Maritime Territorial and Exclusive Economic
Zone (EEZ) Disputes Involving China:
Issues for Congress
Ronald O'Rourke
Specialist in Naval Affairs
August 5December 24, 2014
Congressional Research Service
7-5700
www.crs.gov
R42784
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Summary
China’s actions for asserting and defending its maritime territorial and exclusive economic zone
(EEZ) claims in the East China (ECS) and South China Sea (SCS), particularly since late 2013,
have heightened concerns among observers that ongoing disputes over these waters and some of
the islands within them could lead to a crisis or conflict between China and a neighboring country
such as Japan, the Philippines, or Vietnam, and that the United States could be drawn into such a
crisis or conflict as a result of obligations the United States has under bilateral security treaties
with Japan and the Philippines.
More broadly, China’s actions for asserting and defending its maritime territorial and EEZ claims
have led to increasing concerns among some observers that China may be seeking to dominate or
gain control of its near-seas region, meaning the ECS, the SCS, and the Yellow Sea. Chinese
domination over or control of this region, or Chinese actions that are perceived as being aimed at
achieving such domination or control, could have major implications for the United States,
including implications for U.S.-China relations, for interpreting China’s rise as a major world
power, for the security structure of the Asia-Pacific region, for the long-standing U.S. strategic
goal of preventing the emergence of a regional hegemon in one part of Eurasia or another, and for
two key elements of the U.S.-led international order that has operated since World War II—the
non-use of force or coercion as a means of settling disputes between countries, and freedom of
the seas.
China is a party to multiple territorial disputes in the SCS and ECS, including, in particular,
disputes over the Paracel Islands, Spratly Islands, and Scarborough Shoal in the SCS, and the
Senkaku Islands in the ECS. China depicts its territorial claims in the SCS using the so-called
map of the nine-dash line that appears to enclose an area covering roughly 90% of the SCS. Some
observers characterize China’s approach for asserting and defending its territorial claims in the
ECS and SCS as a “salami-slicing” strategy that employs a series of incremental actions, none of
which by itself is a casus belli, to gradually change the status quo in China’s favor. At least one
Chinese official has used the term “cabbage strategy” to refer to a strategy of consolidating
control over disputed islands by wrapping those islands, like the leaves of a cabbage, in
successive layers of occupation and protection formed by fishing boats, Chinese Coast Guard
ships, and then finally Chinese naval ships.
In addition to territorial disputes in the SCS and ECS, China is involved in a dispute, particularly
with the United States, over whether China has a right under international law to regulate the
activities of foreign military forces operating within China’s EEZ. The dispute appears to be at
the heart of incidents between Chinese and U.S. ships and aircraft in international waters and
airspace in 2001, 2002, 2009, 2013, and 2014and 2013.
The U.S. position on territorial and EEZ disputes in the Western Pacific (including those
involving China) includes the following elements, among others: The United States takes no
position on competing claims to sovereignty over disputed land features in the ECS and SCS.
Claims of territorial waters and EEZs should be consistent with customary international law of
the sea and must therefore, among other things, derive from land features. Claims in the SCS that
are not derived from land features are fundamentally flawed. Territorial disputes should be
resolved peacefully, without coercion, intimidation, threats, or the use of force. Parties should
avoid taking provocative or unilateral actions that disrupt the status quo or jeopardize peace and
security; the. The Senkaku Islands are under the administration of Japan and unilateral attempts to
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
change the status quo raise tensions and do nothing under international law to strengthen
territorial claims. The United States has a national interest in the preservation of freedom of seas
as recognized in customary international law of the sea. The United States opposes claims that
impinge on the rights, freedoms, and lawful uses of the sea that belong to all nations. The United
States, like most other countries, believes that coastal states under UNCLOSthe United Nations Convention
on the Law of the Sea (UNCLOS) have the right to
regulate economic activities in their EEZs, but
do not have the right to regulate foreign military
activities in their EEZs.
The situation concerning maritime territorial and EEZ disputes involving China raises several
potential policy and oversight issues for Congress. Legislation in the 113th Congress concerning
maritime territorial and EEZ disputes involving China in the SCS and ECS includes H.R. 4435/S.
2410 (the FY2015 National Defense Authorization Act), H.R. 1960 (FY2014 National Defense
Authorization Act), H.R. 4495, H.R. 772, H.Res. 704, S.Res. 412, and S.Res. 167.
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Contents
Introduction...................................................................................................................................... 1
Background ...................................................................................................................................... 1
Overview of Disputes ................................................................................................................ 1
Maritime Territorial Disputes .............................................................................................. 1
Dispute Regarding China’s Rights Within Its EEZ ............................................................. 3
Relationship of Maritime Territorial Disputes to EEZ Dispute........................................... 67
1972 Multilateral Convention on Preventing Collisions at Sea
(COLREGs Convention) .................................................................................................. 7
2014 Code For Unplanned Encounters At Sea (CUES) ...................................................... 89
U.S.-China Memorandum of Understanding (MOU) On Air and Maritime
Encounters ...................................................................................................................... 11
Negotiations Between China and ASEAN on SCS Code of Conduct ............................... 1112
China’s Approach to Maritime Territorial Disputes ...............and EEZ Disputes ................................................. 1213
Map of the Nine-Dash Line ............................................................................................... 1213
“Salami-Slicing” Strategy and “Cabbage” Strategy .......................................................... 1516
Use of China Coast Guard Ships and Other Ships ............................................................ 1617
Preference for Treating Disputes on Bilateral Basis.......................................................... 1718
Comparison with U.S. Actions Toward Caribbean and Gulf of Mexico ........................... 1819
Chinese Actions Since Late 2013 That Have Heightened Concerns ................................. 1920
U.S. Position on These Issues .................................................................................................. 2122
Some Key Elements .......................................................................................................... 2122
February 5, 2014, State Department Testimony ................................................................ 2123
May 31, 2014, Secretary of Defense Speech..................................................................... 2324
June 25, 2014, State Department Testimony ..................................................................... 2425
July 11, 2014, State Department Remarks ........................................................................ 2526
July 28, 2014, State Department Remarks ........................................................................ 2527
November 4, 2014, Secretary of State Remarks................................................................ 28
December 5, 2014, State Department Analysis of China’s Nine-Dash Line ..................... 28
December 16, 2014, State Department Remarks............................................................... 29
Operational Rights in EEZs............................................................................................... 2630
U.S. Freedom of Navigation (FON) Program ................................................................... 2731
Potential Implications for United States .................................................................................. 2832
Risk of United States Being Drawn Into a Crisis or Conflict............................................ 2933
U.S.-China Relations ......................................................................................................... 3135
Interpreting China’s Rise as a Major World Power ........................................................... 3135
Security Structure of Asia-Pacific Region......................................................................... 3135
U.S. Strategic Goal of Preventing Emergence of Regional Hegemon in Eurasia ............. 3235
Non-use of Force or Coercion as a Means of Settling Disputes Between Countries ........ 3336
Freedom of the Seas .......................................................................................................... 3437
Issues for Congress ........................................................................................................................ 4144
U.S. Strategy for Countering “Salami-Slicing” Strategy ......................................................... 4144
Comments by Some Observers on Whether the United States Has a Strategy ................. 4145
Comments by Some Observers Suggesting Possible Elements of a U.S. Strategy ........... 4447
Some Reported U.S. Actions ............................................................................................. 5264
Risk of United States Being Drawn Into a Crisis or Conflict .................................................. 57
71
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Whether United States Should Enter Into A U.S.-Chinese Incidents-at-Sea (INCSEA)
Agreement ............................................................................................................................ 5871
Whether United States Should Ratify United Nations Convention on the Law of the
Sea (UNCLOS)..................................................................................................................... 6174
Legislative Activity in 113th Congress ........................................................................................... 62
H.R. 4435/S. 241076
H.R. 3979/P.L. 113-291 (FY2015 National Defense Authorization Act) ................................ 76
House................................................... 62
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House...................................................................................... 76
Senate ........................................... 62
Senate ..................................................................................... 77
Final Version ..................................................................................................................... 6478
H.R. 1960 (FY2014 National Defense Authorization Act)...................................................... 6580
H.R. 4495................................................................................................................................. 6681
H.R. 772 .................................................................................................................................. 6782
H.Res. 704 ............................................................................................................................... 7085
S.Res. 412 (Agreed to by the Senate) ...................................................................................... 7792
S.Res. 167 (Agreed to by the Senate) ...................................................................................... 8499
Figures
Figure 1. Maritime Territorial Disputes Involving China ................................................................ 3
Figure 2. Locations of 2001, 2002, and 2009 U.S.-Chinese Incidents at Sea and In Air................. 6
Figure 3. Map of the Nine-Dash Line ............................................................................................ 1314
Figure 4. EEZs Overlapping Zone Enclosed by Map of Nine-Dash Line ..................................... 1415
Figure 5. EEZs in South China Sea and East China Sea ............................................................... 3639
Figure 6. Claimable World EEZs ................................................................................................... 3740
Appendixes
Appendix A. Legislative Activity in 112th Congress...................................................................... 88 104
Appendix B. 2002 Declaration on Conduct of Parties in South China Sea ................................... 91 107
Appendix C. February 5, 2014, Testimony of Assistant Secretary of State Daniel Russel............ 93109
Contacts
Author Contact Information........................................................................................................... 97 113
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Introduction
China’s actions for asserting and defending its maritime territorial and exclusive economic zone
(EEZ)1 claims in the East China (ECS) and South China Sea (SCS), particularly since late 2013,
have heightened concerns among observers that ongoing disputes over these waters and some of
the islands within them could lead to a crisis or conflict between China and a neighboring country
such as Japan, the Philippines, or Vietnam, and that the United States could be drawn into such a
crisis or conflict as a result of obligations the United States has under bilateral security treaties
with Japan and the Philippines.
More broadly, China’s actions for asserting and defending its maritime territorial and EEZ claims
have led to increasing concerns among some observers that China may be seeking to dominate or
gain control of its near-seas region, meaning the ECS, the SCS, and the Yellow Sea. Chinese
domination over or control of this region, or Chinese actions that are perceived as being aimed at
achieving such domination or control, could have major implications for the United States,
including implications for U.S.-China relations, for interpreting China’s rise as a major world
power, for the security structure of the Asia-Pacific region, for the long-standing U.S. strategic
goal of preventing the emergence of a regional hegemon in one part of Eurasia or another, and for
two key elements of the U.S.-led international order that has operated since World War II—the
non-use of force or coercion as a means of settling disputes between countries, and freedom of
the seas.
The situation concerning maritime territorial and EEZ disputes involving China raises several
potential policy and oversight issues for Congress. Decisions that Congress makes on these issues
could substantially affect U.S. political and economic interests in the Asia-Pacific region and U.S.
military operations in both the Asia-Pacific region and elsewhere.
The specifics of China’s maritime territorial disputes with other countries are discussed in greater
detail in other CRS reports.2 Additional CRS reports cover other aspects of U.S. relations with
China and other countries in the region.
Background
Overview of Disputes
Maritime Territorial Disputes
China is a party to multiple maritime territorial disputes in the SCS and ECS, including in
particular the following (see Figure 1 for locations of the island groups listed below):
1
A country’s EEZ includes waters extending up to 200 nautical miles from its land territory. Coastal states have the
right under the United Nations Convention on the Law of the Sea (UNCLOS) to regulate foreign economic activities in
their own EEZs. EEZs were established as a feature of international law by UNCLOS.
2
CRS Report R42930, Maritime Territorial Disputes in East Asia: Issues for Congress, by Ben Dolven, Mark E.
Manyin, and Shirley A. Kan CRS Report R42761, Senkaku (Diaoyu/Diaoyutai) Islands Dispute: U.S. Treaty
Obligations, by Mark E. Manyin; and CRS Report RL33436, Japan-U.S. Relations: Issues for Congress, coordinated
by Emma Chanlett-Avery.
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
•
a dispute over the Paracel Islands in the SCS, which are claimed by China and
Vietnam, and occupied by China;
•
a dispute over the Spratly Islands in the SCS, which are claimed entirely by
China, Taiwan, and Vietnam, and in part by the Philippines, Malaysia, and
Brunei, and which are occupied in part by all these countries except Brunei;
•
a dispute over Scarborough Shoal in the SCS, which is claimed by China,
Taiwan, and the Philippines; and
•
a dispute over the Senkaku Islands in the ECS, which are claimed by China,
Taiwan, and Japan, and administered by Japan.
The island and shoal names used above are the ones commonly used in the United States; in other
countries, these islands are known by various other names. China, for example, refers to the
Paracel Islands as the Xisha islands, to the Spratly Islands as the Nansha islands, to Scarborough
Shoal as Huangyan island, and to the Senkaku Islands as the Diaoyu islands.
These island groups are not the only land features in the SCS and ECS—the two seas feature
other islands, rocks, shoals, and reefs, as well as some near-surface submerged features. The
territorial status of some of these other features is also in dispute.3 It should also be noted that
there are additional maritime territorial disputes in the Western Pacific that do not involve China.4
Maritime territorial disputes in the SCS and ECS date back many years, and have periodically led
to incidents and periods of increased tension.5 The disputes have again intensified in the past few
years, leading to numerous confrontations and incidents involving fishing vessels, oil exploration
vessels and oil rigs, coast guard ships, naval ships, and military aircraft. The intensification of the
disputes in recent years has substantially heightened tensions between China and other countries
in the region, particularly Japan, the Philippines, and Vietnam.
3
For example, the Reed Bank, a submerged atoll northeast of the Spratly Islands, is the subject of a dispute between
China and the Philippines, and the Macclesfield Bank, a group of submerged shoals and reefs between the Paracel
Islands and Scarborough Shoal, is claimed by China, Taiwan, and the Philippines. China refers to the Macclesfield
Bank as the Zhongsha islands, even though they are submerged features rather than islands.
4
North Korea and South Korea, for example, have not reached final agreement on their exact maritime border; South
Korea and Japan are involved in a dispute over the Liancourt Rocks—a group of islets in the Sea of Japan that Japan
refers to as the Takeshima islands and South Korea as the Dokdo islands; and Japan and Russia are involved in a
dispute over islands dividing the Sea of Okhotsk from the Pacific Ocean that Japan refers to as the Northern Territories
and Russia refers to as the South Kuril Islands.
5
One observer states that “notable incidents over sovereignty include the Chinese attack on the forces of the Republic
of Vietnam [South Vietnam] in the Paracel Islands in 1974, China’s attack on Vietnamese forces near Fiery Cross Reef
[in the Spratly Islands] in 1988, and China’s military ouster of Philippines forces from Mischief Reef [also in the
Spratly Islands] in 1995.” Peter Dutton, “Three Dispute and Three Objectives,” Naval War College Review, Autumn
2011: 43. A similar recounting can be found in Department of Defense, Annual Report to Congress, Military and
Security Developments Involving the People’s Republic of China, 2011, p. 15.
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Figure 1. Maritime Territorial Disputes Involving China
Island groups involved in principal disputes
Source: Map prepared by CRS using base maps provided by Esri.
Note: Disputed islands have been enlarged to make them more visible.
Dispute Regarding China’s Rights Within Its EEZ
In addition to maritime territorial disputes in the SCS and ECS, China is involved in a dispute,
particularly with the United States, over whether China has a right under international law to
regulate the activities of foreign military forces operating within China’s EEZ. The position of the
United States and most countries is that while the United Nations Convention on the Law of the
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Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states the
right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it
does not give coastal states the right to regulate foreign military activities in the parts of their
EEZs beyond their 12-nautical-mile territorial waters.6 The position of China and some other
countries (i.e., a minority group among the world’s nations) is that UNCLOS gives coastal states
the right to regulate not only economic activities, but also foreign military activities, in their
EEZs. In response to a request from CRS to identify the countries taking this latter position, the
U.S. Navy states that
countries with restrictions inconsistent with the Law of the Sea Convention [i.e., UNCLOS]
that would limit the exercise of high seas freedoms by foreign navies beyond 12 nautical
miles from the coast are [the following 27]:
Bangladesh, Brazil, Burma, Cambodia, Cape Verde, China, Egypt, Haiti, India, Iran, Kenya,
Malaysia, Maldives, Mauritius, North Korea, Pakistan, Portugal, Saudi Arabia, Somalia, Sri
Lanka, Sudan, Syria, Thailand, United Arab Emirates, Uruguay, Venezuela, and Vietnam.7
Other observers provide different counts of the number of countries that take the position that
UNCLOS gives coastal states the right to regulate not only economic activities but also foreign
military activities in their EEZs. For example, one set of observers, in an August 2013 briefing,
stated that 18 countries seek to regulate foreign military activities in their EEZs, and that three of
these countries—China, North Korea, and Peru—have directly interfered with foreign military
activities in their EEZs.8
The dispute over whether China has a right under UNCLOS to regulate the activities of foreign
military forces operating within its EEZ appears to be at the heart of incidents between Chinese
and U.S. ships and aircraft in international waters and airspace, including
•
incidents in March 2001, September 2002, March 2009, and May 2009, in which
Chinese ships and aircraft confronted and harassed the U.S. naval ships
Bowditch, Impeccable, and Victorious as they were conducting survey and ocean
surveillance operations in China’s EEZ;
•
an incident on April 1, 2001, in which a Chinese fighter collided with a U.S.
Navy EP-3 electronic surveillance aircraft flying in international airspace about
65 miles southeast of China’s Hainan Island in the South China Sea, forcing the
EP-3 to make an emergency landing on Hainan Island;9 and
6
The legal term under UNCLOS for territorial waters is territorial seas. This report uses the more colloquial term
territorial waters to avoid confusion with terms like South China Sea and East China Sea.
7
Source: Navy Office of Legislative Affairs email to CRS, June 15, 2012. The email notes that two additional
countries—Ecuador and Peru—also have restrictions inconsistent with UNCLOS that would limit the exercise of high
seas freedoms by foreign navies beyond 12 nautical miles from the coast, but do so solely because they claim an
extension of their territorial sea beyond 12 nautical miles.
8
Source: Joe Baggett and Pete Pedrozo, briefing for Center for Naval Analysis Excessive Chinese Maritime Claims
Workshop, August 7, 2013, slide entitled “What are other nations’ views?” (slide 30 of 47). The slide also notes that
there have been “isolated diplomatic protests from Pakistan, India, and Brazil over military surveys” conducted in their
EEZs.
9
For discussions of some of these incidents and their connection to the issue of military operating rights in EEZs, see
Raul Pedrozo, “Close Encounters at Sea, The USNS Impeccable Incident,” Naval War College Review, Summer 2009:
101-111; Jonathan G. Odom, “The True ‘Lies’ of the Impeccable Incident: What Really Happened, Who Disregarded
International Law, and Why Every Nation (Outside of China) Should Be Concerned,” Michigan State Journal of
(continued...)
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•
an incident on December 5, 2013, in which a Chinese navy ship put itself in the
path of the U.S. Navy cruiser Cowpens as it was operating 30 or more miles from
China’s aircraft carrier Liaoning, forcing the Cowpens to change course to avoid
a collision.; and
•
an incident on August 19, 2014, in which a Chinese fighter conducted an
aggressive and risky intercept of a U.S. Navy P-8 maritime patrol aircraft that
was flying in international airspace about 135 miles east of Hainan Island.10 DOD
characterized the intercept as “very, very close, very dangerous.”11
Figure 2 shows the locations of the 2001, 2002, and 2009 incidents listed in the first two bullets
above. The incidents shown in Figure 2 are the ones most commonly cited prior to the December
2013 involving the Cowpens, but some observers list additional incidents as well. For example,
one set of observers, in an August 2013 briefing, provided the following list of incidents in which
China has challenged or interfered with operations by U.S. ships and aircraft and ships from
India’s navy:
•
USNS Bowditch (March 2001);
•
EP-3 Incident (April 2001);
•
USNS Impeccable (March 2009);
•
USNS Victorious (May 2009);
•
USS George Washington (July-November 2010);
•
U-2 Intercept (June 2011);
•
INS [Indian Naval Ship] Airavat (July 2011);
•
INS [Indian Naval Ship] Shivalik (June 2012); and
•
USNS Impeccable (July 2013).10
Regarding some of these incidents, one observer states that
the airmen and sailors of all countries know how to operate around each other in a safe
fashion. There is no lack of knowledge or training. The rules are well understood as to how
you operate your ship or your airplane so you don’t hit somebody.
What matters is the political direction given to the military. If your government says to you,
“I really want you to muscle those people. Forget about the rules. Just see if you can make
them give way.” That’s what led to the incident in 2001. That’s what led to the incident with12
(...continued)
International Law, vol. 18, no. 3, 2010: 16-22, accessed September 25, 2012, at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1622943; Oriana Skylar Mastro, “Signaling and Military Provocation in Chinese National
Security Strategy: A Closer Look at the Impeccable Incident,” Journal of Strategic Studies, April 2011: 219-244; and
Peter Dutton, ed., Military Activities in the EEZ, A U.S.-China Dialogue on Security and International Law in the
Maritime Commons, Newport (RI), Naval War College, China Maritime Studies Institute, China Maritime Study
Number 7, December 2010, 124 pp. See also CRS Report RL30946, China-U.S. Aircraft Collision Incident of April
2001: Assessments and Policy Implications, by Shirley A. Kan et al.
10
Source for location: Transcript of remarks by DOD Press Secretary Rear Admiral John Kirby at August 22, 2014,
press briefing, accessed September 26, 2014, at http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=
5493. Chinese officials stated that the incident occurred 220 kilometers (about 137 statute miles or about 119 nautical
miles) from Hainan Island.
11
Source: Transcript of remarks by DOD Press Secretary Rear Admiral John Kirby at August 22, 2014, press briefing,
accessed September 26, 2014, at http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5493.
12
Source: Joe Baggett and Pete Pedrozo, briefing for Center for Naval Analysis Excessive Chinese Maritime Claims
Workshop, August 7, 2013, slide entitled “Notable EEZ Incidents with China,” (slides 37 and 46 of 47). Regarding an
event involving the Impeccable reported to have taken place in June rather than July, see William Cole, “Chinese Help
Plan For Huge War Game Near Isles,” Honolulu Star-Advertiser, July 25, 2013: 1. See also Bill Gertz, “Inside the
Ring: New Naval Harassment in Asia,” July 17, 2013. See also Department of Defense Press Briefing by Adm.
Locklear in the Pentagon Briefing Room, July 11, 2013, accessed August 9, 2013, at http://www.defense.gov/
transcripts/transcript.aspx?transcriptid=5270.
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the USS Cowpens in the South China Sea last December when the Chinese ship cut in front
of it.11 As of September 26, 2014, a video of part of the incident was posted on
(continued...)
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Figure 2. Locations of 2001, 2002, and 2009 U.S.-Chinese Incidents at Sea and In Air
Source: Mark E. Redden and Phillip C. Saunders, Managing Sino-U.S. Air and Naval Interactions: Cold War Lessons
and New Avenues of Approach, Washington, Center for the Study of Chinese Military Affairs, Institute for National
Strategic Studies, National Defense University, September 2012. Detail of map shown on page 6.
Regarding some of these incidents, one observer states that
the airmen and sailors of all countries know how to operate around each other in a safe
fashion. There is no lack of knowledge or training. The rules are well understood as to how
you operate your ship or your airplane so you don’t hit somebody.
What matters is the political direction given to the military. If your government says to you,
“I really want you to muscle those people. Forget about the rules. Just see if you can make
them give way.” That’s what led to the incident in 2001. That’s what led to the incident with
(...continued)
You Tube at http://www.youtube.com/watch?v=TiyeUWQObkg.
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the USS Cowpens in the South China Sea last December when the Chinese ship cut in front
of it.13
Relationship of Maritime Territorial Disputes to EEZ Dispute
The issue of whether China has the right under UNCLOS to regulate foreign military activities in
its EEZ is related to, but ultimately separate from, the issue of territorial disputes in the SCS and
ECS. The two issues are related because China can claim EEZs from inhabitable islands over
which it has sovereignty, so accepting China’s claims to sovereignty over inhabitable islands in
11
Yoichi Kato, “Interview: Dennis Blair: China Containing Itself By Aggressive Actions In Region,” Asahi Shimbun
(http://ajw.asahi.com), June 26, 2014.
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the SCS or ECS could permit China to expand the EEZ zone within which China claims a right to
regulate foreign military activities.
The EEZ issue is ultimately separate from the territorial disputes issue because even if all the
territorial disputes in the SCS and ECS were resolved, and none of China’s claims in the SCS and
ECS were accepted, China could continue to apply its concept of its EEZ rights to the EEZ that it
unequivocally derives from its mainland coast—and it is in this unequivocal Chinese EEZ that
most of the past U.S.-Chinese incidents at sea have occurred.
Press reports of maritime disputes in the SCS and ECS often focus on territorial disputes while
devoting little or no attention to the related but ultimately separate EEZ dispute. From the U.S.
perspective, however, the EEZ dispute is arguably as significant as the maritime territorial
disputes because of its potential for leading to a U.S.-Chinese incident at sea12sea14 and because of its
potential for affecting U.S. military operations not only in the SCS and ECS, but around the
world.
1972 Multilateral Convention on Preventing Collisions at Sea
(COLREGs Convention)
China and the United States, as well as more than 150 other countries (including all those
bordering on the South East and South China Seas other than Taiwan),1315 are parties to an October
1972 multilateral convention on international regulations for preventing collisions at sea,
commonly known as the collision regulations (COLREGs) or the “rules of the road.”1416 Although
commonly referred to as a set of rules or regulations, the multilateral convention is a binding treaty. The
convention applies “to all vessels upon the high seas and in all waters connected therewith
navigable by seagoing vessels.”15
In a February 18, 2014, letter to Senator Marco Rubio concerning the December 5, 2013, incident
involving the Cowpens, the State Department stated:
In order to minimize the potential for an accident or incident at sea, it is important that the
United States and China share a common understanding of the rules for operational air or
maritime interactions. From the U.S. perspective, an existing body of international rules and
guidelines—including the 1972 International Regulations for Preventing Collisions at Sea
(COLREGs)—are sufficient to ensure the safety of navigation between U.S. forces and the
force of other countries, including China. We will continue to make clear to the Chinese that
these existing rules, including the COLREGs, should form the basis for our common
12
this multilateral convention is a binding
13
Yoichi Kato, “Interview: Dennis Blair: China Containing Itself By Aggressive Actions In Region,” Asahi Shimbun
(http://ajw.asahi.com), June 26, 2014.
14
For a discussion, see Jeff M. Smith and Joshua Eisenman, “China and America Clash on the High Seas: The EEZ
Challenge,” The National Interest (http://nationalinterest.org), May 22, 2014.
1315
Source: International Maritime Organization, Status of Multilateral Conventions and Instruments in Respect of
Which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions, As
at 28 February 2014, pp. 86-89. The Philippines acceded to the convention on June 10, 2013.
1416
28 UST 3459; TIAS 8587. The treaty was done at London October 20, 1972, and entered into force July 15, 1977.
The United States is an original signatory to the convention and acceded the convention entered into force for the
United States on July 15, 1977. China acceded to the treaty on January 7, 1980. A summary of the agreement is
available at http://www.imo.org/About/Conventions/ListOfConventions/Pages/COLREG.aspx. The text of the
convention is available at https://treaties.un.org/doc/Publication/UNTS/Volume%201050/volume-1050-I-15824English.pdf.
15
Rule 1(a) of the convention.
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treaty. The convention applies “to all vessels upon the high seas and in all waters connected
therewith navigable by seagoing vessels.”17
In a February 18, 2014, letter to Senator Marco Rubio concerning the December 5, 2013, incident
involving the Cowpens, the State Department stated:
In order to minimize the potential for an accident or incident at sea, it is important that the
United States and China share a common understanding of the rules for operational air or
maritime interactions. From the U.S. perspective, an existing body of international rules and
guidelines—including the 1972 International Regulations for Preventing Collisions at Sea
(COLREGs)—are sufficient to ensure the safety of navigation between U.S. forces and the
force of other countries, including China. We will continue to make clear to the Chinese that
these existing rules, including the COLREGs, should form the basis for our common
understanding of air and maritime behavior, and we will encourage China to incorporate
these rules into its incident-management tools.
Likewise, we will continue to urge China to agree to adopt bilateral crisis management tools
with Japan and to rapidly conclude negotiations with ASEAN16ASEAN18 on a robust and meaningful
Code of Conduct in the South China in order to avoid incidents and to manage them when
they arise. We will continue to stress the importance of these issues in our regular
interactions with Chinese officials.1719
In the 2014 edition of its annual report on military and security developments involving China,
the Department of Defense (DOD) states:
On December 5, 2013, a PLA Navy vessel and a U.S. Navy vessel operating in the South
China Sea came into close proximity. At the time of the incident, USS COWPENS (CG 63)
was operating approximately 32 nautical miles southeast of Hainan Island. In that location,
the U.S. Navy vessel was conducting lawful military activities beyond the territorial sea of
any coastal State, consistent with customary international law as reflected in the Law of the
Sea Convention. Two PLA Navy vessels approached USS COWPENS. During this
interaction, one of the PLA Navy vessels altered course and crossed directly in front of the
bow of USS COWPENS. This maneuver by the PLA Navy vessel forced USS COWPENS to
come to full stop to avoid collision, while the PLA Navy vessel passed less than 100 yards
ahead. The PLA Navy vessel’s action was inconsistent with internationally recognized rules
concerning professional maritime behavior (i.e., the Convention of International Regulations
for Preventing Collisions at Sea), to which China is a party.18
2014 Code For Unplanned Encounters At Sea (CUES)
On April 22, 2014, representatives of 21 Pacific-region navies (including China, Japan, and the
United States), meeting in Qingdao, China, at the 14th Western Pacific Naval Symposium
(WPNS),19 unanimously agreed to a Code for Unplanned Encounters at Sea (CUES). CUES, a
1620
17
Rule 1(a) of the convention.
ASEAN is the Association of Southeast Asian Nations. ASEAN’s member states are Brunei, Cambodia, Indonesia,
Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam.
1719
Letter dated February 18, 2014, from Julia Frifield, Assistant Secretary, Legislative Affairs, Department of State, to
The Honorable Marco Rubio, United States Senate. Used here with the permission of the office of Senator Rubio. The
letter begins: “Thank you for your letter of January 31 regarding the December 5, 2013, incident involving a Chinese
naval vessel and the USS Cowpens.” The text of Senator Rubio’s January 31, 2014, letter was accessed March 13,
2014, at http://www.rubio.senate.gov/public/index.cfm/2014/1/rubio-calls-on-administration-to-address-provocativechinese-behavior.
1820
Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2014, p. 4.
19
As described in one press release, the WPNS
The Western Pacific Naval Symposium (WPNS) comprises navies whose countries border the
Pacific Ocean region. It was inaugurated in 1988 after navy chiefs attending the International
Seapower Symposium in 1987 agreed to establish a forum where leaders of regional navies could
meet to discuss cooperative initiatives. Under the WPNS, member countries convene biennially to
discuss regional and global maritime issues.
As of October 2010, WPNS membership stands at 20 members and four observers. They are:
Members: Australia, Brunei, Cambodia, Canada, Chile, France, Indonesia, Japan, Malaysia, New
Zealand, Papua New Guinea, People’s Republic of China, Philippines, Republic of Korea, Russia,
Singapore, Thailand, Tonga, United States of America and Vietnam
Observers: Bangladesh, India, Mexico and Peru
(continued...)
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2014 Code For Unplanned Encounters At Sea (CUES)
On April 22, 2014, representatives of 21 Pacific-region navies (including China, Japan, and the
United States), meeting in Qingdao, China, at the 14th Western Pacific Naval Symposium
(WPNS),21 unanimously agreed to a Code for Unplanned Encounters at Sea (CUES). CUES, a
non-binding agreement, establishes a standardized protocol of safety procedures, basic
communications, and basic maneuvering instructions for naval ships and aircraft during
unplanned encounters at sea, with the aim of reducing the risk of incidents arising from such
encounters.20
Two observers stated that “The 22 The CUES agreement in effect supplements the 1972 COLREGs Convention (see
previous section); it does not cancel or lessen commitments that countries have as parties to the
COLREGS Convention.
Two observers stated that “The [CUES] resolution is non-binding; only regulates communication in
in ‘unplanned encounters,’ not behavior; fails to address incidents in territorial waters; and does not
not apply to fishing and maritime constabulary vessels, which are responsible for the majority of
Chinese harassment operations.”2123 An April 23, 2014, press report stated:
Beijing won't necessarily observe a new code of conduct for naval encounters when its ships
meet foreign ones in disputed areas of the East and South China seas, according to a senior
Chinese naval officer involved in negotiations on the subject....
U.S. naval officers have said they hoped all members of the group would observe the code in
all places, including waters where China’s territorial claims are contested by its neighbors.
But the code isn’t legally binding, and it remains to be seen whether China will observe it in
what the U.S. sees as international waters and Beijing sees as part of its territory.
Senior Capt. Ren Xiaofeng, the head of the Chinese navy’s Maritime Security/Safety Policy
Research Division, said that when and where the code was implemented had to be discussed
bilaterally between China and other nations, including the U.S.
“It’s recommended, not legally binding,” Capt. Ren told The Wall Street Journal....22
Another observer states that China
touts the fact that it recently signed a Code for Unplanned Encounters at Sea at the recent
Western Pacific Naval Symposium held in Qingdao. CUES is meant to help avoid accidents
at sea. However, the code is voluntary and applies only when naval ships and aircraft meet
“casually or unexpectedly.” It also does not apply to a country’s territorial waters, and of
(...continued)
21
As described in one press release, the WPNS
The Western Pacific Naval Symposium (WPNS) comprises navies whose countries border the
Pacific Ocean region. It was inaugurated in 1988 after navy chiefs attending the International
Seapower Symposium in 1987 agreed to establish a forum where leaders of regional navies could
meet to discuss cooperative initiatives. Under the WPNS, member countries convene biennially to
discuss regional and global maritime issues.
As of October 2010, WPNS membership stands at 20 members and four observers. They are:
Members: Australia, Brunei, Cambodia, Canada, Chile, France, Indonesia, Japan, Malaysia, New
Zealand, Papua New Guinea, People’s Republic of China, Philippines, Republic of Korea, Russia,
Singapore, Thailand, Tonga, United States of America and Vietnam
Observers: Bangladesh, India, Mexico and Peru
(Singapore Ministry of Defense, “Fact Sheet: Background of the Western Pacific Naval
Symposium, MCMEX, DIVEX and NMS,” updated March 25, 2011, accessed October 1, 2012, at
http://www.mindef.gov.sg/imindef/news_and_events/nr/2011/mar/25mar11_nr/25mar11_fs.html.
See also the website for the 2012 WPNS at http://www.navy.mil.my/wpns2012/.)
2022
See, for example, “Navy Leaders Agree to CUES at 14th WPNS,” Navy News Services, April 23, 2014; Austin
Ramzy and Chris Buckley, “Pacific Rim Deal Could Reduce Chance of Unintended Conflict in Contested Seas,” New
York Times (www.nytimes.com), April 23, 2014; Megha Rajagopalan, “Pacific Accord on Maritime Code Could Help
Prevent Conflicts,” Reuters.com, April 22, 104.
For additional background information on CUES, see Mark E. Redden and Phillip C. Saunders, Managing Sino-U.S.
Air and Naval Interactions: Cold War Lessons and New Avenues of Approach, Washington, Center for the Study of
Chinese Military Affairs, Institute for National Strategic Studies, National Defense University, September 2012, pp. 89. The text of the previous 2003 CUES Review Supplement was accessed October 1, 2012, at http://navy.mil.my/
wpns2012/images/stories/dokumen/WPNS%202012%20PRESENTATION%20FOLDER/
ACTION%20ITEMS%20WPNS%20WORKSHOP%202012/CUES.PDF.
2123
Jeff M. Smith and Joshua Eisenman, “China and America Clash on the High Seas: The EEZ Challenge,” The
National Interest (http://nationalinterest.org), May 22, 2014.
22
Jeremy Page, “China Won’t Necessarily Observe New Conduct Code for Navies,” Wall Street Journal
(http://online.wsj.com), April 23, 2014.
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But the code isn’t legally binding, and it remains to be seen whether China will observe it in
what the U.S. sees as international waters and Beijing sees as part of its territory.
Senior Capt. Ren Xiaofeng, the head of the Chinese navy’s Maritime Security/Safety Policy
Research Division, said that when and where the code was implemented had to be discussed
bilaterally between China and other nations, including the U.S.
“It’s recommended, not legally binding,” Capt. Ren told The Wall Street Journal....24
Another observer states that China
touts the fact that it recently signed a Code for Unplanned Encounters at Sea at the recent
Western Pacific Naval Symposium held in Qingdao. CUES is meant to help avoid accidents
at sea. However, the code is voluntary and applies only when naval ships and aircraft meet
“casually or unexpectedly.” It also does not apply to a country’s territorial waters, and of
course countering China’s expansive claims to territorial waters is one of the most pressing
problems in the South and East China Seas.2325
A July 23, 2014, press report states:
A strange thing happened in the South China Sea the other month when the USS Spruance—
an American guided-missile destroyer—encountered a civilian Chinese supply ship,
according to U.S. naval officers.
The Chinese ship sped towards the U.S. vessel and began broadcasting abusive messages
over the radio in Chinese and English, demanding that it leave the area, the U.S. officers
said.
That was no particular surprise: Such confrontations have become routine in recent years as
China has stepped up efforts to enforce maritime claims in the South China Sea and East
China Sea.
What was unusual was that a Chinese naval frigate soon arrived to defuse the standoff,
making radio contact with the U.S. ship in English, and acting as an intermediary with the
Chinese supply vessel, the U.S. naval officers said.
The episode in February is one of three cited by Adm. Jonathan W. Greenert, the U.S. chief
of naval operations, as evidence that China is trying to improve ties with the U.S. Navy, even
as it presses territorial claims in Asia....
The Spruance encounter is indicative of a new two-pronged approach China is taking in
disputed waters. Chinese ships and aircraft still confront counterparts from neighbors with
competing maritime claims, including Japan and the Philippines, two U.S. allies. With the
U.S. navy, though, China appears to be on something of a charm offensive — —one that
analysts say is designed both to build a new “major power” relationship with the U.S., and to
gradually undermine U.S. alliances in Asia.
24
Jeremy Page, “China Won’t Necessarily Observe New Conduct Code for Navies,” Wall Street Journal
(http://online.wsj.com), April 23, 2014.
25
Patrick Cronin, “China’s Problem With Rules: Managing A Reluctant Stakeholder,” War on the Rocks
(http://warontherocks.com), June 26, 2014. See also James Goldrick, “Cue co-operation? Pacific Naval Code Aims to
Improve Collaboration at Sea,” Jane’s Defence Weekly, May 21, 2014: 24-25.
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Another unusual encounter occurred in the East China Sea in October, when a Chinese navy
frigate, the Putian, came within 25,000 yards of a Japan-based U.S. Navy destroyer, the USS
Curtis Wilbur, according to U.S. officials.
The captains greeted each other over bridge-to-bridge communications and the two men
began to talk — —first about the weather and each other’s ships, then families, food, music
and and
basketball, the officials said....
He cited the exchanges as evidence that the Chinese navy was living up to a commitment to
communicate with U.S. ships in English when they meet at sea. China has since gone further,
signing up to a Code for Unplanned Encounters At Sea, or CUES, in April.
Adm. Greenert said Chinese navy ships appeared to be behaving more professionally in their
engagements with U.S. counterparts since the code was signed.
“When there’s an incident where there was unprofessional behavior or potential harassment
involved, then it’s reported. I have none of those at sea since April,” he said. “There hasn’t
23
Patrick Cronin, “China’s Problem With Rules: Managing A Reluctant Stakeholder,” War on the Rocks
(http://warontherocks.com), June 26, 2014.
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been the instance where the mediation has needed to occur to my knowledge since the
Spruance.”
The third example Adm. Greenert cited was an encounter in which U.S. officials say a
Chinese navy vessel blocked the path of the USS Cowpens, a U.S. missile cruiser that was
operating near China’s new aircraft carrier in the South China Sea in December.
Some U.S. military officers, politicians and defense experts have held that up as evidence
that China is seeking not to just to enforce territorial claims, but to hinder U.S. freedom of
navigation in the South China Sea.
But Adm. Greenert argued that the confrontation was only resolved after the captain of the
Liaoning, China’s carrier, contacted the commander of the Cowpens and spoke to him in
English. The Liaoning’s captain had visited the U.S. in September with Adm. Wu, U.S.
officials said.
“I would tell you that knowing and having that clarity of what will happen when two ships
pass — —they’re speaking English, we’ll use CUES – —I think is a fairly dramatic
improvement,”
Adm. Greenert said.2426
U.S.-China Memorandum of Understanding (MOU) On Air and Maritime
Encounters
In November 2014, the U.S. DOD and China’s Ministry of National Defense signed a
Memorandum of Understanding (MOU) regarding rules of behavior for safety of air and maritime
encounters.27 The MOU makes reference to UNCLOS, the 1972 COLREGs convention, the
Conventional on International Civil Aviation (commonly known as the Chicago Convention), the
Agreement on Establishing a Consultation Mechanism to Strengthen Military Maritime Safety
26
Jeremy Page, “Divide and Conquer? Chinese Navy Starts Playing Nice With U.S.,” Wall Street Journal, China Real
Time (http://blogs.wsj.com/chinarealtime), July 23, 2014.
27
Memorandum of Understanding Between The Department of Defense of the United States of America and the
Ministry of National Defense of the People’s Republic of China Regarding the Rules of Behavior for Safety of Air and
Maritime Encounters, November 12, 2014.
