The following article was published in the May 2023 issue of the International Review of Contemporary Law, the journal of the IADL.
EAST SEA (SOUTH CHINA SEA)
THE CONFLICT THAT LASTS WITHOUT END
Prof. Dr. Dmitri Valentinovic Mosiakov*
When assessing the situation in the Asia-Pacific region, it is impossible to ignore an armed conflict dangerous for regional and global security, where the US and Chinese navies are in direct confrontation. This is a conflict around islands and waters of the South China Sea. As in the Taiwan Strait, the militaries of these two countries are contesting the right of each great power to make their own codes of conduct and, accordingly, dominate this part of the world. American warships regularly move around the restricted area of China’s major islands under the range of Chinese guns, and at any time, due to some incident, military conflict between the two powerful superpowers could explode. The situation is aggravated by the fact that Washington, regarding military conflict with China in the South China Sea, is still confident that in any serious situation, China will not risk war, and as has happened more than once, Beijing will try to find a compromise and concession.
It should be noted that the US-China conflict in the East Sea has a rather short history and there was a period when it was the US that helped China establish its order in the Paracel Islands. In 1971 they took no action against China’s construction of a naval base on Woody Island in the part of the Paracel Islands controlled by China, and in January 1974 they also looked on indifferently as the Chinese army landed on the part of the Paracels controlled by one of America’s closest allies, the South Vietnamese military regime led by Nguyen Van Thieu. All calls for help from the South Vietnamese army went unanswered, although the American ships were very close to the islands. But then, after the signing of the 1972 Shanghai Communiqué and the prospect of China becoming America’s ally in the confrontation with the Soviet Union, enlisting China’s support was much more important for Washington than defending some of the islands under South Vietnamese control. In 1974, China, with real support from the United States, captured the entire Paracel Islands and opened the way further south to the Spratlys.
And why have the Chinese have made such efforts, since the total area of all the Spratly Islands claimed by six countries today does not exceed five square kilometers. t all revolves around the so-called “exclusive economic zone” (EEZ). According to the 1982 United Nations Convention on the Law of the Sea, it is “a sea area over which a sovereign state has special rights in relation to exploration and use of marine resources, including the production of energy from water and wind. It extends from the baseline to 200 nautical miles from the coast” The islet also has a multitude of resources within a radius of 200 nautical miles. The South China Sea is one of the richest seas in the world in terms of fish stocks, and there are well-founded assumptions that the richest oil and gas fields are also located there. Running through this sea is one of the busiest maritime trade routes connecting the South China Sea with the Pacific Coast of the United States, Japan, South Korea, China, Russia, Singapore and the Strait of Malacca. It is clear that a country that can establish control of this sea will not only receive huge wealth, but also have the opportunity to exert political and economic influence. After the Japanese gave up their rights to these islands after World War II, they became the object of active negotiation, in which the main participants were Viet Nam and Malay Taiwan and the Philippines, and of course China, which claims sovereignty over 80% of the islands in the South China Sea.
The Americans firmly oppose China’s claims in the South China Sea and have turned the area into a place where they are showing ASEAN countries that they are willing to take most decisive action to prevent Chinese domination in the region. In this regard, a situation arose in the South China Sea in which the U.S.’ command to “stay” conflicts with China’s order to “return” because, from the Chinese leadership’s point of view, the South China Sea is China’s historic water. In fact, Beijing consider’s the South China Sea to be China’s territory, having belonged to China since ancient times but was lost in the so-called “historical weakness” era, when China was subjected to the brutal pressure of the European colonial powers. The Communist Party of China and accordingly, the State Council of the People’s Republic of China have never recognized that the space and the islands of this sea are outside China’s jurisdiction. For example, in July 1977, at a meeting with representatives of the Philippine government, Chinese Foreign Minister Huang Hua pointed out that “Chinese territory extends south to James Shoal near Sarawak (Malaysia). He stated that,” you can exploit the minerals there as you want, however, when the time comes, we will take these islands. Then there will be no need to negotiate, because these islands have long belonged to China…”
This position was formalized in February 1992 when the Chinese government promulgated the “Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone”, establishing the basic legal regime for the territorial sea and the contiguous zone of China. This document states that “the mainland territory of the People’s Republic of China (PRC) includes the mainland of the PRC and its coastal islands, Taiwan and adjacent islands, including Diaoyu Island, Penghu Archipelago, and East Islands the Paracel Islands (China calls these the Xisha Islands), the Zhongsha Islands, the Spratlys Islands (the Chinese calls these the Nansha Islands) and all other islands of the People’s Republic of China”. The new law was supposed to give legitimacy to the actions of the Chinese fleet, whose ships at the time landed on reefs and uninhabited islands in the South China Sea, aiming to constitute an actual area of Chinese control in these waters. Thereafter, all the islands captured by China (by various estimates, 8-9 islands, reefs and atolls – author), as well as China’s claims to other islands part of the archipelago, which were indicated on a map of China’s maritime boundary. It was distributed in 2009 to the United Nations as an attachment to an official letter to Secretary-General Ban Ki-moon. On this map, not only the islands and reefs that China has captured, but in fact the entire South China Sea is shown as Chinese territory. The potential Chinese possessions were outlined by a dotted line, which later became known as the nine-dash line. For a longtime no one could understand how this line could be determined to be within the Chinese border. Many believe that holding these is simply an opportunity for China to negotiate with other interested parties, such as Viet Nam, the Philippines, and Malaysia, which also have claims to the islands and territorial sea in this area.
