By Jonathan Power

The US has done a daring and – some would say – dangerous thing. Towards the end of last month it sent a destroyer to sail within 12 nautical miles of two man-made islands claimed by China in the South China Sea. China was outraged. The Blogosphere went wild with nationalist denunciations of American attempts to encircle their country. The press wasn’t much quieter.

It’s all about control of the seas, not about who owns the islands, but it is laced with a good deal of bad behaviour on both sides. As with Taiwan China reaches into the past – as President Xi Jinping did recently – to justify a present day claim. In fact the past is a little murky. Besides, it has been overtaken by the UN Law of the Sea, of which China is a member. This makes clear that China has no right to forbid foreign warships’ passage within 12 miles of an artificial island. Nevertheless, China is right to point out that the Law of the Sea is neutral on claims that existed before it came into effect.

The Law of the Sea also makes clear that artificial islands – which some now are – do not give China control of the surrounding seas. However, it is important to know that the Spratly Island’s Fiery Cross, which has received the most Western media attention, where China has built a 3 km long runway, is not one of these, since it is built on a reef, even though that is not a fully-fledged natural island. The US chose not to sail near it. It is also important to know that the Philippines, Vietnam and Malaysia have also built islands in the South China Sea.

The dispute if not handled carefully by both sides could have serious consequences. Some already talk of military conflict which would be counterproductive for both sides, and lead nowhere very sensible.

Urgent steps need to be taken to take such sea disputes (which includes the China/Japanese argument over the Diaoyu/Senkaku Islands in the East China Sea) to arbitration.

To create the right climate for this the US should end its own provocations. Most important from the Chinese perspective would be to reduce its surveillance activities off the Chinese coast with ships and aircraft. The US could get the same information through satellite observation and other less blatant intrusions.

Second, the US should publically say China is a legitimate claimant of the Spratly Islands – as long as China gives some law-based clarification of its claims. This is not endorsing China’s claim as there are other claimants but it would announce that the US is neutral and that the US favours no one. The US should also support the Chinese desire to have bilateral negotiations with the other claimants. This the US is refusing to do, preferring more complex multilateral negotiations.

China for its part should clarify its often fuzzy claims. It should also make those claims consistent with its membership of the Law of the Sea. At present, as Lyle Goldstein argues in his important new book, Meeting China Halfway, “the so-called U-shaped line of China’s claim in the South China Sea seems to represent a highly aggressive posture, because it suggests that the ocean in this case be treated similarly to a land border, making no specific reference to maritime legal concepts such as “territorial seas” and “economic exclusive zones””.

In the recent past China has settled most of its territorial disputes, not least with Russia. It could easily deal with this one as the U-shaped line is not a communist government concept but one of the previous Republican regime.

In fact, sometimes there is a feeling that compromise is being considered. In the government document of 2011 PRC Note Verbale there is no mention of “historic waters”. Even China’s own specialists sometimes openly disagree about the meaning of the U-shaped line.

A second step forward for China would be to put into operation its policy of “joint development” in the region of the South China Sea. This has been the official policy since the time of Deng Xiaoping. But it has never got off the ground. One attempt – the Joint Maritime Seismic Undertaking – was shipwrecked by political infighting in the Philippines. China should aim, as its technology improves, for joint deep-sea exploration and even mining on a 50/50 split of profits. This would be a win-win situation in which no country “wins” the South China Sea issue.

At present the Chinese are worried that the US is trying to “contain” China. For their part, parts of the US media and Congress, especially the Republicans, often talk about Chinese “aggression”. Both are wildly exaggerating.

It is to be hoped that the US sailing a destroyer into the disputed area will be the last one. Both the US and China must give up being so ham-fisted.

Copyright: Jonathan Power