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(MMCA), and CUES. Section IV of the MOU states that the U.S. DOD and China’s Ministry of
National Defense
should conduct an annual assessment meeting, led by senior colonel/senior
captain/colonel/captain-level officers or civilian equivalents, to review the previous year’s
events relating to the application of the rules of behavior and consult on potential revision
and improvements for future implementation.
The annual assessment meeting should take place under the MMCA mechanism and be
hosted in the United States and China on a rotating basis by the U.S. and Chinese Sides,
consistent with the rotation cycle of MMCA meetings.
Section III states that “Both Sides decided to complex another annex ([for] air-to-air encounters)
in 2015.”
Negotiations Between China and ASEAN on SCS Code of Conduct
In 2002, China and the 10 member states of ASEAN signed a non-binding Declaration on the
Conduct (DOC) of Parties in the South China Sea in which the parties, among other things,
... reaffirm their respect for and commitment to the freedom of navigation in and overflight
above the South China Sea as provided for by the universally recognized principles of
international law, including the 1982 UN Convention on the Law of the Sea....
... undertake to resolve their territorial and jurisdictional disputes by peaceful means, without
resorting to the threat or use of force, through friendly consultations and negotiations by
sovereign states directly concerned, in accordance with universally recognized principles of
international law, including the 1982 UN Convention on the Law of the Sea....
... undertake to exercise self-restraint in the conduct of activities that would complicate or
escalate disputes and affect peace and stability including, among others, refraining from
action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other
features and to handle their differences in a constructive manner....
...reaffirm that the adoption of a [follow-on] code of conduct in the South China Sea would
further promote peace and stability in the region and agree to work, on the basis of
consensus, towards the eventual attainment of this objective....2528
In July 2011, China and ASEAN adopted a preliminary set of principles for implementing the
DOC. U.S. officials since 2010 have encouraged ASEAN and China to develop the follow-on
binding Code of Conduct (COC) mentioned in the final paragraph above. China and ASEAN
have conducted negotiations on the follow-on COC, but China has not yet agreed with the
ASEAN member states on a final text. An August 5, 2013, press report states that “China is in no
24
Jeremy Page, “Divide and Conquer? Chinese Navy Starts Playing Nice With U.S.,” Wall Street Journal, China Real
Time (http://blogs.wsj.com/chinarealtime), July 23, 2014.
25
For the full text of the declaration, see Appendix B.
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rush to sign a proposed agreement on maritime rules with Southeast Asia governing behavior in
the disputed South China Sea, and countries should not have unrealistic expectations, the Chinese
foreign minister said on Monday [August 5].”26
China’s Approach to Maritime Territorial rush to sign a proposed agreement on maritime rules with Southeast Asia governing behavior in
the disputed South China Sea, and countries should not have unrealistic expectations, the Chinese
foreign minister said on Monday [August 5].”29
28
For the full text of the declaration, see Appendix B.
Ben Blanchard, “China Says In No Hurry to Sign South China Sea Accord,” Reuters.com, August 5, 2013. See also
Shannon Tiezzi, “Why China Isn’t Interested in a South China Sea Code of Conduct,” The Diplomat
(http://thediplomat.com), February 26, 2014.
29
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China’s Approach to Maritime Territorial and EEZ Disputes
Map of the Nine-Dash Line
China depicts its territorial claims in the SCS using the so-called map of the nine-dash line—a
Chinese map of the SCS showing nine line segments that, if connected, would enclose an area
covering roughly 90% (earlier estimates said about 80%) of the SCS (Figure 3).
26
Ben Blanchard, “China Says In No Hurry to Sign South China Sea Accord,” Reuters.com, August 5, 2013. See also
Shannon Tiezzi, “Why China Isn’t Interested in a South China Sea Code of Conduct,” The Diplomat
(http://thediplomat.com), February 26, 2014.
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Figure 3. Map of the Nine-Dash Line
Example submitted by China to the United Nations in 2009
Source: Communication from China to the United Nations dated May 7, 2009, English version, accessed on
August 30, 2012, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm.
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The area inside the nine line segments far exceeds what is claimable as territorial waters under
customary international law of the sea as reflected in UNCLOS, and, as shown in Figure 4,
includes waters that are within the claimable EEZs (and in some places are quite near the coasts)
of the Philippines, Malaysia, Brunei, and Vietnam.
Figure 4. EEZs Overlapping Zone Enclosed by Map of Nine-Dash Line
Source: Source: Eurasia Review, September 10, 2012.
Notes: (1) The red line shows the area that would be enclosed by connecting the line segments in the map of
the nine-dash line. Although the label on this map states that the waters inside the red line are “China’s claimed
territorial waters,” China has maintained ambiguity over whether it is claiming full sovereignty over the entire
area enclosed by the nine line segments. (2) The EEZs shown on the map do not represent the totality of
maritime territorial claims by countries in the region. Vietnam, to cite one example, claims all of the Spratly
Islands, even though most or all of the islands are outside the EEZ that Vietnam derives from its mainland coast.
The map of the nine-dash line, also called the U-shaped line or the cow tongue,2730 predates the
establishment of the People’s Republic of China (PRC) in 1949. The map has been maintained by
the PRC government, and maps published in Taiwan also show the nine line segments.2831 In a
2730
The map is also sometimes called the map of the nine dashed lines (as opposed to nine-dash line), perhaps because
some maps (such as Figure 3) show each line segment as being dashed.
2831
See Department of Defense, Annual Report to Congress, Military and Security Developments Involving the People’s
Republic of China, 2011, pp. 15 and 39; Peter Dutton, “Three Disputes and Three Objectives, China and the South
China Sea,” Naval War College Review, Autumn 2011: 44-45; Hong Nong, “Interpreting the U-shape Line in the South
China, Sea,” accessed on September 28, 2012, at http://chinausfocus.com/peace-security/interpreting-the-u-shape-linein-the-south-china-sea/.
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document submitted to the United Nations on May 7, 2009, that included the map as an
attachment, China stated:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent
waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the
seabed and subsoil thereof (see attached map [of the nine-dash line]). The above position is
consistently held by the Chinese Government, and is widely known by the international
community.2932
The map does not always have exactly nine dashes. Early versions of the map had as many as 11
dashes, and a new map of China published by the Chinese government in June 2014 includes 10
dashes.3033
China has maintained some ambiguity over whether it is using the map of the nine-dash line to
claim full sovereignty over the entire sea area enclosed by the nine-dash line, or something less
than that.3134 Maintaining this ambiguity can be viewed as an approach that preserves flexibility for
China in pursuing its maritime claims in the SCS while making it more difficult for other parties
to define specific objections or pursue legal challenges to those claims. It does appear clear,
however, that China at a minimum claims sovereignty over the island groups inside the nine line
segments—China’s domestic Law on the Territorial Sea and Contiguous Zone, enacted in 1992,
specifies that China claims sovereignty over all the island groups inside the nine line segments.3235
China’s implementation on January 1, 2014, of a series of fishing regulations covering much of
the SCS suggests that China claims at least some degree of administrative control over much of
the SCS.
“Salami-Slicing” Strategy and “Cabbage” Strategy
Some observersObservers frequently characterize China’s approach for asserting and defending its territorial
claims in
the ECS and SCS as a “salami-slicing” strategy that employs a series of incremental
actions, none
of which by itself is a casus belli, to gradually change the status quo in China’s
favor.3336 At least
29
one Chinese official has used the term “cabbage strategy” to refer to a strategy of
32
Communication from China to the United Nations dated May 7, 2009, English version, accessed on August 30, 2012,
at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm.
3033
For an article discussing this new map in general (but not that it includes 10 dashes), see Ben Blanchard and Sui-Lee
Wee, “New Chinese Map Gives Greater Play to South China Sea Claims,” Reuters (www.reuters.com), June 25, 2014.
See also “China Adds Another Dash to the Map,” Maritime Executive (http://www.maritime-executive.com), July 4,
2014.
3134
See Andrew Browne, “China’s line in the Sea,” Wall Street Journal (http://online.wsj.com), April 1, 2014; Peter
Dutton, “Three Disputes and Three Objectives, China and the South China Sea,” Naval War College Review, Autumn
2011: 45-48; Hong Nong, “Interpreting the U-shape Line in the South China, Sea,” accessed September 28, 2012, at
http://chinausfocus.com/peace-security/interpreting-the-u-shape-line-in-the-south-china-sea/.) See also Ankit Panda,
“Will China’s Nine Dashes Ever Turn Into One Line?” The Diplomat (http://thediplomat.com), July 1, 2014.
3235
Peter Dutton, “Three Disputes and Three Objectives, China and the South China Sea,” Naval War College Review,
Autumn 2011: 45, which states: “In 1992, further clarifying its claims of sovereignty over all the islands in the South
China Sea, the People’s Republic of China enacted its Law on the Territorial Sea and Contiguous Zone, which specifies
that China claims sovereignty over the features of all of the island groups that fall within the U-shaped line in the South
China Sea: the Pratas Islands (Dongsha), the Paracel Islands (Xisha), Macclesfield Bank (Zhongsha), and the Spratly
Islands (Nansha).” See also International Crisis Group, Stirring Up the South China Sea ([Part] I), Asia Report
Number 223, April 23, 2012, pp. 3-4.
3336
See, for example, Statement before the U.S. House Armed Services [Committee,] Subcommittee on Seapower and
Projection Forces and the House Foreign Affairs [Committee,] Subcommittee on the Asia Pacific [sic: Asia and the
Pacific] [on] “People’s Republic of China Maritime Disputes,” A Statement by Bonnie S. Glaser, Senior Adviser,
(continued...)
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one Chinese official has used the term “cabbage strategy” to refer to a strategy of consolidating
consolidating control over disputed islands by wrapping those islands, like the leaves of a
cabbage, in
successive layers of occupation and protection formed by fishing boats, Chinese
Coast Guard
ships, and then finally Chinese naval ships.3437 Other observers have referred to
China’s approach
as a strategy of creeping annexation35annexation38 or creeping invasion,39 or as a “talk and
take” strategy, meaning a strategy in which
China engages in (or draws out) negotiations while
taking actions to gain control of contested
areas.3640
Use of China Coast Guard Ships and Other Ships
China makes regular use of China Coast Guard ships to assert and defend its maritime territorial
claims, with Chinese Navy ships sometimes available over the horizon as backup forces.37
(...continued)
41
(...continued)
Pacific] [on] “People’s Republic of China Maritime Disputes,” A Statement by Bonnie S. Glaser, Senior Adviser,
Freeman Chair in China Studies, Center for Strategic and International Studies (CSIS), January 14, 2014, pp. 3-5;
Robert Haddick, “Getting Tough in the South China Sea,” National Interest (http://nationalinterest.org), February 25,
2014; Robert Haddick, “America Has No Answer to China’s Salami-Slicing,” War on the Rocks
(http://warontherocks.com), February 6, 2014.
34; Bonnie S. Glaser, “Is China’s Charm Offensive Dead?” China Brief
(http://www.jamestown.org), July 31, 2014; Patrick M. Cronin, The Challenge of Responding to Maritime Coercion,
Center for a New American Security, September 2014, pp. 5-6.
37
See Harry Kazianis, “China’s Expanding Cabbage Strategy,” The Diplomat (http:thediplomat.com), October 29,
2013; Bonnie S. Glaser and Alison Szalwinski, “Second Thomas Shoal Likely the Next Flashpoint in the South China
Sea,” China Brief, June 21, 2013, accessed August 9, 2013, at http://www.jamestown.org/programs/chinabrief/single/?
tx_ttnews%5Btt_news%5D=41054&tx_ttnews%5BbackPid%5D=25&cHash=
6580ce14cee5ac00501d5439f3ee3632#.UdBFf8u9KSM; and Rafael M. Alunan III, “China’s Cabbage Strategy,”
Business World (Manila; http://www.bworldonline.com), July 8, 2013. See also Loida Nicolas Lewis, Rodel Rodis, and
Walden Bello, “China’s ‘Cabbage Strategy’ in West PH Sea,” Philippine Daily Inquirer, July 27, 2013.
3538
See, for example, Alan Dupont, “China’s Maritime Power Trip,” The Australian, May 24, 2014.
3639
Jackson Diehl, “China’s ‘Creeping Invasion,” Washington Post (www.washingtonpost.com), September 14, 2014.
40
See, for example, Patrick M. Cronin, et al, Cooperation from Strength, The United States, China and the South China
Sea, Center for a New American Security, January 2012, pp. 16, 56, and 65 (note 19); David Brown, “China, Vietnam
Drift in South China Sea,” Asia Times Online (www.atimes.com), January 21, 2012; Derek Bolton, “Pivoting Toward
the South China Sea?” Foreign Policy In Focus (http://fpif.org), June 11, 2012; John Lee, “China’s Salami-slicing Is
Dicey Diplomacy,” Hudson Institute (http://hudson.org), November 27, 2013; Fernando Fajardo, “Asia and the US
Interest,” Cebu Daily News (http://cebudailynews.inquirer.net), April 16, 2014; Jacqueline Newmyer Deal, “Chinese
Dominance Isn’t Certain,” The National Interest (http://nationalinterest.org), April 22, 2014; David Brown, “Viets
Gamble Vainly on Appeasement in South China Sea,” Asia Sentinel (www.asiasentinel.com), May 7, 2014.
3741
The Department of Defense (DOD) states:
During the 2012 Scarborough Reef and 2013 Senkaku Islands tensions, the China Maritime
Surveillance (CMS) and Fisheries Law Enforcement Command (FLEC) ships were responsible for
directly asserting Chinese sovereignty on a daily basis, while the PLA Navy maintained a more
distant presence from the immediate vicinity of the contested waters. China prefers to use its
civilian maritime agencies around these islands, and uses the PLA Navy in a back-up role or as an
escalatory measure. China’s diplomats also apply pressure on rival claimants. China identifies its
territorial sovereignty as a core interest and emphasizes its willingness to protect against actions
that China perceives challenge Chinese sovereignty. China almost certainly wants to assert its
maritime dominance without triggering too harsh of a regional backlash.
In 2013, China consolidated four of its maritime law enforcement agencies into the China Coast
Guard (CCG). Subordinate to the Ministry of Public Security, the CCG is responsible for a wide
range of missions, including maritime sovereignty enforcement missions, anti-smuggling, maritime
rescue and salvage, protecting fisheries resources, and general law enforcement. Prior to the
consolidation, different agencies were responsible for each of these mission sets, creating
organizational redundancies and complicating interagency coordination.
In the next decade, a new force of civilian maritime ships will afford China the capability to patrol
its territorial claims more robustly in the East China and the South China Seas. China is continuing
with the second half of a modernization and construction program for the CCG. The first half of
this program, from 2004 to 2008, resulted in the addition of almost 20 ocean-going patrol ships.
(continued...)
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Chinese Coast Guard ships are generally unarmed or lightly armed, but can be effective in
asserting and
defending maritime territorial claims, particularly in terms of confronting or
harassing foreign
vessels that are similarly lightly armed or unarmed.3842 In addition to being
available as backups for
China Coast Guard ships, Chinese navy ships conduct exercises that in
some cases appear
intended, at least in part, at reinforcing China’s maritime claims.3943 Some
observers believe China
also uses civilian fishing ships to assert and defend its maritime claims.4044
Preference for Treating Disputes on Bilateral Basis
China prefers to discuss maritime territorial disputes with other parties to the disputes on a
bilateral rather than multilateral basis. Some observers believe China prefers bilateral talks
because China is much larger than any other country in the region, giving China a potential upper
hand in any bilateral meeting. China generally has resisted multilateral approaches to resolving
maritime territorial disputes, stating that such approaches would internationalize the disputes,
although the disputes are by definition international even when addressed on a bilateral basis.
(China’s participation with the ASEAN states in the 2002 DOC and in negotiations with the
ASEAN states on the follow-on binding code of conduct represents a departure from this general
preference.) As noted above, some observers believe China is pursuing a policy of putting off a
negotiated resolution of maritime territorial disputes so as to give itself time to implement the
salami-slicing strategy.4145 China has resistedresists and objects to U.S. involvement in the disputes.42
(...continued)
46
(...continued)
its territorial claims more robustly in the East China and the South China Seas. China is continuing
with the second half of a modernization and construction program for the CCG. The first half of
this program, from 2004 to 2008, resulted in the addition of almost 20 ocean-going patrol ships.
The second half of this program, from 2011 to 2015, includes at least 30 new ships for the CCG.
Several less capable patrol ships will be decommissioned during this period. In addition, the CCG
will likely build more than 100 new patrol craft and smaller units, both to increase capability and to
replace old units. Overall, The CCG’s total force level is expected to increase by 25 percent. Some
of these ships will have the capability to embark helicopters, a capability that only a few MLE
[maritime law enforcement] ships currently have. The enlargement and modernization of China’s
MLE forces will improve China’s ability to enforce its maritime sovereignty.
(Department of Defense, Annual Report to Congress [on] Military and Security Developments
Involving the People’s Republic of China 2014, p. 38.)
3842
See, for example, Megha Rajagopalan and Greg Torode, “China’s Civilian Fleet A Potent Force in Asia’s Disputed
Waters,” Reuters.com, March 5, 2014.
3943
See, for example, Trefor Moss and Rob Taylor, “Chinese Naval Patrol Pompts Conflicting Regional Response,” Wall
Street Journal (http://online.wsj.com), February 20, 2014.
4044
See James R. Holmes. A Competitive Turn: How Increased Chinese Maritime Actions Complicate U.S. Partnerships,
Washington, Center for a New American Security, December 2012, East and South China Sea Bulletin 7, p. 1, accessed
March 25, 2012, at http://www.cnas.org/files/documents/flashpoints/CNAS_bulletin_Holmes_ACompetitiveTurn.pdf;
James R. Holmes, “China’s Small Stick Diplomacy,” The Diplomat (http://thediplomat.com), May 21, 2012, accessed
October 3, 2012, at http://thediplomat.com/2012/05/21/chinas-small-stick-diplomacy/; Jens Kastner, “China’s
Fishermen Charge Enemy Lines,” Asia Times Online (www.atimes.com), May 16, 2012; Carlyle A. Thayer, “Paracel
Island: Chinese Boats Attack Vietnamese Fishing Craft,” Thayer Consultancy Background Brief, May 28, 2013, p. 1;
Kurt Campbell, “Trouble at Sea Reveals The New Shape of China’s Foreign Policy,” Financial Times
(http://blogs.ft.com), July 22, 2014; John Ruwitch, “Satellites and Seafood: China Keeps Fishing Fleet Connected in
Disputed Waters,” Reuters (www.reuters.com), July 27, 2014; Wendell Minnick, “Fishing Vessels in China Serve as
Proxy Enforcers,” Defense News (www.defensenews.com), August 17, 2014.
45.
41
One observer, for example, states that “implementing the DOC, let alone transitioning to a COC, has proven
chimerical. China is not the sole cause of delay; ASEAN is divided as to what, if anything, to do. But China’s strategy
is clear: to use fruitless diplomacy to buy time for factual primacy, thereby ensuring that future negotiations will serve
Chinese ends.” (Donald K. Emmerson, “China Challenges Philippines in the South China Sea,” East Asia Forum
(www.eastasiaforum.org), March 18, 2014.)
42
For additional discussion of China’s approach to maritime territorial disputes, see Patrick Cronin, “China’s Problem
With Rules: Managing A Reluctant Stakeholder,” War on the Rocks (http://warontherocks.com), June 26, 2014.(continued...)
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Comparison with U.S. Actions Toward Caribbean and Gulf of Mexico
Some observers have compared China’s approach toward its near-seas region with the U.S.
approach toward the Caribbean and the Gulf of Mexico in the age of the Monroe Doctrine. One
observer, for example, states:
Beijing is attempting to do in the East and South China Seas in the early twenty-first century
what the United States successfully accomplished in the Greater Caribbean in the nineteenth
and early-twentieth centuries. It has attempted to take effective strategic control of the blue
water extension of its own continental land mass.4347
It can be noted, however, that there are significant differences between China’s approach to its
near-seas region and the U.S. approach—both in the 19th and 20th Centuriescenturies and today—to the
Caribbean and the Gulf of Mexico. Unlike China in its approach to its near-seas region, the
United States has not asserted any form of sovereignty or historical rights over the broad waters
of the Caribbean or Gulf of Mexico (or other sea areas beyond the 12-mile limit of U.S. territorial
waters), has not published anything akin to the nine-dash line for these waters (or other sea areas
beyond the 12-mile limit), and does not contest the right of foreign naval forces to operate and
engage in various activities in waters beyond the 12-mile limit. One observer states:
Chinese interlocutors are forever trying to use facile comparisons with U.S. history to get
Americans to commit to unilateral intellectual disarmament. If we did it in the Caribbean
then, how can we object when China does it in Southeast Asia now?...
While China’s methods in nearby waters bear some resemblance to fin de siècle America’s,
its goals could hardly be more different. The difference is between closed seas and skies
ruled by a strong coastal state and freedom of the maritime commons....
[The United States] never claimed ownership of the greater Caribbean, however much it
coveted primacy there. There was no American counterpart to the nine-dashed line.
Nor, despite occasional glances toward Cuba and other islands, did Washington regard these
jewels of the Caribbean as rightful U.S. property. Nor did any significant school of foreignpolicy thought regard southern waters as a seaward extension of the North American
landmass. Still less did official policy consider the sea sovereign territory or “blue national
soil,” to borrow the ubiquitous Chinese phrase for the near seas.
Instead, the Monroe Doctrine was a unilateral directive forbidding European empires to
reconquer American republics that had won their independence. The doctrine was popular in
Latin America for decades....
Only in the 1910s did the Monroe Doctrine truly fall into disrepute in Latin America. That’s
when U.S. leaders took to using it abusively, as a pretext for diplomatic and military
interventionism rather than a common defense of the Americas.
Yet U.S. statesmen didn’t cling hardheadedly to even this most cherished of foreign-policy
doctrines. In the 1920s, Washington retracted the Theodore Roosevelt “Corollary” to the
doctrine, which Presidents William Howard Taft and Woodrow Wilson invoked as a license
for intervention in Caribbean nations’ affairs. Presidents Herbert Hoover and Franklin
43
Robert D. Kaplan, “China'(...continued)
Chinese ends.” (Donald K. Emmerson, “China Challenges Philippines in the South China Sea,” East Asia Forum
(www.eastasiaforum.org), March 18, 2014.)
46
For additional discussion of China’s approach to maritime territorial disputes, see Patrick Cronin, “China’s Problem
With Rules: Managing A Reluctant Stakeholder,” War on the Rocks (http://warontherocks.com), June 26, 2014.
47
Robert D. Kaplan, “China’s Budding Ocean Empire,” The National Interest (http://nationalinterest.org), June 5,
2014.
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Yet U.S. statesmen didn’t cling hardheadedly to even this most cherished of foreign-policy
doctrines. In the 1920s, Washington retracted the Theodore Roosevelt “Corollary” to the
doctrine, which Presidents William Howard Taft and Woodrow Wilson invoked as a license
for intervention in Caribbean nations’ affairs. Presidents Herbert Hoover and Franklin
Roosevelt subsequently ushered in the pan-American defense system that remains in place to
this day.
In effect Hoover and FDR internationalized the Monroe Doctrine, enlisting fellow American
states as co-guarantors of hemispheric security. Can you imagine Beijing walking back its
nine-dashed line in similar fashion? One can hope—but don’t hold your breath.
So let’s not drink the Kool-Aid Beijing is peddling. When it disavows its claim to
“indisputable sovereignty” over the South China Sea, reverses longstanding policy to favor
freedom of the seas and skies, and, most importantly, wins buy-in from Asian neighbors,
then I’ll be glad to welcome comparisons [with what the United States wanted to accomplish
in the Caribbean Sea and the Gulf of Mexico in the age of the Monroe Doctrine].4448
Chinese Actions Since Late 2013 That Have Heightened Concerns
Following a confrontation in 2012 between Chinese and Philippine ships at Scarborough Shoal,
China gained de facto control over access to the shoal. Subsequent Chinese actions for asserting
and defending China’s claims in the ECS and SCS and China’s position on the issue of whether it
has the right to regulate foreign military activities in its EEZ that have heightened concerns among
among observers, particularly since late 2013, include the following:
•
ongoing Chinese pressure against the Philippine presence at Second Thomas
Shoal, a submerged shoal in the Spratly Islands;4549
•
frequent patrols by Chinese Coast Guard ships—some observers refer to them as
harassment operations—at the Senkaku Islands;
•
China’s announcement on November 23, 2013, of an air defense identification
zone (ADIZ) for the ECS that includes airspace over the Senkaku Islands;
•
the previously mentioned December 5, 2013, incident in which a Chinese navy
ship put itself in the path of the U.S. Navy cruiser Cowpens, forcing the Cowpens
to change course to avoid a collision;
•
the implementation on January 1, 2014, of fishing regulations administered by
China’s Hainan province applicable to waters constituting more than half of the
SCS, and the reported enforcement of those regulations with actions that have
included the apprehension of non-Chinese fishing boats;46
•
land-reclamation activities, publicly reported starting in May 2014, at locations in
the SCS occupied by China that observers view as a prelude to the construction
of expanded Chinese facilities and fortifications at those locations;47 and
44
James R. Holmes, “The Nine-Dashed Line Isn’t 50
48
James R. Holmes, “The Nine-Dashed Line Isn’t China’s Monroe Doctrine,” The Diplomat (http://thediplomat.com),
June 21, 2014. See also James Holmes, “China’s Monroe Doctrine,” The Diplomat (http://thediplomat.com),
June 21, 2014.
45 June 22,
2012.
49
For a discussion of the situation at Second Thomas Shoal, see “A Game of Shark And Minnow,” New York Times
Magazine online news graphic accessed March 10, 2014, at http://www.nytimes.com/newsgraphics/2013/10/27/southchina-sea/. See also Ben Blanchard, “China Says [It] Expels Philippine [Vessels] from Disputed Shoal,” Reuters.com,
March 10, 2014; Oliver Teves (Associated Press), “Philippines Protests China Stopping Troop Resupply,” Kansas City
Star (www.kansascity.com), March 11, 2014; Kyodo News International, “Philippines Protests Chinese Actions in
Disputed Sea,” Global Post (www.globalpost.com), March 3, 2014.
4650
See, for example, Natalie Thomas, Ben Blanchard, and Megha Rajagopalan, “China Apprehending Boats Weekly in
Disputed South China Sea,” Reuters.com, March 6, 2014.
47
See, for example, Edward Wong and Jonathan Ansfield, “To Bolster Its Claims, China Plants Islands in Disputed
(continued...)
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China(continued...)
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•
land-reclamation activities, publicly reported starting in May 2014, at locations in
the SCS occupied by China that observers view as a prelude to the construction
of expanded Chinese facilities and fortifications at those locations;51
•
moving a large oil rig in May 2014 into waters that are near the Paracels and
inside Vietnam’s claimed EEZ, and using dozens of Chinese Coast Guard and
Chinese navy ships to enforce a large keep-away zone around the rig, leading to
numerous confrontations and incidents between Chinese and Vietnamese civilian
and military ships;52 and
•
the previously mentioned August 19, 2014, incident in which a Chinese fighter
conducted an aggressive and risky intercept of a U.S. Navy P-8 maritime patrol
aircraft that was flying in international airspace about 135 miles east of Hainan
Island..48
At a February 5, 2014, hearing before the subcommitteeSubcommittee on Asia and the Pacific of the House
Foreign Affairs Committee, Assistant Secretary of State Daniel Russel testified that
Deputy Secretary [of State William J.] Burns and I were in Beijing earlier this month to hold
regular consultations with the Chinese government on Asia-Pacific issues, and we held
extensive discussions regarding our concerns. These include continued restrictions on access
to Scarborough Reef; pressure on the long-standing Philippine presence at the Second
Thomas Shoal; putting hydrocarbon blocks up for bid in an area close to another country’s
mainland and far away even from the islands that China is claiming; announcing
administrative and even military districts in contested areas in the South China Sea; an
unprecedented spike in risky activity by China’s maritime agencies near the Senkaku Islands;
the sudden, uncoordinated and unilateral imposition of regulations over contested airspace in
the case of the East China Sea Air Defense Identification Zone; and the recent updating of
fishing regulations covering disputed areas in the South China Sea. These actions have raised
tensions in the region and concerns about China’s objectives in both the South China and the
East China Seas.
There is a growing concern that this pattern of behavior in the South China Sea reflects an
incremental effort by China to assert control over the area contained in the so-called “ninedash line,” despite the objections of its neighbors and despite the lack of any explanation or
apparent basis under international law regarding the scope of the claim itself.49
(...continued)nine-
(...continued)
Disputed South China Sea,” Reuters.com, March 6, 2014.
51
See, for example, Edward Wong and Jonathan Ansfield, “To Bolster Its Claims, China Plants Islands in Disputed
Waters,” New York Times (www.nytimes.com), June 16, 2014; Trefor Moss, “China Rejects Philippines’ Call for
Construction Freeze,” Wall Street Journal (http://online.wsj.com), June 16, 2014; Wendell Minnick, “Beijing
Continues S. China Sea Expansion,” Defense News (www.defensenews.com), June 14, 2014; Joel Guinto, “China
Building Dubai-Style Fake Islands in South China Sea,” Bloomberg News (www.bloomberg.com), June 11, 2014;
David Dizon, “Why China Military Base in West PH Sea Is A ‘Game-Changer,’” ABS-CBN News (www.abscbnnews.com), June 10, 2014; Andrew Erickson and Austin Strange, “Pandora’s Sandbox, China’s Island-Building
Strategy in the South China Sea,” Foreign Affairs (http://www.foreignaffairs.com), July 13, 2014.
4852
One observer writes: “Since that unilateral maneuver [of the oil rig] in early May, China has created a cordon
sanitaire around the rig by deploying military, coast guard, and fishing vessels in three concentric patrol circles. To
date, a Vietnamese fishing vessel has been sunk and China has made unsubstantiated claims that Vietnamese boats
have hit Chinese vessels on more than 1,400 occasions. Dueling videos are currently on the internet. While Vietnamese
behavior is not beyond reproach, China might have a better case to make if it would adhere to international law. China
has every right to protect a drilling rig inside its territorial waters, but a rig outside of its 12-nautical-mile territorial
waters is entitled to only a 500-meter safety zone.” (Patrick M. Cronin, “US Should Help Vietnam Counter China’s
Coercion,” Asia Pacific Bulletin (www.eastwestcenter.org), Number 269, June 26, 2014.)
49
Testimony of Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs, U.S. Department
of State, Before the House Committee on Foreign Affairs, Subcommittee on Asia and the Pacific, Wednesday,
February 5, 2014, [on] Maritime Disputes in East Asia, pp. 5-6.
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dash line,” despite the objections of its neighbors and despite the lack of any explanation or
apparent basis under international law regarding the scope of the claim itself.53
U.S. Position on These Issues
Some Key Elements
The U.S. position on territorial and EEZ disputes in the Western Pacific (including those
involving China) includes the following elements, among others:
•
The United States takes no position on competing claims to sovereignty over
disputed land features in the ECS and SCS.
•
Claims of territorial waters and EEZs should be consistent with customary
international law of the sea and must therefore, among other things, derive from
land features. Claims in the SCS that are not derived from land features are
fundamentally flawed.
•
Territorial disputes should be resolved peacefully, without coercion, intimidation,
threats, or the use of force.
•
Parties should avoid taking provocative or unilateral actions that disrupt the
status quo or jeopardize peace and security; the.
•
The Senkaku Islands are under the
administration of Japan and unilateral
attempts to change the status quo raise
tensions and do nothing under
international law to strengthen territorial claims.
•
The United States has a national interest in the preservation of freedom of seas as
recognized in customary international law of the sea. The United States opposes
claims that impinge on the rights, freedoms, and lawful uses of the sea that
belong to all nations.
•
The United States, like most other countries, believes that coastal states under
UNCLOS have the right to regulate economic activities in their EEZs, but do not
have the right to regulate foreign military activities in their EEZs.
•
U.S. military surveillance flights in international airspace above another
country’s EEZ are lawful under international law, and the United States plans to
continue conducting these flights as it has in the past.54
53
Testimony of Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs, U.S. Department
of State, Before the House Committee on Foreign Affairs, Subcommittee on Asia and the Pacific, Wednesday,
February 5, 2014, [on] Maritime Disputes in East Asia, pp. 5-6.
54
At an August 26, 2014, press briefing, DOD Press Secretary Rear Admiral John Kirby, when asked about U.S.
military surveillance flights close to China, replied in part: “We're going to continue to fly in international airspace the
way we've been, just like we're going to continue to sail our ships in international waters the way we've been.” (Source:
transcript of press briefing, accessed September 26, 2014, at http://www.defense.gov/Transcripts/Transcript.aspx?
TranscriptID=5495.) See also Bill Gertz, “Pentagon: No Plan to Reduce Spy Flights,” Washington Free Beacon
(http://freebeacon.com), August 26, 2014; Bill Gertz, “White House Rejects Chinese Demand to End U.S. Spy Flights,”
Washington Free Beacon (http://freebeacon.com), September 15, 2014.
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February 5, 2014, State Department Testimony
At a February 5, 2014, hearing before the SubcommitteeFebruary 5, 2014, State Department Testimony
At a February 5, 2014, hearing before the subcommittee on Asia and the Pacific of the House
Foreign Affairs Committee, Assistant Secretary of State Daniel Russel testified that
Since the end of the Second World War, a maritime regime based on international law that
promotes freedom of navigation and lawful uses of the sea has facilitated Asia’s impressive
economic growth. The United States, through our our [sic] alliances, our security
partnerships and our overall military presence and posture, has been instrumental in
sustaining that maritime regime and providing the security that has enabled the countries in
the region to prosper. As a maritime nation with global trading networks, the United States
has a national interest in freedom of the seas and in unimpeded lawful commerce. From
President Thomas Jefferson’s actions against the Barbary pirates to President Reagan’s
decision that the United States will abide by the Law of the Sea Convention’s provisions on
navigation and other traditional uses of the ocean, American foreign policy has long
defended the freedom of the seas. And as we consistently state, we have a national interest in
the maintenance of peace and stability; respect for international law; unimpeded lawful
commerce; and freedom of navigation and overflight in the East China and South China
Seas....
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Mr. Chairman, we have a deep and long-standing stake in the maintenance of prosperity and
stability in the Asia-Pacific and an equally deep and abiding long-term interest in the
continuance of freedom of the seas based on the rule of law—one that guarantees, among
other things, freedom of navigation and overflight and other internationally lawful uses of
the sea related to those freedoms. International law makes clear the legal basis on which
states can legitimately assert their rights in the maritime domain or exploit marine resources.
By promoting order in the seas, international law is instrumental in safeguarding the rights
and freedoms of all countries regardless of size or military strength.
I think it is imperative that we be clear about what we mean when the United States says that
we take no position on competing claims to sovereignty over disputed land features in the
East China and South China Seas. First of all, we do take a strong position with regard to
behavior in connection with any claims: we firmly oppose the use of intimidation, coercion
or force to assert a territorial claim. Second, we do take a strong position that maritime
claims must accord with customary international law. This means that all maritime claims
must be derived from land features and otherwise comport with the international law of the
sea. So while we are not siding with one claimant against another, we certainly believe that
claims in the South China Sea that are not derived from land features are fundamentally
flawed. In support of these principles and in keeping with the longstanding U.S. Freedom of
Navigation Program, the United States continues to oppose claims that impinge on the rights,
freedoms, and lawful uses of the sea that belong to all nations.
As I just noted, we care deeply about the way countries behave in asserting their claims or
managing their disputes. We seek to ensure that territorial and maritime disputes are dealt
with peacefully, diplomatically and in accordance with international law. Of course this
means making sure that shots aren’t fired; but more broadly it means ensuring that these
disputes are managed without intimidation, coercion, or force. We have repeatedly made
clear that freedom of navigation is reflected in international law, not something to be granted
by big states to others....
China’s lack of clarity with regard to its South China Sea claims has created uncertainty,
insecurity and instability in the region. It limits the prospect for achieving a mutually
agreeable resolution or equitable joint development arrangements among the claimants. I
want to reinforce the point that under international law, maritime claims in the South China
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Sea must be derived from land features. Any use of the “nine dash line” by China to claim
maritime rights not based on claimed land features would be inconsistent with international
law. The international community would welcome China to clarify or adjust its nine-dash
line claim to bring it in accordance with the international law of the sea.
We support serious and sustained diplomacy between the claimants to address overlapping
claims in a peaceful, non-coercive way. This can and should include bilateral as well as
multilateral diplomatic dialogue among the claimants. But at the same time we fully support
the right of claimants to exercise rights they may have to avail themselves of peaceful
dispute settlement mechanisms. The Philippines chose to exercise such a right last year with
the filing of an arbitration case under the Law of the Sea Convention.50
50
Testimony of Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs, U.S. Department
of State, Before the House Committee on Foreign Affairs, Subcommittee on Asia and the Pacific, Wednesday,
February 5, 2014, [on] Maritime Disputes in East Asia, pp. 2, 4-5, 6.
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May 31, 2014, Secretary of Defense Speech
On May 31, 2014, in a speech at an international conference in Singapore called the Shangri-La
Dialogue, Secretary of Defense Chuck Hagel stated in part:
One of the most critical tests facing the region is whether nations will choose to resolve
disputes through diplomacy and well-established international rules and norms…or through
intimidation and coercion. Nowhere is this more evident than in the South China Sea, the
beating heart of the Asia-Pacific and a crossroads for the global economy.
China has called the South China Sea “a sea of peace, friendship, and cooperation.” And
that’s what it should be.
But in recent months, China has undertaken destabilizing, unilateral actions asserting its
claims in the South China Sea. It has restricted access to Scarborough Reef, put pressure on
the long-standing Philippine presence at the Second Thomas Shoal, begun land reclamation
activities at multiple locations, and moved an oil rig into disputed waters near the Paracel
Islands.
The United States has been clear and consistent. We take no position on competing territorial
claims. But we firmly oppose any nation’s use of intimidation, coercion, or the threat of
force to assert those claims.
We also oppose any effort—by any nation—to restrict overflight or freedom of navigation—
whether from military or civilian vessels, from countries big or small. The United States will
not look the other way when fundamental principles of the international order are being
challenged.
We will uphold those principles. We made clear last November that the U.S. military would
not abide by China’s unilateral declaration of an Air Defense Identification Zone in the East
China Sea, including over the Japanese-administered Senkaku Islands. And as President
Obama clearly stated in Japan last month, the Senkaku Islands are under the mutual defense
treaty with Japan.
All nations of the region, including China, have a choice: to unite, and recommit to a stable
regional order, or to walk away from that commitment and risk the peace and security that
55
Testimony of Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs, U.S. Department
of State, Before the House Committee on Foreign Affairs, Subcommittee on Asia and the Pacific, Wednesday,
February 5, 2014, [on] Maritime Disputes in East Asia, pp. 2, 4-5, 6.
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have benefitted millions of people throughout the Asia-Pacific, and billions around the
world.
The United States will support efforts by any nation to lower tensions and peacefully resolve
disputes in accordance with international law.
We all know that cooperation is possible. Last month, 21 nations signed the Code for
Unplanned Encounters at Sea—an important naval safety protocol. ASEAN and China are
negotiating a Code of Conduct for the South China Sea—and the United States encourages
its early conclusion. Nations of the region have also agreed to joint energy exploration; this
month, the Philippines and Indonesia resolved a longstanding maritime boundary dispute;
and this week, Taiwan and the Philippines agreed to sign a new fisheries agreement.
China, too, has agreed to third-party dispute resolution in the World Trade Organization;
peacefully resolved a maritime boundary dispute with Vietnam in 2000; and signed
ASEAN’s Treaty of Amity and Cooperation.
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For all our nations, the choices are clear, and the stakes are high. These stakes are not just
about the sovereignty of rocky shoals and island reefs, or even the natural resources that
surround them and lie beneath them. They are about sustaining the Asia-Pacific’s rules-based
order, which has enabled the people of this region to strengthen their security, allowing for
progress and prosperity. That is the order the United States—working with our partners and
allies—that is the order that has helped underwrite since the end of World War II. And it is
the order we will continue to support—around the world, and here in the Asia-Pacific.5156
June 25, 2014, State Department Testimony
At a June 25, 2014, hearing before the Senate Foreign Relations Committee, Assistant Secretary
of State Daniel Russel testified that
We believe all countries, and particularly emerging powers like China, should recognize the
self-benefit of upholding basic rules and norms on which the international system is built;
these are rules and norms which China has participated in formulating and shaping, and they
are rules and norms that it continues to benefit from. In this context, we are encouraging
China to exercise restraint in dealing with its neighbors and show respect for universal values
and international law both at home and abroad....
In the Asia-Pacific region, Beijing’s neighbors are understandably alarmed by China’s
increasingly coercive efforts to assert and enforce its claims in the South China and East
China Seas. A pattern of unilateral Chinese actions in sensitive and disputed areas is raising
tensions and damaging China’s international standing. Moreover, some of China’s actions
are directed at U.S. treaty allies. The United States has important interests at stake in these
seas: freedom of navigation and overflight, unimpeded lawful commerce, respect for
international law, and the peaceful management of disputes. We apply the same principles to
the behavior of all claimants involved, not only to China. China—as a strong and rising
power—should hold itself to a high standard of behavior; to willfully disregard diplomatic
and other peaceful ways of dealing with disagreements and disputes in favor of economic or
physical coercion is destabilizing and dangerous.