Viet Nam alone controls more than 20 islands in the Spratly archipelago, the largest island is controlled by Taiwan – Itu Aba and the Philippines and Malaysia are also active in “their” archipelago, islands and reefs, as well as Viet Nam and Taiwan which are within the nine-dash line drawn by China.
Therefore, whenever Vietnamese and Philippine ships go to “their” islands, and most of these are small and waterless pieces of land, they violate the maritime boundary established by China, there is always the potential for a serious collision. There are many examples of such clashes, when the Chinese border forces opened fire on wooden boats of Vietnamese fishermen, especially in the waters of the Paracel Islands where the number of clashes was very high. Just visit the Vietnamese island of Ly Son, located off the coast of Quang Ngai province, where fishermen, who have historically always fished in the waters of the Paracels, watch their fragile ships cut. by the muzzles of the Chinese maritime border guards. In this way, China seeks to undermine Vietnamese fisheries in both the Paracels and the Spratlys. This is done under the pretext of protecting fish stocks, and as a result, Chinese border guards ban fishing in traditional Vietnamese fishing places which Chinese patrol boats, more and more yearly, often arresting them or simply shooting them, forcing them to leave the Spratlys and Paracels.
However, this situation with Vietnamese fishermen, as well as with Filipino fishermen in the area opposite Palawan Island, is only one of the problems, and not the most important, in the conflict over islands and territorial waters in the South China Sea. The situation there has been extremely tense for many years, and at times threatens regional and global peace and stability. The problem is that in the waters of the Spratly archipelago, the most likely to occur is a direct collision between Chinese and American warships, it is there where there is a change in the balance of forces in the Asia-Pacific region.
Since the mid-2010s, China has begun to establish its military presence by building artificial islands on the small atolls and reefs in the South China Sea. Dozens of ships brought soil and construction materials to seven selected atolls, and within a short time, new islands appeared in the South China Sea, home to Chinese military bases. The most active work took place in 1994. Mischief Reef – over several years, China reclaimed more than 550 hectares from the sea, built military bases and airstrips on the reef, and deployed systems, anti-aircraft defenses, turning this once tiny rocky outcrop into one of the most important military bases in the region.
At the same time, the activity of the Chinese fleet in the waters adjacent to the Philippine archipelago became so intense that the Philippines was forced to hold an emergency meeting with the US leadership. In it, Philippine Foreign Secretary Albert del Rosario said that “Chinese forces have violated Philippine territorial waters nine times since February 25, and such actions are clearly becoming more aggressive and frequent.” Having received assurances of US support for the Philippines’ position on the issue of territorial sovereignty over the Spratly Islands, the Government immediately announced the allocation of $252 million to modernize its naval forces.
On the islands and reefs occupied by China, one can observe the artificial islands complete with airfields, tracking stations and ports armed with Chinese warships that have sprouted from the old rocks and atolls. Relying on these new military bases, the Chinese navy is increasingly confident in the places where US warships once dwelt. US warships make regular demonstration cruises into areas containing many large islands that China has declared a no-go zone, and the Americans have stated that they do not recognize the legitimacy of this decision. As a result, skirmishes and other military incidents between ships of the two countries occur with frightening frequency. At the same time, the actions of the American destroyers, which immediately left the course when threatened with a collision with a Chinese warship, showed that the Americans were not actually ready to engage in a military conflict over the islands with China as a demonstration of their strength and determination.
