South China Sea Disputes And The Us-china Contest, The: International Law And Geopolitics. James Chieh Hsiung
clashes also flared up between Vietnam and China. One such clash took place on May 26, 2011, scarcely 10 months after Secretary Clinton gave her pep talk to members of the ASEAN. It involved a confrontation between the Vietnamese Binh Minh 02 oil and gas survey ship and three Chinese maritime patrol vessels, some 80 miles off the south-central coast of Vietnam. The Vietnamese said the Chinese boats deliberately cut the survey ship’s cables, but the Chinese denied the allegation.24 The event stirred up unprecedented anti-China protests in Hanoi and Ho Chi Minh City, regardless.25
In all fairness, another no less potent contributing factor unrelated to U.S. instigation was a happenstance accruing from the May 13, 2009, deadline by which states parties to the 1982 U.N. Convention on the Law of the Sea (UNCLOS III) had to make seabed hydrocarbon claims under the Convention. It may have caused dormant island claims to surface and become inflamed, leading to the intensification of the SCS disputes and associated tensions between China and its competing claimants.26 The United States, which is not a claimant, simply weighed in, as Secretary Hillary Clinton exemplified, to exploit the opportunity for rallying Asian support to help fulfill its geopolitical goal of balancing against China.
An Evaluation of Hillary Clinton’s Two Charges Against China
Two remarks stood out from Secretary Clinton’s address at the ASEAN forum, noted earlier, that, as the New York Times report had it, amounted to a targeted “rebuke of China.” One remark picked on China for obstructing the freedom of navigation. The other was a straightforward accusation of China’s violation of international law in the SCS. So far as we know, however strangely, China did not give any direct feedback, much less a rebuttal, to these serious charges (or similar ones made by other U.S. officials or media gurus), not counting its blanket brush-offs. The self-withdrawal attitude underlining this weird silence is typical of China’s usual reaction to international criticisms, even totally unjustified ones. One analyst, Paul Denlinger, describes this Chinese practice as a deliberate policy of not responding directly to Western and Western-media criticisms, especially on the SCS question. The reason, he speculates, is that “this policy will expose the Western criticism as ultimately useless, because it does not change the facts on the ground.” The Chinese government, he adds, “is aware that some people, and the Western media especially, will criticize it no matter what it does, so why bother with what they say?”27
My view on this point, while not in disagreement, is more nuanced, on two counts. At the more intellectual level, I believe in the Enlightenment tradition that truth is to be found through skeptical inquiry and debate, not to be ignored or brushed aside. And, at the more practical level, I think China’s silence is in effect self-deluding. The criticisms, no matter how egregious, will not go away simply by ignoring them. The repeated charges of China breaking international law, when repeatedly leveled by foreign governments (the United States and Japan included) — even if prompted more by political motives and formulated more on ideological grounds than true considerations of the merits — may end up shaping the views, nay, poisoning the minds, of even some of our best scholars, the professionals sworn to being guided by reason and faith in the Enlightenment tradition.28 The resultant nebulous scofflaw stigma hanging over China’s head, when repeated so many times and magnified by the Chinese self-deluding oblivion, is bound to destruct China’s good name beyond repair. It is something that China can ill afford to live with if it seeks to be recognized, as it earnestly does, as a responsible great nation in its phenomenal second rise.29
Hence, the following discourse, following the Enlightenment spirit, is given in the spirit of searching for true answers through a matter-of-fact inquiry that drills into the two typical charges made by Secretary Clinton above, which are often repeated, almost by rote, by other U.S. (and Japanese) government officials. In doing this, I am guided by one thought: Just visualize an unbending Professor of International Law finding himself in a lecture hall at the legendary Hague Academy of International Law, when he has to respond to questions raised by his lawyer students in the audience. The complex questions put to him might run thusly: Do the facts (and law) known to us warrant (a) the United States’ self-assumed right to enforce the freedom of navigation against China in the SCS, and (b) the veracity of the U.S. charge that China is violating international law in its 9-dash-line claim over the SCS waters?
Answer: By examining the evidences, we find that the true picture that can be put together is one which shows that between the United States and China, the ships of one country shadowing those of the other in the SCS is a frequent reciprocal occurrence. And the U.S. side pursues a strategy of armed patrol, despite its questionable legal justification (see below).30 By comparison, more deadly ships were found on the U.S. side, simply because the U.S. navy is more powerful than the Chinese one. This stark contrast prompted Robert D. Kaplan to conclude that “The U.S. navy presently dominates the South China Sea.”31 Sailing with the 97,000-ton aircraft carrier USS Carl Vinson, out in the SCS on maritime “routine operations,” was the guided-missile destroyer USS Wayne E. Meyer, according to a statement issued by the U.S. Navy. The Carl Vinson carried a flight group of more than 60 aircraft, including F/A-18 jet fighters. The operation came amid growing tensions between the United States and China over territory and trade, and, a fortiori, as the Trump Administration looked set to take a more confrontational stance toward China than did the previous administrations. During his Senate confirmation hearing, furthermore, new Secretary of State Rex Tillerson blurted out that China should be blocked from accessing the artificial islands it had built, setting the stage for a potential showdown.32
Tillerson’s statement, wittingly or not, echoed the first of Secretary Hillary Clinton’s charges earlier, alleging China’s obstruction of the freedom of navigation. The true answer to this allegation, so far as we can see, is twofold. First, there is no hard evidence that China was blocking freedom of navigation in the SCS. The only previous glaring instance that came readily to mind was when two Chinese Air Force jet fighters intercepted a U.S. spy plane (EP-3) on April 1, 2001. But it happened to what even the American side admitted was a plane on an espionage (euphemistically termed “reconnaissance”) mission, 70 miles off the coast of China’s Hainan Province, or 100 miles from the Chinese military installation in the Paracel Islands in the SCS, when the EP-3 was intercepted.33 A spy plane on an espionage mission, as such, can hardly claim that its flight qualified as “innocent passage,” nor could it claim to be showing “due regard” for the security or sensibility of the coastal State being spied upon, breaching the requirements of the modern law of the sea. Hence, the 2001 incident could not be classified as a case of China’s obstruction of the freedom of navigation, including that of air flight, in the SCS.34 Second, in respect of the new Secretary of State Tillerson’s stated policy stance to block China’s access to the artificial islands it had constructed, there is nothing in international law (customary law or treaty law) that purports to disallow and ban island building in the high seas by any State. Article 60 (8) of UNCLOS III only states that artificial islands “do not possess the status of islands” and, as such, “they do not have territorial sea of their own.” And, a few lines earlier, Art. 60 (6) provides: “All [foreign] ships … shall comply with generally accepted standards regulating navigation in the vicinity of artificial islands …” This clause equally applies to U.S. ships,35 which are obligated, under Art. 60 (6), to respect Chinese ships’ right of access to the China-built artificial islands, notwithstanding Secretary Tillerson’s expressed wishes to the contrary.
Critics may fault China for seizing a U.S. underwater drone in December 2016, alleging it was an instance of defiance for the United States’ freedom of navigation, although China later returned its capture to the American side. The Pentagon said the underwater vehicle was an unclassified piece of equipment conducting unnamed “routine operations.” The official Renmin ribao (People’s Daily) in Beijing, however, said the drone was “just the tip of the iceberg” in U.S. surveillance on China.36 If this allegation was true, then the Chinese act of capturing and promptly returning of the drone was probably more an act of showing its displeasure at the U.S. surveillance operation than one calculated to challenge the United States on navigation freedom in the waters of the SCS.
Furthermore,