56
Secretary of Defense Speech, IISS Shangri-La Dialogue, As Delivered by Secretary of Defense Chuck Hagel, May
31, 2014, accessed June 6, 2014, at http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1857. Ellipse in the first
paragraph as in the original.
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The United States does not take sides on the sovereignty questions underlying the territorial
disputes in the South and East China Seas, but we have an interest in the behavior of states in
their management or resolution of these disputes. We want countries, including China, to
manage or settle claims through peaceful, diplomatic means. For example, the Philippines
and Indonesia have just done so in connection with their EEZ boundary. Disputes can also be
addressed through third-party dispute resolution processes. Where parties’ rights under
treaties may be affected, some treaties provide for third-party dispute settlement, as is the
case of the Law of the Sea Convention, an avenue pursued by the Philippines in an
arbitration with China currently being considered by an Arbitral Tribunal constituted under
that treaty. The United States and the international community oppose the use or the threat of
force to try to advance a claim, and view such actions as having no effect in strengthening
the legitimacy of China’s claims. These issues should be decided on the basis of the merits of
China’s and other claimants’ legal claims and adherence to international law and norms, not
the strength of their militaries and law enforcement ships or the size of their economies.52
51
Secretary of Defense Speech, IISS Shangri-La Dialogue, As Delivered by Secretary of Defense Chuck Hagel, May
31, 2014, accessed June 6, 2014, at http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1857. Ellipse in the first
paragraph as in the original.
52
Testimony of Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs, U.S. Department
of State, Before the Senate Foreign Relations Committee, [on] The Future of U.S.-China Relations, June 25, 2014, pp.
(continued...)
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July 11, 2014, State Department Remarks
On July 11, 2014, Deputy Assistant Secretary of State Michael Fuchs stated in a speech that
The situation in the South China Sea, no doubt, is complex. Six claimants, plentiful fisheries
and potential hydrocarbon reserves, the growing presence of maritime law enforcement
vessels, and hundreds of geographic features make for a dynamic situation. Moreover, many
of these features are submerged and therefore not subject to sovereignty claims but are
nonetheless a source of friction in the region.
Now some may ask why, given the many areas of tension across this part of the world, small
features in the middle of the sea are generating so much concern and so much attention. It’s
because the way in which countries pursue their claims speaks to whether future disputes
will be handled by the threat and use of force on the one hand or the rule of law on the other.
It speaks to whether the same rules will apply to all claimants – big and small alike. And it’s
because everyone inside and outside the region stands to lose if rules are devalued, dialogue
breaks down, misreadings and misinterpretations multiply, and tensions spiral.
Recent events in particular are of great concern. Incidents involving the coercion and the
threat of force contribute to an increasingly tenuous situation that could affect not only the
claimants, but the entire region and beyond.
No claimant is solely responsible for the state of tensions. However, a pattern of provocative
and unilateral behavior by China has raised serious concerns about China’s intentions and
willingness to adhere to international law and standards.
Provocative actions include efforts to assert claims in the South China Sea – such as its
restrictions on access to Scarborough Reef, pressure on the long-standing Philippine
presence at Second Thomas Shoal, and, most recently, the commencement of drilling
operations in disputed waters near the Paracel Islands.
While the United States does not take a position on the sovereignty over land features in the
South China Sea, we have a strong interest in the manner in which countries address their
57
Testimony of Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs, U.S. Department
of State, Before the Senate Foreign Relations Committee, [on] The Future of U.S.-China Relations, June 25, 2014, pp.
2, 7-8.
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disputes and whether countries’ maritime claims comport with the international law of the
sea.
International law, not power or an ambiguous sense of historical entitlement, should be the
basis for making and enforcing maritime claims in the South China Sea.
The ambiguity of some claims, such as China’s nine-dash line, and recent actions in disputed
areas heighten regional tensions and inhibit the emergence of cooperative arrangements to
jointly manage resources. They undermine possible resolutions to the overlapping disputes.5358
July 28, 2014, State Department Remarks
On July 28, 2014, Assistant Secretary of State Daniel Russel stated in a speech that
(...continued)
2, 7-8.
53
“Fourth Annual South China Sea Conference,” Remarks [by] Michael Fuchs, Deputy Assistant Secretary [of State],
Bureau of East Asian and Pacific Affairs, [at the] Center for Strategic and International Studies, Washington, DC, July
11, 2014, accessed July 16, 2014, at http://www.state.gov/p/eap/rls/rm/2014/07/229129.htm.
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In 2002, the ASEAN nations and China signed a Declaration on Conduct in the South China
Sea. The Declaration, among other things, said that the parties would resolve disputes
peacefully and in accordance with international law, and would refrain from actions that
would escalate disputes, such as setting up new outposts on unoccupied features. And they
agreed to work toward a more detailed Code of Conduct.
But tensions have flared over the years as well, and this year, they are running high. No
claimant is solely responsible for the state of tensions. However, big and powerful countries
have a special responsibility to show restraint. China’s recent pattern of assertive, unilateral
behavior has raised serious concerns about China’s expansive claims, and its willingness to
adhere to international law and standards.
Tensions spiked recently when China sent a deepwater drilling rig and armed ships into an
area near the Paracel Islands that Vietnam also claims. The resulting weeks-long
confrontation resulted in damaged ships, including the sinking of a Vietnamese fishing
vessel, and damaged relations, including anti-Chinese riots in Vietnam.
At the same time, public evidence indicates the claimants are upgrading outposts on small
land features in the South China Sea. What worries me is that China'’s projects are far
outpacing similar upgrades that other claimants are making. This important, resource-rich
area should not be heavily militarized.
And actions off the water can raise tensions as well.
All parties should be able to bring disputes for adjudication under international law if they
conclude that regular diplomatic efforts will not succeed. The Philippines has done this in a
dispute with China over the validity of its claim that a 1948 Nationalist Chinese map
“proves” that China owns the land and water within a “9 dash line” in the South China Sea.
But instead of engaging constructively and arguing its case as the Tribunal has proposed,
China has pressured the Philippines to drop its case, and attempted to isolate the Philippines
diplomatically.
International law, not national power, should be the basis for pursuing maritime claims in the
South China Sea.
The United States works to lower tensions and help the parties peacefully manage their
disputes in several ways. We have told the claimants – including the Chinese – directly and
at the highest levels, of our growing concern. And we’ve encouraged all sides to avoid
provocations and make clear claims based on international law.54
Operational Rights in EEZs
Regarding a coastal state’s rights within its EEZ, Scot Marciel, then-Deputy Assistant Secretary,
Bureau of East Asian and Pacific Affairs, stated the following as part of his prepared statement
for a July 15, 2009, hearing before the East Asian and Pacific Affairs subcommittee of the Senate
Foreign Relations Committee:
54
58
“Fourth Annual South China Sea Conference,” Remarks [by] Michael Fuchs, Deputy Assistant Secretary [of State],
Bureau of East Asian and Pacific Affairs, [at the] Center for Strategic and International Studies, Washington, DC, July
11, 2014, accessed July 16, 2014, at http://www.state.gov/p/eap/rls/rm/2014/07/229129.htm.
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International law, not national power, should be the basis for pursuing maritime claims in the
South China Sea.
The United States works to lower tensions and help the parties peacefully manage their
disputes in several ways. We have told the claimants – including the Chinese – directly and
at the highest levels, of our growing concern. And we’ve encouraged all sides to avoid
provocations and make clear claims based on international law.59
November 4, 2014, Secretary of State Remarks
On November 4, 2014, Secretary of State John Kerry stated in a speech that
when we talk about managing our differences, that is not code for agree to disagree. For
example, we do not simply agree to disagree when it comes to maritime security, especially
in the South and East China Seas. The United States is not a claimant, and we do not take a
position on the various territorial claims of others. But we take a strong position on how
those claims are pursued and how those disputes are going to be resolved. So we are deeply
concerned about mounting tension in the South China Sea and we consistently urge all the
parties to pursue claims in accordance with international law, to exercise self-restraint, to
peacefully resolve disputes, and to make rapid, meaningful progress to complete a code of
conduct that will help reduce the potential for conflict in the years to come. And the United
States will work, without getting involved in the merits of the claim, on helping that process
to be effectuated, because doing so brings greater stability, brings more opportunity for
cooperation in other areas.60
December 5, 2014, State Department Analysis of China’s Nine-Dash Line
On December 5, 2014, the State Department released a document presenting the U.S. analysis of
China’s nine-dash line claim. The analysis concludes that
unless China clarifies that the dashed-line claim reflects only a claim to islands within that
line and any maritime zones that are generated from those land features in accordance with
the international law of the sea, as reflected in the LOS [Law of the Sea] Convention, its
dashed-line claim does not accord with the international law of the sea.61
The full text of the conclusion section of the document states:
China has not clarified its maritime claims associated with the dashed-line maps in a manner
consistent with international law. China’s laws, declarations, official acts, and official
statements present conflicting evidence regarding the nature and scope of China’s claims.
The available evidence suggests at least three different interpretations that China might
intend, including that the dashes are (1) lines within which China claims sovereignty over the
59
“ASEAN and America: Partners for the Future,” Remarks [by] Daniel R. Russel, Assistant Secretary [of State],
Bureau of East Asian and Pacific Affairs, [at the] Commonwealth Club, San Francisco, CA, July 28, 2014, accessed
July 30, 2014, at: http://www.state.gov/p/eap/rls/rm/2014/07/229872.htm.
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http://www.state.gov/p/eap/rls/rm/2014/07/229872.htm.
60
Remarks on U.S.-China Relations, John Kerry, Secretary of State, [at] Johns Hopkins School of Advanced
International Studies, Washington, DC, November 4, 2014, accessed December 24, 2014, at:
http://www.state.gov/secretary/remarks/2014/11/233705.htm.
61
United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits
in the Seas, No. 143, China: Maritime Claims in the South China Sea, December 5, 2014, p. 24. Accessed December
24, 2014, at: http://www.state.gov/documents/organization/234936.pdf.
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islands, along with the maritime zones those islands would generate under the LOS
Convention; (2) national boundary lines; or (3) the limits of so-called historic maritime
claims of varying types.
As to the first interpretation, if the dashes on Chinese maps are intended to indicate only the
islands over which China claims sovereignty then, to be consistent with the law of the sea,
China’s maritime claims within the dashed line would be those set forth in the LOS
Convention, namely a territorial sea, contiguous zone, EEZ, and continental shelf, drawn in
accordance with the LOS Convention from China’s mainland coast and land features that
meet the definition of an “island” under Article 121 of the Convention. Because sovereignty
over South China Sea islands is disputed, the maritime zones associated with these islands
would also be disputed. In addition, even if China possessed sovereignty of the islands, any
maritime zones generated by those islands in accordance with Article 121 would be subject
to maritime boundary delimitation with neighboring States.
As to the second interpretation, if the dashes on Chinese maps are intended to indicate
national boundary lines, then those lines would not have a proper legal basis under the law of
the sea. Under international law, maritime boundaries are created by agreement between
neighboring States; one country may not unilaterally establish a maritime boundary with
another country. Further, such a boundary would not be consistent with State practice and
international jurisprudence, which have not accorded very small isolated islands like those in
the South China Sea more weight in determining the position of a maritime boundary than
opposing coastlines that are long and continuous. Moreover, dashes 2, 3, and 8 that appear
on China’s 2009 map are not only relatively close to the mainland shores of other States, but
all or part of them are also beyond 200 nm from any Chinese-claimed land feature.
Finally, if the dashes on Chinese maps are intended to indicate the area in which China
claims so-called “historic waters” or “historic rights” to waters that are exclusive to China,
such claims are not within the narrow category of historic claims recognized in Articles 10
and 15 of the LOS Convention. The South China Sea is a large semi-enclosed sea in which
numerous coastal States have entitlements to EEZ and continental shelf, consistent with the
LOS Convention; the law of the sea does not permit those entitlements to be overridden by
another State’s maritime claims that are based on “history.” To the contrary, a major purpose
and accomplishment of the Convention is to bring clarity and uniformity to the maritime
zones to which coastal States are entitled. In addition, even if the legal test for historic waters
were applicable, the dashed-line claim would fail each element of that test.
For these reasons, unless China clarifies that the dashed-line claim reflects only a claim to
islands within that line and any maritime zones that are generated from those land features in
accordance with the international law of the sea, as reflected in the LOS Convention, its
dashed-line claim does not accord with the international law of the sea.62
December 16, 2014, State Department Remarks
On December 16, 2014, Assistant Secretary of State Daniel Russel stated in a speech that
the shifting regional dynamics generate tensions as well; tensions that pose serious risks to
stability and prosperity for all of us.
62
United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits
in the Seas, No. 143, China: Maritime Claims in the South China Sea, December 5, 2014, pp. 23-24. Accessed
December 24, 2014, at: http://www.state.gov/documents/organization/234936.pdf.
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Is the construction of large-scale man-made outposts and continual encroachment by ships,
planes and oil-drilling rigs going to be the way that Asians resolve maritime boundaries?
Will ASEAN’s longstanding effort to negotiate a basic Code of Conduct in the South China
Sea require another decade?
The sharpening of tensions over maritime boundaries underscores the importance of
maintaining a regional system based on adherence to rules, not adhesion to rocks… a system
where claims are based on international law, not a sense of entitlement or muscle…a system
based on interdependence and peaceful dispute resolution.63
Operational Rights in EEZs
Regarding a coastal state’s rights within its EEZ, Scot Marciel, then-Deputy Assistant Secretary,
Bureau of East Asian and Pacific Affairs, stated the following as part of his prepared statement
for a July 15, 2009, hearing before the East Asian and Pacific Affairs Subcommittee of the Senate
Foreign Relations Committee:
I would now like to discuss recent incidents involving China and the activities of U.S.
vessels in international waters within that country’s Exclusive Economic Zone (EEZ). In
March 2009, the survey ship USNS Impeccable was conducting routine operations,
consistent with international law, in international waters in the South China Sea. Actions
taken by Chinese fishing vessels to harass the Impeccable put ships of both sides at risk,
interfered with freedom of navigation, and were inconsistent with the obligation for ships at
sea to show due regard for the safety of other ships. We immediately protested those actions
to the Chinese government, and urged that our differences be resolved through established
mechanisms for dialogue—not through ship-to-ship confrontations that put sailors and
vessels at risk.
Our concern over that incident centered on China’s conception of its legal authority over
other countries’ vessels operating in its Exclusive Economic Zone (EEZ) and the unsafe way
China sought to assert what it considers its maritime rights.
China’s view of its rights on this specific point is not supported by international law. We
have made that point clearly in discussions with the Chinese and underscored that U.S.
vessels will continue to operate lawfully in international waters as they have done in the
past.5564
As part of his prepared statement for the same hearing, Robert Scher, then-Deputy Assistant
Secretary of Defense, Asian and Pacific Security Affairs, Office of the Secretary of Defense,
stated that
we reject any nation’s attempt to place limits on the exercise of high seas freedoms within an
exclusive economic zones [sic] (EEZ). Customary international law, as reflected in articles
58 and 87 of the 1982 United Nations Convention on the Law of the Sea, guarantees to all
63
Remarks at the Brookings Institution, Daniel R. Russel, Assistant Secretary, Bureau of East Asian and Pacific Affairs
Washington, DC, December 16, 2014, accessed December 24, 2014, at:
http://www.state.gov/p/eap/rls/rm/2014/12/235145.htm. Ellipses as in original.
64
[Statement of] Deputy Assistant Secretary Scot Marciel, Bureau of East Asian & Pacific Affairs, U.S. Department of
State, before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign Relations, United States
Senate, July 15, 2009, [hearing on] Maritime Issues and Sovereignty Disputes in East Asia, p. 5.
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nations the right to exercise within the EEZ, high seas freedoms of navigation and overflight,
as well as the traditional uses of the ocean related to those freedoms. It has been the position
of the United States since 1982 when the Convention was established, that the navigational
rights and freedoms applicable within the EEZ are qualitatively and quantitatively the same
as those rights and freedoms applicable on the high seas. We note that almost 40% of the
world’s oceans lie within the 200 nautical miles EEZs, and it is essential to the global
economy and international peace and security that navigational rights and freedoms within
the EEZ be vigorously asserted and preserved.
As previously noted, our military activity in this region is routine and in accordance with
customary international law as reflected in the 1982 Law of the Sea Convention.5665
U.S. Freedom of Navigation (FON) Program
U.S. Navy ships carry out assertions of operational rights as part of the U.S. Freedom of
Navigation (FON) program for challenging maritime claims that the United States believes to be
55
[Statement of] Deputy Assistant Secretary Scot Marciel, Bureau of East Asian & Pacific Affairs, U.S. Department of
State, before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign Relations, United States
Senate, July 15, 2009, [hearing on] Maritime Issues and Sovereignty Disputes in East Asia, p. 5.
56
Testimony [prepared statement] of Deputy Assistant Secretary of Defense Robert Scher, Asian and Pacific Security
Affairs, Office of the Secretary of Defense, before the Subcommittee on East Asian and Pacific Affairs, Senate
Committee on Foreign Relations, United States Senate, July 15, 2009, [hearing on] Maritime Issues and Sovereignty
Disputes in East Asia, pp. 3-4. See also Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right
to Conduct Military Activities in China’s Exclusive Economic Zone,” Chinese Journal of International Law, 2010: 929.
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inconsistent with international law.57inconsistent with international law.66 The Department of Defense’s (DOD’s) record of “excessive
maritime claims that were challenged by DoD operational assertions and activities during the
period of October 1, 2012, to September 30, 2013, in order to preserve the rights, freedoms, and
uses of the sea and airspace guaranteed to all nations in international law” includes a listing for
multiple challenges that were conducted to challenge Chinese claims relating to “excessive
straight baselines; security jurisdiction in contiguous zone; jurisdiction over airspace above the
exclusive economic zone (EEZ); domestic law criminalizing survey activity by foreign entities in
EEZ; [and] prior permission required for innocent passage of foreign military ships through
territorial sea.”58
Potential Implications for United States
China’s actions for asserting and defending its maritime territorial and EEZ claims in the ECS
and SCS, particularly since late 2013, have heightened concerns among observers that ongoing
disputes over these waters and some of the islands within them could lead to a crisis or conflict
between China and a neighboring country such as Japan, the Philippines, or Vietnam, and that the
United States could be drawn into such a crisis or conflict as a result of obligations the United
States has under bilateral security treaties with Japan and the Philippines.
More broadly, China’s actions for asserting and defending its maritime territorial and EEZ claims
have led to increasing concerns among some observers that China may be seeking to dominate or
gain control of its near-seas region, meaning the ECS, the SCS, and the Yellow Sea.59 Chinese
57
67
65
Testimony [prepared statement] of Deputy Assistant Secretary of Defense Robert Scher, Asian and Pacific Security
Affairs, Office of the Secretary of Defense, before the Subcommittee on East Asian and Pacific Affairs, Senate
Committee on Foreign Relations, United States Senate, July 15, 2009, [hearing on] Maritime Issues and Sovereignty
Disputes in East Asia, pp. 3-4. See also Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right
to Conduct Military Activities in China’s Exclusive Economic Zone,” Chinese Journal of International Law, 2010: 929.
66
The State Department states that
U.S. Naval forces engage in Freedom of Navigation operations to assert the principles of
International Law and free passage in regions with unlawful maritime sovereignty claims. FON
operations involve naval units transiting disputed areas to avoid setting the precedent that the
international community has accepted these unlawful claims. ISO coordinates DOS clearance for
FON operations.
(Source: State Department website on military operational issues, accessed March 22, 2013, at
http://www.state.gov/t/pm/iso/c21539.htm. See also the web page posted at http://www.state.gov/e/
oes/ocns/opa/maritimesecurity/index.htm.)
A DOD list of DOD Instructions (available at http://www.dtic.mil/whs/directives/corres/ins1.html) includes a listing for
DOD Instruction C-2005.01 of October 12, 2005, on the FON program, and states that this instruction replaced an
earlier version of the document dated June 21, 1983. The document itself is controlled and not posted at the website. A
website maintained by the Federation of American Scientists (FAS) listing Presidential Decision Directives (PDDs) of
the Clinton Administration for the years 1993-2000 (http://www.fas.org/irp/offdocs/pdd/index.html) states that PDD-32
concerned the FON program. The listing suggests that PDD-32 was issued between September 21, 1994 and February
17, 1995.
5867
U.S. Department of Defense (DOD) Freedom of Navigation (FON) Report for Fiscal Year (FY) 2013, accessed
March 10, 2014, at http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/
FY2013%20DOD%20Annual%20FON%20Report.pdf. Similar reports for prior fiscal years are posted at
http://policy.defense.gov/OUSDPOffices/FON.aspx.
59
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Potential Implications for United States
China’s actions for asserting and defending its maritime territorial and EEZ claims in the ECS
and SCS, particularly since late 2013, have heightened concerns among observers that ongoing
disputes over these waters and some of the islands within them could lead to a crisis or conflict
between China and a neighboring country such as Japan, the Philippines, or Vietnam, and that the
United States could be drawn into such a crisis or conflict as a result of obligations the United
States has under bilateral security treaties with Japan and the Philippines.
More broadly, China’s actions for asserting and defending its maritime territorial and EEZ claims
have led to increasing concerns among some observers that China may be seeking to dominate or
gain control of its near-seas region, meaning the ECS, the SCS, and the Yellow Sea.68 Chinese
68
For example, one observer states that “The long and ongoing record of unilateral Chinese assertions or aggressions in
the South and East China Sea no longer leaves room for doubt as to Beijing’s intention. China wants and is trying to
achieve dominance over the waters behind what it calls the ‘first island chain’ and land features that fringe the Ushaped line. The question is not ‘what does China intend?’ The answer—dominance of some kind and degree—is
known. The question is ‘what, if anything, is anyone else prepared to do?’” (Donald K. Emmerson, “China Challenges
Philippines in the South China Sea,” East Asia Forum (www.eastasiaforum.org), March 18, 2014.)
Another observer states that “For more than a decade, the Chinese government has been pursuing a deliberate, yet
indirect strategy to establish de facto control over the waters and airspace adjacent to its mainland.” (Daniel Goure,
“New Chinese Air Defense Zone Is latest Move In Beijing’s Strategy To Dominate East Asia,” Lexington Institute
(continued...)
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domination over or control of this region could have major implications for the United States,
including implications for U.S.-China relations, for interpreting China’s rise as a major world
power, for the security structure of the Asia-Pacific region, for the long-standing U.S. strategic
goal of preventing the emergence of a regional hegemon in one part of Eurasia or another, and for
two key elements of the U.S.-led international order that has operated since World War II—the
non-use of force or coercion as a means of settling disputes between countries, and freedom of
the seas.
Risk of United States Being Drawn Into a Crisis or Conflict
Many observers are concerned that ongoing maritime territorial disputes in the ECS and SCS
could lead to a crisis or conflict between China and a neighboring country such as Japan, the
Philippines, and that the United States could be drawn into such a crisis or conflict as a result of
obligations the United States has under bilateral security treaties with Japan and the Philippines.
U.S. officials, concerned about the risk that a misunderstanding or miscalculation might cause a
dispute over island territories to escalate into a conflict, have urged parties involved in the
disputes to exercise restraint and avoid taking provocative actions.
(...continued)
Early Warnnig Blog (www.lexingtoninstitute.org), November 25, 2013.) A December 4, 2013, press report states:
“China’s escalation in its challenge to Japan’s administration of islands near Taiwan reflects an effort to gain greater
command of the air and seas in the western Pacific as it builds itself into a maritime power.” (Henry Sanderson and
Shai Oster, “China Air Zone Seen Step to Expanding Access to West Pacific,” Bloomberg News
(www.bloomberg.com), December 4, 2013.
Another observer states that “Beijing seeks to wield this growing might to pursue outstanding territorial and maritime
claims and to carve out in the Yellow, East and South China Seas and airspace above them a ‘zone of exceptionalism’
within which existing global security, legal, and resource management norms are subordinated to its parochial national
interests. This can only weaken the global system on which all nations’ security and prosperity depends, and will
continue to destabilize a vital but vulnerable region that remains haunted by history.” (Andrew S. Erickson,
“Deterrence by Denial: How to Prevent China From Using Force,” National Interest (http://nationalinterest.org),
December 16, 2013.)
Another observer states that “The Chinese have long felt vulnerable from the sea and their current maritime strategy
seeks to reduce that vulnerability by extending a ring of maritime control around China’s periphery.... First and
foremost, it is the failure of previous Chinese leaders to close the maritime gap in China’s arc of security and the
invasions that resulted that motivates China’s current leaders to extend strategic power over the near seas. Extending
Chinese control over the near seas therefore is seen as enhancing security for the Chinese state and healing a sort of
psychological wound in the collective Chinese mind.” (Statement of Peter A. Dutton, Professor and Director, China
Maritime Studies Institute, U.S. Naval War College, Testimony before the House Foreign Affairs Committee Hearing
on China’s Maritime Disputes in the East and South China Seas, January 14, 2014, pp. 2, 3. Italics as in original. [The
hearing was actually a joint hearing before Seapower and Projection Forces subcommittee of the House Armed
Services Committee and the Asia and the Pacific subcommittee of the House Foreign Affairs Committee.])
Another observer states that “The Yalong Bay naval base on [China’s] Hainan [island] is one part of the strategy that
China is starting to put in place to exert control over the Near Seas, pushing the US Navy ever farther out into the
Western Pacific.... By weakening the US naval presence in the western Pacific, China hopes gradually to undermine
America’s alliances with other Asian countries, notably South Korea, the Philippines and maybe even Japan. If US
influence declines, China would be in a position to assume quietly a leadership position in Asia, giving it much greater
sway over the rules and practices in the global economy.... China’s stepped-up claim over the [Senkaku] islands is one
art of its push for greater control of the surrounding seas but it is also a central part of the growing contest for influence
with the US.” (Geoff Dyer, “US v China: Is This The New Cold War?” Financial Times (www.ft.com), February 20,
2014.
Another observer states that China’s ECS ADIZ “can be regarded as just one element in a larger strategy of trying to
assert sovereignty in the East China Sea and vast parts of the South China Sea, as reflected in Beijing’s ‘nine-dashed
line.’” (Benjamin Schreer, “China’s Rise: The Strategic Climate Is Getting Colder,” The Strategist (The Australian
Strategic Policy Institute Blog), March 3, 2014.
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U.S.-Japan Treaty on Mutual Cooperation and Security
The 1960 U.S.-Japan treaty on mutual cooperation and security60(continued...)
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domination over or control of this region could have major implications for the United States,
including implications for U.S.-China relations, for interpreting China’s rise as a major world
power, for the security structure of the Asia-Pacific region, for the long-standing U.S. strategic
goal of preventing the emergence of a regional hegemon in one part of Eurasia or another, and for
two key elements of the U.S.-led international order that has operated since World War II—the
non-use of force or coercion as a means of settling disputes between countries, and freedom of
the seas.
Risk of United States Being Drawn Into a Crisis or Conflict
Many observers are concerned that ongoing maritime territorial disputes in the ECS and SCS
could lead to a crisis or conflict between China and a neighboring country such as Japan or the
Philippines, and that the United States could be drawn into such a crisis or conflict as a result of
obligations the United States has under bilateral security treaties with Japan and the Philippines.
U.S. officials, concerned about the risk that a misunderstanding or miscalculation might cause a
dispute over island territories to escalate into a conflict, have urged parties involved in the
disputes to exercise restraint and avoid taking provocative actions.
U.S.-Japan Treaty on Mutual Cooperation and Security
The 1960 U.S.-Japan treaty on mutual cooperation and security69 states in Article V that
Each Party recognizes that an armed attack against either Party in the territories under the
administration of Japan would be dangerous to its own peace and safety and declares that it
would act to meet the common danger in accordance with its constitutional provisions and
processes.
The United States has reaffirmed on a number of occasions over the years that since the Senkaku
Islands are under the administration of Japan, they are included in the territories referred to in
Article V of the treaty, and that the United States “will honor all of our treaty commitments to our
treaty partners.”6170 (At the same time, the United States, noting the difference between
administration and sovereignty, has noted that such affirmations do not prejudice the U.S.
approach of taking no position regarding the outcome of the dispute between China, Taiwan, and
Japan regarding who has sovereignty over the islands.) Some observers, while acknowledging the
U.S. affirmations, have raised questions regarding the potential scope of actions that the United
States might take under Article V.62
U.S.-Philippines Mutual Defense Treaty63
The 1951 U.S.-Philippines mutual defense treaty64 states in Article IV that
Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would
be dangerous to its own peace and safety and declares that it would act to meet the common
dangers in accordance with its constitutional processes.
60
71
(...continued)
line.’” (Benjamin Schreer, “China’s Rise: The Strategic Climate Is Getting Colder,” The Strategist (The Australian
Strategic Policy Institute Blog), March 3, 2014.
69
Treaty of mutual cooperation and security, signed January 19, 1960, entered into force June 23, 1960, 11 UST 1632;
TIAS 4509; 373 UNTS.
6170
The quoted words are from Secretary of Defense Chuck Hagel, in “Media Availability with Secretary Hagel En
Route to Japan,” April 5, 2014, accessed April 9, 2014, at http://www.defense.gov/transcripts/transcript.aspx?
transcriptid=5405. See also Associated Press, “US: Will Stand by Allies in Disputes with China,” Military.com, April
3, 2014.
6271
See, for example, Yoichiro Sato, “The Senkaku Dispute and the US-Japan Security Treaty,” PacNet #57 (Pacific
Forum CSIS, Honolulu, Hawaii), September 10, 2012, accessed October 2, 2012, at http://csis.org/files/publication/
Pac1257.pdf; James R. Holmes, “Thucydides, Japan and America,” The Diplomat (http://thediplomat.com/the-navaldiplomatnaval(continued...)
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U.S.-Philippines Mutual Defense Treaty72
The 1951 U.S.-Philippines mutual defense treaty73 states in Article IV that
Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would
be dangerous to its own peace and safety and declares that it would act to meet the common
dangers in accordance with its constitutional processes.
Article V states that
For the purpose of Article IV, an armed attack on either of the Parties is deemed to include
an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft
in the Pacific.
The United States has reaffirmed on a number of occasions over the years its obligations under
the U.S.-Philippines mutual defense treaty.74 On May 9, 2012, Filipino Foreign Affairs Secretary
Albert F. del Rosario issued a statement providing the Philippine perspective regarding the
treaty’s application to territorial disputes in the SCS.75 U.S. officials have made their own
statements regarding the treaty’s application to territorial disputes in the SCS.76
(...continued)
diplomat), November 27, 2012; Shigemi Sato, “Japan, U.S. To Discuss Revising Defense Guidelines,”
DefenseNews.com (Agence France-Presse), November 11, 2012; Martin Fackler, “Japan Seeks Tighter Pact With U.S.
To Confront China,” NYTimes.com, November 9, 2012; “Japan, U.S. To Review Defense Guidelines,” Japan Times,
November 11, 2012; “Defense Official To Visit U.S. To Discuss Alliance,” Kyodo News, November 8, 2012; Yuka
Hayashi, “U.S. Commander Chides China Over ‘Provocative Act,’” Wall Street Journal, February 16, 2013: 7; Julian
E. Barnes, “U.S., Japan Update Plans To Defend Islands,” New York Times, March 20, 2013. See also Kiyoshi
Takenaka, “China “Extremely Concerned” About U.S.-Japan Island Talk, Reuters (http://in.reuters.com), March 21,
2013; Wendell, Minnick, “Senkakus Could Be Undoing of Asia Pivot,” Defense News, April 15, 2013: 16; Item entitled
“U.S. Warns China” in Bill Gertz, “Inside the Ring: NSA Contractor Threat,” Washington Times, June 19, 2013;
Anthony Fensom, “Yamaguchi: China Military Build-Up Risks Accident,” The Diplomat (http://thediplomat.com),
June 21, 2013.
6372
For additional discussion of U.S. obligations under the U.S.-Philippines mutual defense treaty, see CRS Report
RL33233R43498, The Republic of the Philippines and U.S. Interests—2014, by Thomas Lum and Ben Dolven.
73.
64
Mutual defense treaty, signed August 30, 1951, entered into force August 27, 1952, 3 UST 3947, TIAS 2529, 177
UNTS 133.
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Article V states that
For the purpose of Article IV, an armed attack on either of the Parties is deemed to include
an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft
in the Pacific.
The United States has reaffirmed on a number of occasions over the years its obligations under
the U.S.-Philippines mutual defense treaty.65 On May 9, 2012, Filipino Foreign Affairs Secretary
Albert F. del Rosario issued a statement providing the Philippine perspective regarding the
treaty’s application to territorial disputes in the SCS.66 U.S. officials have made their own
statements regarding the treaty’s application to territorial disputes in the SCS.67
74
See, for example, the Joint Statement of the United States-Philippines Ministerial Dialogue of April 30, 2012,
available at http://www.state.gov/r/pa/prs/ps/2012/04/188977.htm, which states in part that “The United States and the
Republic of the Philippines reaffirm our shared obligations under the Mutual Defense Treaty, which remains the
foundation of the U.S.-Philippines security relationship.” See also Associated Press, “US: Will Stand by Allies in
Disputes with China,” Military.com, April 3, 2014.
75
Statement of Secretary del Rosario regarding the Philippines-U.S. Mutual Defense Treaty, May 9, 2012, accessed
September 20, 2012, at http://www.gov.ph/2012/05/09/statement-of-secretary-del-rosario-regarding-the-philippines-us-mutual-defense-treaty-may-9-2012/.
76
See, for example, Agence France-Presse, “Navy Chief: US Would ‘Help’ Philippines In South China Sea,”
DefenseNews.com, February 13, 2014; Manuel Mogato, “U.S. Admiral Assures Philippines of Help in Disputed Sea,”
Reuters.com, February 13, 2014.
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U.S.-China Relations
Developments regarding China’s maritime territorial and EEZ disputes in the ECS and SCS could
affect U.S.-China relations in general, which could have implications for other issues in U.S.China relations.6877
Interpreting China’s Rise as a Major World Power
As China emerges as a major world power, observers are assessing what kind of international
actor China will be. China’s actions in asserting and defending its maritime territorial and EEZ
disputes in the ECS and SCS could influence assessments that observers might make on issues
such as China’s approach to settling disputes between states (including whether China views
force and coercion as acceptable means for settling such disputes, and consequently whether
China believes that “might makes right”), China’s views toward the meaning and application of
international law, and whether China views itself more as a stakeholder and defender of the
current international order, or alternatively, more as a revisionist power that will seek to change
elements of that order that it does not like.
Security Structure of Asia-Pacific Region
Chinese domination over or control of its near-seas region could have significant implications for
the security structure of the Asia-Pacific region. In particular, Chinese domination over or control
of its near-seas area could greatly complicate the ability of the United States to fulfill its
65
See, for example, the Joint Statement of the United States-Philippines Ministerial Dialogue of April 30, 2012,
available at http://www.state.gov/r/pa/prs/ps/2012/04/188977.htm, which states in part that “The United States and the
Republic of the Philippines reaffirm our shared obligations under the Mutual Defense Treaty, which remains the
foundation of the U.S.-Philippines security relationship.” See also Associated Press, “US: Will Stand by Allies in
Disputes with China,” Military.com, April 3, 2014.
66
Statement of Secretary del Rosario regarding the Philippines-U.S. Mutual Defense Treaty, May 9, 2012, accessed
September 20, 2012, at http://www.gov.ph/2012/05/09/statement-of-secretary-del-rosario-regarding-the-philippines-us-mutual-defense-treaty-may-9-2012/.
67
See, for example, Agence France-Presse, “Navy Chief: US Would ‘Help’ Philippines In South China Sea,”
DefenseNews.com, February 13, 2014; Manuel Mogato, “U.S. Admiral Assures Philippines of Help in Disputed Sea,”
Reuters.com, February 13, 2014.
68
For a survey of issues in U.S.-China relations, see CRS Report R41108, U.S.-China Relations: An Overview of
Policy Issues, by Susan V. Lawrence.
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obligations to Taiwan under the Taiwan Relations Act (H.R. 2479/P.L. 96-8 of April 10, 1979).69obligations to Taiwan under the Taiwan Relations Act (H.R. 2479/P.L. 96-8 of April 10, 1979).78
It could also complicate the ability of the United States to fulfill its obligations under security and
defense treaties with other countries in the region, particularly Japan, South Korea, the
Philippines, and Thailand.7079 More generally, it could complicate the ability of the United States to
operate U.S. forces in the Western Pacific for various purposes, including maintaining regional
stability, conducting engagement and partnership-building operations, responding to crises, and
executing war plans. Developments such as these could in turn encourage countries in the region
to reexamine their own defense programs and foreign policies, potentially leading to a further
change in the region’s security structure.
U.S. Strategic Goal of Preventing Emergence of Regional Hegemon in Eurasia
Observers who are concerned that China may be seeking to dominate or gain control of its nearseas region in some cases go further, expressing concern that this may be part of a larger Chinese
effort to become the hegemonic power in its region.7180 From a standpoint of U.S. strategic policy,
such an effort would be highly significant, because it has been a long-standing U.S. strategic goal
to prevent the emergence of a regional hegemon in one part of Eurasia or another.72
69
77
For a survey of issues in U.S.-China relations, see CRS Report R41108, U.S.-China Relations: An Overview of
Policy Issues, by Susan V. Lawrence.
78
For more on the Taiwan Relations Act, see CRS Report R41952, U.S.-Taiwan Relationship: Overview of Policy
Issues, by Shirley A. Kan and Wayne M. Morrison.
7079
The United States has bilateral treaties with Japan, South Korea, and the Philippines. The United States and Thailand
are parties to a Southeast Asia collective defense treaty that also includes the United Kingdom France, Australia, and
New Zealand. The United States also has a separate treaty with Australia and New Zealand. For a summary of U.S.
collective defense treaties, see the list posted at http://www.state.gov/s/l/treaty/collectivedefense/.
7180
One observer, for example, states that “Our approach has been, and must continue to be, that no one country
dominates Asia. That objective, our role, and our strategic interests are being challenged by China. It is apparent in the
(continued...)
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such an effort would be highly significant, because it has been a long-standing U.S. strategic goal
to prevent the emergence of a regional hegemon in one part of Eurasia or another.81
Non-use of Force or Coercion as a Means of Settling Disputes
Between Countries
A key element of the U.S.-led international order that has operated since World War II is that
force or coercion should not be used as a means of settling disputes between countries, and
certainly not as a routine or first-resort method. Some observers are concerned that some of
(...continued)
growth in capability and capacity of the PLA (especially naval and air forces) and in the way China is defining (or
redefining) maritime and air boundaries. Strategic space is being reshaped spatially by military capabilities and
behaviorally by dubious maritime and airspace claims. The latter is particularly critical and points to a fundamental
difference in our strategic competition with China.” (Gary Roughead, “China, Time and Rebalancing,” Hoover
Institution (www.hoover.org), undated (but with copyright of 2014), accessed March 25, 2014, at
http://www.hoover.org/taskforces/military-history/strategika/11/roughead.) Another observer states that “China has
historically been the Middle Kingdom, and it is now reasserting its perceived right to hegemonic status in East Asia.”
(Jim Talent, “The Equilibrium of East Asia,” National Review Online (http://www.nationalreview.com), December 5,
2013.) Another observer states that “it is not clear yet if indeed China seeks regional hegemony. But there is a growing
consensus among American and Japanese analysts that this is indeed the case. By Chinese hegemony in Asia we
broadly mean something akin to the United States’ position in Latin America. We do not mean actual conquest. Almost
no one believes China intends to annex even its weakest neighbors like Cambodia or North Korea. Rather, analysts
expect a zone of super-ordinate influence over neighbors.” (Robert E. Kelly, “What Would Chinese Hegemony Look
Like?” The Diplomat (http://thediplomat.com), February 10, 2014.)
7281
Most of the world’s people, resources, and economic activity are located not in the Western Hemisphere, but in the
other hemisphere, particularly Eurasia. In response to this basic feature of world geography, U.S. policy makers for the
last several decades have chosen to pursue, as a key element of U.S. national strategy, a goal of preventing the
emergence of a regional hegemon in one part of Eurasia or another, on the grounds that such a hegemon could
challenge core U.S. interests by, for example, denying the United States access to important resources and economic
activity in part of Eurasia or establishing alliances with countries in the Western Hemisphere. Although U.S. policy
makers do not often state this key national strategic goal explicitly in public, U.S. military operations in recent
decades—both wartime operations and day-to-day operations—have been carried out in no small part in support of this
key goal. One observer, for example, states that
if a distant great power were to dominate Asia or Europe the way America dominates the Western
Hemisphere, it would then be free to roam around the globe and form alliances with countries in the
Wesern Hemisphere that have an adversarial relationship with the United States. In that
circumstance, the stopping power of the Atlantic and Pacific oceans would be far less effective.
Thus, American policy makers have a deep-seated interest in preventing another great power from
(continued...)
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Non-use of Force or Coercion as a Means of Settling Disputes
Between Countries
A key element of the U.S.-led international order that has operated since World War II is that
force or coercion should not be used as a means of settling disputes between countries, and
certainly not as a routine or first-resort method. Some observers are concerned that some of
China’s actions in asserting and defending its territorial claims in the ECS and SCS challenge this
principal and help reestablish the very different principal of “might makes right” as a routine or
defining characteristic of international relations.73
(...continued)
achieving regional hegemony in Asia or Europe.
