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How to resolve the dispute over the South China Sea?

I have read quite a few expert analyses of the dispute over the South China Sea. None of them even raise this question, let alone attempt to answer it. Isn’t it the responsibility of experts not only to analyze such disputes but also to search for means to resolve them? After all, world peace is at stake – perhaps even human survival, China and the United States both being nuclear powers.  

It is, I admit, a difficult question. The positions of the opposing sides are so far apart that bridging them may appear impractical. All specialists in international law (outside of China itself) agree that Chinese claims are indefensible on the basis of the key legal instrument regulating maritime matters – the 1982 United Nations Convention on the Law of the Sea. It would seem to follow that China alone is at fault for violating international law and order. Presumably we can only hope that China will see the error of its ways and abandon its baseless claims.

If you believe, as do I, that this is unlikely to happen, you may feel the need for a different approach. Presumably China takes the stance that it does not merely because one or another piece of real estate belonged to China at some point in the more or less remote past but also as an expression of real current concerns. Might not at least some of those concerns be considered legitimate? If so, would it not be reasonable to try to accommodate them by means that could include changes in international law? Might that not lead to a new international consensus encompassing China? International law evolves; it is not cast in stone.

The South China Sea is an extremely sensitive area for China’s security. The nuclear submarines that carry its ballistic missiles are based in the underwater caves at the southern tip of Hainan Island. Unlike the SSBNs of the Western nuclear powers, which roam the open ocean, China’s SSBNs – like Russia’s – patrol within a semi-closed sea close to its shores. The South China Sea is that ‘bastion.’  

Under the existing international regime, the United States and other adversaries of China are free, in the name of ‘freedom of navigation,’ to deploy naval and air forces to the South China Sea provided that they do not enter territorial waters. American anti-submarine warfare (ASW) systems pose a particular threat to China’s nuclear deterrent, especially as the current generation of Chinese submarines are rather noisy and cannot be replaced in the near future. They are tracked by underwater sonar arrays attached by cables to US spy ships. Chinese sailors have tried to sever cables and set arrays adrift.

It may be recalled that the US-Soviet détente of the 1970s rested on a shared understanding of the desirability of strategic stability based on both sides possessing survivable retaliatory capability -- ‘mutually assured destruction’ (MAD). This understanding was embodied in the Anti-Ballistic Missile Treaty of 1972. Although terminated by the United States in 2002, the ABM Treaty set a precedent in international law for restrictions on deployment of weapons that may undermine MAD. ASW systems definitely belong to that category.

Another pertinent precedent was set by the Confidence and Security Building Measures (CSBMs) adopted in Europe within the framework of the Conference on – later, Organization for -- Security and Cooperation in Europe (CSCE, OSCE). True, it would be more difficult to enact such measures in East Asia than it was in Europe, but attempts should surely be undertaken to move in that direction.  

Specifically, I suggest that the Law of the Sea be amended to permit coastal states to declare, within agreed parameters, ‘maritime defense zones’ from which the naval and air forces of other states (though not necessarily all other states) would be excluded. This would prevent any further military confrontations in the vicinity of sensitive locations – not only in the South China Sea but also, for example, in the Baltic Sea around the Russian naval air base at Kaliningrad. In cases of semi-closed seas like the Eastern Baltic or South China Sea, only states with a coastline on the sea concerned would have the right to deploy naval vessels in the sea and military aircraft in the airspace above the sea. Commercial traffic through maritime defense zones would not be affected.

It might be thought that the United States would not benefit from such a provision, inasmuch as its coastal zones are already free of foreign naval and air forces. Indeed, the US currently earmarks no specific military forces to the task of coastal defense. However, important Asian allies of the US such as South Korea and Japan are vulnerable to intrusion by Chinese military aircraft. And the prevention of dangerous confrontations between military forces anywhere in the world is in the interest of all states.   

Of course, military deployments are not the only issue at stake in the dispute over the South China Sea. There is the question of fishing grounds and other maritime resources. There is the question of the environmental impact of heavy maritime traffic and especially of spills. What results would the same basic approach yield in these areas? I hope that this article may prompt analysts at universities, institutes, and think tanks as well as in government to devote more attention to ways of resolving the dispute.  

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