In response to the question of China's domestic legislation and its invention of historic claims and their role in China's foreign policy, Dr Nagy answered that with China's re-emergence as the dominant economy in the region, China has widened its claims on features in the South China Sea and islands in the East China Sea, many through domestic legislation and the invention of historic claims as tools to achieve foreign policy objectives. The effectiveness of domestic legislation by China in terms of securing its claims in the South China Sea and East China Sea is however debatable. Many such claims are not recognized by international bodies and courts such as the Permanent Court of Arbitration. One such claim in the South China Sea was ruled not legal by the Permanent Court of Arbitration in July 2016, in a case drawn upon by the Philippines.
China is using domestic legislation to expand its exclusive economic zones by creating municipalities at the edge of the South China Sea which gives a legal foundation to the exclusive economic zones. The impact of China's legislation is however small. A parallel can be drawn comparing control through domestic legislation between the Chinese claims in the South China Sea and the Japanese controlled Senkaku Islands. Japan has controlled the Senkaku Islands for over a century and there is continuity in that control via coast guard and environmental management, mostly and mainly through domestic legislation and international partnership; no such continuity of control with regard to the Chinese claim exists on the ground in the South China Sea.
The invention of historic claims by China as a tool for foreign policy is even more debatable and problematic. To analyze this, one must turn back the pages of history and search for signs of claims of sovereignty by China over the island territories in the South China Sea; no such claim can be found. Bill Hayton in his book "Invention of China", writes in detail how during the Ching (Qing) Dynasty, China showed no interest in the island formations in the South China Sea, whether the islands neighbouring Indonesia, Vietnam or the Philippines. China in the past has never set any claim of any of the island territories and thus the invention of historic claim is not only debatable but problematic as well. The UNCLOS treaty signed by 117 states which sets the 200-mile limit for Exclusive Economic Zones gives these countries a claim over the island formations in the South China Sea. UNCLOS however is not ratified by the US, which gives it a loose footing to enforce any such claims on China. This is despite the US conducting operations within the scope of the law.
Dr Nagy briefly touched on the role of ASEAN (Association of Southeast Asian Nations) and individual cooperation in establishing regional stability, and in his viewpoint, ASEAN could play a significant role in resolving territorial issues in Southeast Asia, but it is a loose association of nations and doesn't have the legal capacity to challenge and enforce its decisions on China. Hitherto, it has till now not played any decisive role. At the 2014 ASEAN Summit, a consensus was developed for a joint statement with regard to territorial disputes, however, Cambodia succumbed to influence from China, making a joint statement impossible. This fracturing of ASEAN unity and division of opinion is mainly achieved through aid and pledges to promote development; an example of how China uses its economic influence to shape the behaviour of neighbouring states.
With most of the ASEAN states not claimants in the SCS disputes, China has a free hand in manipulating the decision-making capability of ASEAN. The ASEAN members hold mixed views about China; some members perceive China as an economic opportunity and think that China is critical for the development of ASEAN member states, while others see China as a state having dominating and hegemonic interests in the region, thus the relationship of China and ASEAN will always be important but challenging. The main problem is the power asymmetry between China and the Southeast Asian nations. These nations seek strategic autonomy to resolve the South China Sea issues peacefully and effectively. The pattern we are seeing, at an individual level, is to bring an extra-regional power to the region to enhance the human capital and other capabilities so that they can push back unilaterally against some of the more assertive behaviour of China. This becomes more important for ensuring that the economic, political and national security interests of smaller nations are met and secured.
Dr Nagy then addressed the need to establish and maintain partnerships and the formation of Quad-like groups in restoring stability and balance in Southeast Asia and particularly the South China Sea, as Japan has been the most active in establishing strategic partnerships, by providing coast guard vessels, maritime domain awareness, and human capital to support individual members and enhance ASEAN's integration. Japan's role is even more important when it comes to the Chinese maritime militia (fishermen boat strategy), whereby the militia tries to instigate escalations that allow China to build an image seen as being defensive. The militia is used to build pressure on the states and in the case of the Philippines, China has already occupied some features in the South China Sea using these militia forces. The militia moves in and out of sovereign national waters, where every movement is planned in building a Lawfare strategy, as in the case of the Senkaku islands.
The US needs to designate a dedicated naval fleet for the South China Sea, so it has a constant presence 365 days a year. This would limit the influence of China in the region, restore the symmetry of trade relations to some extent and stop the undue exploitation of smaller states by the People's Republic of China. Naval cooperation and joint exercises in the South China Sea challenge China in particular when French and Canadian navies are involved. Quad and Quad-plus like cooperation is the way forward, however, this could lead to catastrophe if maritime management systems and communications channels are not established. China has to adjust to the presence of an extra-regional power in the South China Sea, and the US and allies have to work to keep China's assertive behaviour at bay while avoiding accidental conflict.
- Dr Stephen R Nagy is a Senior Associate Professor at the Department of Politics and International Studies, International Christian University, Tokyo. He is a Distinguished Fellow at the Asia Pacific Foundation (APF) in Canada, a Fellow at the Canadian Global Affairs Institute, and a Visiting Fellow at the Japan Institute for International Affairs (JIIA). He is currently working on 'Chinese Perceptions of Japan's Foreign Policy under PM Abe since 2012', and 'Middle Power Cooperation in the Indo-Pacific'. Follow Stephen on Twitter @nagystephen1.
- Nadir Ali Wani is currently Director of the Center for Peace and Justice, a research-based group in Srinagar, the capital of Jammu and Kashmir, India. He holds a Master's degree in Conflict Studies and International Relations from Jawahar Lal Nehru University, New Delhi, and has an abiding interest in the study of conflicts in South Asia with a particular interest in international politics to do with China, Islam and Kashmir.
- Jammu and Kashmir Centre for Peace and Justice (JKCPJ) is a youth-oriented, independent, multidisciplinary research organization. The Centre came into being in 2018, against the backdrop of global challenges upholding peace and social justice. The driving concern of the JKCPJ is bringing people together to accomplish things in an environment of trust, to strive for sustainable peace. Our mechanism transmits knowledge, hope, hard work, and successfully contributing to the development of humankind. Please visit https://jkcpj.org.
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