The Persian Gulf is strategically important because it produces roughly 30 percent of the world’s
oil, and it holds about 55 percent of the world’s cruide-oil reserves. If the flow of oil from that
region were stopped or even severely curtailed for a substantial period of time, it would have a
devastating effect on the world economy. Therefore, the United States has good reason to ensure
that oil flows freely out of the Gulf, which in practice means preventing any single country from
controlling all of that critical resource. Most oil-producing stattes will keep pumping and seeling
their oil as long as they are free to do so, because they depend on the revenues. It is in America’s
interest to keep them that way, which means there can be no regional hegemon in the Gulf, as well
as Asia and Europe....
[The United States] should make sure it remains the most powerful country on the planet, which
means making sure a rising China does not dominate Asia the way the United States dominates the
Western Hemisphere.
(John J. Mearsheimer, “America Unhinged,” National Interest (http://nationalinterest.org), January
2, 2014. See also Robert Kagan, “Superpowers Don’t Get to Retire,” New Republic
(www.newrepublic.com), May 26, 2014.
73
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China’s actions in asserting and defending its territorial claims in the ECS and SCS challenge this
principle and help reestablish the very different principle of “might makes right” as a routine or
defining characteristic of international relations.82
Freedom of the Seas
Another key element of the U.S.-led international order that has operated since World War II is
the treatment of the world’s seas under international law as international waters (i.e., as a global
commons), and freedom of operations in international waters. The principle is often referred to in
shorthand as freedom of the seas. It is also sometimes referred to as freedom of navigation,
although this term can be defined—particularly by parties who might not support freedom of the
seas—in a narrow fashion, to include merely the freedom to navigate (i.e., pass through) sea
82
A “senior State Department official,” in a background briefing, stated that “there is violent or strong agreement
between the U.S. and ASEAN on the principles at stake, principles of freedom of navigation, principles of peaceful
resolution. And those principles are, in fact, enshrined in the six points that ASEAN countries themselves have
promulgated as guideposts for handling of the challenges of the South China Sea.” (Department of State, Background
Briefing En Route Brunei, October 9, 2013, accessed March 14, 2013, at http://www.state.gov/r/pa/prs/ps/2013/10/
215222.htm.)
In a December 5, 2013, letter to China’s Ambassor to the United States, Senators Robert Menendez, Bob Corker,
Marco Rubio, and Benjamin L. Cardin stated:
We view this unilateral action [by China to establish an ECS ADIZ] as an ill-conceived attempt to
alter the status quo, increasing the possibility of misunderstanding or miscalculation. Moreover,
this declaration reinforces the perception that China perfers coercion over rule of law mechanisms
to address territorial, sovereignty or jurisdictional issues in the Asia-Pacific. It also follows a
disturbing trend of increasingly hostile Chinese maritime activities, including repeated incursions
by Chinese vessels into the waters and airspace of Japan, the Philippines, Vietnam and other in the
East and South China Seas. These actions threaten freedom of air and maritime navigation, which
are vital national interests of the United States.”
Another observer states:
Allowing Beijing to use force, or even the threat of force, to alter the regional status quo would
have a number of pernicious effects. It would undermine the functioning of the most vibrant portion
of the global commons—sea and air mediums that all nations rely on for trade and prosperity, but
that none own. It would undermine important international norms and encourage the application of
force to more of the world’s many persistent disputes. Finally, it would threaten to destabilize a
region haunted by history that has prospered during nearly seven decades of U.S. forces helping to
preserve peace. No other nation has the capability and lack of territorial claims necessary to play
this still-vital role.
(Andrew S. Erickson, “China’s Near-Seas Challenges,” National Review Online
(http://nationalinterest.org), January 13, 2014.
(continued...)
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Freedom of the Seas
Another key element of the U.S.-led international order that has operated since World War II is
the treatment of the world’s seas under international law as international waters (i.e., as a global
commons), and freedom of operations in international waters. The principal is often referred in
shorthand as freedom of the seas. It is also sometimes referred to as freedom of navigation,
although this term can be defined—particularly by parties who might not support freedom of the
seas—in a narrow fashion, to include merely the freedom to navigate (i.e., pass through) sea
areas, as opposed to the freedom for conducting various activities at sea. A more complete way to
refer to the principalAnother observer states that
it is quite clear to me that China is not attempting to re-write this portion of the rule book, but to
erase it. China is pursuing a power-based strategy to consolidate sovereign control over the islands
in the East and South China Sea.... In some cases it has successfully used coercion or force to
achieve that control—the Southern Paracels (1974), Fiery Cross Reef and other locations (1988),
Mischief Reef (1997), and Scarborough Shoal (2012). In other cases, it has dialed up its coercive
heat—Second Thomas Shoal and the Senkakus are but two more recent examples. The question
is[:] will China achieve international acquiescence? If so, it will have successfully demonstrated
that more than a century of international legal and institutional developments mean very little. The
system, in East Asia at least, will have reverted to one in which power is all that matters.
(Email from Peter A. Dutton, Professor and Director, China Maritime Studies Institute, U.S. Naval
War College, to CRS, August 11, 2014 at 3:36 pm.)
See also Jack David, “The Law of the Jungle Returns,” National Review Online, March 6, 2014.
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areas, as opposed to the freedom for conducting various activities at sea. A more complete way to
refer to the principle, as stated in DOD’s annual FON report, is “the rights, freedoms, and uses of
the sea and airspace guaranteed to all nations in international law.”74 The principal83 The principle that most of
the world’s seas are to be treated under international law as international waters dates back
hundreds of years.7584
Some observers are concerned that China’s maritime territorial claims, particularly as shown in
the map of the nine-dash line, appear to challenge to the principal the principle that the world’s seas are to be
treated under international law as international waters. If such a challenge were to gain
acceptance in the SCS region, it would have broad implications for the United States and other
countries not only in the SCS, but around the world, because international law is universal in
application, and a challenge to a principalprinciple of international law in one part of the world, if
accepted, can serve as a precedent for challenging it in other parts of the world. Overturning the
principalprinciple of freedom of the seas, so that significant portions of the seas could be appropriated as
national territory, would overthrow hundreds of years of international legal tradition relating to
the legal status of the world’s oceans.76
(...continued)
See also Jack David, “The Law of the Jungle Returns,” National Review Online, March 6, 2014.
7485
More specifically, if China’s position on whether coastal states have a right under UNCLOS to
regulate the activities of foreign military forces in their EEZs were to gain greater international
acceptance under international law, it could substantially affect U.S. naval operations not only in
the SCS and ECS (see Figure 5 for EEZs in the SCS and ECS), but around the world, which in
turn could substantially affect the ability of the United States to use its military forces to defend
various U.S. interests overseas. As shown in Figure 6, significant portions of the world’s oceans
are claimable as EEZs, including high-priority U.S. Navy operating areas in the Western Pacific,
the Persian Gulf, and the Mediterranean Sea.86 The legal right of U.S. naval forces to operate
83
U.S. Department of Defense (DOD) Freedom of Navigation (FON) Report for Fiscal Year (FY) 2013, accessed
March 10, 2014, at http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/
FY2013%20DOD%20Annual%20FON%20Report.pdf. Similar reports for prior fiscal years are posted at
http://policy.defense.gov/OUSDPOffices/FON.aspx.
7584
The idea that most of the world’s seas should be treated as international waters rather than as a space that could be
appropriated as national territory dates back to Hugo Grotius (1583-1645), a founder of international law, whose 1609
book Mare Liberum (“The Free Sea”) helped to establish the primacy of the idea over the competing idea, put forth by
the legal jurist and scholar John Seldon (1584-1654) in his book 1635 book Mare Clausum (“Closed Sea”), that the sea
could be appropriated as national territory, like the land.
7685
One observer states:
A very old debate has been renewed in recent years: is the sea a commons open to the free use of
all seafaring states, or is it territory subject to the sovereignty of coastal states? Is it to be freedom
of the seas, as Dutch jurist Hugo Grotius insisted? Or is it to be closed seas where strong coastal
states make the rules, as Grotius’ English archnemesis John Selden proposed?
Customary and treaty law of the sea sides with Grotius, whereas China has in effect become a
partisan of Selden. Just as England claimed dominion over the approaches to the British Isles,
China wants to make the rules governing the China seas. Whose view prevails will determine not
just who controls waters, islands, and atolls, but also the nature of the system of maritime trade and
commerce. What happens in Asia could set a precedent that ripples out across the globe. The
outcome of this debate is a big deal.
(James R. Holmes, “Has China Awoken a Sleeping Giant in Japan?” The Diplomat
(http://thediplomat.com), March 1, 2014.)
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More specifically, if China’s position on whether coastal states have a right under UNCLOS to
regulate the activities of foreign military forces in their EEZs were to gain greater international
acceptance under international law, it could substantially affect U.S. naval operations not only in
the SCS and ECS (see Figure 5 for EEZs in the SCS and ECS), but around the world, which in
turn could substantially affect the ability of the United States to use its military forces to defend
various U.S. interests overseas. As shown in Figure 6, significant portions of the world’s oceans
are claimable as EEZs, including high-priority U.S. Navy operating areas in the Western Pacific,
the Persian Gulf, and the Mediterranean Sea.77 The legal right of U.S. naval forces to operate
86
The National Oceanic and Atmospheric Adminsitrartion (NOAA) calculates that EEZs account for about 30.4% of
the world’s oceans. (See the table called “Comparative Sizes of the Various Maritime Zones” at the end of “Maritime
Zones and Boundaries, accessed Jun 6, 2014, at http://www.gc.noaa.gov/gcil_maritime.html, which states that EEZs
account for 101.9 million square kilometers of the world’s approximately 335.0 million square kilometers of oceans.
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freely in EEZ waters is important to their ability to perform many of their missions around the
world, because many of those missions are aimed at influencing events ashore, and having to
conduct operations from more than 200 miles offshore would reduce the inland reach and
responsiveness of ship-based sensors, aircraft, and missiles, and make it more difficult to
transport Marines and their equipment from ship to shore. Restrictions on the ability of U.S. naval
forces to operate in EEZ waters could potentially require a change in U.S. military strategy or
U.S. foreign policy goals.78
77
The National Oceanic and Atmospheric Adminsitrartion (NOAA) calculates that EEZs account for about 30.4% of
the world’s oceans. (See the table called “Comparative Sizes of the Various Maritime Zones” at the end of “Maritime
Zones and Boundaries, accessed Jun 6, 2014, at http://www.gc.noaa.gov/gcil_maritime.html, which states that EEZs
account for 101.9 million square kilometers of the world’s approximately 335.0 million square kilometers of oceans.
78
See, for example, United States Senate, Committee on Foreign Relations, Committee on Foreign Relations, Hearing
on Maritime Disputes and Sovereignty Issues in East Asia, July 15, 2009, Testimony of Peter Dutton, Associate
Professor, China Maritime Studies Institute, U.S. Naval War College, pp. 2 and 6-7.
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Figure 5. EEZs in South China Sea and East China Sea
Source: Map prepared by CRS using basemaps provided by Esri. EEZs are from the Flanders Marine Institute
(VLIZ) (2011). Maritime Boundaries Geodatabase, version 6. Available at http://www.vliz.be/vmdcdata/marbound.
Note: Disputed islands have been enlarged to make them more visible.
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Figure 5. EEZs in South China Sea and East China Sea
Source: Map prepared by CRS using basemaps provided by Esri. EEZs are from the Flanders Marine Institute
(VLIZ) (2011). Maritime Boundaries Geodatabase, version 6. Available at http://www.vliz.be/vmdcdata/marbound.
Note: Disputed islands have been enlarged to make them more visible.
87
See, for example, United States Senate, Committee on Foreign Relations, Committee on Foreign Relations, Hearing
on Maritime Disputes and Sovereignty Issues in East Asia, July 15, 2009, Testimony of Peter Dutton, Associate
Professor, China Maritime Studies Institute, U.S. Naval War College, pp. 2 and 6-7.
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Figure 6. Claimable World EEZs
Source: Map designed by Dr. Jean-Paul Rodrigue, Department of Global Studies & Geography, Hofstra
University, using boundaries plotted from Maritime Boundaries Geodatabase available at http://www.vliz.be/
vmdcdata/marbound. The map is copyrighted and used here with permission. A version of the map is available at
http://people.hofstra.edu/geotrans/eng/ch5en/conc5en/EEZ.html.
Some observers, in commenting on China’s resistance to U.S. military survey and surveillance
operations in China’s EEZ, have argued that the United States would similarly dislike it if China
or some other country were to conduct military survey or surveillance operations within the U.S.
EEZ. Skeptics of this view might argue that U.S. policy accepts the right of other countries to
operate operate
their military forces freely in waters outside the 12-mile U.S. territorial waters limit, and
that the
United States during the Cold War acted in accordance with this position by not
interfering with
either Soviet ships (including intelligence-gathering vessels known as AGIs)79
88 that operated close
to the United States or with Soviet bombers and surveillance aircraft that
periodically flew close
to U.S. airspace. The U.S. Navy states that
7988
AGI was a U.S. Navy classification for the Soviet vessels in question in which the A meant auxiliary ship, the G
meant miscellaneous purpose, and the I meant that the miscellaneous purpose was intelligence gathering. One observer
states:
During the Cold War it was hard for an American task force of any consequence to leave port
without a Soviet “AGI” in trail. These souped-up fishing trawlers would shadow U.S. task forces,
joining up just outside U.S. territorial waters. So ubiquitous were they that naval officers joked
about assigning the AGI a station in the formation, letting it follow along—as it would anyway—
without obstructing fleet operations.
AGIs were configured not just to cast nets, but to track ship movements, gather electronic
intelligence, and observe the tactics, techniques, and procedures by which American fleets transact
business in great waters.
(James R. Holmes, “China’s Small Stick Diplomacy,” The Diplomat (http://thediplomat.com), May
21, 2012, accessed October 3, 2012, at http://thediplomat.com/2012/05/21/chinas-small-stickdiplomacy/)
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When the commonly recognized outer limit of the territorial sea under international law was
three nautical miles, the United States recognized the right of other states, including the
Soviet Union, to exercise high seas freedoms, including surveillance and other military
operations, beyond that limit. The 1982 Law of the Sea Convention moved the outer limit of
the territorial sea to twelve nautical miles. In 1983, President Reagan declared that the
United States would accept the balance of the interests relating to the traditional uses of the
oceans reflected in the 1982 Convention and would act in accordance with those provisions
in exercising its navigational and overflight rights as long as other states did likewise. He
further proclaimed that all nations will continue to enjoy the high seas rights and freedoms
that are not resource related, including the freedoms of navigation and overflight, in the
Exclusive Economic Zone he established for the United States consistent with the 1982
Convention.8089
DOD states that
the PLA Navy has begun to conduct military activities within the Exclusive Economic Zones
(EEZs) of other nations, without the permission of those coastal states. Of note, the United
States has observed over the past year several instances of Chinese naval activities in the
EEZ around Guam and Hawaii. One of those instances was during the execution of the
annual Rim of the Pacific (RIMPAC) exercise in July/August 2012. While the United States
considers the PLA Navy activities in its EEZ to be lawful, the activity undercuts China’s
decades-old position that similar foreign military activities in China’s EEZ are unlawful.8190
In July 2014, China participated, for the first time, in the biennial U.S.-led Rim of the Pacific
(RIMPAC) naval exercise, the world’s largest multilateral naval exercise. In addition to the four
ships that China sent to participate in RIMPAC, China sent an uninvited intelligence-gathering
ship to observe the exercise without participating in it.8291 The ship conducted operations inside
U.S. EEZ off Hawaii, where the exercise was located. A July 29, 2014, press report stated that
The high profile story of a Chinese surveillance ship off the cost of Hawaii could have a
positive aspect for U.S. operations in the Pacific, the head of U.S. Pacific Command
(PACOM) said in a Tuesday [July 29] afternoon briefing with reporters at the Pentagon.
8089
Navy Office of Legislative Affairs email to CRS dated September 4, 2012. Similarly, some observers have argued
that China’s position regarding the SCS and ECS is similar to the U.S. Monroe Doctrine for Latin America in the 19th
and early-20th centuries. In response to this argument, one observer states that
China’s policy in the near seas today bears scant resemblance to U.S. policy in the Caribbean and
Gulf in the age of the Monroe Doctrine. For one thing, Washington never asserted title to the
Caribbean the way Beijing claims the South China Sea. For another, America never sought to
restrict naval activities in its near seas, whereas China opposes such things as routine aircraft carrier
operations in the Yellow Sea.... In effect, China has vaulted past the most bellicose, most
meddlesome interpretations of the Monroe Doctrine and Roosevelt Corollary.
(James Holmes, “China’s Monroe Doctrine,” The Diplomat (http://thediplomat.com), June 22,
2012, accessed November 21, 2012, at http://thediplomat.com/2012/06/22/chinas-monroe-doctrine/
8190
Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2013, p. 39.
8291
See, for example, Sam LaGrone, “China Sends Uninvited Spy Ship to RIMPAC,” USNI News (http://news.usni.org),
July 18, 2014; William Cole, “Chinese Spy Ship Off Hawaii Keeps Track of RIMPAC,” Star Advertiser
(www.staradvertiser.com), July 18, 2014; Jeremy Page, “Chinese Ship Spies on U.S.-Led Drills,” Wall Street Journal
(http://online.wsj.com), July 19, 2014; Andrew S. Erickson and Emily de La Bruyere, “Crashing Its Own Party:
China’s
Unusual Decision to Spy On Joint Naval Exercises,” Wall Street Journal, China Real Time
(http://blogs.wsj.com/chinarealtime), July 19, 2014; Phil Stewart, “Update 1—China Sends Spy Ship Off Hawaii
During U.S.-Led Drills,” Reuters (http://in.rueters.com), July 21, 2014.
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“The good news about this is that it’s a recognition, I think, or acceptance by the Chinese for
what we’ve been saying to them for sometime,” PACOM commander Adm. Samuel
Locklear told reporters.
“Military operations and survey operations in another country’s [Exclusive Economic
Zone]—where you have your own national security interest—are within international law
and are acceptable. This is a fundamental right nations have.”8392
One observer stated:
The unprecedented decision [by China] to send a surveillance vessel while also participating
in the RIMPAC exercises calls China’s proclaimed stance on international navigation rights
[in EEZ waters] into question...
During the Cold War, the U.S. and Soviets were known for spying on each other’s exercises.
More recently, Beijing sent what U.S. Pacific Fleet spokesman Captain Darryn James called
“a similar AGI ship” to Hawaii to monitor RIMPAC 2012—though that year, China was not
an official participant in the exercises....
... the spy ship’s presence appears inconsistent with China’s stance on military activities in
Exclusive Economic Zones (EEZs).... That Beijing’s AGI [intelligence-gathering ship] is
currently stationed off the coast of Hawaii suggests either a double standard that could
complicate military relations between the United States and China, or that some such
surveillance activities are indeed legitimate—and that China should clarify its position on
them to avoid perceptions that it is trying to have things both ways....
In its response to the Chinese vessel’s presence, the USN has shown characteristic restraint.
Official American policy permits surveillance operations within a nation’s EEZ, provided
they remain outside of that nation’s 12-nautical mile territorial sea (an EEZ extends from 12
to 200 nautical miles unless this would overlap with another nations’ EEZ). U.S. military
statements reflect that position unambiguously....
That consistent policy stance and accompanying restraint have characterized the U.S. attitude
toward foreign surveillance activity since the Cold War. Then, the Soviets were known for
sending converted fishing ships equipped with surveillance equipment to the U.S. coast, as
well as foreign bases, maritime choke points, and testing sites. The U.S. was similarly
restrained in 2012, when China first sent an AGI to observe RIMPAC....
China has, then, sent a surveillance ship to observe RIMPAC in what appears to be a
decidedly intentional, coordinated move—and in a gesture that appears to contradict
previous Chinese policy regarding surveillance and research operations (SROs). The U.S.
supports universal freedom of navigation and the right to conduct SROs in international
waters, including EEZs, hence its restraint when responding to the current presence of the
Chinese AGI. But the PRC opposes such activities, particularly on the part of the U.S., in its
own EEZ....
How then to reconcile the RIMPAC AGI with China’s stand on surveillance activities?
China maintains that its current actions are fully legal, and that there is a distinct difference
between its operations off Hawaii and those of foreign powers in its EEZ. The PLAN’s
8392
Sam LaGrone, “U.S. Pacific Commander: Chinese Spy SHip Off Hawaii Has An Upside,” USNI News
(http://news.usni.org), July 29, 2014. Material in brackets as in original. See also Paul McLeary, “PACOM Chief: US
Not Worried About Chinese Intel Ship off Hawaiian Coast,” Defense News (www.defensenews.com), July 29, 2014.
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designated point of contact declined to provide information and directed inquiries to China’s
Defense Ministry. In a faxed statement to Reuters, the Defense Ministry stated that Chinese
vessels had the right to operate “in waters outside of other country’s territorial waters,” and
that “China respects the rights granted under international law to relevant littoral states, and
hopes that relevant countries can respect the legal rights Chinese ships have.” It did not
elaborate.
As a recent Global Times article hinted—China’s position on military activities in EEZs is
based on a legal reading that stresses the importance of domestic laws. According to China
maritime legal specialist Isaac Kardon, China interprets the EEZ articles in the United
Nations Convention on the Law of the Sea (UNCLOS) as granting a coastal state jurisdiction
to enforce its domestic laws prohibiting certain military activities—e.g., those that it
interprets to threaten national security, economic rights, or environmental protection—in its
EEZ. China’s domestic laws include such provisions, while those of the United States do not.
Those rules would allow China to justify its seemingly contradictory approach to AGI
operations—or, as Kardon put it, “to have their cake and eat it too.” Therefore, under the
Chinese interpretation of UNCLOS, its actions are neither hypocritical nor illegal—yet do
not justify similar surveillance against China.
Here, noted legal scholar Jerome Cohen emphasizes, the U.S. position remains the globally
dominant view—“since most nations believe the coastal state has no right to forbid
surveillance in its EEZ, they do not have domestic laws that do so.” This renders China’s
attempted constraints legally problematic, since “international law is based on reciprocity.”
To explain his interpretation of Beijing’s likely approach, Cohen invokes the observation
that a French commentator made several decades ago in the context of discussing China’s
international law policy regarding domestic legal issues: “I demand freedom from you in the
name of your principles. I deny it to you in the name of mine.”
Based on his personal experience interacting with Chinese officials and legal experts, Kardon
adds, “China is increasingly confident that its interpretation of some key rules and—most
critically—its practices reinforcing that interpretation can over time shape the Law of the Sea
regime to suit its preferences.”
But China is not putting all its eggs in that basket. There are increasing indications that it is
attempting to promote its EEZ approach vis-à-vis the U.S. not legally but politically.
“Beijing is shifting from rules- to relations-based objections,” Naval War College China
Maritime Studies Institute Director Peter Dutton observes. “In this context, its surveillance
operations in undisputed U.S. EEZs portend an important shift, but that does not mean that
China will be more flexible in the East or South China Seas.” The quasi-authoritative
Chinese commentary that has emerged thus far supports this interpretation....
[A recent statement from a Chinese official] suggests that Beijing will increasingly oppose
U.S. SROs on the grounds that they are incompatible with the stable, cooperative SinoAmerican relationship that Beijing and Washington have committed to cultivating. The
Obama Administration must ensure that the “new-type Navy-to-Navy relations” that Chinese
Chief of Naval Operations Admiral Wu Shengli has advocated to his U.S. counterpart does
not contain expectations that U.S. SROs will be reduced in nature, scope, or frequency....
China’s conducting military activities in a foreign EEZ implies that, under its interpretation,
some such operations are indeed legal. It therefore falls to China now to clarify its stance—to
explain why its operations are consistent with international law, and what sets them apart
from apparently similar American activities.
If China does not explain away the apparent contradiction in a convincing fashion, it risks
stirring up increased international resentment—and undermining its relationship with the
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U.S. Beijing is currently engaging in activities very much like those it has vociferously
opposed. That suggests the promotion of a double standard untenable in the international
system, and very much at odds with the relationships based on reciprocity, respect, and
cooperation that China purports to promote....
If, however, China chooses to remain silent, it will likely have to accept—at least tacitly,
without harassing—U.S. surveillance missions in its claimed EEZ. So, as we watch for
clarification on Beijing’s legal interpretation, it will also be important to watch for
indications regarding the next SROs in China’s EEZ.8493
In September 2014, a Chinese surveillance ship operated in U.S. EEZ waters near Guam as it
observed a joint-service U.S. military exercise called Valiant Shield. A U.S. spokesperson for the
exercise stated: “We’d like to reinforce that military operations in international commons and
outside of territorial waters and airspace is a fundamental right that all nations have.... The
Chinese were following international norms, which is completely acceptable.”94
Issues for Congress
Maritime territorial and EEZ disputes in the SCS and ECS involving China raise several potential
policy and oversight issues for Congress, including those discussed below.
U.S. Strategy for Countering “Salami-Slicing” Strategy
Particularly in light of the potential implications for the United States if China were to achieve
domination over or control of its near-seas areas (see previous section), one potential oversight
issue for Congress concerns the U.S. strategy for countering China’s “salami-slicing” strategy.
Potential oversight questions for Congress include the following:
•
DoesShould the United States have a strategy for countering China’s “salami-slicing”
strategy?
•
If so, does the United States have such a strategy?
•
If the United States does have such a strategy, what are its key elements, and has
it been effective? Should the strategy be changed, and if so, how?
•
If the United States does not have such a strategy, does the Administration intend
to create one, and if so, by when?
93
Andrew S. Erickson and Emily de La Bruyere, “China’s RIMPAC Maritime-Surveillance Gambit,” The National
Interest (http://nationalinterest.org), July 29, 2014. See also Andrew S. Erickson, “PRC National Defense Ministry
Spokesman Sr. Col. Geng Yansheng Offers China’s Most-Detailed Position to Date on Dongdiao-class Ship’s
Intelligence Collection in U.S. EEZ during RIMPAC Exercise,” Andrew S. Erickson (www.andrewerickson.com),
August 1, 2014. See also Michael Auslin, “Wishful Thinking on China’s Navy,” AEIdeas (www.aei-ideas.org), July 30,
2014.
94
Erik Slavin, “Chinese Ship Spies on Valiant Shield, And That’s OK With US,” Stars and Stripes (www.stripes.com),
September 22, 2014.
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Comments by Some Observers on Whether the United States Has a Strategy
One observer stated on February 6, 2014, that
Salami-slicing places rivals, especially conflicted rivals, in an uncomfortable position. It is
the rivals of salami-slicers who are obligated to eventually draw red lines and engage in
brinkmanship over actions others will view, in isolation, as trivial and far from constituting
casus belli. China’s leaders are apparently counting on such hesitancy, a calculation that thus
far is working out for them....
... there is no visible response by the U.S. government to China’s salami-slicing. U.S.
officials... have expressed regret over China’s ADIZ declaration, and stated their intention to
84
Andrew S. Erickson and Emily de La Bruyere, “China’s RIMPAC Maritime-Surveillance Gambit,” The National
Interest (http://nationalinterest.org), July 29, 2014. See also Andrew S. Erickson, “PRC National Defense Ministry
Spokesman Sr. Col. Geng Yansheng Offers China’s Most-Detailed Position to Date on Dongdiao-class Ship’s
Intelligence Collection in U.S. EEZ during RIMPAC Exercise,” Andrew S. Erickson (www.andrewerickson.com),
August 1, 2014. See also Michael Auslin, “Wishful Thinking on China’s Navy,” AEIdeas (www.aei-ideas.org), July 30,
2014.
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carry on with usual U.S. military operations inside that zone and elsewhere in the region. Yet
China has suffered no penalty for its series of actions. Regarding the disputed claims in the
two seas, the official policy from Washington is that China’s neighbors are on their own—
the U.S. will not take sides in these territorial disputes. The United States also objects to the
use of coercion in resolving the disputes. But each individual act of China’s salami-slicing is
carefully calibrated to fall below a threshold most outside observers would view as overt
coercion.
With no resistance to its actions, Chinese salami-slicing will certainly continue....
When the salami-slices sum up to a substantial security problem for Japan, India, and the
ASEAN countries, someone is likely to draw a red line somewhere. The issue for U.S.
officials is whether they will be the ones to do that drawing, and thus retain the initiative, or
whether someone else, having lost confidence in Washington, will do it instead. When that
happens, the U.S. will find itself reacting to events, rather than shaping a favorable outcome
in advance.8595
Another observer stated on May 16, 2014, that
the problem with [the U.S. military’s Air-Sea Battle, or ASB, concept] (and its main
competitors) is that they are only designed for high-level conflict, and thus can only be
implemented if the U.S. and China move from a state of tense peace to a state of total war. In
other words, unless China takes a brazenly provocative action such as invading Taiwan or
parts of Japan, ASB is more or less useless. No U.S. president is going to order the U.S.
military to take the extremely provocative actions that ASB would require because of, say,
recent actions by China setting up an oil rig in waters that it disputes with Vietnam.
This is problematic. Thus far, China’s military strategy for the South and East China Seas
has been one of using salami-slicing tactics to gradually change facts on the ground. In the
face of these salami-slicing tactics, ASB is of complete irrelevance.
Moreover, China’s salami-slicing tactics appear to be working. It has already gained control
over Scarborough Shoal from the Philippines, and appears poised to do the same in the
Second Thomas Shoal. Its claims to waters around the Paracel Islands are now strengthening
further out from Hainan Island with Beijing’s recent oil-rig gambit in South China Sea, and
its routine patrols of the Senkaku/Diaoyu Islands are now an accepted fact on the ground.
95
Robert Haddick, “America Has No Answer to China’s Salami-Slicing,” War on the Rocks
(http://warontherocks.com), February 6, 2014.
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As long as these salami-slicing tactics continue to yield results, it seems unimaginable that
Beijing will resort to the brazen actions that would reasonably trigger an ASB response from
Washington. Thus, for ASB to regain a sense of relevance, the United States and its allies
must first find an answer to Beijing’s salami-slicing tactics. Put differently: until China finds
it cannot achieve its goals through salami slicing, it will not resort to the higher spectrum
conflict that ASB was designed to deter or defeat.8696
Another observer stated on June 3, 2014, that
Until quite recently, China’s aggressive moves in the South China Sea were widely viewed
as the product of an erratic foreign policy driven by competing agencies in which hawkish
players usually came out on top....
85
Robert Haddick, “America Has No Answer to China’s Salami-Slicing,” War on the Rocks
(http://warontherocks.com), February 6, 2014.
86
Zachary Keck, “Is Air-Sea Battle Useless?” The National Interest (http://nationalinterest.org), May 16, 2014.
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But the latest Chinese moves that have so alarmed the U.S. and China’s neighbors... appear
to be the result not of policy confusion but deliberate planning, say Chinese and foreign
security analysts. They are most likely coordinated at the highest level. Ultimately, they
seem to bear the stamp of the country’s president, Xi Jinping....
On the surface, this may look reckless. But one theory gaining traction among senior
officials and policy analysts around Asia and in Washington is that the timing is well
calculated. It reflects Mr. Xi’s belief that he is dealing with a weak U.S. president who won’t
push back, despite his strong rhetorical support for Asian allies.
Mr. Xi’s perception, say these analysts, has been heightened by U.S. President Barack
Obama’s failure to intervene militarily in Syria and Ukraine. And it’s led him to conclude
that he has a window of opportunity to aggresively assert China’s territorial claims around
the region.8797
Another observer stated on June 24, 2014:, that
American aspirations for China’s rise have gone terribly off-script. For decades, U.S. policy
toward China has comprised a dual-track “hedging” strategy that includes engaging Beijing
in an effort to induce China to support the existing international order, accompanied by a
balancing component in which the United States and its allies deter Beijing from choosing an
aggressive path. But now this strategy is coming apart at both ends: China neither accepts the
territorial realities of Asia, nor is it deterred from coercive acts of revisionism.
The real problem is that China’s bullying will endure as long as no one gets in the way. Why
wouldn’t it? Beijing is pushing on an open door, incurring few tangible costs for its
assertiveness and appearing to believe (perhaps rightly so) that it can ride out whatever
regional criticism arises in response. Based on its track record of the last several years, it’s
understandable that Beijing remains confident that most countries in the region will, at the
end of the day, be unwilling to imperil their economic relationship with China.
Alarm bells ought be ringing more loudly in Washington. Ultimately, it will be up to the
United States to staunch China’s mounting revisionism. But this will first require a sober
recognition that the old theories of how to shape China’s rise aren’t working. This is a
difficult conversation to have in Washington because acknowledging Chinese behavior for
96
Zachary Keck, “Is Air-Sea Battle Useless?” The National Interest (http://nationalinterest.org), May 16, 2014.
Andrew Browne, “Beijing Moves Boldly, Calculates Carefully,” Wall Street Journal (http://online.wsj.com), June 3,
2014.
97
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what it is—undeterred and unapologetic assertiveness—will necessitate a more serious
American response than we have seen to date.
This doesn’t mean forgoing the cooperative elements of the “hedge” and committing to a
highly competitive relationship with China. We’re not there yet. And besides, there’s a big
difference between determining that China is presently undeterred versus determining that it
is patently undeterrable. Before definitively drawing the latter conclusion, the immediate task
for U.S. policymakers is to test the elasticity of Chinese decision-making.
This calls for greater attention to cost-imposition strategies that attempt to shape the relative
value of continued revisionism for China. Washington will have to explore the full potential
range of economic, military, diplomatic and political points of leverage over Beijing (and
there are many) to increase the costs of Chinese assertiveness, including areas that directly
impinge on the interests of China’s leaders. The United States will also have to develop more
87
Andrew Browne, “Beijing Moves Boldly, Calculates Carefully,” Wall Street Journal (http://online.wsj.com), June 3,
2014.
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tailored options for responding directly to maritime coercion in ways that repel specific acts
of revisionism, rather than simply exacting lateral forms of punishment after the fact.
China’s slow but steady revisions to the territorial status quo in Asia are not a legacy the
Obama administration wants to leave behind. Being more proactive in stemming this
behavior represents the principal challenge for Washington’s China policy today.8898
Comments by Some Observers Suggesting Possible Elements of a U.S.
Strategy
Two observers, proposing a U.S. strategy for the South China Sea, stated on April 24, 2014:, that
The United States should develop and promulgate a National Strategy for the South China
Sea (NSSCS) as part of its ongoing efforts to counter Chinese aggression in the region and to
resolve the disputes there in a peaceful manner. It behooves the United States to shift its
current posture in the South China Sea from one of vigilant maintenance of the status quo to
a position that will foster the peaceful management and ultimately permanent resolution of
issues affecting U.S. navigational rights and interests in the region. An NSSCS is one
effective means of producing the necessary shift....
Specifically, the U.S. should:
1. Take an official position regarding disputed SCS land features....
2. Underscore U.S. policy on military activities in the SCS....
3. Continue freedom-of-navigation protests and naval operations....
4. Publish a “Limits in the Seas” report regarding the nine-dash line....
5. Assist SCS nations in complying with the law of the sea....
6. Support arbitration cases against China....
7. Preempt potentially harmful provisions of an SCS “code of conduct.”8999
98
Ely Ratner, “China Undeterred and Unapologetic,” War on the Rocks (http://warontherocks), June 24, 2014. See also
Ely Ratner, “A Plan to Counter Chinese Aggression,” Wall Street Journal (http://online.wsj.com), June 10, 2014.
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Another observer, proposing series of actions for the United States to take during the summer
months of 2014, stated in May 2014: that
It’s time to breathe new life into U.S. policy in the South China Sea. Despite important
initiatives by the Obama administration to strengthen bilateral security ties, build partner
capacity and enhance multilateral cooperation, the region’s territorial and maritime disputes
continue to engender dangerous crises. The potential for armed conflict will only grow larger
in the absence of creative and decisive U.S. leadership....
The costs for the United States of failing to play an innovative leadership role could be
enormous. Against this backdrop, the coming months provide a series of critical
88
Ely Ratner, “China Undeterred and Unapologetic,” War on the Rocks (http://warontherocks), June 24, 2014. See also
Ely Ratner, “A Plan to Counter Chinese Aggression,” Wall Street Journal (http://online.wsj.com), June 10, 2014.
89
Steven Groves and Dean Cheng, A National Strategy for the South China Sea, Heritage Foundation, April 24, 2014
(Backgrounder No. 2908), pp. 1, 11-13.
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opportunities for top-level U.S. officials to evolve and advance U.S. policy. Below is a
proposed calendar for launching four new initiatives that are practical, feasible and would
support U.S. interests in the region....
At the Shangri-La Dialogue in Singapore at the end of May, Secretary Hagel should propose
in concept the development of a multilateral MDA initiative. In concert, the National
Security Council staff should lead an interagency working group to offer recommendations
related to cost, operational requirements and intelligence sharing. The administration should
also consider potential groupings of allies and partners, including (but not limited to) an
ASEAN-centered architecture....
At the G-7 summit in Brussels in June, President Obama should propose to include language
in the summit’s joint statement supporting the legitimacy of international arbitration to
manage maritime disputes in the South China Sea....
Beginning at the U.S.-China Strategic Security Dialogue in August, the United States should
make clear in private that it expects China to withdraw its occupation of the disputed feature
by the end of 2014 and return to the pre-April 2012 status quo. If necessary, this message can
be repeated publicly in ASEAN-centered regional forums later in the year, including the East
Asia Summit in Burma in November. The United States military should also consider
conducting freedom of navigation operations in areas surrounding the reef to underscore that
the United States does not recognize Chinese administration....
Secretary Kerry should propose the idea of an “early harvest” of the COC at the ASEAN
Regional Forum in August and, with guidance from the U.S. Mission to ASEAN in Jakarta,
propose specific components of the COC discussions that are widely agreed-upon and ripe
for immediate implementation.90100
Two other observers stated on May 15, 2014, that
what is happening in the South China Sea is actually far more dangerous than what has come
before—and the forces driving it go well beyond pursuit of energy riches. The United States
needs to face up to the full magnitude of the Chinese challenge to have any hope of
successfully confronting it. This means not only tough talk but also a willingness to take
difficult action....
(...continued)
99
Steven Groves and Dean Cheng, A National Strategy for the South China Sea, Heritage Foundation, April 24, 2014
(Backgrounder No. 2908), pp. 1, 11-13.
100
Ely Ratner, A Summer Calendar for Advancing U.S. Policy toward the South China Sea, Center for a New
American Security, May 2014, pp. 1-8.
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.
The United States has said it won’t take a stand on the sovereignty dispute and has called on
the two parties to resolve their differences peacefully. This is not enough: The United States
ought to call China’s bluff and make clear the real stakes. The United States and the
Association of Southeast Asian Nations (ASEAN) should present a unified front in refusing
to recognize unilateral assertions of claims in disputed territories.
Even more important, the United States must be prepared to give life to its rhetorical
position. Although it does not have a treaty obligation to defend Vietnam, its rebalancing to
Asia is premised on its role as the primary guarantor of stability in the Pacific. Chinese
actions challenge that.
Vietnam has reiterated its commitment to peacefully resolve the dispute. If China does not
reciprocate, the United States should be prepared to offer support to Vietnam through an
increased naval presence. This would give Washington the ability to assess Chinese
90
Ely Ratner, A Summer Calendar for Advancing U.S. Policy toward the South China Sea, Center for a New American
Security, May 2014, pp. 1-8.
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capabilities and to help de-escalate the situation. Other options, such as restrictions on
CNOOC’s activities in the United States, could also be considered. If the United States can’t
back up its words with actions, its credibility in promising to uphold peace and stability in
the region will be gutted.91101
Another observer stated on June 3, 2014:, that
These are times of mounting drama and tension in the long power play of China’s rise in
Asia. Thus, it is more important than ever for American policy makers to peer behind the
curtain to see when rising-power loneliness is dressed as leadership and when confidence is a
mask for insecurity....
The Asian strategic order may now be in play; its U.S.-led character is under question, but
this is a complex, multilayered game. If China is seeking to rattle America and others—
especially Japan, the Philippines and Vietnam—it may be miscalculating. In the long run, the
premature displays of confidence China has lately shown are likely to harm its interests more
than advance them....
Under question is the region’s capacity to craft an order that is at once stable and free from
domination by a single power. If China’s latest behavior and rhetoric can partly be explained
by an excess of the wrong sort of confidence—premature, misjudged or a conduit for
nationalism—then the United States, its allies and partners will need to be firm, yet also
careful and nimble, in how they push back. Somehow, the message needs to reach China’s
security decision makers that their continued risk-taking could have consequences they
cannot control.
What the region requires is a new kind of balance—not of power or of resolve, but of
uncertainty. Of late, too much of the uncertainty has been in the minds of America’s Asian
allies and partners. Turning this situation around may be a first step towards China’s
acceptance that it will have to live up to its ‘win-win’ rhetoric when dealing with all its
neighbors. In other words, what is needed now is greater uncertainty among China’s strategic
decision makers about how the United States, Japan and the region’s middle powers will
respond to—or anticipate—the next coercive move.
Beijing may pretend to shrug off one legal action, but will have trouble sustaining its
indifference if Vietnam or additional South China Sea claimants also seek international
101
Elizabeth Economy and Michael Levi, “Beijing’s Actions in the South China Sea Demand A U.S. Response,”
Washington Post (www.washingtonpost.com), May 15, 2014.
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arbitration with the overt blessing of the United States, the European Union and other
champions of a rules-based international system. Stability in the South China Sea, a global
shipping artery, is every trading nation’s business. So Washington would be well advised to
follow the kind of practical action plan recently advanced by security policy expert Ely
Ratner, involving a coordinated assertion of rules-based management of maritime disputes,
globally through the G7, as well as regionally through the East Asia Summit.
