Conflict in the South China Sea is an alarming threat to international peace. The current situation between the US and China navies is reminiscent of a newspaper’s reaction to the Gulf of Tonkin Resolution during the Vietnam War. The US is planning to exercise its “freedom to navigation” through a third voyage in the South China Sea. The voyage is said to be an assurance that China is not colonizing any disputed islands and not restricting trade or rights described in international law.
The Pentagon has been tracking Chinese military activity closely. Officials have stated that China has increased spending on and usage of military modernization and has expanded its presence in the South China Sea. US officials and military personnel have stated that such activity, especially in disputed areas, is destabilizing and poses a threat to trade routes in the region. This threat could damage America’s, and its allies’, trade route and competitiveness. To emphasize the importance of the trade route in this region, $5Tr worth of shipping passes through the South China Sea each year. Increased suspicious activity includes the construction of airfields on a man-made island on the Mischief Reef, attacks on Filipino fishermen, the deployment of anti-ship missiles in the area, and the attempted reclaims of Scarborough Shoal near the Philippines.
Although the Chinese government has condemned America’s intervention as indicative of a “Cold War” mentality and against modern trends for peace and cooperation, the US government has reassured that it will continue to send vessels to conduct freedom of navigation exercises. It has made clear that it will not usurp to Chinese demands to stop such voyages. The US claims that China’s suspicious activity is against international law as preparations to colonize or annex disputed territories. Maritime law allows for states to include seas up to 12 miles from their coast within their internal boundaries. China claims that the US voyages will violate the 12-mile rule and will directly interfere with Chinese sovereignty. US officials have stated that the navy will go wherever international law allows and any attempt of China to implement an Air Defense Identification Zone (ADIZ) would be ignored.
An ADIZ would allow for complete control of the sky over disputed territories, which would require aircrafts to alert the government of their entry/exit. Failure to alert may result in military action. China has implemented an ADIZ over the disputed Japanese Senkaku Islands, but has never exercised it against US aircrafts that constantly ignore it . The US is treaty bound to protect Japan and the Philippines. It will begin operating from five different bases in the Philippines. The bases are strategic in regards to the widespread claims, which include small islands in dispute amongst China, Taiwan, Brunei, Malaysia, Vietnam, and the Philippines. The base locations are significant since they are located in the eastern South China Sea and face all the sovereign states and disputed islands of the region.
According to China, the U.S. violations of state sovereignty are direct challenges to the state’s national interests . China claims control in many of the disputed islands based on “ancient activity.” The US has responded to disputed claims by stating that the voyages are not meant to establish support on any sovereignty’s claim but rather to conduct operations that no unlawful restrictions on international law rights and freedoms exist. Further, the China’s naval spear, Hainan Province, is geo-strategically important. It is located in the South China Sea and it faces the region eastwardly and southwardly. China asserts that it should have authority over these islands and would manage and supervise these territories from the Hainan Base. It would include nearby islands within its 12 mile boundary and close off routes as internal waters. The Hainan base is stocked with nuclear submarines, through which China can and will defend itself .
It is understandable for China to view the U.S. voyages as challenges to their assertion of sovereignty. Article 17 of the UN Convention on the Law of the Sea, however, allows foreign ships to navigate “innocently” through another sovereign’s territorial sea. Article 19 of the Convention establishes the criteria of “innocent passage.” Under the criteria, a foreign ship is prohibited from using weapons or any threat of force, collecting state information, spreading propaganda, launching military devices or vehicles, loading or unloading commodities, fishing, polluting, conducting research, interfering with communications, and exercising any other activity that does not have a direct bearing on passage. Because China is arguing that these islands constitute a part of its territory, the waters could be considered part of its territorial sea. Further, China clearly does not buy the fact that the U.S. would not be collecting state information, conducting research, or interfering with its communications.
It is important to note that Article 17 is only applicable to waters within the borders of a sovereign, which would include the 12 mile extension rule of territorial seas from a sovereign’s border. The South China Sea, however is not (currently) part of China’s waters, rather it is open for international navigation. Even if China attempted to create an archipelagos by creating artificial islands or annexing disputed territories in the South China Sea, innocent passage for international navigation would still be allowed under Article 53 of the Convention. China should watch out regarding its reliance on UNCLOS to save them in this fight, however, since Article 60 explicitly states that, “artificial islands…may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.”
However, absent the artificial islands, China might have a case in claiming many of these territories based on a landmark international arbitration case. The 1928 “Las Palmas Case” in the Permanent Court of Arbitration held that in a disputed territory, an inchoate title could not prevail over continuous and peaceful display of authority by another state. Further, it is not necessary that display of sovereignty should go back to a very far distant period. In that case, the Netherlands’ display of authority prevailed in claiming Dutch possessions in the Philippines over the US’ claim on title of discovery. Thus, it might be persuasive for China in showing that the mixture of its “ancient activity” and its continuous intervention in affairs over a territory might suffice as creating the disputed territories proper Chinese claims (in fact, it somewhat mirrors adverse possession on a global scale).
John Rizos is a 2L at the University of Baltimore School of Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, he is the Secretary for Phi Alpha Delta. He graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.
 Id. at 31.
 Id. at 42.
 Id. at 45.