Furthermore, US military expeditions, which are supposed to demonstrate the US commitment to the defense of freedom of navigation in the South China Sea, in fact only reinforce and justify such activities of China’s military preparation. After each time an American ship passed under the guns of China, the military composition on the big islands improved even more. According to some reports, a YJ-12B cruise missile, capable of striking within a radius of 295 nautical miles (about 546 km), as well as striking targets in the air at a distance of 160 nautical miles (about 296 km) has been deployed on the islands occupied by China. In total, Beijing has 27 outposts, almost all of which are equipped with airstrips, allowing the Peoples Liberation Army (PLA), Navy and Air Force to truly threaten the vital trade routes leading from the Indian Ocean to United States’ Pacific Ocean.
The Americans ignored China’s warnings and announced that from 2011 they would conduct the so-called FONOPs (Freedom of Navigation Operations) with a certain degree of frequency. This decision was initiated by Barack Obama himself, who ordered US warships to blatantly violate the 12-nautical-mile area that China has declared as a no-go zone around the artificial islands. With this decision, the US President wanted to show that the US does not recognize these waters as China’s and that in its’ view, these waters continue to maintain its international position.
However, the show of strength of the American fleet did not bring tangible results for the Americans. China has not changed its approach to the situation in the Paracels and Spratlys by even one millimeter. Moreover, the ASEAN countries themselves are quite critical of the operations of the American destroyers, whose mission, in their view, only aggravated the situation, turning the entire region into a a possible battlefield for a US-China war. It is also seen that the show of military might, the until recently undefeated US weapon, has begun to falter, as the People’s Liberation Army Navy (PLAN) shows its determination to resist naval American expeditions by military force. This is evidenced by one of the latest incidents, when on September 30, 2018, the Chinese destroyer Luyang intercepted the American destroyer Decatur, which was operating in waters where China banned ships around the tiny Gaven rock that China has occupied since 1988. During this time they had turned it into an island with a total area of 34 hectares. The two ships almost collided, and only the retreat of the American destroyer avoided a serious military incident.
At the same time, itis clear that US warships will continue to pass through these waters, as their mission is to assert freedom of navigation in the South China Sea area closed by China. America’s actions are not only aimed at demonstrating its military capabilities, but are also closely tied to the entire US-China relationship. Washington continues to believe that the destroyers’ passage has a real impact on China, and in the event of an escalation, this is a most important opportunity to remind Beijing of the US fleet’s military capabilities. Perhaps, that’s why when Trump came to power, he did not cancel Obama’s order on the regular passage of warships through the waters that China declared banned, but even stepped up the implementation. It should be noted that US warships are often sent to the restricted waters when trade negotiations with China have reached a dead end and the Chinese side refuses to make concessions, or at a time when there is a dispute over the possibility of a trade compromise has reached its peak., Trump, like Obama, had clearly failed to find other ways to project American power over China. Immediately following the events with Luyang and Decatur, in May 2019, shortly after China at the last moment decisively abandoned the trade deal imposed by Trump, two naval missions were sent to the South China Sea at the same time. First, two American warships passed through the restricted areas at the same time, as if to protect each other, and then, sensing the restraint of the Chinese military, another warship was dispatched on a new mission, passing within 12 nautical miles of Scarborough Shoal.
In July 2022, the United States decided that it was necessary to remind the People’s Republic of China who was to determine the rules of navigation in the South China Sea. Another US destroyer sailed into waters where China had declared a ban for military ships. The guided-missile destroyer, Benfold, moving along a familiar path, entered the South China Sea near the Paracel Islands controlled by Beijing. As the US 7th Fleet later released, “Benfold defends the rights and freedoms of navigation in the South China Sea near the Paracel Islands in accordance with international law, challenging restrictions on innocent passage imposed by the People’s Republic of China”.
In response, Tian Junli, a spokesman for the PLA Southern Combat Command, accused the US Navy of violating China’s sovereignty and security. He stated, “The US guided-missile destroyer, Benfold, without the proper permission of the Chinese government, illegally entered the territorial sea of the Xisha Islands,” the Chinese military command, using used the Chinese name for the Paracel Islands. Tian Junli assured that the Chinese military is determined to “defend peace in the region, prevent US hegemony and militarize the South China Sea.”
Therefore, the dangerous games around the islands in the South China Sea continue and have no end.
* Director of Center for Southeast Asia, Australia and Oceania, Institute of Oriental Studies, Russian Academy of Sciences
 The Shanghai Communiqué represented the United States first diplomatic negotiations with People’s Republic of China since its 1949 founding. It acknowledged the One China policy
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.