Simultaneously, the United States and its allies, including Japan, are in their rights to signal
that they will expand security capacity-building, training and intelligence-sharing when
Southeast Asian states invite them to do so in response to new anxieties about China’s
actions.
Shifting the balance of uncertainty in Asia need not have a principally military dimension.
Even with constrained resources, the U.S. Navy can sustain a visible presence in the South
China Sea and, by invitation, in the territorial seas and exclusive economic zones of partners
91
Elizabeth Economy and Michael Levi, “Beijing’s Actions in the South China Sea Demand A U.S. Response,”
Washington Post (www.washingtonpost.com), May 15, 2014.
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and allies. New anxieties about regional stability will encourage more countries to join U.S.led maritime exercises and surveillance cooperation throughout the Indo-Pacific. This need
not amount to provocation, if combined with persistent invitations for China to begin serious
risk-reduction dialogue so that close encounters like the December 2013 USS Cowpens
incident become less likely to occur or escalate. The truth is, China’s maritime assertiveness
in recent years has not risen relentlessly. Notably, the tempo of sea and air incidents against
Japan—though still troubling—has eased this year; the disciplined pushback by Japan’s
experienced maritime forces may well be a factor. Beneath the bluster, at least some of
China’s security actors must know they cannot be the masters of infinite risk. This will be a
long drama and the script is not theirs alone to write.92102
Another observer stated on June 26, 2014:, that
Beijing is opportunistically seeking to flex its newfound muscle and make the 9-dash line a
de facto and de jure reality. In effect, China wants the South (and East) China Sea as an
inland lake. The placement of [the] HS-981 [oil rig] is part of a disturbing pattern of
aggressive Chinese behavior. Another ongoing resort to “tailored coercion” is the
reclamation of small land features in the Spratly Islands. Recently released photographs
taken in March show China’s reclamation of Johnson South Reef, the site of a 1988
Vietnam-China naval skirmish. Although China is not alone is seeking to advance its
territorial claims and maritime interests, its behavior is uniquely escalatory. US Secretary of
Defense Chuck Hagel singled out China’s “destabilizing, unilateral actions” against its
maritime neighbors at this year’s Shangri-La Dialogue in Singapore.
The placement of [the] HS-981 [oil rig], coming after diplomatic exertions to improve
Beijing-Hanoi ties, is perplexing to many in the region. But China’s gambit in its near seas
involves dialing up and dialing down coercive diplomacy. As part of a renewed focus on
“periphery diplomacy,” China is rewarding neighbors willing to work with Beijing, and is
seeking to isolate those who resist China’s unilateral demands. Such actions are tailored to
be sufficiently peaceful so as not to escalate into full-fledged conflict or to trigger a unified,
anti-China alliance; they are tailored to appear sufficiently non-military in nature and thus
not intended to accentuate China’s rapidly modernizing military forces; and they are tailored
to send varying messages to different audiences—internal, regional, and international.
China’s tailored coercion is aimed not just at its neighbors but also at the United States.
China wants to coerce the United States to tamp down the national exuberance of its allies
and partners, from the Philippines and Japan (in the East China Sea), to Vietnam and
102
Rory Medcalf, “China’s Premature Power Play Goes Very Wrong,” The National Interest
(http://nationalinterest.org), June 3, 2014.
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Malaysia. Notwithstanding China’s coercive behavior, the United States needs to persevere
in building an open, rules-based system in the Asia-Pacific region. But in the meantime, it
also needs to find a way to address Chinese incremental aggression, often likened to salami
slicing. In the present SCS crisis, the United States needs to bolster its ties with Vietnam to
help impose costs on China. Taking together the twin US goals of regional security
maintenance and order building, and focusing on countering China’s use of coercion to
unilaterally alter the status quo, there are five priorities that deserve attention from both
Hanoi and Washington, and the region in general.
First, as part of the burgeoning US-Vietnam security dialogue, the two countries should
focus on developing cost-imposition strategies that might dissuade China from resorting to
unilateral changes to the status quo or impose stiff penalties for bad behavior. Costimposition strategies can be direct and indirect, military and non-military, short-term and
92
Rory Medcalf, “China’s Premature Power Play Goes Very Wrong,” The National Interest
(http://nationalinterest.org), June 3, 2014.
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long-term. But they should be feasible, cost-effective, and meaningful. Vietnam needs to
send top-level officials to Washington to underscore the importance of this dialogue.
Second, there should be more frequent and larger bilateral exercises and US military
deployments to Vietnam under the existing shared membership in the Proliferation Security
Initiative (PSI). Through PSI, the United States can provide a reassuring presence without
taking on the burdens, costs and risks of trying to restore a permanent military base. At the
same time, greater US-Vietnam cooperation can improve the professionalism of Vietnamese
defenses and the capacity for combined action. Improving maritime domain awareness is an
objective that supports both PSI and would have benefits for the early detection of
misbehavior in the East Sea.
Third, the United States should support triangular dialogue and practical cooperation
among other SCS claimant states, especially Vietnam, Malaysia and the Philippines. The
United States can support this dialogue through regional multilateral forums such as the
ASEAN Regional Forum, the ASEAN Defense Ministers’ Meeting Plus and the East Asia
Summit. Washington can also encourage other US allies and partners (Japan, South Korea,
Australia, India and other members of ASEAN) to offer assistance with training and
education, equipment and information sharing. The United States should encourage Japan,
which is already providing coast guard patrol vessels beginning next year, and India, which
operates Russian submarines, to assist the Vietnamese navy to operate and deploy Russian
Kilo-class submarines. As Vietnam incorporates six submarines into its small navy, others
need to help Vietnam establish operational independence.
Fourth, the United States should end the ban on lethal arms sales to Vietnam. The scope and
kind of direct military support can still be linked to demonstrable improvements in human
rights. But it is now time to begin limited arms sales that are useful for countering tailored
coercion. Such systems could improve maritime domain awareness and bolster defensive if
still potentially lethal means of punishing any attacker. Torpedoes and short-range cruise
missiles would strengthen deterrence, and a potential aggressor would think twice before
using overt coercion or limited force to make its claims.
Fifth, the United States should press Vietnam and other ASEAN members to support specific
rules for maintaining good order at sea and preserve the freedom of the global commons in
the South China Sea. Specific steps that might eventually be part of a binding code of
conduct should be promoted and put into practice as soon as possible. International
arbitration over UNCLOS provisions should be embraced. Land features should be
systematically cataloged and defined to develop a shared regional understanding of what
land features are islands and which are rocks.
These steps are illustrative of a broader tool kit at the disposal of officials in Vietnam, the
United States and the region to impose costs on bad behavior and provide safeguards for
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complying with mutually agreed rules. They are necessary because of China’s increasing
reliance on coercion. At the same time, it is vital to further develop a roadmap with China on
how to avert dangerous incidents and manage strategic competition. Through these steps,
tailored coercion can be prevented from becoming the accepted norm in the South China
Sea.93
Two observers (including one cited above) state:
93
Patrick M. Cronin, “US Should Help Vietnam Counter China’s Coercion,” Asia Pacific Bulletin
(www.eastwestcenter.org), Number 269, June 26, 2014. Italics as in original. See also Richard Fontaine and Patrick M.
Cronin, “The Case for U.S. Arms Sales to Vietnam,” Wall Street Journal (http://online,wsj.com), July 15, 2014.
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103
Two observers (including one cited above) stated on July 4, 2014, that
This month, China will participate for the first time in the U.S.-led Rim of the Pacific naval
exercise, better known as RIMPAC....
The Obama administration’s decision to include China in the world’s largest naval exercise
is only the latest U.S. move designed to encourage Beijing to play a more productive role in
the world. Such efforts have been a signature feature of Washington’s China policy since the
normalization of relations in 1979.
The problem, however, is that, after 35 years of such engagement , China is now calling into
question its commitment to preserving the very system that facilitated its rise. This argues for
a careful reassessment of the overall U.S. approach to China.
The current approach has been premised on the idea that China’s integration into the
prevailing economic and security order not only is in China’s interest but also benefits the
United States and the whole world....
As a result of this embrace, the theory goes, China’s stake in the international system would
increase over time. By virtue of self-interest, it would come to see the benefits of
contributing to stability and upholding existing rules and norms, such as freedom of
navigation and peaceful resolution of disputes, even as it became more capable of violating
them. This would eventually lead China to emerge as, to use former deputy secretary of state
Robert Zoellick’s indelible phrase, a “responsible stakeholder.”
Unfortunately, that’s not what’s happening. Following decades of double-digit economic
growth, China’s behavior took a notable turn in the wake of the global financial crisis. Many
in Beijing anticipated a rapid U.S. decline, and this triumphalism fused with growing
nationalism and wealth to generate a more assertive Chinese foreign policy....
Particularly since President Xi Jinping assumed power in 2013, China has begun to advance
its territorial claims more actively in the East and South China seas, contravening former
premier Deng Xiaoping’s long-held dictum of “shelving disputes.”
Yet China’s leaders are well aware that continued economic growth, the principal source of
the Communist Party’s legitimacy, depends on a stable regional environment. As a result,
China appears to be taking carefully calibrated steps — —such as seizing small islands with
coast guard vessels, unilaterally asserting greater administrative rights over contested
territories, building small outcrops into military installations and drilling for oil in disputed
waters — —designed to change the territorial status quo in Asia without provoking a serious
response from its neighbors or the United States.
103
Patrick M. Cronin, “US Should Help Vietnam Counter China’s Coercion,” Asia Pacific Bulletin
(www.eastwestcenter.org), Number 269, June 26, 2014. Italics as in original. See also Richard Fontaine and Patrick M.
Cronin, “The Case for U.S. Arms Sales to Vietnam,” Wall Street Journal (http://online,wsj.com), July 15, 2014.
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The danger is that incremental Chinese revisionism, if left unchecked, will fundamentally
alter the international order in Asia over time in ways antithetical to stability and the vital
interests of the United States and its allies and partners....
China’s more assertive actions also increase the risk of a tactical miscalculation that could
escalate into a crisis or even conflict.
How should the United States respond? Washington should remain committed to building a
durable partnership with Beijing. Abandoning efforts to engage with China would likely
accelerate Beijing’s assertiveness and run counter to a wide range of U.S. economic and
security interests.
Nevertheless, it is imperative that China’s destabilizing actions stop. This will require the
United States to take steps that more regularly and visibly enforce the rules-based
international order in Asia.
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The United States can start by supporting the construction of a regional architecture for
maritime domain awareness to deter adventurous behavior and allow governments to better
police their shores. While bolstering its alliances and partnerships, the United States should
also help countries develop the defensive capacity to stand their ground in the face of
China’s rapidly emerging force-projection capabilities.
These military measures should be complemented by diplomatic efforts to build rules of the
road for managing maritime disputes. In particular, the United States will have to pursue
alternative crisis management mechanisms if Beijing continues to drag its feet on concluding
a binding code of conduct for the South China Sea.
Washington will have to think creatively about how to improve the efficacy of international
arbitration, which the Philippines is employing to contest China’s expansive claims.
Although such bodies lack enforcement mechanisms, the United States and its partners can
still affect China’s calculus by sticking together and making adherence to their rulings a
prerequisite for participation in military exercises such as RIMPAC or in multilateral
organizations such as the Arctic Council.
The United States should also explore means for exerting economic pressure on Chinese
state-owned enterprises, such as the China National Offshore Oil Corporation, that are
complicit in Chinese revisionism.94104
Another observer states:stated on July 21, 2014, that
China’s recent unrelenting drive to use coercive and intimidating state power, short of direct
application of military force, to advance control of disputed territory in the East China Sea
and the South China Sea poses a major problem for the United States. The Chinese “salami
slicing”, a term used to describe the accumulation of small changes that gradually change the
strategic picture, undermines the credibility of US alliances and US standing as the region’s
security guarantor. The Obama government has adopted a harder public line against China’s
actions and has deepened security cooperation with allies and others threatened by Chinese
provocations. These steps presumably pose some costs to China’s regional standing and its
long-standing goal to reduce the US security presence around China’s periphery. Whatever
the costs, they have not gotten the Chinese to stop.
104
Michèle Flournoy and Ely Ratner, “China’s Territorial Advances Must Be Kept in Check by the United States,”
Washington Post (www.washingtonpost.com), July 4, 2014.
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Former Pacific Commander and Director of National Intelligence Dennis Blair, members of
Congress responsible for national security matters, and a variety of other experienced
observers urge the US government to break out of the prevailing pattern of the US reacting to
Chinese provocations. They push the United States to take initiatives that would show China
the serious costs for Beijing in its salami slicing strategy of the disputed East and South
China Sea. In response, the Pacific Command is reportedly pursuing enhanced surveillance
and monitoring of Chinese activities in disputed seas and possible consideration of shows of
force and US escorts of allied ships in disputed seas. How these and other measures will
deter determined Chinese salami slicing is not at all clear, especially as it remains to be seen
how strongly the Obama government will pursue such initiatives. Notably, such US actions
risk possible confrontation with Chinese forces at a time of serious troubles in US foreign
relations with Russia and protracted problems in Ukraine, and throughout the Middle East
and Southwestern Asia.
94
Michèle Flournoy and Ely Ratner, “China’s Territorial Advances Must Be Kept in Check by the United States,”
Washington Post (www.washingtonpost.com), July 4, 2014.
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Against this background, this writer judges that judges that Chinese advances, and
subsequent negative consequences on US interests, have reached a point where careful
consideration needs to be given to options that focus on the many weaknesses and
vulnerabilities China faces in dealing with the United States. The thinking in congressional
deliberations is that China’s use of coercive measures, short of military force, targets US
weakness in dealing with such technically non-military threats. The United States should do
likewise, targeting Chinese weaknesses and vulnerabilities, which are more than those of the
United States.
Most of these options can be implemented easily by US policymakers and are within US
budget constraints. In most cases, the options can and probably should be employed without
heavy publicity, strong rhetoric, direct arguments, or public confrontation with China.
Rather, Washington should continue to pursue its close engagement with China and leave it
to China to react to the US initiatives which will show China’s leaders the kinds of costs and
risks they run if Beijing insists on pursuing policies that undermine the US position in the
Asia-Pacific. Such an approach is similar to China’s recent record of pursuing expansionist
policies in the disputed seas as well as economic and trade, nuclear non-proliferation, and
human rights policies with profound negative implications for the United States while still
seeking the positive goal of a so-called new great power relationship in US-China relations.
The United States can do the same by mixing negatives and positives in US-China relations.
Meanwhile, options raised in congressional hearings often do not reflect the full policy
awareness and knowledge of current, and sometimes hidden, circumstances that only the US
executive branch experts can provide. Nonetheless, their importance will grow if China, as
expected, is undeterred by prevailing US policies.
The options include the following:
1) US attack and missile submarines go undetected by weak Chinese anti-submarine warfare
capabilities and possess the firepower to annihilate any advancing Chinese forces in the
disputed East China Seas and South China Sea. The surfacing of US attack submarines near
disputed areas of the East and South China Seas, perhaps in conjunction with Japanese and
Australian submarines, would remind China of its serious anti-submarine limitations. In
response, Beijing will doubtless seek to fix the problem. Yet to remedy China’s antisubmarine warfare limitations will require prolonged and large-scale costs and diverted
resources for Chinese military planners and Chinese leaders juggling budget priorities in the
period of wide-ranging and difficult change in Chinese development and governance. In
sum, the solution will also incur major costs for China.
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2) Taiwan is an area of acute sensitivity for China; one where the United States has several
options to raise significant costs for China. As the United States seeks to check China’s
recent coercion and intimidation of neighbors, it could devote more attention to Taiwan—
which has faced unbridled Chinese military coercion and intimidation for almost two
decades. One option is to complicate Chinese defense plans and overall strategy toward
Taiwan by allowing the sale of the 66 F-16 fighter jet long sought by the Taiwan
government. The cost to China of such action involves not just the planes themselves but the
significance of the substantial US demonstration of support for Taiwan in the face of China’s
pressure and threats. Another option would involve a more active US posture in support of
Taiwanese free expression and identity represented by the so-called Sunflower Movement on
the island. Beijing has shown no positive response to the rising importance of such
demonstrations of Taiwan identity at odds with Chinese interests. The demonstrations tend to
support Taiwan’s political opposition’s wariness on dealing with China. US support for such
expressions of Taiwanese identity could further shift Taiwan politics in favor of the
opposition against the unpopular government of President Ma Ying-jeou. China would face
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costly and difficult reevaluation of its reasonably successful policy toward Taiwan, should
the opposition win the 2016 presidential election.
3) Recent demonstrations in Hong Kong—another very sensitive area for China leadership—
also foreshadow a possibly costly and delicate policy reevaluation for China. The United
States could easily add to the salience of the demonstrations and the related costs for China
by adopting a higher profile in support for free expression in Hong Kong.
4) The main external reason why the North Korean problem continues to threaten the AsiaPacific region is continued Chinese support for the brutal regime. Official US rhetoric could
focus more on this fact. This could add considerable weight to the reputational costs China
faces as a result of its expansionism in disputed areas of the East and South China Seas,
perhaps tipping the scales and compelling China to alter its practices.
5) The United States could demonstrate a concrete response to China’s practice or to
deploying conventionally armed Chinese ballistic missiles targeted at US bases and forces in
the Asia-Pacific over the past 20 years. These missiles are a direct threat to US service
personnel and US allies. The US response could involve conventionally armed multiwarhead US ballistic missiles deployed in the United States or in the region in attack and
ballistic missile submarines. These missiles would be ready to rapidly respond with multiple
warheads were China to launch its missiles against US forces. Because of China’s weak
ballistic missile defense capabilities, Beijing would face an enormous cost in dealing with
the new risk to its leadership and strategic structure posed by these US warheads.95
Some Reported U.S. Actions
A December 16, 2013, State Department fact sheet states:
105
Another observer stated in September 2014 that
the United States should lead efforts to establish a Code of Practice [CoP] with the following
four characteristics:
A declaratory statement of policy, the CoP should mirror much of the language of the 2002
Declaration on the Conduct of Parties in the South China Sea (DoC) but expand its
geographic scope and reference to existing international law....
It is critical that declaratory policy condemning coercive behavior apply to the whole
maritime region of East Asia and not just the South China Sea....
105
Robert Sutter, “Dealing with America’s China Problem in Asia—Targeting China’s Vulnerabilities,” PacNet
(http://csis.org), Number 58, July 21, 2014.
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It is important that signatories to the CoP insist that claims based on “historic title” or
historic waters” be settled according to international law—and that all historic title claims
not capable of being recognized by international law be rejected.
All claims not submitted for arbitration under UNCLOS would also not be recognized by
CoP signatories....
The CoP becomes the declaratory policy of any particular country once it agrees to sign on....
The CoP should serve as formal declaratory policy for relevant signatories until a binding
ASEAN CoC is achieved—cognizant of the likelihood that this may not be for some
time....106
Another observer—the one cited above for the statement of June 26, 2014—stated in September
2014 that
The responses to China’s tailored coercion—from diplomatic demarches to international
legal means to bolstering maritime and military presence, activities and capabilities—have
produced little obvious improvement in China’s behavior since 2008. While some actions
have appeared to exact reputational costs on China, it is far from clear that those have been
sufficient to change Chinese behavior....
Militarily, the United States is taking a number of steps to improve its long-term force
posture and presence in the Asia-Pacific region....
A second way to impose military costs on bad behavior and otherwise strengthen military
options is by conducting more military operations with more partners. The United States is
already well on its way to doing this....
A third military approach to imposing costs and otherwise preparing to deny maritime
coercion is by exploiting the vulnerabilities and weaknesses of the provoking nation to exact
a military cost. This approach could involve military modernization or other steps to
highlight another’s security weaknesses....
A fourth military tool for imposing costs, at least indirectly, is to bolster the capacity of allies
and partners to help themselves. This can come through deepening strategic dialogue,
exporting professionalism and training, and especially in the form of arming and equipping.
This applies especially to those countries with a large force asymmetry relative to China’s
large, modernizing and growing coast guard, law enforcement and military forces....
Nonmilitary cost-imposition tools might be categorized as informational: to impose
reputational costs in particular (such as through an ISR regime to spotlight provocations); to
create a shared information regime for possible coalition operations, including escort
missions; and to contribute to a positive narrative that the political aim of the United States
and its allies is not conflict and not even confrontation if it can be avoided. Rather, the aim is
to draw a line under certain bad behavior and dissuade others from resorting to unilateral
changes to the status quo through coercion or force....
The U.S. government has tabled the idea of a freeze on provocative unilateral actions. This
may be more useful in the South China Sea than in the East China Sea....
106
John Lee, Nonmilitary Approaches to Countering Chinese Coercion, Center for a New American Security,
September 2014, pp. 11-12.
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In the South China Sea, an information regime could help, and the narrative should focus on
the need for a binding code of conduct and agreed-upon behavior by all—not just bilaterally
between a great power such as China and smaller neighbors....
The two final types of cost-imposing tools are diplomatic and economic....
Finally, even if the United States and its allies are willing to pay the price of imposing costs
on China’s bad behavior, and even if they can devise and implement a workable strategy,
there is no assurance that it will have the desired effect on Chinese behavior. Thus, it is
important to remember that there is a difference between imposing costs and changing
behavior.107
Another observer—the one cited above for the statement of February 6, 2014—stated on
September 9, 2014, that
China’s strategy—salami slicing, military modernization, and creating commercial and
financial dependence with others in the region—is multidimensional and requires a similarly
broadbased response. This section describes ways America’s partners, with U.S. support, can
contribute to a competitive response to China’s strategy. These responses will resist China’s
salami slicing and attempt to counter elements of China’s military program. As we will see,
many of these approaches come with risks and objections....
First, America’s partners must promote their legal cases against China’s territorial assertions.
A central element of China’s salami slicing is to gradually build up the legal legitimacy of its
territorial claims by incrementally, but firmly, accumulating ever more “facts on the ground”
to support its claims. America’s partners must resist this by supporting their own legal
claims. China’s “nine-dash line” and its legal position regarding EEZ restrictions are weak
legal claims and they find little acceptance in the international community. But China’s
persistent salami slicing, if not resisted, could still prevail. The United States could help its
partners, and its own interests, by leveraging existing law and institutions....
Second, America’s partners around the East and South China Seas need to match China’s
maritime presence. China’s salami-slicing strategy is supported by its economic and
industrial power, which Beijing believes will sustain a growing and persistent presence of
civilian, paramilitary, and if necessary, military vessels on patrol around the disputed claims
in the two seas. Chinese planners are counting on their material advantages to wear down the
other claimants, with Chinese fishing boats and patrol craft establishing new “facts on the
ground,” which they hope will eventually be accepted by the international community.
Japan, the Philippines, Vietnam, Malaysia, and other claimants need to match China’s
persistence with their own, otherwise they risk conceding the seas to China....
In order to assist the other claimants with their maritime patrolling presence, the United
States should organize a multilateral group to support the claimants, especially the smaller
countries around the South China Sea. The United States should quietly rally Japan,
Australia, and India, the other three big powers in the network, to assist and subsidize a
matching maritime presence in the two seas. The civilian component of maritime presence
should have the lead in such an effort....
Third, America’s partners in the region should improve their information operations and
messaging to the global audience. Media outreach, information operations, and public
107
Patrick M. Cronin, The Challenge of Responding to Maritime Coercion, Center for a New American Security,
September 2014, pp. 7-11, 16. Italics as in original.
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diplomacy are critical elements of a successful strategy. In the contest with China over
territorial claims in the two seas, America’s partners should enjoy a comparative advantage
in the realm of media and information operations: they have a stronger legal case to argue
before the global audience. Even more compelling should be the impression that China, with
its huge size and graceless moves, is a bully, intent on using its raw power to take
possessions and rights from its much smaller neighbors....
Fourth, the United States should expand and deepen its partnership network across Asia.
There are at least three aspects to this initiative:
(1) the United States should reach out to countries where there has been little security
cooperation in the past,
(2) U.S. security interests would benefit from deepening the security relationship with a few
especially important partners, and
(3) the U.S. government should extend the concept of partnership beyond just relationships
with states and state-based organizations like ASEAN....
Fifth, the United States should lead an effort to build up basic maritime domain awareness
and information sharing among its partnership network. The goal would be to develop an
accurate and timely picture of China’s maritime activities, of both its naval forces and its
civilian and paramilitary patrolling. This network would then share this up-to-date picture
with all its members so they could improve their responses to China’s maritime actions. This
initiative would not be a substitute for U.S. Pacific Command’s current intelligence
collection; rather it would be a complementary effort, designed to assist America’s partners
in the region and to improve cooperation among them....
Sixth, the United States should encourage its partners in the region to build their own access
denial capabilities. China’s rapid development of extensive access denial capabilities over
the past two decades demonstrates that dangerous antiship and antiaircraft capabilities are
accessible to countries (and even nonstate actors) not previously ranked as leading military
powers....
Seventh, the United States and its partners should prepare for irregular warfare.
The recent wars in the Middle East and Central Asia have focused the minds of U.S.
policymakers on defending against an adversary’s use of irregular warfare. The United States
and its allies in the Asia-Pacific region may face this prospect, either through China’s
expanded use of its nonkinetic “Three Warfares” doctrine (media, psychological, and legal
techniques) or through its employment of proxies, nonviolently or kinetically. Should these
tactics transpire, the United States and its partners will once again have to fashion ways to
parry them.
However, U.S. and allied planners should also plan for their own offensive use of irregular
warfare. Irregular warfare is commonly associated with the weaker players in a security
competition—the side that does not have the advantage in military hardware and
organization and that would not gain from conventional military escalation. A decade from
now, when China’s reconnaissance, missile, aircraft, and submarine programs mature, the
United States, with its defense effort lagging by comparison, might end up as the secondranking military player in the region and thus the player on the losing side of potential
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conventional escalation. In that case, the United States and its allies may have to resort to
irregular warfare in order to change the rules of the competition in their favor.108
Another observer—the one cited above for the statement of July 21, 2014—stated on October 28,
2014, that
China continues coercive means backed by military force to expand control at neighbors’
expense in disputed territory; this comes despite periodic Chinese moderatin during
high‐level leadership meetigs, notably the US‐Chinese summit in 2013. So‐called Chinese
“salami slicing” intimidates neighbors, destabilizes Asia and undermines US alliances and
US standing as the region’s security guarantor.
The Obama government ignores calls in Washington for an American strategy in the face of
China’s expansionism. Its posture has been reactie, vacillating between periodic strident
statements against Chinese coercive behavior and muting disputes in the lead up to the
November 2014 meetings. The Obama “rebalance” policy includes improved surveillance
capabilities for allies and partners and proposals dealing with territorial issues according to
the rule of law that are criticized by China.
The US government waits to see if US opposition and resistance to Chinese expansionism
from Japan, Vietnam and the Philippines will dissuade Beijing from further advance.
Unfortunately, forecasts for change in Chinese behavior have been repeatedly undermined by
Beijing’s expansion and fortification of disputed islands, its impressive buildup of coast
guard and supporting naval forces, and its avowed determination to control disputed
territories.
The Obama approach clearly does not see Chinese salami slicing as a defining issue in
US‐China relations. For now, it endures erosion of American regional standing for the sake
of other priorities. This approach is misguided given the importance of Asia and the
prevailing balance of US‐Chinese influence there.
The Obama rebalance policy explains well the importance of Asia for America’s strategic,
economic and political interests. Of course, the policy depends on Asian countries having
faith in American dependability. Chinese expansionism tests US resolve. American friends
and adversaries watch closely to see if the United States can come up with means to stop the
Chinese expansion. If the United States does not come up with suitable means, pragmatic
Asian governments will understand be er what they can and can’t count on America to do.
They will adjust toward Washington and Beijing, foreseeing an Asian order more influenced
by China....
Despite such trends, the situation in Asia shows significant Chinese vulnerabili es and US
strengths that allow US leverage to influence Beijing’s cost‐benefit calcula ons to avoid
offensive Chinese practices.... Shoring up American strengths and using them effec vely
against Chinese vulnerabilities should have a higher priority in US policy; it should
supersede the existing reactive American stance witnessing erosion of American regional
influence and Chinese expansionism....
Against this background, the United States should:
108
Robert Haddick, “How U.S. Allies Can Counter China’s Strategy,” Real Clear Defense
(www.realcleardefense.com), September 9, 2014. The post states that it “is an adapted excerpt from Robert Haddick’s
Fire on the Water: China, American, and the Future of the Pacific (Annapolis, MD: Naval Institute Press, © 2014).”
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1. Conduct a careful assessment of US vs. Chinese strengths and weaknesses in Asia with an
eye toward identifying areas of US leverage influencing Chinese prac ces prejudicial to US
interests.
2. Consider the specific options below and other possible options in the context of an overall
American approach that avoids confronting China overtly in the disputed seas or on other
issues. The United States should build on its strengths, notably US capabilities to project
power in the Asia‐Pacific, which would quietly but unmistakably cause Chinese decision
makers to realize the net costs of territorial advances. It should go much further than the
rebalance in strengthening US relationships with Asian allies and associates; and should
work closely but quietly with Taiwan in the process. Engagement should continue, but the
United States should signal without attribution disappointment with the meager results while
China challenges US interests. American leaders should side‐step engagement used by China
in self serving ways, suggesting in actions and not words that American interests are better
served with more attention to American power projection, economic well being and working
with various regional friends and multilateral groups.
Specific options include:
‐ Build an effective defense strategy in the event of rising tensions with China involving
closer US defense cooperation with Japan, the Philippines and Taiwan in particular. Possibly
move to a more even‐handed stance regarding the cross‐strait policies of the unpopular ruling
government and those of the opposition, with the latter expected to be more forthcoming to
closer American military ties against China.
‐ Increase recent US demonstrations of conventional missile and attack submarines that
avoid detection by China.
‐ Increase recent US demonstrations of conventional surface sea and air power as part of the
Pentagon’s evolving Air‐Sea Battle concept.
‐ Counter Chinese ballistic missiles threatening US forces in Asia with Prompt Global Strike
conventional weapons—involving multi‐warhead ballistic missiles or other systems—to
respond promptly and hold at risk targets in China if Chinese missiles were to strike
American forces.
‐ Respond to the nuclear threat posed by the North Korean regime (still supported by China)
with discussions with Japan and South Korea involving possible transfers of offensive
weapons and perhaps even deploying nuclear weapons to shore up the American extended
deterrence in ways that would seriously complicate Chinese interests and policies.
‐ Op ons for raising costs for China include greater support for popular sovereignty in Hong
Kong and Taiwan–areas of acute sensitivity and uncertainty in recent Chinese calculations;
and a pull back from close US economic engagement and reassurance of China that has been
artfully used by China as it “games” the international economic system.109
Another observer stated on November 20, 2014:
US policy toward the South China Sea is sensible, relatively comprehensive, and
proportionate to the US interests involved....
109
Robert Sutter, “Asia’s Importance, China’s Expansion and U.S. Strategy: What Should Be Done? Asia Pacific
Bulletin, Number 283, October 28, 2014.
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That said, how should the US proceed?...
The United States should reinforce its policy emphasis that international law is the basis for
rules-based stability by issuing a comprehensive white paper, or a series of white papers, on
the aspects of international law that pertain to the South China Sea. Because the focus on
international law has been a centerpiece of US policy, these authoritative documents should
be signed by the secretary of state and given appropriate publicity.
The Department of State should consider issuing a statement in strong support of the arbitral
tribunal ruling that it does have jurisdiction to review Manila’s request for a finding
regarding China’s nine-dash line, among other things. This will permit the Philippines to
have “its day in court” by agreeing that it does have jurisdiction.
US policy-makers should explore with ASEAN and China the possibility of establishing a
Joint Development Area (JDA) in the Spratlys aimed at exploitation of hydrocarbons. The
goal would is to find a way to allow states to share these resources without prejudicing their
position on final maritime boundaries.
US policy makers should explore whether ASEAN would welcome US involvement aimed
at moving the Code of Conduct process to conclusion.
The United States should be responsive to requests from small South China Sea littoral states
that want assistance in improving their maritime policing and security capabilities.
The United States needs to be completely committed to a very long-term, dedicated effort to
improve the Armed Forces of the Philippine’s maritime capabilities. A mutually agreed upon
AFP “minimum credible deterrent” plan deserves strong US support. Washington should not
however, explicitly expand the scope of the Mutual Defense Treaty to cover the contested
Philippine claims in the Spratlys.
Washington should ensure that planned US military posture and capability improvements are
portrayed as symbols of reassurance and stability-inducing presence and are not
characterized as attempts to directly confront China. Emphasize that the objective of the
military portion of the rebalance is to ensure that the US can fulfill its security
responsibilities to its allies and is capable of assured access whenever required.
US naval and air presence in the South China Sea should be a visible daily occurrence.
The US Navy should increase the duration of its exercises with South China Sea littoral
states, and expand participation in these exercises by inviting participation from other Asian
maritime states, such as Japan, Australia, South Korea, and possibly India.110
This same observer stated on November 24, 2014, that
his Chinese “salami-slicing”—small, incremental actions too minor to be a casus belli, but
which can accumulate over time into substantial strategic change—now presents a vexing
challenge to China’s smaller neighbors. They lack the capacity to match China’s increasing
presence, which, if not opposed, could eventually create “facts on the ground” supporting
110
Michael McDevitt, “Options for US Policy Toward The South China Sea,” PacNet (http://csis.org), Number 81,
November 20, 2014. See also Michael McDevitt, The South China Sea: Assessing U.S. Policy and Options for the
Future, CNA (A CNA Occasional Paper), October 2014, 91 pp. Accessed December 24, 20145, at:
http://www.cna.org/sites/default/files/research/IOP-2014-U-009109.pdf.
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China’s maritime claims. The United States, which still retains a strong interest in defending
the principles of an open commons in the East and South China Seas, is presently hardpressed to justify drawing red lines and risking a confrontation over what many consider to
be uninhabited and insignificant rocks. The United States and its friends in the region thus
seem flummoxed over how to respond.
Fortunately, there are practical actions China’s smaller neighbors around the East and South
China Seas can take to resist China’s salami-slicing. These actions focus on building
maritime capacity, especially on the nonmilitary end of the spectrum. They also focus on
increasing cooperation and coordination among these neighbors in order to make the best use
of limited assets and to enhance the political, legal and moral legitimacy of resisting China’s
assertions. The United States will have to become a major supporting player if these
initiatives in the region are to succeed; the United States is trusted by most of these countries
and is thus well placed to provide the diplomatic and leadership “glue” needed to ensure
effective cooperation.
Here are six ways countries in the region, supported by the United States, can resist China’s
salami-slicing.
1. Expand the presence of non-Chinese fishing fleets in the East and South China Seas....
2. National government policies and budgets should support expanded maritime law
enforcement and coast-guard capacity and presence....
3. The United States maritime services (civilian and military) and their counterparts in allied
and partner countries in the region should expand information sharing, officer exchanges and
multilateral training activities....
4. The United States, along with allied and partner countries, should establish a formal
system for sharing basic, real-time maritime intelligence....
5. Policy makers and planners from the United States and other countries in the regional
maritime network should prepare multilateral crisis-response staffing procedures....
6. Invite other interested countries in the region to join the initiatives listed above....111
Another observer—the one cited above for the statement of September 2014—stated on
December 4, 2014 that
We have to accommodate a rising China, but we do not have to accommodate imprudent and
even aggressive behavior. China’s increasing wealth is a fact, but so is its pattern of maritime
coercion. China is seeking to use multiple levers of power to coerce its neighbors to give
way to Chinese dominance. Indeed, China has recently resorted to a pattern of “tailored
coercion” in maritime Asia. While engaging in protracted diplomatic discussions on a
binding code of conduct or new confidence-building measures, China has systematically
used public diplomacy, legal, and psychological instruments of power to redraw
contemporary boundaries. Generally China has sought to do this incrementally, in salami
slices less likely to trigger escalation or strong responses. Because so many neighbors lack
the quality and quantity of Chinese coast guard, law-enforcement, and other paramilitary
forces, it has been relatively easy to stake a claim in these often disputed areas....
111
Robert Haddick, “Six Ways to Resist China’s Salami-Slicing Tactics,” The National Interest
(http:nationalinterest.org), November 24, 2014).
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Although China is not alone in seeking to advance its territorial claims and maritime
interests, China’s behavior is uniquely escalatory. That is why U.S. Secretary of Defense
Chuck Hagel singled out China’s “destabilizing, unilateral actions” against its maritime
neighbors at this year’s Shangri-La Dialogue in Singapore....
Actions should have consequences. That is why the United States and its allies and partners
need to think together about cost-imposition strategies. This requires going beyond simple
concepts of deterrence to concepts of dissuasion and compellence—ways to drive up the cost
of coercive behavior and incentivize cooperation. Too often the regional way of imposing
costs is to rely on reputational costs. We use diplomatic forums such as the ASEAN
Regional Forum to register collective disapproval. Unfortunately, reputational costs will be
insufficient to counter a clever campaign of creeping exertions of sovereignty. We need to
think about a full-spectrum approach to levers of power to penalize bad behavior and reward
good behavior. Failing this, we should expect more tailored coercion....
More recently, the administration has appeared to strengthen its rhetoric and willingness to
use selective shows of force. But a principled approach has been far from obviously
effective....
So the questions that those who would only promote lowest-common denominator accords
refuse to address are these: What are the consequences of letting misbehavior go
unpunished? And what should the international community do about those who commit
provocations and stir disorder at sea?...
There are at least four types of countermeasures or actions that might constitute part of such
a strategy. Responses can be categorized as military or nonmilitary. Military responses might
be thought of as related to presence, operations, modernization and other steps designed to
exploit another’s security weaknesses, and building partnership capacity. Non-military
responses include informational, diplomatic, and economic measures. These categories of
costs in turn need to be embedded in a comprehensive strategy....
Militarily, the United States is taking a number of steps to improve its long-term force
posture and presence in the Asia-Pacific region....
A second way to impose military costs on bad behavior and otherwise strengthen military
options is by conducting more military operations with more partners. The United States is
already well on its way to doing this....
A third military approach to imposing costs and otherwise preparing to deny maritime
coercion is by exploiting the vulnerabilities and weaknesses of the provoking nation to exact
a military cost. This approach could involve military modernization or other steps to
highlight another’s security weaknesses....
Given China’s relative weakness with respect to antisubmarine warfare, the United States
and its allies and partners can invest more heavily in submarine operations and, over the
longer term, procurement, to force China to have to divert even more resources to shore up
this weakness. Another approach to exploiting the weaknesses of China’s PLA would be to
pose a missile threat and other asymmetric threats to China, much as China has been
investing in systems that provide what is called in general anti-access and area-denial
capabilities. The cruise missile, and not just the anti-ship ballistic missile program of China,
is apparently seen within the People’s Liberation Army as a cost-effective defensive tool to
force U.S. forces further away from its waters. But if the United States were to replace
current missile warheads and arm drones with multiple reentry vehicles, this would pose a
huge risk to China’s forces and force greater investment in air defense and missile defenses
on land and at sea. Similarly the U.S. operational concept of Air-Sea Battle potentially forces
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China to invest in systems even without the concept being proven, adopted or implemented.
Of course, these approaches would not be without risk and cost to the United States, whether
to American credibility as the champion of peaceful resolution or the risk of escalation....
A fourth military tool for imposing costs, at least indirectly, is to bolster the capacity of allies
and partners to help themselves....
Another way to build partnership capacity, as implied by Japan’s patrol boat transfer, is to
foster the growing Asia power web of intra-Asian security cooperation.... Thinking
regionally, the United States can work with appropriate allies and partners in creating
transparency through an intelligence, surveillance and reconnaissance (ISR) regime for
putting all actions—from ramming tactics to the reclamation of disputed land features or the
movement of oil rigs in contested waters—on the internet....
There are numerous policy instruments for imposing costs that are not directly related to
military presence, operations and posture. Non-military cost-imposition tools might be
categorized as informational: to impose reputational costs in particular (such as through an
ISR regime to spotlight provocations); to create a shared information regime for possible
coalition operations; and to contribute to a positive narrative that the political aim of the
United States and its allies is not conflict and not even confrontation if it can be avoided....
In the South China Sea and throughout the Indo-Pacific, it would help to have a common
operating picture. By that, I am referring to more broadly disseminated information to help
enforce any code of conduct in the South China Sea or throughout the region. At stake is the
maritime and air commons on which the global economy depends. A successful
informational narrative needs to explain to the broader public what is at stake in the East and
South China Sea and beyond, for even some seasoned defense analysts in the United States
sometimes fail to appreciate how incremental changes could fundamentally alter the balance
of power and regional order. The order can break down one reef at a time. Moreover, a
narrative can spotlight China’s resort to a comprehensive toolkit of policies to press for more
influence and attempt to exert greater influence and administrative control over both seas.
In sum, we need to think through China’s strengths and vulnerabilities, determine our best
points of leverage, and then implement policies to apply that leverage. In thinking through
these measures, we need to keep them proportionate to the coercion and mindful of our
larger political goals of integrating a rising China in an inclusive, rules-based regime. While
we should not delude ourselves that there can be zero risk, there is no reason why we cannot
find non-confrontational ways to dissuade China from imprudent behavior. But one thing
that seems likely is this: gray-zone challenges in the Indo-Pacific are not likely to disappear
anytime soon and certainly not without appropriate actions on the part of the region’s most
capable nations.112
Some Reported U.S. Actions
Bilateral Assistance to Advance Maritime Capacity Building
A December 16, 2013, State Department fact sheet states:
112
Patrick M. Cronin, “How to Deal with Chinese Assertiveness: It’s Time to Impose Costs,” The National Interest
(http://nationalinterest.org), December 4, 2014.
