam.

One curious twist to this week’s turbulence: PLA Navy units were among the mix of vessels tangling in the Paracels. Is Beijing abandoning the small-stick diplomacy that has served it so well in recent years? Maybe. It wouldn’t be the first time China’s leadership has chucked out a promising diplomatic venture (see Offensive, Charm) for mysterious reasons, or missed an opportunity to smooth out relations with Asian neighbors (see Haiyan, Typhoon). Dumb and self-defeating things are part of Beijing’s strategic repertoire.

In this case, however, they may be paying Vietnam a backhanded compliment rather than blundering. China likes to behave like Sun Tzu’s Hegemonic King. It likes to overawe its neighbors, keeping them from making common cause against China, and to generally bask in its own awesomeness. But officialdom doubtless remembers past Sino-Vietnamese clashes on land and on the waves. And it remembers that China has occasionally come off the worst against this tough, determined opponent.

The leadership may reckon that it can’t overpower Vietnamese forces with white China Coast Guard hulls alone. Navies fight for disputed objects, whereas coast guards enforce domestic law against non-state lawbreakers. By sending warships, Beijing may be tacitly admitting that Vietnam — unlike the Philippines, whose navy and coast guard are utterly outclassed — is a serious antagonist. Take a bow, Hanoi.

What should the United States do about such encounters? As the Naval Diplomat suggested recently, the time may have come to accept the idea that offshore waters — territorial seas and exclusive economic zones — are “blue” territory, to borrow the ubiquitous Chinese term. Sending official vessels to grab an atoll within a coastal state’s offshore waters is equivalent to setting up an outpost on another nation’s borderlands. Encouraging fishing fleets to ply their trade in another nation’s EEZ is equivalent to encouraging poachers to cross land frontiers to purloin natural resources.

See? Accepting China’s claim that water is territory clarifies matters, doesn’t it? It shows that Beijing is guilty of cross-border aggression at Scarborough Shoal or Mischief Reef, or when it tries to auction off parts of the Vietnamese EEZ (as it did in 2012). And thwarting cross-border aggression is central to any mutual defense pact, as well as to overarching documents such as the UN Charter.

But. U.S. help should apply only to waters off landmasses that are unambiguously coastal-state territory. Helping defend, say, a 200-nautical-mile belt off Luzon, or off central Vietnam, is one thing. Such cases are crystal-clear. The situation is murkier by far out in the central South China Sea. It’s hard to see Washington’s ever fighting for the Paracels or Spratlys unless some international tribunal finally untangles the mass of claims to these islets. If America’s partners in the region are banking on the U.S. Navy’s steaming to their rescue, their hopes will probably be dashed.

It’s also hard to envision doing battle over any island unless it’s naturally formed, remains above water at high tide, can support human habitation, and can support economic life. That’s how the UN Convention on the Law of the Sea defines an island. It’s far from clear that any of the Spratlys or Paracels qualifies by all of these standards except for Woody Island, which is occupied by China. Unlike the other islets, Woody Island has its own fresh water and thus meets the UNCLOS tests.

It’s also worth pointing out that UNCLOS specifically states that “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” International law, then, would apportion a 12-nautical-mile territorial sea to such features while forbidding governments exercising jurisdiction there to assert exclusive economic zones centered on such rocks.

That puts a different spin on China’s nine-dashed line, doesn’t it? It’s hard to claim blue territory adjoining islands that aren’t islands at all. Some of the Spratlys and Paracels may qualify for territorial seas. Partially submerged features may not qualify for anything at all. This suggests the bones of a dual strategy for Southeast Asia states and external allies such as the United States: extend mutual-defense arrangements to cover EEZs washing against coastal-state homelands while seeking legal rulings on the status of the Spratlys and the Paracels.

And indeed, Manila recently opened a legal offensive, taking its case to the Law of the Sea Tribunal. In all likelihood, the jurists will agree that there is no basis for Beijing’s nine-dashed line — especially where it claims waterspace within EEZs adjacent to the metropolitan Philippines. As for the flyspecks in the central South China Sea, all claimants are apt to be disappointed at the tribunal’s findings. Few are islands in any legal sense. Sovereignty over them confers exclusive economic rights to minor sea areas at most. A decision to that effect would return most of that expanse to what it should be: an international commons, open to free use by any seafaring society.

China’s response to such a ruling will probably evoke the Incredible Hulk: China smash!!! After all, it’s a big country and other countries are small countries. Small countries should get used to it, dontcha know? But if it does defy the tribunal, Beijing will have revealed just how lawless it is. And it will have given fellow Asia-Pacific sea powers reason to join forces against it. Let’s wage some lawfare of our own.

* Article publicat a The Diplomat. Clarificadora reflexió del professor James R. Holmes sobre el que està passant entre la Xina i Vietnam.