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Dangerous Ground: The Spratly Islands and U.S. Interests and Approaches


Dangerous Ground: The Spratly Islands and U.S. Interests and Approaches - Cover

Authored by Lieutenant Colonel Clarence J. Bouchat (USAF, Ret.).

December 2013

181 Pages

Brief Synopsis

The Spratly Islands warrant better understanding by U.S. policymakers in order to discuss nuanced responses to the region’s challenges. To attain that needed understanding, legal aspects of customary and modern laws are explored to analyze the differences between competing maritime and territorial claims and why and how the parties involved stake rival claims or maritime legal rights. Throughout the monograph, the policies of the United States are examined through its conflicted interests in the region. Recommendations for how the United States should engage these issues, a more appropriate task than trying to solve the disputes outright, are then offered.

Summary

The region around the Spratly Islands and the South China Sea is important to the economies of the surrounding states in terms of fish resources and the potential for natural gas and oil. This bonanza of riches spurs out-sized claims in the region that result in diplomatic and physical clashes. The large flow of maritime commerce around the Spratly Islands is also crucial to the economic well-being of the region and the world, and occupation of the islands dictates control of the surrounding sea’s maritime traffic, security, and economic exploitation. Their importance is seen in the 50 remote military garrisons on these islets by the claiming states, and the decades-long history of military and civilian enforcement clashes which increase the risk of conflict.

The use of customary law and the United National Convention on the Law of the Sea (UNCLOS) in establishing claims to the Spratlys and surrounding waters helps explain the perspectives of the disputants. Their legal positions are especially important for American policymakers as they inform possible solutions and suggest how to contribute to peace and prosperity in the region. Three key legal questions must be answered to help sort the disputes: sovereignty over the islets, the nature of a claimed land feature, and the delimitation of maritime jurisdiction. Sovereignty is claimed through customary law, with the People’s Republic of China (PRC), Taiwan, and Vietnam using historic doctrine to claim the entire South China Sea, while they also use the doctrine of occupation to claim some land features, the method which the Philippines and Malaysia also employ. Each are also disputed with counterclaims by other South China Sea states, leaving no state holding effective legal sovereignty over all.

Once sovereignty and feature type are determined, zones of authority may be established by the occupying state, depending on the distance from its established shore baseline. Internal, archipelagic, and historic waters are maritime variations of near-full sovereign control, which could be disruptive to economic and navigation activities if awarded to Vietnam or China, both of which make such claims. Islands above the high tide mark establish territorial waters and a contiguous zone, which would carve 24 nautical mile (nm) zones like Swiss cheese around the Spratlys, but should allow innocent passage. The length of the 200-nm exclusive economic zone (EEZ) allows much potential overlap among land masses and islands in the semi-enclosed South China Sea, and, like territorial waters, some states restrict military activities within the EEZ. Although such arguments by claimants for more restrictions in these zones are tenuous, they could be useful justification to cover military actions by states like the PRC, which is the most active in enforcing a restrictive EEZ.

Freedom of navigation in the South China Sea is the most immediate concern for the United States to ensure naval vessels retain all rights of access. Current policy in China, Vietnam, and Malaysia restrict foreign naval activities in their zones beyond those normally attributed to UNCLOS. Concluding an Incidents at Sea Agreement with the PRC would clarify the rights and responsibilities between the two. Other forms of government to government interaction could build confidence in present and future agreements, and leverage common interests. U.S. ratification of UNCLOS is another important step to influence the evolution of future interpretations of freedom of navigation toward more open use. Although a more difficult proposition, the United States should demand the clarification of the historic claims made in the South China Sea so as to facilitate negotiating a settlement, and accelerate economic development.

Open economic access to the South China Sea maritime commons is a second U.S. interest, but one which may diverge from freedom of navigation. Access to the resources of the high seas is an important enough U.S. interest to stall U.S. ratification of UNCLOS for nearly 20 years. While the United States remains outside the treaty, however, it holds less influence over how maritime law is interpreted and evolves, and thus is at a disadvantage to shape events like whether the South China Sea becomes a wholly divided and claimed sea. Such arrangements as a Joint Development Zone or a Joint Management Zone could stabilize the area and facilitate economic development for its participants. To support any of the joint development solutions, the United States would have to place its security interests over potential economic ones.

To contribute to overall stability and prosperity in the region, the United States must delicately play the roles of conciliator and balancer as circumstances require. The United States is an honest broker because it shares goals in common with the states around the South China Sea. Although the United States may not be truly neutral, it has less direct demands in the disputes, garnered more trust than most other states, and possesses resources to bear on these issues, making it a useful interlocutor in resolving problems.

In other circumstances, the United States has intervened in problems around the Spratly Islands in more parochial ways to balance the diplomatic field in aid of allies and defense partners and to directly protect its freedom of navigation interests. This balancer role should deter aggression, is dictated by U.S. treaty obligation to the Philippines, and is needed because the Association of Southeast Asian Nations (ASEAN) lacks a defense arrangement by which to counter the influence of the PRC. The balancing role, however, should be minimal so as to not to overshadow the conciliator role.

The United States has again made the Asia-Pacific region a major focus of its stated global interests, and converging national interests between the United States and China may indicate that some progress on the issues outlined here are possible. The importance of the Spratly Islands region to world trade, energy, and security, as well as its own national interests require careful American involvement. To best address the disputes, policymakers must understand the underlying territorial and maritime claims of the PRC, Taiwan, Vietnam, Malaysia, Indonesia, Brunei, and the Philippines in order to help manage these issues peacefully and equitably for the regional states, and to meet U.S. interests. In the end, the conflict in the Spratly Islands is not one for the United States to solve, but its ability to contribute, facilitate, balance, or support is necessary toward a solution from which all may benefit.


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