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On December 16, Secretary of State John Kerry announced an initial commitment of $32.5
million in new regional and bilateral assistance to advance maritime capacity building in
Southeast Asia. Including this new funding, our planned region-wide funding support for
maritime capacity building exceeds $156 million for the next two years.
As an example of our commitment to strengthen maritime capacities in Southeast Asia, the
United States intends to provide up to $18 million in new assistance to Vietnam to enhance
the capacity of coastal patrol units to deploy rapidly for search and rescue, disaster response,
and other activities, including through provision of five fast patrol vessels in 2014 to the
Vietnamese Coast Guard. This assistance directly responds to priorities identified in the Joint
Minutes on Vietnam and U.S. Coast Guard Maritime Cooperation signed October 1, 2013,
by VCG Major General Nguyen Quang Dam and USCG Commandant Admiral Robert J.
Papp, Jr.
The United States will also expand its support for regional cooperation by strengthening
information sharing among national agencies in Southeast Asia charged with maritime
security and maritime law enforcement. Building on existing programs and initiatives, we
will increase training for maritime law enforcement officials from participating Southeast
Asian countries in multilateral settings, such as currently occurs in the Gulf of Thailand
initiative and Trilateral Interagency Maritime Law Enforcement Workshops. We will take
advantage of the International Law Enforcement Academy in Bangkok, Thailand, to deliver
new maritime law enforcement training courses for maritime officials across Southeast Asia.
95
Robert Sutter, “Dealing with America’s China Problem in Asia—Targeting China’s Vulnerabilities,” PacNet
(http://csis.org), Number 58, July 21, 2014.
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The Secretary’s announcement builds upon the United States’ longstanding commitment to
support the efforts of Southeast Asian nations to enhance security and prosperity in the
region, including in the maritime domain. Existing programs include efforts to combat piracy
in and around the Malacca Strait, to counter transnational organized crime and terrorist
threats in the tri-border region south of the Sulu Sea between the southern Philippines,
Indonesia, and Malaysia, and to expand information sharing and professional training
through the Gulf of Thailand initiative. In addition, since 1999 the U.S.-supported
International Law Enforcement Academy in Bangkok, Thailand has been one of the world’s
premier multilateral platforms for law enforcement training and cooperation.96
113
U.S.-Japan Consultative Body for Coordinating Operations
A March 30, 2014, press report states:
Japan and the United States plan to create a permanent consultative body to coordinate the
operations of the Self-Defense Forces and the U.S. military in the face of China’s
highhanded actions over the Senkaku Islands in Okinawa Prefecture, Japanese and U.S.
government sources said.
The envisaged body is expected to help Japan and the United States deal quickly with
situations in and around the islands that cannot be clearly identified as armed attacks, the
sources said.
Establishment of the consultative body will be included in revisions to the Guidelines for
Japan-U.S. Defense Cooperation scheduled for the end of the year....
113
Department of State Fact Sheet, “Expanded U.S. Assistance for Maritime Capacity Building,” December 16, 2013,
accessed March 14, 2013, at http://www.state.gov/r/pa/prs/ps/2013/218735.htm.
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During their talks to review the current guidelines, foreign and defense officials from both
sides stated that there is a need to create a permanent coordination body when they went over
desktop military exercises and exchanged opinions on how quasi-military attacks on Japan
should be handled.
Experts predict that an attempt by China to seize the Senkakus would very likely begin with
the landing of armed personnel disguised as fishermen. The prediction has prompted the
Japanese side to demand enhancement of the Japan-U.S. partnership to deal with such
ambiguous situations.97
114
Reported Administration Consideration of Options
A July 9, 2014, press report states:
In Washington, the bitterness over what US officials saw as an exercise in bad faith on the
Chinese side is informing the fierce debate within the Obama administration about how to
respond to what are often described as China’s “salami-slicing” tactics.
In recent months, the US has come to two broad conclusions about its approach to the South
China Sea. The first is that its efforts at deterrence are having only limited impact. Despite
considerable US attention and rhetoric since 2010, China has slowly continued to shift the
status quo in ways that are rattling both many of its neighbours and the US.
The second is that US military strategy in the region has to some extent been asking the
wrong question. For several years, some of the Pentagon’s best minds have been focused on
96
Department of State Fact Sheet, “Expanded U.S. Assistance for Maritime Capacity Building,” December 16, 2013,
accessed March 14, 2013, at http://www.state.gov/r/pa/prs/ps/2013/218735.htm.
97
Takashi Imai, “Japan, US To Create New Defense Body For Disputed Islands,” Stars and Stripes (www.stripes.com),
March 30, 2014, accessed April 9, 2014, at http://www.stripes.com/news/pacific/japan-us-to-create-new-defense-bodyfor-disputed-islands-1.275417.
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how the US would win a protracted war with China and have come up with a new concept –
known as AirSea Battle—to ensure continued access of US aircraft and ships to contested
areas during a conflict.
However, the reality is that Washington is facing a very different military challenge, a
creeping assertion of control by the Chinese that often involves civilian rather than naval
vessels—the sort of grey area that would not normally warrant any response from the US.
“We need to think less about a hypothetical major war and more about the actual situation
we are confronting on a daily basis,” says a former senior US commander in the region. “It
should not be beyond our wits to devise a strategy to outmanoeuvre China.”
The military options being considered by the US revolve around collecting more information
on Chinese actions—from surveillance aircraft or radar—and increased air and naval
operations that will challenge efforts by China to claim control of new areas.
The dilemma for the US is to find ways to raise the costs for China without sparking a
confrontation over territories that most Americans would consider a worthless bunch of
rocks.98
A July 10, 2014, press report states:
115
A July 10, 2014, press report states:
114
Takashi Imai, “Japan, US To Create New Defense Body For Disputed Islands,” Stars and Stripes
(www.stripes.com), March 30, 2014, accessed April 9, 2014, at http://www.stripes.com/news/pacific/japan-us-to-createnew-defense-body-for-disputed-islands-1.275417.
115
Geoff Dyer and Demetri Sevastopulo, “US Strategists Face Dilemma Over Beijing Claim in South China Sea,”
Financial Times (www.ft.com), July 9, 2014.
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The US is developing new military tactics to deter China’s slow but steady territorial
advances in the South China Sea, including more aggressive use of surveillance aircraft and
naval operations near contested areas.
The rethink comes in the wake of the series of low-level incursions China has used to shift
the status quo in one of the vital waterways of the global economy....
“Our efforts to deter China [in the South China Sea] have clearly not worked,” said a senior
US official....
One element of the emerging US strategy was evident in March when the US flew P-8A
surveillance planes over the Second Thomas Shoal, an uninhabited atoll in the South China
Sea. Chinese ships there were trying to prevent the Philippines from supplying marines who
were trying to get essential supplies to a ship that in 1999 was deliberately run aground on a
land-feature claimed by both countries. The US planes flew at low altitude to make sure they
were visible to the Chinese.
“This is a new dynamic,” said a former Pentagon official familiar with the operation. “The
message is, ‘we know what you are doing, your actions will have consequences and that we
have the capacity and the will and we are here’.”
A spokesman for the US military’s Pacific Command said that “we do routine operations in
these waters and airspace on a regular basis”.
More extensive use of surveillance aircraft in the region could be coupled with a greater
willingness to publicise images or videos of Chinese maritime activity. Some US officials
believe the Chinese might be given pause for thought if images of their vessels harassing
Vietnamese or Filipino fishermen were to be broadcast.
98
Geoff Dyer and Demetri Sevastopulo, “US Strategists Face Dilemma Over Beijing Claim in South China Sea,”
Financial Times (www.ft.com), July 9, 2014.
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The US military’s Hawaii-based Pacific command has also been asked to co-ordinate the
development of a regional system of maritime information, which would allow governments
in the western Pacific detailed information about the location of vessels in the region.
Several governments say they have been caught unawares by the surprise appearance of
Chinese ships.
The US has supplied the Philippines, Japan and other countries in the region with improved
radar equipment and other monitoring systems and is now looking for ways to build this
information into a broader regional network that shares the data.
The Pentagon has also been working on plans for calculated shows of force, such as the
flight of B-52s over the East China Sea last year after China declared an exclusive air
defence zone over the area. The potential options involve sending naval vessels close to
disputed areas.
US officials say that there is little appetite within the administration for some of the more
confrontational ideas that have been proposed as a means of deterring China. These include
deploying the US coast guard to the South China Sea to counter the activities of Chinese
civilian vessels and using US-led convoys to escort fisherman from the Philippines and other
nations into areas where they have been expelled by the Chinese.116
116
Geoff Dyer, Richard McGregor, and Demetri Sevastopulo, “Pentagon Plans New Tactics To Deter China in South
China Sea,” Financial Times (www.ft.com), July 10, 2014.
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Another observer, reacting to the previous press report, stated on July 11, 2014:
Tensions have been steadily rising over the last few years in [the South China Sea], and so
far Washington has been unable to find the magic formula to get Beijing to back off. A new
U.S. plan reported by the Financial Times will do little to change Beijing’s calculus. In fact,
it could make matters far worse....
This supposed new strategy will focus heavily on surveillance flights and what might be
dubbed a simple “shaming” strategy....
While such a plan clearly shows Washington is doing what it can to demonstrate support for
allies and partners in the region in an attempt to deter Beijing, there are many pitfalls that
should be considered—especially when it comes to the wider use of surveillance assets. For
one, the U.S. would obviously have to place men and women in harm’s way in contested
waters time and time again in order to enact this part of the plan. You don’t have to be a
bookie in Vegas to understand the odds of some sort of tragic incident occurring are quite
high. In this case, the goal of “doing something” might actually be worse than doing nothing.
As history tells us quite clearly, wars can start from a small incident where tensions are
running high. The consequences can be dire....
If you want to use the shame game to alter Beijing’s strategic calculus, there might be a
better way. There only seems one solution to the various territorial disputes in the region—
specifically, what some are calling “lawfare.” All of the various claimants that have disputes
with China in the South China Sea should appeal collectively to any and all international
bodies that could possibly hear their claims. Only together can they hope to get Beijing to
halt its aggressive actions. This may just have the same or greater impact than if the U.S.
attempted to use surveillance flights to embarrass Beijing—without the possibility of an
incident spiraling into a possible conflict no one wants. While Manila has already filed its
own claims against Beijing and Hanoi seems likely to follow suit, a joint claim or multi-party
suit would be much more powerful. China should realize its neighbors have the ability to
resist its claims without resorting to kinetic means.
While even this might not stop China’s moves to enforces its claims in the area around its
nine or ten-dash line around the South China Sea, if shaming Beijing is the goal, and
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considering the stakes (not just who controls sea lanes worth trillions of dollars, but the very
idea of the global commons, space that no one owns), this might be just the best way to do
it.99117
Another observer, also reacting to the above press reports of July 9 and 10, stated on July 16,
2014:
Last week a couple of reports in the Financial Times said that the Department of Defense has
been examining ways to deal with China’s salami-slicing tactics.
“The U.S. is developing new military tactics to deter China’s slow but steady territorial
advances in the South China Sea,” one of the reports, by Geoff Dyer and Richard McGregor,
said. “The challenge for the U.S. military is to find tactics to deter these small-scale Chinese
moves without escalating particular disputes into a broader military conflict.”
117
Harry J. Kazianis, “America’s Dangerous $5 Trillion Dollar Bet in the South China Sea,” The National Interest
(http://nationalinterest.org), July 11, 2014.
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The bad news is that the solution that the Pentagon has come upon appears to be a wholly
insufficient solution to the problem. “More extensive use of surveillance aircraft in the
region could be coupled with a greater willingness to publicize images or videos of Chinese
maritime activity. Some U.S. officials believe the Chinese might be given pause for thought
if images of their vessels harassing Vietnamese or Filipino fishermen were to be broadcast.”
They are almost certainly wrong. The U.S. has tried shaming in many of its other interactions
with China, including human rights. It has almost never been successful. If China can’t be
embarrassed on low-level issues like human rights, it is hardly going to be “shamed” into
abandoning its “core interests” in the East and South China Seas.
Moreover, it is unlikely that China will feel ashamed by videos and images of its vessels
trying to protect its claims to the territorial waters it claims sovereignty over. In fact, these
videos will prove extremely popular with the Chinese Communist Party’s domestic
audiences. In addition, there is almost always enough ambiguity in clashes in the South
China Sea that Beijing will be able to claim that the videos the Americans and its allies have
released are “biased” in only showing China’s vessels doing the ramming. It will claim,
however, that its vessels were only responding to the aggression of the other states. This is
already what happened when Vietnam released videos and images of Chinese vessels
ramming and using fire hoses against Vietnamese vessels over the oil rig incident.
In other words, while it is commendable that the Pentagon understands that it must do more
to counter China’s salami-slicing, it needs to continue looking for better solutions.100
In assessing the question of U.S. strategy for countering China’s salami-slicing strategy, one
potential matter that Congress may consider concerns the relatively limited ability of the
Philippines to patrol its EEZ, which includes Scarborough Shoal and some of the Spratly Islands
(see Figure 4), and to otherwise assert and defend its maritime claims. The Philippines has
relatively few modern ships larger than patrol craft in its navy or coast guard, and the country’s
resulting limited capability for patrolling the EEZ and otherwise asserting and defending its
99
Harry J. Kazianis, “America’s Dangerous $5 Trillion Dollar Bet in the South China Sea,” The National Interest
(http://nationalinterest.org), July 11, 2014.
100
Zachary Keck, “Shaming Won’t Stop China’s Salami Slicing,” The Diplomat (http://thediplomat.com), July 16,
2014.
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maritime claims can be viewed as contributing to a power vacuum in the SCS that China can
exploit in asserting and defending its maritime territorial claims in the area.101118
Potential U.S. P-8 Flights from Malaysia
On September 8, 2014, Admiral Jonathan Greenert, the Chief of Naval Operations, stated that
Malaysia had invited the United States to conduct flights of U.S. Navy P-8 maritime patrol
aircraft from a base in the eastern part of Malaysia, which fronts onto the southern part of the
South China Sea (see, for example, Figure 1, Figure 3, or Figure 4).119
Potential Easing of Restrictions on Arms Exports to Vietnam
In October 2014, the Administration eased restrictions on U.S. arms exports to Vietnam, so as to
facilitate the sale to Vietnam of items, such as unarmed P-3 maritime patrol aircraft, that would
help Vietnam patrol and maintain better awareness of activities taking place with Vietnam’s
EEZ.120
118
Zachary Keck, “Shaming Won’t Stop China’s Salami Slicing,” The Diplomat (http://thediplomat.com), July 16,
2014.
119
Richard R. Burgess, “CNO: Malaysia Offers U.S. P-8 Detachment Site,” Seapower (www.seapowermagazine.org),
September 8, 2014; Trefor Moss, “Malaysia Offers to Hose U.S. Navy Aircraft,” Wall Street Journal
(http://online.wsj.com), September 12, 2014; David Brunnstrom and David Alexander, “U.S. Says Malaysia Offers to
Hose Spy Planes That Irk China,” Reuters.com, September 12, 2014; Jane Perlez, “Malaysia Risks Enraging China by
Inviting U.S. Spy Flights,” New York Times (www.nytimes.com), September 13, 2014.
120
See, for example, Michael R. Gordon, “U.S. Eases Embargo on Arms to Vietnam,” New York Times
(www.nytimes.com), October 2, 23014; Associated Press, “U.S. Eases Ban on Arms Sales to Vietnam,” Wall Street
Journal (http://online.wsj.com), October 3, 2014; Lesley Wroughton and Andrea Shalal, “US Eases Arms Embargo
Against Vietnam for Maritime Security,” Reuters (www.reuters.com), October 2, 2014; Aaron Mehta, “US State
Department Opens Door to maritime Defense Weapon Sales To Vietnam,” Defense News (www.defensenews.com),
October 2, 2014; Aaron Mehta, “New Vietnam Ruling Could Open Door To Further Exports,” Defense News
(www.defensenews.com), October 4, 2014.
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Assistance to Philippines
In assessing the question of U.S. strategy for countering China’s salami-slicing strategy, one
potential matter that Congress may consider concerns the relatively limited ability of the
Philippines to patrol its EEZ, which includes Scarborough Shoal and some of the Spratly Islands
(see Figure 4), and to otherwise assert and defend its maritime claims. The Philippines has
relatively few modern ships larger than patrol craft in its navy or coast guard, and the country’s
resulting limited capability for patrolling the EEZ and otherwise asserting and defending its
maritime claims can be viewed as contributing to a power vacuum in the SCS that China can
exploit in asserting and defending its maritime territorial claims in the area.121
The United States has taken certain actions to improve the Philippines’ ability for patrolling its
EEZ and otherwise asserting and defending its maritime claims, including the transfer of two exU.S. Coast Guard Hamilton-class cutters to the Philippines’ navy. The United States and the
Philippines have also signed an agreement that will provide increased access to Philippine bases
for U.S. forces. The Philippines also plans to acquire two new frigates from Italy, a used frigate
from South Korea,102122 10 patrol boats from Japan, and additional aircraft.103123 Whether these and
other additions will give the Philippines a sufficient capability for patrolling its EEZ and
otherwise asserting and defending its maritime claims is not clear. Potential follow-on questions
for Congress include the following:
•
Will the Philippines’ current plans for acquiring new ships and aircraft give the
Philippines a sufficient capability for patrolling its EEZ and otherwise asserting
and defending its maritime claims?
•
If not, what would be the potential advantages or disadvantages of initiating a
U.S. or multilateral program for providing the Philippines with additional ships
and aircraft? What might such a program look like? As part of its FY2015 budget
submission, for example, the U.S. Navy is proposing to retire all 10 of its
remaining Oliver Hazard Perry (FFG-7) class frigates. Other ships in this class
that have been removed from U.S. Navy service have in some cases have been
transferred to other countries. Should some or all of these 10 frigates be
transferred to the Philippines as part of a program that also provided support for
training crews and for establishing logistics and maintenance support facilities
for these ships?
Risk of United States Being Drawn Into a Crisis or Conflict
Another potential issue for Congress concerns U.S. actions to reduce the risk that the United
States might be drawn into a crisis or conflict over a territorial dispute involving China. Potential
oversight questions for Congress include the following:
•
Have U.S. officials taken appropriate and sufficient steps to help reduce the risk
of maritime territorial disputes in the SCS and ECS escalating into conflicts?
•
Do the United States and Japan have a common understanding of potential U.S.
actions under Article IV of the U.S.-Japan Treaty on Mutual Cooperation and
Security in the event of a crisis or conflict over the Senkaku Islands? What steps
has the United States taken to ensure that the two countries share a common
understanding?
101121
Limitations on Vietnamese and Malaysian capabilities can also be viewed as contributing to such a power vacuum;
for a discussion, see Nah Liang Tuang, “China’s Maritime Expansion: Exploiting Regional Weakness?” The Diplomat
(http://thediplomat.com), March 5, 2014.
102122
Ridzwan Rahmat, “Philippines to Receive Retired South Korean Corvette,” IHS Jane’s 360 (www.janes.com), June
8, 2014.
103123
For a discussion, see, for example, Trefor Moss, “Aboard the Philippine Navy’s Newest Old Frigate,” Wall Street
Journal (http://blogs.wsj.com), July 2, 2014. See also Carmela Fonbuena, “State of PH Navy Modernization: ‘Golden
Days Will Return,’” Rappler (www.rappler.com), July 28, 2014. See also Karl Lester M. Yap and Clarissa Batino,
“Philippine Military Chief Seeks Arms Upgrade As China Expands,” Stars and Stripes (www.stripes.com), September
4, 2014; Manuel Mogato, “Philippines To Get Frigates, Gunboats, Helicopters As Tension Simmers,” Reuters
(www.reuters.com), December 17, 2014.
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Risk of United States Being Drawn Into a Crisis or Conflict
Another potential issue for Congress concerns U.S. actions to reduce the risk that the United
States might be drawn into a crisis or conflict over a territorial dispute involving China. Potential
oversight questions for Congress include the following:
•
Have U.S. officials taken appropriate and sufficient steps to help reduce the risk
of maritime territorial disputes in the SCS and ECS escalating into conflicts?
•
Do the United States and Japan have a common understanding of potential U.S.
actions under Article IV of the U.S.-Japan Treaty on Mutual Cooperation and
Security in the event of a crisis or conflict over the Senkaku Islands? What steps
has the United States taken to ensure that the two countries share a common
understanding?
, 2014.
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•
Do the United States and the Philippines have a common understanding of how
the 1951 U.S.-Philippines mutual defense treaty applies to maritime territories in
the SCS that are claimed by both China and the Philippines, and of potential U.S.
actions under Article IV of the treaty in the event of a crisis or conflict over the
territories? What steps has the United States taken to ensure that the two
countries share a common understanding?
•
Aside from public statements, what has the United States communicated to China
regarding potential U.S. actions under the two treaties in connection with
maritime territorial disputes in the SCS and ECS?
•
Has the United States correctly balanced ambiguity and explicitness in its
communications to various parties regarding potential U.S. actions under the two
defense treaties?
•
How do the two treaties affect the behavior of Japan, the Philippines, and China
in managing their territorial disputes? To what extent, for example, would they
help Japan or the Philippines resist potential Chinese attempts to resolve the
disputes through intimidation, or, alternatively, encourage risk-taking or
brinksmanship behavior by Japan or the Philippines in their dealings with China
on the disputes? To what extent do they deter or limit Chinese assertiveness or
aggressiveness in their dealings with Japan the Philippines on the disputes?
•
Has the DOD adequately incorporated into its planning crisis and conflict
scenarios arising from maritime territorial disputes in the SCS and ECS that fall
under the terms of the two treaties?
Whether United States Should Enter Into A U.S.-Chinese
Incidents-at-Sea (INCSEA) Agreement
Another potential issue for Congress is whether the United States should seek to reduce the risk
of future incidents between U.S. and Chinese ships and aircraft in China’s EEZ by entering into
an agreement with China regulating the behavior of U.S. Chinese ships and aircraft that are
operating in proximity with one another. Such an agreement could be broadly similar to the May
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1972 U.S.-Soviet agreement on the prevention of incidents on and over the high seas, commonly
known as the Incidents-at-Sea (INCSEA) agreement.104124
Supporters of this option could argue the following:
•
The May 1972 U.S.-Soviet INCSEA agreement is regarded by observers as
having been successful in helping to reduce the risk of incidents between U.S.
and Soviet ships and aircraft during the Cold War.
•
A broadly similar agreement with China could reduce the risk of incidents
involving U.S. and Chinese ships and aircraft, and could be useful in that regard
as a confidence-building measure.
104
23 UST 1168; TIAS 7379; UNTS 151. The agreement was signed at Moscow on May 25, 1972, and entered into
force the same day.
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•
The terms of such an agreement could be drafted to be consistent with the U.S.
position on whether a coastal state has the right to regulate foreign military forces
operating in their EEZs.
Opponents of this option could argue the following:
•
When the May 1972 U.S.-Soviet INCSEA agreement was signed, the October
1972 multilateral convention on the international regulations for preventing
collisions at sea (commonly known as the COLREGs or the “rules of the
road”)105125 (see discussion in “Background”) did not yet exist. In contrast to the
situation in May 1972, the COLREGs convention now exists, and both China and
the United States are party to it. China and the United States are also party to the
2014 Code for Unplanned Encounters at Sea (CUES) and the 1998 bilateral U.S.Chinese Military Maritime Consultative Agreement (MMCA), which is aimed at
reducing the chances of confrontation between the two countries’ militaries at sea
and in the air.106126 Managing U.S.-Chinese interactions at sea requires standards to
govern conduct and a forum to discuss incidents. A new INCSEA-like agreement
is not necessary, because both of these things are already in place: The
COLREGs and CUES provide the standards, and the consultative mechanism
created by the MMCA creates the forum.
•
Chinese vessels arguably violated both the COLREGs and Article 94 of
UNCLOS in the 2009 incident with a U.S. ship.107127 The Chinese ship involved in
the December 5, 2013, incident involving the Cowpens might have violated the
COLREGs.108128 Consequently, signing a new INCSEA-like agreement with China
could be viewed as rewarding China for past violations and be of questionable
value in preventing future U.S.-Chinese incidents at sea.109
Related potential oversight questions for Congress include the following:
•
Is the number of countries that share China’s view on whether coastal states have
a right under UNCLOS to regulate the activities of foreign military forces in their
105
124
23 UST 1168; TIAS 7379; UNTS 151. The agreement was signed at Moscow on May 25, 1972, and entered into
force the same day.
125
28 UST 3459; TIAS 8587. The treaty was done at London October 20, 1972, and entered into force July 15, 1977. A
summary of the agreement is available at http://www.imo.org/about/conventions/listofconventions/pages/colreg.aspx.
106126
For more on the MMCA, see CRS Report RL32496, U.S.-China Military Contacts: Issues for Congress, by Shirley
A. Kan.
107127
For a detailed argument that the behavior of Chinese ships in the March 2009 U.S.-Chinese incident at sea in
China’s EEZ violated the COLREGs and Article 94 of UNCLOS, see Jonathan G. Odom, “The True ‘Lies’ of the
Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of
China) Should Be Concerned,” Michigan State Journal of International Law, vol. 18, no. 3, 2010: 16-22. Accessed
September 25, 2012, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1622943.
108128
As noted earlier (see “1972 Multilateral Convention on Preventing Collisions at Sea (COLREGs Convention)”),
DOD states that “The PLA Navy vessel’s action was inconsistent with internationally recognized rules concerning
professional maritime behavior (i.e., the Convention of International Regulations for Preventing Collisions at Sea), to
which China is a party.” (Department of Defense, Annual Report to Congress [on] Military and Security Developments
Involving the People’s Republic of China 2014, p. 4.)
109
For additional discussion, see China’s Active Defense Strategy and its Regional Impact, Prepared statement by
Stacy A. Pedrozo, CAPT, JAGC, USN1, U.S. Navy Military Fellow, Council on Foreign Relations, Before the U.S.China Economic & Security Review Commission, United States House of Representatives, First Session, 112th
Congress, January 27, 2011, p. 8. (The title page mistakenly shows a date of January 27, 2010.) See also Bonnie S.
Glaser, Armed Clash in the South China Sea, Council on Foreign Relations, Center for Preventive Action, April 2012,
pp. 4-5.)
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(continued...)
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could be viewed as rewarding China for past violations and be of questionable
value in preventing future U.S.-Chinese incidents at sea.129
Related potential oversight questions for Congress include the following:
•
Is the number of countries that share China’s view on whether coastal states have
a right under UNCLOS to regulate the activities of foreign military forces in their
EEZs growing, and if so, what steps is the Administration taking to stop or
reverse this growth? What activities is the Administration taking, vis-a-vis China
or other countries, to reinforce the U.S. position on whether coastal states have a
right under UNCLOS to regulate the activities of foreign military forces in their
EEZs?
•
One of the 27 countries listed earlier (see “Dispute Regarding China’s Rights
Within Its EEZ”) as having restrictions inconsistent with
UNCLOS that would
limit the exercise of high seas freedoms by foreign navies
beyond 12 nautical
miles from the coast (see “Dispute Regarding China’s Rights
Within Its EEZ”) is Portugal. Given Portugal’s status as a NATO ally and a
historical maritime power, to what extent do Portugal’s restrictions make it more
difficult for the United States to defend its position on the question of whether
coastal states have the right to regulate foreign military activities in their EEZs?
What steps has the Administration taken to encourage Portugal, as a NATO ally
that derives collective security benefits from U.S. defense efforts, to end its
restrictions and affirm the U.S. position on the question of whether coastal states
have the right to regulate foreign military activities in their EEZs?130
•
Another one of the 27 countries listed earlier is Thailand—a country with a coast
on the Gulf of Thailand, a body of water that opens onto the South China Sea.
Given Thailand’s status as the United States’ oldest ally in Southeast Asia (as
described by DOD) and as the host country for the annual Cobra Gold exercise,
the United States’ longest-standing military exercise in the Pacific,110131 what steps
has the Administration taken to encourage Thailand to end its restrictions that
would limit the exercise of high seas freedoms by foreign navies beyond 12
nautical miles from the coast and affirm the U.S. position on the question of
whether coastal states have the right to regulate foreign military activities in their
EEZs?
•
Another one of the 27 listed earlier is Vietnam—a country whose relations with
the United States have improved in recent years, in part because of China’s
(...continued)
which China is a party.” (Department of Defense, Annual Report to Congress [on] Military and Security Developments
Involving the People’s Republic of China 2014, p. 4.)
129
For additional discussion, see China’s Active Defense Strategy and its Regional Impact, Prepared statement by
Stacy A. Pedrozo, CAPT, JAGC, USN1, U.S. Navy Military Fellow, Council on Foreign Relations, Before the U.S.China Economic & Security Review Commission, United States House of Representatives, First Session, 112th
Congress, January 27, 2011, p. 8. (The title page mistakenly shows a date of January 27, 2010.) See also Bonnie S.
Glaser, Armed Clash in the South China Sea, Council on Foreign Relations, Center for Preventive Action, April 2012,
pp. 4-5.)
130
See also Edward Schwarck, “Freedom of Navigation and China: What Should Europe Do? The Diplomat
(http://thediplomat.com), August 19, 2014.
131
Source: Donna Miles, “Cobra Gold 2012 to Promote Partnership, Interoperability,” American Forces Press Service
(DOD), accessed September 25, 2012, at http://www.defense.gov/news/newsarticle.aspx?id=66803.)
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activities in the SCS. What steps has the Administration taken to encourage
Vietnam to end its restrictions that would limit the exercise of high seas freedoms
by foreign navies beyond 12 nautical miles from the coast and affirm the U.S.
position on the question of whether coastal states have the right to regulate
foreign military activities in their EEZs?
•
China in recent years has begun to operate small numbers of navy ships in the
Indian Ocean (for anti-piracy operations), the Persian Gulf, and the
Mediterranean Sea. Chinese officials are also concerned about the security of
their maritime oil supply routes from the Persian Gulf. To what extent have U.S.
officials communicated to Chinese officials that, in light of these developments,
China arguably has an increasing interest in changing its position on whether
coastal states have a right under UNCLOS to regulate the activities of foreign
military forces in their EEZs?
110
Source: Donna Miles, “Cobra Gold 2012 to Promote Partnership, Interoperability,” American Forces Press Service
(DOD), accessed September 25, 2012, at http://www.defense.gov/news/newsarticle.aspx?id=66803.)
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Whether United States Should Ratify United Nations Convention
on the Law of the Sea (UNCLOS)
Another issue for Congress—particularly the Senate—is the impact of maritime territorial and
EEZ disputes involving China on the overall debate on whether the United States should become
a party to UNCLOS. UNCLOS was adopted by Third United Nations Conference on the Law of
the Sea in December 1982, and entered into force in November 1994. The treaty established
EEZs as a feature of international law, and contains multiple provisions relating to territorial
waters and EEZs. As of September 21, 2012, 162 nations were party to the treaty, including China
and most other countries bordering on the SCS and ECS (the exceptions being North Korea and
Taiwan).111132
The treaty and an associated 1994 agreement relating to implementation of Part XI of the treaty
(on deep seabed mining) were transmitted to the Senate on October 6, 1994.112133 In the absence of
Senate advice and consent to adherence, the United States is not a party to the convention and the
associated 1994 agreement. During the 112th Congress, the Senate Foreign Relations Committee
held four hearings on the question of whether the United States should become a party to the
treaty on May 23, June 14 (two hearings), and June 28, 2012.
Supporters of the United States becoming a party to UNCLOS argue or might argue one or more
of the following:
•
The treaty’s provisions relating to navigational rights, including those in EEZs,
reflect the U.S. position on the issue; becoming a party to the treaty would help
lock the U.S. perspective into permanent international law.
•
Becoming a party to the treaty would give the United States greater standing for
participating in discussions relating to the treaty—a “seat at the table”—and
thereby improve the U.S. ability to call on China to act in accordance with the
132
Source: Chronological lists of ratifications of, accessions and successions to the Convention and the related
Agreements as at 21 September 2012, accessed September 26, 2012, at http://www.un.org/Depts/los/reference_files/
chronological_lists_of_ratifications.htm#The United Nations Convention on the Law of the Sea. A similar list, in
alphabetical order by country name, is posted at http://www.un.org/Depts/los/reference_files/status2010.pdf.
133
Treaty Document 103-39.
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treaty’s provisions, including those relating to navigational rights, and to defend
U.S. interpretations of the treaty’s provisions, including those relating to whether
coastal states have a right under UNCLOS to regulate foreign military activities
in their EEZs.113
134
•
At least some of the ASEAN member states want the United States to become a
member of UNCLOS, because they view it as the principal framework for
resolving maritime territorial disputes.
•
Relying on customary international law to defend U.S. interests in these issues is
not sufficient, because it is not universally accepted and is subject to change over
time based on state practice.
111
Source: Chronological lists of ratifications of, accessions and successions to the Convention and the related
Agreements as at 21 September 2012, accessed September 26, 2012, at http://www.un.org/Depts/los/reference_files/
chronological_lists_of_ratifications.htm#The United Nations Convention on the Law of the Sea. A similar list, in
alphabetical order by country name, is posted at http://www.un.org/Depts/los/reference_files/status2010.pdf.
112
Treaty Document 103-39.
113
See, for example, Andrew Browne, “A Hole in the U.S. Approach to Beijing,” Wall Street Journal
(http://online.wsj.com), May 20, 2014.
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Opponents of the United States becoming a party to UNCLOS argue or might argue one or more
of the following:
•
China’s ability to cite international law (including UNCLOS) in defending its
position on whether coastal states have a right to regulate foreign military
activities in their EEZs114EEZs135 shows that UNCLOS does not adequately protect U.S.
interests relating to navigational rights in EEZs; the United States should not help
lock this inadequate description of navigational rights into permanent
international law by becoming a party to the treaty.
•
The United States becoming a party to the treaty would do little to help resolve
maritime territorial disputes in the SCS and ECS, in part because China’s
maritime territorial claims, such as those depicted in the map of the nine-dash
line, predate and go well beyond what is allowed under the treaty and appear
rooted in arguments that are outside the treaty.
•
The United States can adequately support the ASEAN countries and Japan in
matters relating to maritime territorial disputes in the SCS and ECS in other
ways, without becoming a party to the treaty.
•
The United States can continue to defend its positions on navigational rights on
the high seas by citing customary international law, by demonstrating those rights
with U.S. naval deployments (including those conducted under the FON
program), and by having allies and partners defend the U.S. position on the EEZ
issue at meetings of UNCLOS parties.
134
See, for example, Andrew Browne, “A Hole in the U.S. Approach to Beijing,” Wall Street Journal
(http://online.wsj.com), May 20, 2014.
135
For a discussion of China’s legal justifications for its position on the EEZ issue, see, for example, Peter Dutton,
“Three Dispute and Three Objectives,” Naval War College Review, Autumn 2011: 54-55.
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Legislative Activity in 113th Congress
H.R. 3979/P.L. 113-291Legislative Activity in 113th Congress
H.R. 4435/S. 2410 (FY2015 National Defense Authorization Act)
House
Section 1232 of the FY2015 National Defense Authorization Act (H.R. 4435)H.R. 4435 as reported by the
House Armed Services Committee (H.Rept. 113446113-446 of May 13, 2014) states:
SEC. 1232. MODIFICATIONS TO ANNUAL REPORT ON MILITARY AND SECURITY
DEVELOPMENTS INVOLVING THE PEOPLE’S REPUBLIC OF CHINA.
(a) Matters To Be Included- Subsection (b) of section 1202 of the National Defense
Authorization Act for Fiscal Year 2000 (P.L. 106-65; 113 Stat. 781; 10 U.S.C. 113 note) is
amended—
(1) by redesignating paragraphs (10) through (20) as paragraphs (11) through (21),
respectively; and
(2) by inserting after paragraph (9) the following:
114
For a discussion of China’s legal justifications for its position on the EEZ issue, see, for example, Peter Dutton,
“Three Dispute and Three Objectives,” Naval War College Review, Autumn 2011: 54-55.
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`(10) The developments in maritime law enforcement capabilities and organization of the
People’s Republic of China, focusing on activities in contested maritime areas in the South
China Sea and East China Sea. Such analyses shall include an assessment of the nature of
China’s maritime law enforcement activities directed against United States allies and
partners. Such maritime activities shall include activities originating or suspect of originating
from China and shall include government and nongovernment activities that are believed to
be sanctioned or supported by the Chinese government.’.
(b) Effective Date- The amendments made by this section take effect on the date of the
enactment of this Act and apply with respect to reports required to be submitted under
subsection (a) of section 1202 of the National Defense Authorization Act for Fiscal Year
2000, as so amended, on or after that date.
Section 1238 of H.R. 4435 as reported states:
SEC. 1238. SENSE OF CONGRESS REAFFIRMING SECURITY COMMITMENT TO
JAPAN.
It is the sense of Congress that—
(1) the United States highly values its alliance with the Government of Japan as a
cornerstone of peace and security in the region, based on shared values of democracy, the
rule of law, free and open markets, and respect for human rights in order to promote peace,
security, stability, and economic prosperity in the Asia-Pacific region;
(2) the United States welcomes Japan’s determination to contribute more proactively to
regional and global peace and security;
(3) the United States supports recent increases in Japanese defense funding, adoption of a
National Security Strategy, formation of security institutions such as the Japanese National
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Security Council, and other moves that will enable Japan to bear even greater alliance
responsibilities;
(4) the United States and Japan should continue to improve joint interoperability and
collaborate on developing future capabilities with which to maintain regional stability in an
increasingly uncertain security environment;
(5) the United States and Japan should continue efforts to strengthen regional multilateral
institutions that promote economic and security cooperation based on internationally
accepted rules and norms;
(6) the United States acknowledges that the Senkaku Islands are under the administration of
Japan and opposes any unilateral actions that would seek to undermine such administration
and remains committed under the Treaty of Mutual Cooperation and Security to respond to
any armed attack in the territories under the administration of Japan; and
(7) the United States reaffirms its commitment to the Government of Japan under Article V
of the Treaty of Mutual Cooperation and Security that `[e]ach Party recognizes that an armed
attack against either Party in the territories under the administration of Japan would be
dangerous to its own peace and safety and declares that it would act to meet the common
danger in accordance with its constitutional provisions and processes’.
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Senate
Section 1245 of S. 2410 as reported by the Senate
Section 1245 of the FY2015 National Defense Authorization Act (S. 2410) as reported by the
Senate Armed Services Committee (S.Rept. 113-176
of June 2, 2014) states:
SEC. 1245. REPORT ON MARITIME SECURITY STRATEGY AND ANNUAL
BRIEFING ON MILITARY TO MILITARY ENGAGEMENT WITH THE PEOPLE’S
REPUBLIC OF CHINA.
(a) Report Required(1) IN GENERAL- Not later than 90 days after the date of the enactment of this Act, the
President shall submit to the congressional defense committees a report that outlines the
strategy of the Department of Defense with regard to maritime security in the South China
Sea and the East China Sea that seeks to balance the interests of the United States, the
People’s Republic of China, and other countries in the region.
(2) ELEMENTS- The report required by paragraph (1) shall outline the strategy described in
that paragraph and include the following:
(A) A description of any current or planned bilateral or regional maritime capacity building
initiatives in the South China Sea and the East China Sea region.
(B) An assessment of anti-access and area denial capabilities of the People’s Republic of
China in the region, including weapons and technologies, and their impact on United States
maritime strategy in the region.
(C) An assessment of how the actions of the People’s Republic of China in the South China
Sea and the East China Sea have changed the status quo with regard to competing territorial
and maritime claims in those seas.
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(D) A detailed analysis and assessment of the manner in which military to military
engagements between the United States and the People’s Republic of China facilitates a
reduction in potential miscalculation and tension in the South China Sea and the East China
Sea, including a specific description of the effect of such engagements on particular incidents
or interactions involving the People’s Republic of China in those seas.
(E) A description of the naval modernization efforts of the People’s Republic of China,
including both defense and law enforcement capabilities and the implications of such efforts
for United States maritime strategy in the region.
(3) FORM- The report required by paragraph (1) shall be submitted in unclassified form, but
may include a classified annex.
(b) Briefings- Not later than May 15 each year, the Secretary of Defense shall provide the
congressional defense committees a briefing (in classified form, if appropriate) on the
following:
(1) An outline in detail of all of the planned and potential military to military engagements
between the United States and the People’s Republic of China during the fiscal year
beginning in the year of such briefing, including the objectives of such engagements.
(2) An assessment of the military to military engagements between the United States and the
People’s Republic of China during the fiscal year ending in the year preceding such briefing,
and during the first fiscal half year of the fiscal year of such briefing, including an
assessment of the success of such engagements in meeting the objectives of the Commander
of the United States Pacific Command for such engagements.
Final Version
Section 1252 of the FY2015 National Defense Authorization Act (H.R. 3979/P.L. 113-291 of
December 19, 2014) states:
SEC. 1252. MODIFICATIONS TO ANNUAL REPORT ON MILITARY AND SECURITY
DEVELOPMENTS INVOLVING THE PEOPLE'S REPUBLIC OF CHINA.
(a) Matters To Be Included.--Subsection (b)(14) of section 1202 of the National Defense
Authorization Act for Fiscal Year 2000 (P.L. 106-65; 113 Stat. 781; 10 U.S.C. 113 note) is
amended by striking ``their response'' and inserting ``their capabilities, organizational
affiliations, roles within China's overall maritime strategy, activities affecting United States
allies and partners, and responses''.
(b) Effective Date.--The amendment made by this section takes effect on the date of the
enactment of this Act and applies with respect to reports required to be submitted under
subsection (a) of section 1202 of the National Defense Authorization Act for Fiscal Year
2000 on or after that date.
Section 1258 of H.R. 3979/P.L. 113-291 states:
SEC. 1258. SENSE OF CONGRESS REAFFIRMING SECURITY COOPERATION WITH
JAPAN AND THE REPUBLIC OF KOREA.
It is the sense of Congress that--
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and during the first fiscal half year of the fiscal year of such briefing, including an
assessment of the success of such engagements in meeting the objectives of the Commander
of the United States Pacific Command for such engagements(1) the United States values its alliances with the Governments of Japan and the Republic of
Korea as cornerstones of peace and security in the region, based on shared values of
democracy, the rule of law, free and open markets, and respect for human rights;
(2) the United States welcomes Japan's new policy of collective self-defense, which will
enable Japan to contribute more proactively to regional and global peace and security, as
well as Japan's recent increases in defense funding, adoption of a National Security Strategy,
and formation of security institutions such as the Japanese National Security Council;
(3) the United States reaffirms its commitment to the Government of Japan under Article V
of the Treaty of Mutual Cooperation and Security between the United States of America and
Japan that ``[e]ach Party recognizes that an armed attack against either Party in the territories
under the administration of Japan would be dangerous to its own peace and safety and
declares that it would act to meet the common danger in accordance with its constitutional
provisions and processes'';
(4) the United States welcomes the Republic of Korea's ratification of a new five-year
Special Measures Agreement, which establishes the framework for Republic of Korea
contributions to offset costs associated with the stationing of United States forces in the
Republic of Korea, as well as efforts by the Republic of Korea to enhance its defense
capabilities, including its recent decision to acquire surveillance and strike capabilities;
(5) the United States and the Republic of Korea share deep concerns that the nuclear and
ballistic missiles programs of the Democratic People's Republic of Korea and its repeated
provocations pose grave threats to peace and stability on the Korean Peninsula and to
Northeast Asia, that the United States and the Republic of Korea and will work together to
achieve the peaceful denuclearization of the Democratic People's Republic of Korea, and that
the United States and the Republic of Korea remain fully committed to continuing close
cooperation on the full range of issues related to the Democratic People's Republic of Korea;
and
(6) the United States welcomes greater security cooperation with, and among, Japan and the
Republic of Korea to promote mutual interests and to address shared concerns.
Section 1259 of H.R. 3979/P.L. 113-291 states:
SEC. 1259. REPORT ON MARITIME SECURITY STRATEGY IN THE ASIA-PACIFIC
REGION.
(a) Report Required.--Not later than 180 days after the date of the enactment of this Act, the
Secretary of Defense shall submit to the congressional defense committees, the Committee
on Foreign Relations of the Senate, and the Committee on Foreign Affairs of the House of
Representatives a report that outlines the strategy of the Department of Defense with regard
to maritime security in the Asia-Pacific region, with particular emphasis on the South China
Sea and the East China Sea.
(b) Elements.--The report required by subsection (a) shall outline the strategy described in
that subsection and include the following:
(1) An assessment of how the actions of the People's Republic of China in the South China
Sea and the East China Sea have affected the status quo with regard to competing territorial
and maritime claims and United States security interests in those seas.
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(2) An assessment of how the naval and other maritime strategies and capabilities of the
People's Republic of China, including military and law enforcement capabilities, affect the
strategy in the Asia-Pacific region.
(3) An assessment of how anti-access and area denial strategies and capabilities of the
People's Republic of China in the Asia-Pacific region, including weapons and technologies,
affect the strategy.
(4) A description of any ongoing or planned changes in United States military capabilities,
operations, and posture in the Asia-Pacific region to support the strategy.
(5) A description of any current or planned bilateral or regional naval or maritime capacitybuilding initiatives in the Asia-Pacific region.
(6) An assessment of how the strategy leverages military-to-military engagements between
the United States and the People's Republic of China to reduce the potential for
miscalculation and tensions in the South China Sea and the East China Sea, including a
specific description of the effects of such engagements on particular incidents or interactions
involving the People's Republic of China in those seas.
(7) Any other matters the Secretary may determine to be appropriate.
(c) Form.--The report required by subsection (a) shall be submitted in unclassified form, but
may include a classified annex.
H.R. 1960 (FY2014 National Defense Authorization Act)
Section 1257 of H.R. 1960 as reported by the House Armed Services Committee (H.Rept. 113102 of June 7, 2013) states:
SEC. 1257. SENSE OF CONGRESS ON MILITARY CAPABILITIES OF THE PEOPLE’S
REPUBLIC OF CHINA.
Congress—
(1) notes the People’s Republic of China (PRC) continues to rapidly modernize and expand
its military capabilities across the land, sea, air, space, and cyberspace domains;
(2) is concerned by the rate and scope of PRC military developments, including its militaryfocused cyber espionage, which indicate a desire to constrain or prevent the peaceful
activities of the United States and its allies in the Western Pacific;
(3) concurs with Admiral Samuel Locklear, commander of U.S. Pacific Command, that
`China’s rapid development of advanced military capabilities, combined with its unclear
intentions, certainly raises strategic and security concerns for the U.S and the region’;
(4) notes the United States remains committed to a robust forward military-presence in the
Asia-Pacific and will continue to vigorously support mutual defense arrangements with
treaty allies while also building deeper relationships with other strategic partners in the
region; and
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(5) urges the Government of the PRC to work peacefully to resolve existing territorial
disputes and to adopt a maritime code of conduct with relevant parties to guide all forms of
maritime interaction and communications in the Asia-Pacific.
This section was not included in the final version of the FY2014 National Defense Authorization
Act (H.R. 3304/P.L. 113-66 of December 26, 2013.). The explanatory statement for H.R. 3304
states:
Sense of Congress on military capabilities of the People’s Republic of China
The House bill contained a provision (sec. 1257) that would express certain findings and the
sense of Congress regarding the military developments of the People’s Republic of China.
The Senate committee-reported bill contained no similar provision.
The agreement does not include the provision.
We reaffirm our interest in the Asia-Pacific region and the implementation of the rebalance
to that region, as described in the Defense Strategic Guidance, dated January 2012. We
encourage the Secretary of Defense to continue engaging with the congressional defense
committees to facilitate the successful implementation of the strategic rebalance and to
continue to support the national security interests of the United States and its allies and
partners in the Asia-Pacific region. (Page 223)
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H.R. 4495
H.R. 4495, a bill to “strengthen the United States commitment to the security and stability of the
Asia-Pacific region, and for other purposes,” was introduced on April 28, 2014. The table of
contents of the bill, as presented in Section 1 of the bill, are as follows:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Asia-Pacific Region Priority Act’.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Sense of Congress.
Sec. 3. Congressional defense committees.
TITLE I—MATTERS RELATING TO THE DEPARTMENT OF DEFENSE
Sec. 101. Report on Department of Defense munitions strategy for United States Pacific
Command.
Sec. 102. Establishment of Department of Defense unmanned systems office.
Sec. 103. Independent assessment on countering anti-access and area-denial capabilities in
the Asia-Pacific region.
Sec. 104. Assessment of the maritime balance of forces in the Asia-Pacific region.
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Sec. 105. Missile defense cooperation.
Sec. 106. Department of Defense Space Security and Defense Program.
Sec. 107. Space situational awareness.
Sec. 108. Sense of Congress on access to training ranges within United States Pacific
Command area of responsibility.
Sec. 109. Sense of Congress on Pohakuloa Training Area in Hawaii.
Sec. 110. Special easement acquisition authority, Pacific Missile Range Facility, Barking
Sands, Kauai, Hawaii.
TITLE II—MATTERS RELATING TO FOREIGN NATIONS
Sec. 201. Statement of policy on maritime disputes in the Asia-Pacific region.
Sec. 202. Sense of Congress reaffirming security commitment to Japan.
Sec. 203. Report on opportunities to strengthen relationship between the United States and
the Republic of Korea.
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Sec. 204. Maritime capabilities of Taiwan and its contribution to regional peace and stability.
Sec. 205. Modifications to annual report on military and security developments involving the
People’s Republic of China.
H.R. 772
H.R. 772, a bill “To promote peaceful and collaborative resolution of the South China Sea
dispute,” was introduced in the House on February 15, 2013. The text of the bill as introduced is
as follows:
A BILL
To promote peaceful and collaborative resolution of the South China Sea dispute.
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled,
SECTION 1. FINDINGS.
Congress finds the following:
(1) The South China Sea contains vital commercial shipping lanes and points of access
between the Indian Ocean and Pacific Ocean, providing a maritime lifeline to India,
Singapore, Malaysia, Indonesia, the Philippines, Vietnam, Brunei, Taiwan, Japan, and the
Korean peninsula.
(2) China, Vietnam, the Philippines, Taiwan, Malaysia, and Brunei have disputed territorial
claims over the Spratly Islands, and China, Taiwan, and Vietnam have disputed territorial
claims over the Paracel Islands.
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(3) In 2009, the Government of the People’s Republic of China submitted to the United
Nations a map with the 9-dotted line (also known as the Cow Tongue line) which raised
questions about whether China officially claims most of the 1,423,000 square miles of the
South China Sea, more than any other nation involved in these territorial disputes.
(4) In November 2012, China began to include a map of its territorial claims inside its
passports, despite the protests of its neighbors, including Vietnam and the Philippines.
(5) Although not a party to these disputes, the United States has a national economic and
security interest in maintaining peace, stability, and prosperity in East Asia and Southeast
Asia, and ensuring that no party threatens or uses force or coercion unilaterally to assert
maritime territorial claims in East Asia and Southeast Asia, including in the South China
Sea, the East China Sea, or the Yellow Sea.
(6) The Association of Southeast Asian Nations (ASEAN) has promoted multilateral talks in
disputed areas without settling the issue of sovereignty.
(7) In 2002, ASEAN and China signed a Declaration on the Conduct of Parties in the South
China Sea.
(8) That declaration committed all parties to those territorial disputes to `reaffirm their
respect for and commitment to the freedom of navigation in and over flight above the South
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China Sea as provided for by the universally recognized principles of international law’, and
to `resolve their territorial and jurisdictional disputes by peaceful means, without resorting to
the threat or use of force’.
(9) In July and November of 2010, the United States and our Republic of Korea allies
conducted joint naval exercises in the Yellow Sea in international waters, as well as Republic
of Korea territorial waters, in the vicinity of the site of the March 2010 North Korean attack
on the South Korean military vessel Cheonan, these exercises drew objections from Beijing
over foreign operations in the Yellow Sea.
(10) In September 2010, tensions were raised in the East China Sea near the Senkaku
(Diaoyutai) Islands, a territory under the legal administration of Japan, when a Chinese
fishing vessel deliberately rammed Japanese Coast Guard patrol boats.
(11) On February 25, 2011, a frigate from China’s navy fired shots at 3 fishing boats from
the Philippines.
(12) On March 2, 2011, the Government of the Philippines reported that two patrol boats
from China attempted to ram one of its surveillance ships.
(13) On May 26, 2011, a maritime security vessel from China cut the cables of an
exploration ship from Vietnam, the Binh Minh, in the South China Sea in waters near Cam
Ranh Bay in the exclusive economic zone of Vietnam.
(14) On May 31, 2011, three Chinese military vessels used guns to threaten the crews of four
Vietnamese fishing boats while they were fishing in the waters of the Truong Sa (Spratly)
archipelago.
(15) On June 3, 2011, Vietnam’s Foreign Ministry released a statement that `Vietnam is
resolutely opposed to these acts by China that seriously violated the sovereign and
jurisdiction rights of Viet Nam to its continental shelf and Exclusive Economic Zone (EEZ)’.
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(16) On June 9, 2011, three vessels from China, including one fishing vessel and two
maritime security vessels, ran into and disabled the cables of another exploration ship from
Vietnam, the Viking 2, in the exclusive economic zone of Vietnam.
(17) The actions of the Government of the People’s Republic of China in the South China
Sea have also affected United States military and maritime vessels and aircraft transiting
through international air space and waters, including the collision of a Chinese fighter plane
with a United States surveillance plane in 2001, the harassment of the USNS Victorious and
the USNS Impeccable in March 2009, and the collision of a Chinese submarine with the
sonar cable of the USS John McCain in June 2009.
(18) On July 23, 2010, former Secretary of State Hillary Rodham Clinton stated at the
ASEAN Regional Forum that the United States, like every nation, has a national interest in
freedom of navigation, open access to Asia’s maritime commons, respect for international
law, and unimpeded commerce in the South China Sea.
(19) On June 23, 2011, the United States stated that it was ready to provide hardware to
modernize the military of the Philippines.
(20) The United States and the Philippines conducted combined naval exercises in the Sulu
Sea, near the South China Sea, from June 28 to July 8, 2011.
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(21) On July 22, 2011, an Indian naval vessel, sailing about 45 nautical miles off the coast of
Vietnam, was warned by a Chinese naval vessel that it was allegedly violating Chinese
territorial waters.
(22) In June 2012, China’s cabinet, the State Council, approved the establishment of the city
of Sansha to oversee the areas claimed by China in the South China Sea.
(23) In July 2012, Chinese military authorities announced that they had established a
corresponding Sansha garrison in the new prefecture.
(24) On June 23, 2012, the China National Offshore Oil Corporation invited bids for oil
exploration in areas within 200 nautical miles of the continental shelf and within the
exclusive economic zone of Vietnam.
(25) Since July 2012, Chinese patrol ships have been spotted near the disputed Senkaku
(Diaoyutai) Islands in the East China Sea.
(26) At the July 2012 ASEAN Regional Forum, former Secretary of State Clinton said, `We
believe the nations of the region should work collaboratively and diplomatically to resolve
disputes without coercion, without intimidation, without threats, and without the use of
force’.
(27) In November 2012, a regulation was approved by the Hainan People’s Congress
authorizing Chinese maritime police to `board, search’ and even `take over’ ships determined
to be `illegally entering’ South China Sea waters unilaterally claimed by Beijing.
(28) At a meeting with the Japanese Foreign Minister on January 18, 2013, former Secretary
of State Clinton stated that `although the United States does not take a position on the
ultimate sovereignty of the (Senkaku) islands, we acknowledge they are under the
administration of Japan’, adding that `We oppose any unilateral actions that would seek to
undermine Japanese administration, and we urge all parties to take steps to prevent incidents
and manage disagreements through peaceful means’.
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(29) On August 3, 2012, a Department of State spokesperson expressed concern over
`China’s upgrading of the administrative level of Sansha City and the establishment of a new
military garrison there’, expressed encouragement for ASEAN and China `to make
meaningful progress toward finalizing a comprehensive Code of Conduct’, and called upon
claimants to `explore every diplomatic or other peaceful avenue for resolution, including the
use of arbitration or other international legal mechanisms as needed’.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that, in light of the congressional finding described above, the
Secretary of State should—
(1) reaffirm the strong support of the United States for the peaceful resolution of maritime
territorial disputes in the South China Sea, the Taiwan Strait, the East China Sea, and the
Yellow Sea and pledge continued efforts to facilitate a collaborative, peaceful process to
resolve these disputes;
(2) condemn the use of threats or force by naval, maritime security, and fishing vessels from
China in the South China Sea and the East China Sea as well as the use of force by North
Korea in the Yellow Sea that would escalate tensions or result in miscalculations;
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(3) note that overt threats and gun boat diplomacy are not constructive means for settling
these outstanding maritime disputes;
(4) welcome the diplomatic efforts of Association of Southeast Asian Nations (ASEAN) and
the United States allies and partners in Japan, the Republic of Korea, Taiwan, the
Philippines, and India to amiably and fairly resolve these outstanding disputes; and
(5) support the continuation of operations by the United States Armed Forces in support of
freedom of navigation rights in international waters and air space in the South China Sea, the
East China Sea, the Taiwan Strait, and the Yellow Sea.
SEC. 3. REPORT ON THE CODE OF CONDUCT FOR THE SOUTH CHINA SEA.
(a) Report- Not later than 180 days after the date of the enactment of this Act, the Secretary
of State shall submit to the Committee on Foreign Affairs of the House of Representatives
and the Committee on Foreign Relations of the Senate a report on the Code of Conduct and
other peaceful measures for resolution of the territorial disputes in the South China Sea.
(b) Form- The report required under subsection (a) shall be submitted in unclassified form,
but may contain a classified annex if necessary.
H.Res. 704
H.Res. 704, a resolution “Reaffirming the strong support of the United States Government for
freedom of navigation and other internationally lawful uses of sea and airspace in the Asia-Pacific
region, and for the peaceful diplomatic resolution of outstanding territorial and maritime claims
and disputes,” was introduced on July 31, 2014. The text of the resolution as introduced is as
follows:
RESOLUTION
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Reaffirming the strong support of the United States Government for freedom of navigation
and other internationally lawful uses of sea and airspace in the Asia-Pacific region, and for
the peaceful diplomatic resolution of outstanding territorial and maritime claims and
disputes.
Whereas Asia-Pacific'’s maritime domains, which include both the sea and airspace above the
domains, are critical to the region'’s prosperity, stability, and security, including global
commerce;
Whereas the United States is a longstanding Asia-Pacific power and has a national interest in
maintaining freedom of operations in international waters and airspace both in the AsiaPacific region and around the world;
Whereas, for over 60 years, the United States Government, alongside United States allies and
partners, has played an instrumental role in maintaining stability in the Asia-Pacific,
including safeguarding the prosperity and economic growth and development of the AsiaPacific region;
Whereas the United States, from the earliest days of the Republic, has had a deep and
abiding national security interest in freedom of navigation, freedom of the seas, respect for
international law, and unimpeded lawful commerce, including in the East China and South
China Seas;
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Whereas the United States alliance relationships in the region, including with Japan, Korea,
Australia, the Philippines, and Thailand, are at the heart of United States policy and
engagement in the Asia-Pacific region, and share a common approach to supporting the
maintenance of peace and stability, freedom of navigation, and other internationally lawful
uses of sea and airspace in the Asia-Pacific region;
Whereas territorial and maritime claims must be derived from land features and otherwise
comport with international law;
Whereas the United States Government has a clear interest in encouraging and supporting the
nations of the region to work collaboratively and diplomatically to resolve disputes and is
firmly opposed to coercion, intimidation, threats, or the use of force;
Whereas the South China Sea contains great natural resources, and their stewardship and
responsible use offers immense potential benefit for generations to come;
Whereas the United States is not a claimant party in either the East China or South China
Seas, but does have an interest in the peaceful diplomatic resolution of disputed claims in
accordance with international law, in freedom of operations, and in the free-flow of
commerce free of coercion, intimidation, or the use of force;
Whereas the United States supports the obligation of all members of the United Nations to
seek to resolve disputes by peaceful means;
Whereas freedom of navigation and other lawful uses of sea and airspace in the Asia-Pacific
region are embodied in international law, not granted by certain states to others;
Whereas, on November 23, 2013, the People'’s Republic of China unilaterally and without
prior consultations with the United States, Japan, the Republic of Korea or other nations of
the Asia-Pacific region, declared an Air Defense Identification Zone (ADIZ) in the East
China Sea, also announcing that all aircraft entering the PRC'’s self-declared ADIZ, even if
they do not intend to enter Chinese territorial airspace, would have to submit flight plans,
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maintain radio contact, and follow directions from the Chinese Ministry of National Defense
or face `emergency defensive measures'’;
Whereas the `rules of engagement'’ declared by China, including the `emergency defensive
measures'’, are in violation of the concept of `due regard for the safety of civil aviation'’ under
the International Civil Aviation Organization'’s Chicago Convention and thereby are a
departure from accepted practice;
Whereas the Chicago Convention of the International Civil Aviation Organization
distinguishes between civilian aircraft and state aircraft and provides for the specific
obligations of state parties, consistent with customary law, to `refrain from resorting to the
use of weapons against civil aircraft in flight and . . .. in case of interception, the lives of
persons on board and the safety of aircraft must not be endangered'’;
Whereas international civil aviation is regulated by international agreements, including
standards and regulations set by ICAO for aviation safety, security, efficiency and regularity,
as well as for aviation environmental protection;
Whereas, in accordance with the norm of airborne innocent passage, the United States does
not recognize the right of a coastal nation to apply its ADIZ procedures to foreign state
aircraft not intending to enter national airspace nor does the United States apply its ADIZ
procedures to foreign state aircraft not intending to enter United States airspace;
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Whereas the United States Government expressed profound concerns with China's ’s
unilateral,
provocative, dangerous, and destabilizing declaration of such a zone, including the potential
potential for misunderstandings and miscalculations by aircraft operating lawfully in international
international airspace;
Whereas the People'’s Republic of China'’s declaration of an ADIZ in the East China Sea will
not alter how the United States Government conducts operations in the region or the
unwavering United States commitment to peace, security and stability in the Asia-Pacific
region;
Whereas the Government of Japan expressed deep concern about the People'’s Republic of
China'’s declaration of such a zone, regarding it as an effort to unduly infringe upon the
freedom of flight in international airspace and to change the status quo that could escalate
tensions and potentially cause unintentional consequences in the East China Sea;
Whereas the Government of the Republic of Korea has expressed concern over China'’s
declared ADIZ, and on December 9, 2013, announced an adjustment to its longstanding Air
Defense Identification Zone, which does not encompass territory administered by another
country, and did so only after undertaking a deliberate process of consultations with the
United States, Japan, and China;
Whereas the Government of the Philippines has stressed that China'’s declared ADIZ seeks to
transfer an entire air zone into Chinese domestic airspace, infringes on freedom of flight in
international airspace, and compromises the safety of civil aviation and the national security
of affected states, and has called on China to ensure that its actions do not jeopardize
regional security and stability;
Whereas, on November 26, 2013, the Government of Australia made clear in a statement its
opposition to any coercive or unilateral actions to change the status quo in the East China
Sea;
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Whereas, on March 10, 2014, the United States Government and the Government of Japan
jointly submitted a letter to the ICAO Secretariat regarding the issue of freedom of overflight
by civil aircraft in international airspace and the effective management of civil air traffic
within allocated Flight Information Regions (FIR);
Whereas Indonesia Foreign Minister Marty Natalegawa, in a hearing before the Committee
on Defense and Foreign Affairs on February 18, 2014, stated, `We have firmly told China we
will not accept a similar [Air Defense Identification] Zone if it is adopted in the South China
Sea. And the signal we have received thus far is, China does not plan to adopt a similar Zone
in the South China Sea.'’;
Whereas over half the world'’s merchant tonnage flows through the South China Sea, and
over 15,000,000 barrels of oil per day transit the Strait of Malacca, fueling economic growth
and prosperity throughout the Asia-Pacific region;
Whereas the increasing frequency and assertiveness of patrols and competing regulations
over disputed territory and maritime areas and airspace in the South China Sea and the East
China Sea are raising tensions and increasing the risk of confrontation;
Whereas the Association of Southeast Asian Nations (ASEAN) has promoted multilateral
talks on disputed areas without settling the issue of sovereignty, and in 2002 joined with
China in signing a Declaration on the Conduct of Parties in the South China Sea that
committed all parties to those territorial disputes to `reaffirm their respect for and
commitment to the freedom of navigation in and over flight above the South China Sea as
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provided for by the universally recognized principles of international law'’ and to `resolve
their territorial and jurisdictional disputes by peaceful means, without resorting to the threat
or use of force'’;
Whereas ASEAN and China committed in 2002 to develop an effective Code of Conduct
when they adopted the Declaration on the Conduct of Parties in the South China Sea, yet
negotiations are irregular and little progress has been made;
Whereas, in recent years, there have been numerous dangerous and destabilizing incidents in
waters near the coasts of the Philippines, China, Malaysia, and Vietnam;
Whereas the United States Government is deeply concerned about unilateral actions by any
claimant seeking to change the status quo through the use of coercion, intimidation, or
military force, including the continued restrictions on access to Scarborough Reef and
pressure on long-standing Philippine presence at the Second Thomas Shoal by the People'’s
Republic of China; actions by any state to prevent any other state from exercising its
sovereign rights to the resources of the exclusive economic zone (EEZ) and continental shelf
by making claims to those areas that have no support in international law; declarations of
administrative and military districts in contested areas in the South China Sea; and the
imposition of new fishing regulations covering disputed areas, which have raised tensions in
the region;
Whereas international law is important to safeguard the rights and freedoms of all states in
the Asia-Pacific region, and the lack of clarity in accordance with international law by
claimants with regard to their South China Sea claims can create uncertainty, insecurity, and
instability;
Whereas the United States Government opposes the use of intimidation, coercion, or force to
assert a territorial claim in the South China Sea;
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Whereas claims in the South China Sea must accord with international law, and those that
are not derived from land features are fundamentally flawed;
Whereas ASEAN issued Six-Point Principles on the South China Sea on July 20, 2012,
whereby ASEAN'’s Foreign Ministers reiterated and reaffirmed `the commitment of ASEAN
Member States to: . . .. 1. the full implementation of the Declaration on the Conduct of Parties
in the South China Sea (2002); . . .. 2. the Guidelines for the Implementation of the
Declaration Declaration
on the Conduct of Parties in the South China Sea (2011); . . .. 3. the early
conclusion of a
Regional Code of Conduct in the South China Sea; . . .. 4. the full respect of
the universally
recognized principles of International Law, including the 1982 United
Nations Convention
on the Law of the Sea (UNCLOS); . . .. 5. the continued exercise of selfrestraintself-restraint and non-use
of force by all parties; and . . .. 6. the peaceful resolution of disputes, in
accordance with
universally recognized principles of International Law, including the 1982
United Nations
Convention on the Law of the Sea (UNCLOS).'’;
Whereas, in 2013, the Republic of the Philippines properly exercised its rights to peaceful
settlement mechanisms with the filing of arbitration case under Article 287 and Annex VII of
the Convention on the Law of the Sea in order to achieve a peaceful and durable solution to
the dispute, and the United States hopes that all parties in any dispute ultimately abide by the
rulings of internationally recognized dispute-settlement bodies;
Whereas China and Japan are the world'’s second and third largest economies, and have a
shared interest in preserving stable maritime domains to continue to support economic
growth;
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Whereas there has been an unprecedented increase in dangerous activities by Chinese
maritime agencies in areas near the Senkaku islands, including between 6 and 25 ships of the
Government of China intruding into the Japanese territorial sea each month since September
2012, between 26 and 124 ships entering the `contiguous zone'’ in the same time period, and
9 ships intruding into the territorial sea and 33 ships entering in the contiguous zone in
February 2014;
Whereas, although the United States Government does not take a position on the ultimate
sovereignty of the Senkaku Islands, the United States Government acknowledges that they
are under the administration of Japan and opposes any unilateral actions that would seek to
undermine such administration;
Whereas the United States Senate has previously affirmed that the unilateral actions of a
third party will not affect the United States acknowledgment of the administration of Japan
over the Senkaku Islands;
Whereas the United States remains committed under the Treaty of Mutual Cooperation and
Security to respond to any armed attack in the territories under the administration of Japan,
has urged all parties to take steps to prevent incidents and manage disagreements through
peaceful means, and commends the Government of Japan for its restrained approach in this
regard;
Whereas both the United States and the People'’s Republic of China are parties to and are
obligated to observe the rules of the Convention on the International Regulations for
Preventing Collisions at Sea, done at London October 12, 1972 (COLREGs);
Whereas, on December 5, 2013, the USS Cowpens was lawfully operating in international
waters in the South China Sea when a People'’s Liberation Army Navy vessel reportedly
crossed its bow at a distance of less than 500 yards and stopped in the water, forcing the USS
Cowpens to take evasive action to avoid a collision;
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Whereas the reported actions taken by the People'’s Liberation Army Navy vessel in the USS
Cowpens'’ incident, as publicly reported, appear contrary to the international legal obligations
obligations of the People'’s Republic of China under COLREGs;
Whereas, on May 1, 2014, the People'’s Republic of China'’s state-owned energy company,
CNOOC, placed its deepwater semi-submersible drilling rig Hai Yang Shi You 981 (HD981), accompanied by over 25 Chinese ships, in Block 143, 120 nautical miles off Vietnam'’s
coastline;
Whereas, from May 1 to May 9, 2014, the number of Chinese vessels escorting HD-981
increased to more than 80, including seven military ships, which aggressively patrolled and
intimidated Vietnamese Coast Guard ships in violation of COLREGs, reportedly
intentionally rammed multiple Vietnamese vessels, and used helicopters and water cannons
to obstruct others;
Whereas, on May 5, 2014, vessels from the Maritime Safety Administration of China
(MSAC) established an exclusion zone with a radius of three nautical miles around HD-981,
which undermines maritime safety in the area and is in violation of universally recognized
principles of International Law, including the 1982 United Nations Convention on the Law
of the Sea (UNCLOS);
Whereas the People'’s Republic of China is looking to expand its presence in the contested
Spratly archipelago by means of land reclamation in an effort to add several new islands to
the existing Johnston South Reef;
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Whereas, on January 19, 1998, the United States and People'’s Republic of China signed the
Military Maritime Consultative Agreement, creating a mechanism for consultation and
coordination on operational safety issues in the maritime domain between the United States
and the People'’s Republic of China;
Whereas the Western Pacific Naval Symposium, inaugurated in 1988 and comprising the
navies of Australia, Brunei, Cambodia, Canada, Chile, France, Indonesia, Japan, Malaysia,
New Zealand, Papua New Guinea, the People'’s Republic of China, the Philippines, the
Republic of Korea, the Russian Federation, Singapore, Thailand, Tonga, the United States,
and Vietnam, whose countries all border the Pacific Ocean region, provides a forum where
leaders of regional navies can meet to discuss cooperative initiatives, discuss regional and
global maritime issues, and undertake exercises to strengthen norms and practices that
contribute to operational safety, including protocols for unexpected encounters at sea,
common ways of communication, common ways of operating, and common ways of
engagement;
Whereas, Japan and the People'’s Republic of China sought to negotiate a Maritime
Communications Mechanism between the defense authorities and a Maritime Search and
Rescue Agreement and agreed in principle to these agreements to address operational safety
on the maritime domains but failed to sign them;
Whereas the Changi Command and Control Center in Singapore provides a platform for all
the countries of the Western Pacific to share information on what kind of contact at sea
occurs and to provide a common operational picture for the region;
Whereas 2014 commemorates the 35th anniversary of normalization of diplomatic relations
between the United States and the People'’s Republic of China, and the United States
welcomes the development of a peaceful and prosperous China that becomes a responsible
international stakeholder, the government of which respects international norms,
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international laws, international institutions, and international rules; enhances security and
peace; and seeks to advance relations between the United States and China; and
Whereas ASEAN plays an important role, in partnership with others in the regional and
international community, in addressing maritime security issues in the Asia-Pacific region
and the Indian Ocean, including open access to the maritime domain of Asia; Now, therefore,
be it
Resolved,
SECTION 1. SENSE OF THE HOUSE OF REPRESENTATIVES.
The House of Representatives-—
(1) condemns coercive and threatening actions or the use of force to impede freedom of
operations in international airspace by military or civilian aircraft, to alter the status quo or to
destabilize the Asia-Pacific region;
(2) urges the Government of the People'’s Republic of China to refrain from implementing the
the declared East China Sea Air Defense Identification Zone (ADIZ), which is contrary to
freedom of overflight in international airspace, and to refrain from taking similar provocative
actions elsewhere in the Asia-Pacific region; and
(3) commends the Governments of Japan and of the Republic of Korea for their restraint, and
commends the Government of the Republic of Korea for engaging in a deliberate process of
consultations with the United States, Japan and China prior to announcing its adjustment of
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its Air Defense Identification Zone on December 9, 2013, and for its commitment to
implement this adjusted Air Defense Identification Zone (ADIZ) in a manner consistent with
international practice and respect for the freedom of overflight and other internationally
lawful uses of international airspace.
SEC. 2. STATEMENT OF POLICY.
It is the policy of the United States to-—
(1) reaffirm its unwavering commitment and support for allies and partners in the AsiaPacific region, including longstanding United States policy regarding Article V of the United
States-Philippines Mutual Defense Treaty and that Article V of the United States-Japan
Mutual Defense Treaty applies to the Japanese-administered Senkaku Islands;
(2) oppose claims that impinge on the rights, freedoms, and lawful use of the sea that belong
to all nations;
(3) urge all parties to refrain from engaging in destabilizing activities, including illegal
occupation or efforts to unlawfully assert administration over disputed claims;
(4) ensure that disputes are managed without intimidation, coercion, or force;
(5) call on all claimants to clarify or adjust claims in accordance with international law;
(6) support efforts by ASEAN and the People'’s Republic of China to develop an effective
Code of Conduct, including the `early harvest'’ of agreed-upon elements in the Code of
Conduct that can be implemented immediately;
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(7) reaffirm that an existing body of international rules and guidelines, including the
International Regulations for Preventing Collisions at Sea, done at London October 12, 1972
(COLREGs), is sufficient to ensure the safety of navigation between the United States
Armed Forces and the forces of other countries, including the People'’s Republic of China;
(8) support the development of regional institutions and bodies, including the ASEAN
Regional Forum, the ASEAN Defense Minister'’s Meeting Plus, the East Asia Summit, and
the expanded ASEAN Maritime Forum, to build practical cooperation in the region and
reinforce the role of international law;
(9) encourage the adoption of mechanisms such as hotlines or emergency procedures for
preventing incidents in sensitive areas, managing them if they occur, and preventing disputes
from escalating;
(10) fully support the rights of claimants to exercise rights they may have to avail themselves
of peaceful dispute settlement mechanisms;
(11) encourage claimants not to undertake new unilateral attempts to change the status quo
since the signing of the 2002 Declaration of Conduct, including not asserting administrative
measures or controls in disputed areas in the South China Sea;
(12) encourage the deepening of partnerships with other countries in the region for maritime
domain awareness and capacity building, as well as efforts by the United States Government
to explore the development of appropriate multilateral mechanisms for a `common operating
picture'’ in the South China Sea that would serve to help countries avoid destabilizing
behavior and deter risky and dangerous activities;
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(13) establish and implement a policy framework with the Government of Vietnam reflecting
both the progress in and challenges that remain regarding Vietnam'’s human rights record as
well as the vital national security interests the United States has in deepening and expanding
the comprehensive partnership with Vietnam through the sale or transfer of United States
defense articles appropriate for the development and maintenance of Vietnam'’s external
defense capabilities, excluding those items that can be used to suppress protesters, for crowd
control, or for other domestic security purposes; and
(14) assure the continuity of operations by the United States in the Asia-Pacific region,
including, when appropriate, in cooperation with partners and allies, to reaffirm the principle
of freedom of operations in international waters and airspace in accordance with established
principles and practices of international law.
S.Res. 412 (Agreed to by the Senate)
S.Res. 412, a resolution “Reaffirming the strong support of the United States Government for
freedom of navigation and other internationally lawful uses of sea and airspace in the Asia-Pacific
region, and for the peaceful diplomatic resolution of outstanding territorial and maritime claims
and dispute,” was introduced on April 7, 2014. On May 20, 2014, it was reported by Senator
Menendez with amendments and with an amended preamble, and without a written report. On
July 10, it was agreed to in the Senate with amendments and an amended preamble by unanimous
consent. The text of the resolution as agreed to by the Senate is as follows:
RESOLUTION
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Reaffirming the strong support of the United States Government for freedom of navigation
and other internationally lawful uses of sea and airspace in the Asia-Pacific region, and for
the peaceful diplomatic resolution of outstanding territorial and maritime claims and
disputes.
Whereas Asia-Pacific'’s maritime domains, which include both the sea and airspace above the
domains, are critical to the region'’s prosperity, stability, and security, including global
commerce;
Whereas the United States is a longstanding Asia-Pacific power and has a national interest in
maintaining freedom of operations in international waters and airspace both in the AsiaPacific region and around the world;
Whereas for over 60 years, the United States Government, alongside United States allies and
partners, has played an instrumental role in maintaining stability in the Asia-Pacific,
including safeguarding the prosperity and economic growth and development of the AsiaPacific region;
Whereas the United States, from the earliest days of the Republic, has had a deep and
abiding national security interest in freedom of navigation, freedom of the seas, respect for
international law, and unimpeded lawful commerce, including in the East China and South
China Seas;
Whereas the United States alliance relationships in the region, including with Japan, Korea,
Australia, the Philippines, and Thailand, are at the heart of United States policy and
engagement in the Asia-Pacific region, and share a common approach to supporting the
maintenance of peace and stability, freedom of navigation, and other internationally lawful
uses of sea and airspace in the Asia-Pacific region;
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Whereas territorial and maritime claims must be derived from land features and otherwise
comport with international law;
Whereas the United States Government has a clear interest in encouraging and supporting the
nations of the region to work collaboratively and diplomatically to resolve disputes and is
firmly opposed to coercion, intimidation, threats, or the use of force;
Whereas the South China Sea contains great natural resources, and their stewardship and
responsible use offers immense potential benefit for generations to come;
Whereas the United States is not a claimant party in either the East China or South China
Seas, but does have an interest in the peaceful diplomatic resolution of disputed claims in
accordance with international law, in freedom of operations, and in the free-flow of
commerce free of coercion, intimidation, or the use of force;
Whereas the United States supports the obligation of all members of the United Nations to
seek to resolve disputes by peaceful means;
Whereas freedom of navigation and other lawful uses of sea and airspace in the Asia-Pacific
region are embodied in international law, not granted by certain states to others;
Whereas, on November 23, 2013, the People'’s Republic of China unilaterally and without
prior consultations with the United States, Japan, the Republic of Korea or other nations of
the Asia-Pacific region, declared an Air Defense Identification Zone (ADIZ) in the East
China Sea, also announcing that all aircraft entering the PRC'’s self-declared ADIZ, even if
they do not intend to enter Chinese territorial airspace, would have to submit flight plans,
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maintain radio contact, and follow directions from the Chinese Ministry of National Defense
or face `emergency defensive measures'’;
Whereas the `rules of engagement'’ declared by China, including the `emergency defensive
measures'’, are in violation of the concept of `due regard for the safety of civil aviation'’ under
the Chicago Convention of the International Civil Aviation Organization and thereby are a
departure from accepted practice;
Whereas the Chicago Convention of the International Civil Aviation Organization
distinguishes between civilian aircraft and state aircraft and provides for the specific
obligations of state parties, consistent with customary law, to `refrain from resorting to the
use of weapons against civil aircraft in flight and . . .. in case of interception, the lives of
persons on board and the safety of aircraft must not be endangered'’;
Whereas international civil aviation is regulated by international agreements, including
standards and regulations set by ICAO for aviation safety, security, efficiency and regularity,
as well as for aviation environmental protection;
Whereas, in accordance with the norm of airborne innocent passage, the United States does
not recognize the right of a coastal nation to apply its ADIZ procedures to foreign state
aircraft not intending to enter national airspace nor does the United States apply its ADIZ
procedures to foreign state aircraft not intending to enter United States airspace;
Whereas the United States Government expressed profound concerns with China's ’s
unilateral,
provocative, dangerous, and destabilizing declaration of such a zone, including the potential
potential for misunderstandings and miscalculations by aircraft operating lawfully in international
airspace;
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international airspace;
Whereas the People'’s Republic of China'’s declaration of an ADIZ in the East China Sea will
not alter how the United States Government conducts operations in the region or the
unwavering United States commitment to peace, security and stability in the Asia-Pacific
region;
Whereas the Government of Japan expressed deep concern about the People'’s Republic of
China'’s declaration of such a zone, regarding it as an effort to unduly infringe upon the
freedom of flight in international airspace and to change the status quo that could escalate
tensions and potentially cause unintentional consequences in the East China Sea;
Whereas the Government of the Republic of Korea has expressed concern over China'’s
declared ADIZ, and on December 9, 2013, announced an adjustment to its longstanding Air
Defense Identification Zone, which does not encompass territory administered by another
country, and did so only after undertaking a deliberate process of consultations with the
United States, Japan, and China;
Whereas the Government of the Philippines has stressed that China'’s declared ADIZ seeks to
transfer an entire air zone into Chinese domestic airspace, infringes on freedom of flight in
international airspace, and compromises the safety of civil aviation and the national security
of affected states, and has called on China to ensure that its actions do not jeopardize
regional security and stability;
Whereas, on November 26, 2013, the Government of Australia made clear in a statement its
opposition to any coercive or unilateral actions to change the status quo in the East China
Sea;
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Whereas, on March 10, 2014, the United States Government and the Government of Japan
jointly submitted a letter to the ICAO Secretariat regarding the issue of freedom of overflight
by civil aircraft in international airspace and the effective management of civil air traffic
within allocated Flight Information Regions (FIR);
Whereas Indonesia Foreign Minister Marty Natalegawa, in a hearing before the Committee
on Defense and Foreign Affairs on February 18, 2014, stated, `We have firmly told China we
will not accept a similar [Air Defense Identification] Zone if it is adopted in the South China
Sea. And the signal we have received thus far is, China does not plan to adopt a similar Zone
in the South China Sea.'’;
Whereas over half the world'’s merchant tonnage flows through the South China Sea, and
over 15,000,000 barrels of oil per day transit the Strait of Malacca, fueling economic growth
and prosperity throughout the Asia-Pacific region;
Whereas the increasing frequency and assertiveness of patrols and competing regulations
over disputed territory and maritime areas and airspace in the South China Sea and the East
China Sea are raising tensions and increasing the risk of confrontation;
Whereas the Association of Southeast Asian Nations (ASEAN) has promoted multilateral
talks on disputed areas without settling the issue of sovereignty, and in 2002 joined with
China in signing a Declaration on the Conduct of Parties in the South China Sea that
committed all parties to those territorial disputes to `reaffirm their respect for and
commitment to the freedom of navigation in and over flight above the South China Sea as
provided for by the universally recognized principles of international law'’ and to `resolve
their territorial and jurisdictional disputes by peaceful means, without resorting to the threat
or use of force';
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’;
Whereas ASEAN and China committed in 2002 to develop an effective Code of Conduct
when they adopted the Declaration on the Conduct of Parties in the South China Sea, yet
negotiations are irregular and little progress has been made;
Whereas in recent years, there have been numerous dangerous and destabilizing incidents in
waters near the coasts of the Philippines, China, Malaysia, and Vietnam;
Whereas the United States Government is deeply concerned about unilateral actions by any
claimant seeking to change the status quo through the use of coercion, intimidation, or
military force, including the continued restrictions on access to Scarborough Reef and
pressure on long-standing Philippine presence at the Second Thomas Shoal by the People'’s
Republic of China; actions by any state to prevent any other state from exercising its
sovereign rights to the resources of the exclusive economic zone (EEZ) and continental shelf
by making claims to those areas that have no support in international law; declarations of
administrative and military districts in contested areas in the South China Sea; and the
imposition of new fishing regulations covering disputed areas, which have raised tensions in
the region;
Whereas international law is important to safeguard the rights and freedoms of all states in
the Asia-Pacific region, and the lack of clarity in accordance with international law by
claimants with regard to their South China Sea claims can create uncertainty, insecurity, and
instability;
Whereas the United States Government opposes the use of intimidation, coercion, or force to
assert a territorial claim in the South China Sea;
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Whereas claims in the South China Sea must accord with international law, and those that
are not derived from land features are fundamentally flawed;
Whereas ASEAN issued Six-Point Principles on the South China Sea on July 20, 2012,
whereby ASEAN'’s Foreign Ministers reiterated and reaffirmed `the commitment of ASEAN
Member States to: . . .. 1. the full implementation of the Declaration on the Conduct of Parties
in the South China Sea (2002); . . .. 2. the Guidelines for the Implementation of the
Declaration Declaration
on the Conduct of Parties in the South China Sea (2011); . . .. 3. the early
conclusion of a
Regional Code of Conduct in the South China Sea; . . .. 4. the full respect of
the universally
recognized principles of International Law, including the 1982 United
Nations Convention
on the Law of the Sea (UNCLOS); . . .. 5. the continued exercise of selfrestraintself-restraint and non-use
of force by all parties; and . . .. 6. the peaceful resolution of disputes, in
accordance with
universally recognized principles of International Law, including the 1982
United Nations
Convention on the Law of the Sea (UNCLOS).'’;
Whereas, in 2013, the Republic of the Philippines properly exercised its rights to peaceful
settlement mechanisms with the filing of arbitration case under Article 287 and Annex VII of
the Convention on the Law of the Sea in order to achieve a peaceful and durable solution to
the dispute, and the United States hopes that all parties in any dispute ultimately abide by the
rulings of internationally recognized dispute-settlement bodies;
Whereas China and Japan are the world'’s second and third largest economies, and have a
shared interest in preserving stable maritime domains to continue to support economic
growth;
Whereas there has been an unprecedented increase in dangerous activities by Chinese
maritime agencies in areas near the Senkaku islands, including between 6 and 25 ships of the
Government of China intruding into the Japanese territorial sea each month since September
2012, between 26 and 124 ships entering the `contiguous zone'’ in the same time period, and
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9 ships intruding into the territorial sea and 33 ships entering in the contiguous zone in
February 2014;
Whereas although the United States Government does not take a position on the ultimate
sovereignty of the Senkaku Islands, the United States Government acknowledges that they
are under the administration of Japan and opposes any unilateral actions that would seek to
undermine such administration;
Whereas the United States Senate has previously affirmed that the unilateral actions of a
third party will not affect the United States acknowledgment of the administration of Japan
over the Senkaku Islands;
Whereas the United States remains committed under the Treaty of Mutual Cooperation and
Security to respond to any armed attack in the territories under the administration of Japan,
has urged all parties to take steps to prevent incidents and manage disagreements through
peaceful means, and commends the Government of Japan for its restrained approach in this
regard;
Whereas both the United States and the People'’s Republic of China are parties to and are
obligated to observe the rules of the Convention on the International Regulations for
Preventing Collisions at Sea, done at London October 12, 1972 (COLREGs);
Whereas, on December 5, 2013, the USS Cowpens was lawfully operating in international
waters in the South China Sea when a People'’s Liberation Army Navy vessel reportedly
crossed its bow at a distance of less than 500 yards and stopped in the water, forcing the USS
Cowpens to take evasive action to avoid a collision;
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Whereas the reported actions taken by the People'’s Liberation Army Navy vessel in the USS
Cowpens'’ incident, as publicly reported, appear contrary to the international legal obligations
obligations of the People'’s Republic of China under COLREGs;
Whereas, on May 1, 2014, the People'’s Republic of China'’s state-owned energy company,
CNOOC, placed its deepwater semi-submersible drilling rig Hai Yang Shi You 981 (HD981), accompanied by over 25 Chinese ships, in Block 143, 120 nautical miles off Vietnam'’s
coastline;
Whereas from May 1 to May 9, 2014, the number of Chinese vessels escorting Hai Yang Shi
You 981 (HD-981) increased to more than 80, including seven military ships, which
aggressively patrolled and intimidated Vietnamese Coast Guard ships in violation of
COLREGS, reportedly intentionally rammed multiple Vietnamese vessels, and used
helicopters and water cannons to obstruct others;
Whereas, on May 5, 2014, vessels from the Maritime Safety Administration of China
(MSAC) established an exclusion zone with a radius of three nautical miles around Hai Yang
Shi You 981 (HD-981), which undermines maritime safety in the area and is in violation of
universally recognized principles of international law;
Whereas China'’s territorial claims and associated maritime actions in support of the drilling
activity that Hai Yang Shi You 981 (HD-981) commenced on May 1, 2014, have not been
clarified under international law, constitute a unilateral attempt to change the status quo by
force, and appear to be in violation of the 2002 Declaration on the Conduct of Parties in the
South China Sea;
Whereas, on January 19, 1998, the United States and People'’s Republic of China signed the
Military Maritime Consultative Agreement, creating a mechanism for consultation and
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coordination on operational safety issues in the maritime domain between the United States
and the People'’s Republic of China;
Whereas the Western Pacific Naval Symposium, inaugurated in 1988 and comprising the
navies of Australia, Brunei, Cambodia, Canada, Chile, France, Indonesia, Japan, Malaysia,
New Zealand, Papua New Guinea, the People'’s Republic of China, the Philippines, the
Republic of Korea, the Russian Federation, Singapore, Thailand, Tonga, the United States,
and Vietnam, whose countries all border the Pacific Ocean region, provides a forum where
leaders of regional navies can meet to discuss cooperative initiatives, discuss regional and
global maritime issues, and undertake exercises to strengthen norms and practices that
contribute to operational safety, including protocols for unexpected encounters at sea,
common ways of communication, common ways of operating, and common ways of
engagement;
Whereas Japan and the People'’s Republic of China sought to negotiate a Maritime
Communications Mechanism between the defense authorities and a Maritime Search and
Rescue Agreement and agreed in principle to these agreements to address operational safety
on the maritime domains but failed to sign them;
Whereas the Changi Command and Control Center in Singapore provides a platform for all
the countries of the Western Pacific to share information on what kind of contact at sea and
to provide a common operational picture for the region;
Whereas 2014 commemorates the 35th anniversary of normalization of diplomatic relations
between the United States and the People'’s Republic of China, and the United States
welcomes the development of a peaceful and prosperous China that becomes a responsible
international stakeholder, the government of which respects international norms,
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international laws, international institutions, and international rules; enhances security and
peace; and seeks to advance relations between the United States and China; and
Whereas ASEAN plays an important role, in partnership with others in the regional and
international community, in addressing maritime security issues in the Asia-Pacific region
and the Indian Ocean, including open access to the maritime domain of Asia: Now, therefore,
be it
Resolved,
SECTION 1. SENSE OF THE SENATE.
The Senate-—
(1) condemns coercive and threatening actions or the use of force to impede freedom of
operations in international airspace by military or civilian aircraft, to alter the status quo or to
destabilize the Asia-Pacific region;
(2) urges the Government of the People'’s Republic of China to refrain from implementing the
the declared East China Sea Air Defense Identification Zone (ADIZ), which is contrary to
freedom of overflight in international airspace, and to refrain from taking similar provocative
actions elsewhere in the Asia-Pacific region;
(3) commends the Governments of Japan and of the Republic of Korea for their restraint, and
commends the Government of the Republic of Korea for engaging in a deliberate process of
consultations with the United States, Japan and China prior to announcing its adjustment of
its Air Defense Identification Zone on December 9, 2013, and for its commitment to
implement this adjusted Air Defense Identification Zone (ADIZ) in a manner consistent with
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international practice and respect for the freedom of overflight and other internationally
lawful uses of international airspace; and
(4) calls on the Government of the People'’s Republic of China to withdraw its Hai Yang Shi
You 981 (HD-981) drilling rig and associated maritime forces from their current positions, to
refrain from maritime maneuvers contrary to COLREGS, and to return immediately to the
status quo as it existed before May 1, 2014.
SEC. 2. STATEMENT OF POLICY.
It is the policy of the United States to-—
(1) reaffirm its unwavering commitment and support for allies and partners in the AsiaPacific region, including longstanding United States policy regarding Article V of the United
States-Philippines Mutual Defense Treaty and that Article V of the United States-Japan
Mutual Defense Treaty applies to the Japanese-administered Senkaku Islands;
(2) oppose claims that impinge on the rights, freedoms, and lawful use of the sea that belong
to all nations;
(3) urge all parties to refrain from engaging in destabilizing activities, including illegal
occupation or efforts to unlawfully assert administration over disputed claims;
(4) ensure that disputes are managed without intimidation, coercion, or force;
(5) call on all claimants to clarify or adjust claims in accordance with international law;
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(6) support efforts by ASEAN and the People'’s Republic of China to develop an effective
Code of Conduct, including the `early harvest'’ of agreed-upon elements in the Code of
Conduct that can be implemented immediately;
(7) reaffirm that an existing body of international rules and guidelines, including the
International Regulations for Preventing Collisions at Sea, done at London October 12, 1972
(COLREGs), is sufficient to ensure the safety of navigation between the United States
Armed Forces and the forces of other countries, including the People'’s Republic of China;
(8) support the development of regional institutions and bodies, including the ASEAN
Regional Forum, the ASEAN Defense Minister'’s Meeting Plus, the East Asia Summit, and
the expanded ASEAN Maritime Forum, to build practical cooperation in the region and
reinforce the role of international law;
(9) encourage the adoption of mechanisms such as hotlines or emergency procedures for
preventing incidents in sensitive areas, managing them if they occur, and preventing disputes
from escalating;
(10) fully support the rights of claimants to exercise rights they may have to avail themselves
of peaceful dispute settlement mechanisms;
(11) encourage claimants not to undertake new unilateral attempts to change the status quo
since the signing of the 2002 Declaration of Conduct, including not asserting administrative
measures or controls in disputed areas in the South China Sea;
(12) encourage the deepening of partnerships with other countries in the region for maritime
domain awareness and capacity building, as well as efforts by the United States Government
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to explore the development of appropriate multilateral mechanisms for a `common operating
picture'’ in the South China Sea that would serve to help countries avoid destabilizing
behavior and deter risky and dangerous activities; and
(13) assure the continuity of operations by the United States in the Asia-Pacific region,
including, when appropriate, in cooperation with partners and allies, to reaffirm the principle
of freedom of operations in international waters and airspace in accordance with established
principles and practices of international law.
SEC. 3. RULE OF CONSTRUCTION.
Nothing in this resolution shall be construed as a declaration of war or authorization to use
force.
S.Res. 167 (Agreed to by the Senate)
S.Res. 167, a resolution “Reaffirming the strong support of the United States for the peaceful
resolution of territorial, sovereignty, and jurisdictional disputes in the Asia-Pacific maritime
domains,” was introduced in the Senate on June 10, 2013, reported without amendment, with a
preamble, and without a written report on June 25, 2013, and agreed to by the Senate by
unanimous consent without amendment and an amended preamble on July 29, 2013. The text of
the resolution as agreed to by the Senate is as follows:
RESOLUTION
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Reaffirming the strong support of the United States for the peaceful resolution of territorial,
sovereignty, and jurisdictional disputes in the Asia-Pacific maritime domains.
Whereas the maritime domain of the Asia-Pacific region includes critical sea lines of
communication and commerce between the Pacific and Indian oceans;
Whereas the United States has a national interest in freedom of navigation and overflight in
the Asia-Pacific maritime domains, as provided for by universally recognized principles of
international law;
Whereas the United States has a national interest in the maintenance of peace and stability,
open access by all to maritime domains, respect for universally recognized principles of
international law, prosperity and economic growth, and unimpeded lawful commerce;
Whereas although the United States does not take a position on competing territorial claims
over land features and maritime boundaries, it does have a strong and long-standing interest
in the manner in which disputes in the South China Sea are addressed and in the conduct of
the parties;
Whereas the United States has a clear interest in encouraging and supporting the nations of
the region to work collaboratively and diplomatically to resolve disputes without coercion,
without intimidation, without threats, and without the use of force;
Whereas the South China Sea contains great natural resources, and their stewardship and
responsible use offers immense potential benefit for generations to come;
Whereas in recent years, there have been numerous dangerous and destabilizing incidents in
this region, including Chinese vessels cutting the seismic survey cables of a Vietnamese oil
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exploration ship in May 2011; Chinese vessels barricading the entrance to the Scarborough
Reef lagoon in April 2012; China issuing an official map that newly defines the contested
‘nine-dash line’ as China’s national border; and, since May 8, 2013, Chinese naval and
marine surveillance ships maintaining a regular presence in waters around the Second
Thomas Shoal, located approximately 105 nautical miles northwest of the Philippine island
of Palawan;
Whereas the Association of Southeast Asian Nations (ASEAN) has promoted multilateral
talks on disputed areas without settling the issue of sovereignty, and in 2002 joined with
China in signing a Declaration on the Conduct of Parties in the South China Sea that
committed all parties to those territorial disputes to `reaffirm their respect for and
commitment to the freedom of navigation in and over flight above the South China Sea as
provided for by the universally recognized principles of international law’ and to `resolve
their territorial and jurisdictional disputes by peaceful means, without resorting to the threat
or use of force’;
Whereas Japan and Taiwan reached an agreement on April 10, 2013, to jointly share and
administer the fishing resources in their overlapping claimed exclusive economic zones in
the East China Sea, an important breakthrough after 17 years of negotiations and a model for
other such agreements;
Whereas other incidences of the joint administrations of resources in disputed waters in the
South China Sea have de-escalated tensions and promoted economic development, such as
Malaysia and Brunei’s 2009 agreement to partner on exploring offshore Brunei waters, with
drilling in offshore oil and gas fields off Brunei beginning in 2011; and Thailand and
Vietnam’s agreement to jointly develop areas of the Gulf of Thailand for gas exports, despite
ongoing territorial disputes;
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Whereas, on June 21, 2013, the Governments of the People’s Republic of China and
Vietnam announced that they had agreed to set up and use an emergency fishery hotline to
inform each other of any detainment involving fishermen or boats within 48 hours, to help
quickly resolve disputes and as part of efforts to prevent future incidents from derailing ties,
and the Governments of the People’s Republic of China and Indonesia on May 2, 2013,
agreed to establish a hotline for incidents in their disputed waters;
Whereas the Government of the Republic of the Philippines states that it `has exhausted
almost all political and diplomatic avenues for a peaceful negotiated settlement of its
maritime dispute with China’ and in his statement of January 23, 2013, Republic of
Philippines Secretary of Foreign Affairs Del Rosario stated that therefore `the Philippines
has taken the step of bringing China before the Arbitral Tribunal under Article 287 and
Annex VII of the 1982 Convention on the Law of the Sea in order to achieve a peaceful and
durable solution to the dispute’;
Whereas, in January 2013, a Chinese naval ship allegedly fixed its weapons-targeting radar
on Japanese vessels in the vicinity of the Senkaku islands, and, on April 23, 2013, eight
Chinese marine surveillance ships entered the 12-nautical-mile territorial zone off the
Senkaku Islands, further escalating regional tensions;
Whereas, on May 8, 2013, the Chinese Communist Party’s main newspaper, The People’s
Daily, published an article by several Chinese scholars questioning Japan’s sovereignty over
Okinawa, where key United States military installations are located which contribute to
preserving security and stability in the Asia-Pacific region;
Whereas the Government of the People’s Republic of China has recently taken other
unilateral steps, including `improperly drawing’ baselines around the Senkaku Islands in
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September 2102, which the 2013 Annual Report to Congress on Military and Security
Developments Involving the People’s Republic of China found to be `inconsistent with
international law’, and maintaining a continuous military and paramilitary presence around
the Senkaku Islands;
Whereas, on April 27, 2013, Chinese Foreign Ministry spokeswoman, Hua Chunying, was
quoted as saying, `The Diaoyu Islands are about sovereignty and territorial integrity. Of
course it’s China’s core interest.’;
Whereas although the United States does not take a position on the ultimate sovereignty of
the Senkaku Islands, the United States Government acknowledges that they are under the
administration of Japan and opposes any unilateral actions that would seek to undermine
such administration, affirms that the unilateral actions of a third party will not affect the
United States acknowledgment of the administration of Japan over the Senkaku Islands,
remains committed under the Treaty of Mutual Cooperation and Security to respond to any
armed attack in the territories under the administration of Japan, and has urged all parties to
take steps to prevent incidents and manage disagreements through peaceful means;
Whereas, on August 3, 2012, a Department of State spokesperson expressed concern over
`China’s upgrading of the administrative level of Sansha City and the establishment of a new
military garrison there,’ encouraged ASEAN and China `to make meaningful progress
toward finalizing a comprehensive Code of Conduct,’ and called upon claimants to `explore
every diplomatic or other peaceful avenue for resolution, including the use of arbitration or
other international legal mechanisms as needed’;
Whereas the United States recognizes the importance of strong, cohesive, and integrated
regional institutions, including the East Asia Summit (EAS), ASEAN, and the Asia-Pacific
Economic Cooperation (APEC) forum, as foundation for effective regional frameworks to
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promote peace and security and economic growth, including in the maritime domain, and to
ensure that the Asia-Pacific community develops rules-based regional norms which
discourage coercion and the use of force;
Whereas the United States welcomes the development of a peaceful and prosperous China,
the government of which respects international norms, international laws, international
institutions, and international rules; enhances security and peace; and seeks to advance a
`new model’ of relations between the United States and China;
Whereas ASEAN plays an important role, in partnership with others in the regional and
international community, in addressing maritime security issues in the Asia-Pacific region
and into the Indian Ocean, including open access to the maritime domain of Asia;
Whereas ASEAN and China announced on June 30, 2013, that official consultations on a
Code of Conduct in the South China Sea will commence at the 6th Senior Officials’ Meeting
and the 9th Joint Working Group on the Implementation of the Declaration of Conduct of the
Parties in the SCS, to be held in China in September 2013; Chinese Foreign Minister Wang
Yi reaffirmed that China was willing to advance talks on a code of conduct as part of a
`continual, gradual and deepening process’; and Secretary of State John F. Kerry,
participating in the ASEAN Regional Forum Ministerial Meeting on July 2, 2013, expressed
the hope that announcement of official consultations between ASEAN and China would be
the beginning of sustained and substantive official engagement between the two on
developing the new Code of Conduct; and
Whereas, from June 17-20, 2013, the 10 ASEAN members and their dialogue partners
Australia, China, India, Japan, New Zealand, Russia, South Korea, and the United States
jointly participated in the First ASEAN Defense Ministers’ Meeting Plus Humanitarian
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Assistance and Disaster Relief (HADR) and Military Medicine (MM) exercise, helping to
establish a new pattern of cooperation among the militaries of the Asia-Pacific: Now,
therefore, be it
Resolved, That the Senate—
(1) condemns the use of coercion, threats, or force by naval, maritime security, or fishing
vessels and military or civilian aircraft in the South China Sea and the East China Sea to
assert disputed maritime or territorial claims or alter the status quo;
(2) strongly urges that all parties to maritime and territorial disputes in the region exercise
self-restraint in the conduct of activities that would undermine stability or complicate or
escalate disputes, including refraining from inhabiting presently uninhabited islands, reefs,
shoals, and other features and handle their differences in a constructive manner;
(3) reaffirms the strong support of the United States for the member states of ASEAN and
the Government of the People’s Republic of China as they seek to develop a code of conduct
of parties in the South China Sea, and urges all countries to substantively support ASEAN in
its efforts in this regard;
(4) supports collaborative diplomatic processes by all claimants in the South China Sea for
resolving outstanding maritime or territorial disputes, in a manner that maintains peace and
security, adheres to international law, and protects unimpeded lawful commerce as well as
freedom of navigation and overflight, and including through international arbitration,
allowing parties to peacefully settle claims and disputes using universally recognized
principles of international law;
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(5) encourages the deepening of efforts by the United States Government to develop
partnerships with other countries in the region for maritime domain awareness and capacity
building; and
(6) supports the continuation of operations by the United States Armed Forces in the Western
Pacific, including in partnership with the armed forces of other countries in the region, in
support of freedom of navigation, the maintenance of peace and stability, and respect for
universally recognized principles of international law, including the peaceful resolution of
issues of sovereignty and unimpeded lawful commerce.
An August 1, 2013, press report stated:
China said on Thursday [August 1] it had lodged a formal complaint with the United States
after the U.S. Senate passed a resolution expressing concern about Chinese actions in the
disputed East and South China Seas....
“The above resolution proposed by a minority of senators took heed of neither history nor
facts, unjustifiably blaming China and sending the wrong message,” China’s Foreign
Ministry said in a statement.
“China expresses its strong opposition, and has already made stern representations with the
U.S. side. We urge the relevant senators to respect the facts and correct their mistakes in
order to avoid further complicating the issue and the regional situation,” it added.115
115136
136
Ben Blanchard, “China Condemns U.S. Senate Over Sea Dispute,” Reuters.com, August 1, 2013.
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Appendix A. Legislative Activity in 112th Congress
H.R. 4310/S. 3254 (FY2013 National Defense Authorization Act)
Senate
On November 29, 2012, as part of its consideration of the FY2013 National Defense
Authorization Act (S. 3254), the Senate agreed by unanimous consent to S.Amdt. 3275 to S.
3254, which states:
At the end of subtitle D of title XII, add the following:
SEC. 1246. SENSE OF THE SENATE ON THE SITUATION IN THE SENKAKU
ISLANDS.
It is the sense of the Senate that—
(1) the East China Sea is a vital part of the maritime commons of Asia, including critical sea
lanes of communication and commerce that benefit all nations of the Asia-Pacific region;
(2) the peaceful settlement of territorial and jurisdictional disputes in the East China Sea
requires the exercise of self-restraint by all parties in the conduct of activities that would
complicate or escalate disputes and destabilize the region, and differences should be handled
in a constructive manner consistent with universally recognized principles of customary
international law;
(3) while the United States takes no position on the ultimate sovereignty of the Senkaku
islands, the United States acknowledges the administration of Japan over the Senkaku
Islands;
(4) The unilateral actions of a third party will not affect the United States’ acknowledgement
of the administration of Japan over the Senkaku Islands;
(5) the United States has national interests in freedom of navigation, the maintenance of
peace and stability, respect for international law, and unimpeded lawful commerce;
(6) the United States supports a collaborative diplomatic process by claimants to resolve
territorial disputes without coercion, and opposes efforts at coercion, the threat of use of
force, or use of force by any claimant in seeking to resolve sovereignty and territorial issues
in the East China Sea;
(7) the United States reaffirms its commitment to the Government of Japan under Article V
of the Treaty of Mutual Cooperation and Security that ``[e]ach Party recognizes that an
armed attack against either Party in the territories under the administration of Japan would be
dangerous to its own peace and safety and declares that it would act to meet the common
danger in accordance with its constitutional provisions and processes’’.
Conference
Section 1286 of the conference report (H.Rept. 112-705 of December 18, 2012) on H.R.
4310/P.L. 112-239 of January 2, 2013, states:
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SEC. 1286. SENSE OF CONGRESS ON THE SITUATION IN THE SENKAKU
ISLANDS.
It is the sense of Congress that—
(1) the East China Sea is a vital part of the maritime commons of Asia, including critical sea
lanes of communication and commerce that benefit all nations of the Asia-Pacific region;
(2) the peaceful settlement of territorial and jurisdictional disputes in the East China Sea
requires the exercise of self-restraint by all parties in the conduct of activities that would
complicate or escalate disputes and destabilize the region, and differences should be handled
in a constructive manner consistent with universally recognized principles of customary
international law;
(3) while the United States takes no position on the ultimate sovereignty of the Senkaku
Islands, the United States acknowledges the administration of Japan over the Senkaku
Islands;
(4) the unilateral action of a third party will not affect the United States’ acknowledgment of
the administration of Japan over the Senkaku Islands;
(5) the United States has national interests in freedom of navigation, the maintenance of
peace and stability, respect for international law, and unimpeded lawful commerce;
(6) the United States supports a collaborative diplomatic process by claimants to resolve
territorial disputes without coercion, and opposes efforts at coercion, the threat of use of
force, or use of force by any claimant in seeking to resolve sovereignty and territorial issues
in the East China Sea; and
(7) the United States reaffirms its commitment to the Government of Japan under Article V
of the Treaty of Mutual Cooperation and Security that ‘‘[e]ach Party recognizes that an
armed attack against either Party in the territories under the administration of Japan would be
dangerous to its own peace and safety and declares that it would act to meet the common
danger in accordance with its constitutional provisions and processes’’.
S.Res. 524 (Agreed to by the Senate)
This resolution, reaffirming the strong support of the United States for the 2002 declaration of
conduct of parties in the South China Sea among the member states of ASEAN and the People’s
Republic of China, and for other purposes, was introduced on July 23, 2012, and agreed to in
Senate without amendment and an amended preamble by unanimous consent on August 2, 2012.
S.Res. 217 (Agreed to by the Senate)
This resolution, calling for a peaceful and multilateral resolution to maritime territorial disputes in
Southeast Asia, was introduced on June 27, 2011, and considered, and agreed to without
amendment and with a preamble by unanimous consent the same day.
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H.R. 6313
This bill to promote peaceful and collaborative resolution of maritime territorial disputes in the
South China Sea and its environs and other maritime areas adjacent to the East Asian mainland
was introduced on August 2, 2012.
H.Res. 352
This resolution, calling for a peaceful and collaborative resolution of maritime territorial disputes
in the South China Sea and its environs and other maritime areas adjacent to the East Asian
mainland, was introduced on July 15, 2011.
H.Res. 616
This resolution, expressing the sense of the House of Representatives regarding United States
relations with the People’s Republic of China, was introduced on April 16, 2012. Paragraph 8 of
the resolution “encourage[s] the peaceful resolution of maritime territorial disputes in the South
China Sea and East China Sea, and support efforts to facilitate a multilateral, peaceful process to
resolve these disputes.”
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Appendix B. 2002 Declaration on Conduct of Parties
in South China Sea
The text of the 2002 Declaration on the Conduct of Parties in the South China Sea is as
follows:116137
DECLARATION ON THE CONDUCT OF PARTIES IN THE SOUTH CHINA SEA
The Governments of the Member States of ASEAN and the Government of the People’s
Republic of China,
REAFFIRMING their determination to consolidate and develop the friendship and
cooperation existing between their people and governments with the view to promoting a 21st
century-oriented partnership of good neighbourliness and mutual trust;
COGNIZANT of the need to promote a peaceful, friendly and harmonious environment in
the South China Sea between ASEAN and China for the enhancement of peace, stability,
economic growth and prosperity in the region;
COMMITTED to enhancing the principles and objectives of the 1997 Joint Statement of the
Meeting of the Heads of State/Government of the Member States of ASEAN and President
of the People’s Republic of China;
DESIRING to enhance favourable conditions for a peaceful and durable solution of
differences and disputes among countries concerned;
HEREBY DECLARE the following:
1. The Parties reaffirm their commitment to the purposes and principles of the Charter of the
United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and
Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other
universally recognized principles of international law which shall serve as the basic norms
governing state-to-state relations;
2. The Parties are committed to exploring ways for building trust and confidence in
accordance with the above-mentioned principles and on the basis of equality and mutual
respect;
3. The Parties reaffirm their respect for and commitment to the freedom of navigation in and
overflight above the South China Sea as provided for by the universally recognized
principles of international law, including the 1982 UN Convention on the Law of the Sea;
4. The Parties concerned undertake to resolve their territorial and jurisdictional disputes by
peaceful means, without resorting to the threat or use of force, through friendly consultations
and negotiations by sovereign states directly concerned, in accordance with universally
recognized principles of international law, including the 1982 UN Convention on the Law of
the Sea;
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Text as taken from http://www.aseansec.org/13163.htm.
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5. The Parties undertake to exercise self-restraint in the conduct of activities that would
complicate or escalate disputes and affect peace and stability including, among others,
refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays,
and other features and to handle their differences in a constructive manner.
Pending the peaceful settlement of territorial and jurisdictional disputes, the Parties
concerned undertake to intensify efforts to seek ways, in the spirit of cooperation and
understanding, to build trust and confidence between and among them, including:
a. holding dialogues and exchange of views as appropriate between their defense and
military officials;
b. ensuring just and humane treatment of all persons who are either in danger or in distress;
c. notifying, on a voluntary basis, other Parties concerned of any impending joint/combined
military exercise; and
d. exchanging, on a voluntary basis, relevant information.
6. Pending a comprehensive and durable settlement of the disputes, the Parties concerned
may explore or undertake cooperative activities. These may include the following:
a. marine environmental protection;
b. marine scientific research;
c. safety of navigation and communication at sea;
d. search and rescue operation; and
e. combating transnational crime, including but not limited to trafficking in illicit drugs,
piracy and armed robbery at sea, and illegal traffic in arms.
The modalities, scope and locations, in respect of bilateral and multilateral cooperation
should be agreed upon by the Parties concerned prior to their actual implementation.
7. The Parties concerned stand ready to continue their consultations and dialogues
concerning relevant issues, through modalities to be agreed by them, including regular
consultations on the observance of this Declaration, for the purpose of promoting good
neighbourliness and transparency, establishing harmony, mutual understanding and
cooperation, and facilitating peaceful resolution of disputes among them;
8. The Parties undertake to respect the provisions of this Declaration and take actions
consistent therewith;
9. The Parties encourage other countries to respect the principles contained in this
Declaration;
10. The Parties concerned reaffirm that the adoption of a code of conduct in the South China
Sea would further promote peace and stability in the region and agree to work, on the basis
of consensus, towards the eventual attainment of this objective.
Done on the Fourth Day of November in the Year Two Thousand and Two in Phnom Penh,
the Kingdom of Cambodia.
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Appendix C. February 5, 2014, Testimony of
Assistant Secretary of State Daniel Russel
The appendix presents the text of the written statement of Assistant Secretary of State Daniel
Russel for a February 5, 2014, hearing before the subcommitteeSubcommittee on Asia and the Pacific of the
House Foreign Affairs Committee on maritime disputes in East Asia. The text of the statement is
as follows:
Chairman Chabot, Members of the Subcommittee, thank you for the opportunity to testify
today on these important issues.
Before I begin, I would also like to take this opportunity to thank you, Chairman Chabot, for
your leadership on this issue and for your work to enhance our engagement with the AsiaPacific region. This Subcommittee has contributed to the rich bipartisan tradition of
engaging the Asia-Pacific and advancing U.S. interests there.
The Members of this Subcommittee know well the importance of the Asia-Pacific region to
American interests. The broader region boasts over half the world’s population, half of the
world’s GDP, and nearly half of the world’s trade, and is home to some of the fastest
growing economies in the world. More and more American citizens are now living, working,
and studying in this part of the world and people-to-people and family ties between
Americans and the peoples of the Asia-Pacific have witnessed tremendous growth. Growing
numbers of American companies are investing in and exporting their products and services
to rapidly expanding East Asian markets. Asia-Pacific businesses are increasing their profiles
in the United States and creating jobs for American workers. And, as the region’s economies
continue to grow and their interests expand, it becomes increasingly important that the
governments and institutions there contribute to upholding and strengthening international
law and standards – ranging from human rights to environmental protection to responsible
policies on climate change, maritime security, and trade and investment. The effects of what
happens in the Asia-Pacific Region will be felt across the globe and have direct implications
for America’s interests.
It is precisely with this in mind that this administration has for the past five years made
sustained engagement in the Asia-Pacific a strategic priority. This is precisely why Secretary
Kerry is about to make his fifth visit to Asia in ten months and why he has devoted so much
time and effort to meeting, calling and consulting with his Asian counterparts.
We have a strong stake in the continuing economic growth of this region, and we are
working to ensure that Americans can fully participate in that growth and share in that
prosperity. We are negotiating high-standard trade and investment agreements that will
unlock the dynamism of Pacific Rim economies for mutual benefit. We are bolstering
regional cooperation on transnational issues through ASEAN and its related institutions. And
we are helping countries manage complex environmental issues resulting from rapid
development. The common thread running through our strategic rebalancing is a
determination to ensure that the Asia-Pacific remains an open, inclusive, and prosperous
region guided by widely accepted rules and standards and a respect for international law.
Since the end of the Second World War, a maritime regime based on international law that
promotes freedom of navigation and lawful uses of the sea has facilitated Asia’s impressive
economic growth. The United States, through our our alliances, our security partnerships and
our overall military presence and posture, has been instrumental in sustaining that maritime
regime and providing the security that has enabled the countries in the region to prosper. As
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a maritime nation with global trading networks, the United States has a national interest in
freedom of the seas and in unimpeded lawful commerce. From President Thomas Jefferson’s
actions against the Barbary pirates to President Reagan’s decision that the United States will
abide by the Law of the Sea Convention’s provisions on navigation and other traditional uses
of the ocean, American foreign policy has long defended the freedom of the seas. And as we
consistently state, we have a national interest in the maintenance of peace and stability;
respect for international law; unimpeded lawful commerce; and freedom of navigation and
overflight in the East China and South China Seas.
For all these reasons, the tensions arising from maritime and territorial disputes in the AsiaPacific are of deep concern to us and to our allies. Both the South China and East China Seas
are vital thoroughfares for global commerce and energy. Well over half the world’s merchant
tonnage flows through the South China Sea, and over 15 million barrels of oil per day
transited the Strait of Malacca last year, with most of it continuing onward through the East
China Sea to three of the world’s largest economies—Japan, the Republic of Korea, and
China. A simple miscalculation or incident could touch off an escalatory cycle.
Confrontations between fishermen and even law enforcement patrols are not unusual in these
waters. But the frequency and assertiveness of some countries’ patrols are increasing. In
addition, the imposition of competing regulations by different countries over disputed
territory and associated maritime areas and airspace is raising tensions and increasing the risk
of confrontation. We witnessed a tragic incident in May of last year, when a Philippine Coast
Guard patrol shot and killed a fisherman from Taiwan. Both sides, to their credit, took steps
to prevent an escalation of tensions. But the risk of confrontation could have very serious
adverse consequences for all of our economic and security interests.
Accordingly, we have consistently emphasized in our diplomacy in the region as well as in
our public messaging the importance of exercising restraint, maintaining open channels of
dialogue, lowering rhetoric, behaving safely and responsibly in the sky and at sea, and
peacefully resolving territorial and maritime disputes in accordance with international law.
We are working to help put in place diplomatic and other structures to lower tensions and
manage these disputes peacefully. We have sought to prevent provocative or unilateral
actions that disrupt the status quo or jeopardize peace and security. When such actions have
occurred, we have spoken out clearly and, where appropriate, taken action. In an effort to
build consensus and capabilities in support of these principles, the administration has
invested considerably in the development of regional institutions and bodies such as the
ASEAN Regional Forum, the ASEAN Defense Ministers Meeting Plus, the East Asia
Summit, and the Expanded ASEAN Maritime Forum. These forums, as they continue to
develop, play an important role in reinforcing international law and practice and building
practical cooperation among member states.
In the South China Sea, we continue to support efforts by ASEAN and China to develop an
effective Code of Conduct. Agreement on a Code of Conduct is long overdue and the
negotiating process should be accelerated. This is something that China and ASEAN
committed to back in 2002 when they adopted their Declaration on the Conduct of Parties in
the South China Sea. An effective Code of Conduct would promote a rules-based framework
for managing and regulating the behavior of the relevant countries in the South China Sea. A
key part of that framework, which we and many others believe should be adopted quickly, is
inclusion of mechanisms such as hotlines and emergency procedures for preventing incidents
in sensitive areas and managing them when they do occur in ways that prevent disputes from
escalating.
And in the East China Sea, we remain concerned about the serious downturn in China-Japan
relations. We support Japan’s call for diplomacy and crisis management procedures in order
to avoid a miscalculation or a dangerous incident. It is important to lower tensions, turn
down the rhetoric, and exercise caution and restraint in this sensitive area. China and Japan
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are the world’s second and third largest economies and have a shared interest in a stable
environment to facilitate economic growth. Neither these two important countries nor the
global economy can afford an unintended clash that neither side seeks or wants. It is
imperative that Japan and China use diplomatic means to manage this issue peacefully and
set aside matters that can’t be resolved at this time.
China’s announcement of an Air Defense Identification Zone (ADIZ) over the East China
Sea in November was a provocative act and a serious step in the wrong direction. The
Senkakus are under the administration of Japan and unilateral attempts to change the status
quo raise tensions and do nothing under international law to strengthen territorial claims. The
United States neither recognizes nor accepts China’s declared East China Sea ADIZ and has
no intention of changing how we conduct operations in the region. China should not attempt
to implement the ADIZ and should refrain from taking similar actions elsewhere in the
region.
Mr. Chairman, we have a deep and long-standing stake in the maintenance of prosperity and
stability in the Asia-Pacific and an equally deep and abiding long-term interest in the
continuance of freedom of the seas based on the rule of law—one that guarantees, among
other things, freedom of navigation and overflight and other internationally lawful uses of
the sea related to those freedoms. International law makes clear the legal basis on which
states can legitimately assert their rights in the maritime domain or exploit marine resources.
By promoting order in the seas, international law is instrumental in safeguarding the rights
and freedoms of all countries regardless of size or military strength.
I think it is imperative that we be clear about what we mean when the United States says that
we take no position on competing claims to sovereignty over disputed land features in the
East China and South China Seas. First of all, we do take a strong position with regard to
behavior in connection with any claims: we firmly oppose the use of intimidation, coercion
or force to assert a territorial claim. Second, we do take a strong position that maritime
claims must accord with customary international law. This means that all maritime claims
must be derived from land features and otherwise comport with the international law of the
sea. So while we are not siding with one claimant against another, we certainly believe that
claims in the South China Sea that are not derived from land features are fundamentally
flawed. In support of these principles and in keeping with the longstanding U.S. Freedom of
Navigation Program, the United States continues to oppose claims that impinge on the rights,
freedoms, and lawful uses of the sea that belong to all nations.
As I just noted, we care deeply about the way countries behave in asserting their claims or
managing their disputes. We seek to ensure that territorial and maritime disputes are dealt
with peacefully, diplomatically and in accordance with international law. Of course this
means making sure that shots aren’t fired; but more broadly it means ensuring that these
disputes are managed without intimidation, coercion, or force. We have repeatedly made
clear that freedom of navigation is reflected in international law, not something to be granted
by big states to others. President Obama and Secretary Kerry have made these points
forcefully and clearly in their interactions with regional leaders, and I—along with my
colleagues in the State Department, Defense Department, the National Security Council and
other agencies—have done likewise.
We are also candid with all the claimants when we have concerns regarding their claims or
the ways that they pursue them. Deputy Secretary Burns and I were in Beijing earlier this
month to hold regular consultations with the Chinese government on Asia-Pacific issues, and
we held extensive discussions regarding our concerns. These include continued restrictions
on access to Scarborough Reef; pressure on the long-standing Philippine presence at the
Second Thomas Shoal; putting hydrocarbon blocks up for bid in an area close to another
country’s mainland and far away even from the islands that China is claiming; announcing
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administrative and even military districts in contested areas in the South China Sea; an
unprecedented spike in risky activity by China’s maritime agencies near the Senkaku Islands;
the sudden, uncoordinated and unilateral imposition of regulations over contested airspace in
the case of the East China Sea Air Defense Identification Zone; and the recent updating of
fishing regulations covering disputed areas in the South China Sea. These actions have raised
tensions in the region and concerns about China’s objectives in both the South China and the
East China Seas.
There is a growing concern that this pattern of behavior in the South China Sea reflects an
incremental effort by China to assert control over the area contained in the so-called “ninedash line,” despite the objections of its neighbors and despite the lack of any explanation or
apparent basis under international law regarding the scope of the claim itself. China’s lack of
clarity with regard to its South China Sea claims has created uncertainty, insecurity and
instability in the region. It limits the prospect for achieving a mutually agreeable resolution
or equitable joint development arrangements among the claimants. I want to reinforce the
point that under international law, maritime claims in the South China Sea must be derived
from land features. Any use of the “nine dash line” by China to claim maritime rights not
based on claimed land features would be inconsistent with international law. The
international community would welcome China to clarify or adjust its nine-dash line claim to
bring it in accordance with the international law of the sea.
We support serious and sustained diplomacy between the claimants to address overlapping
claims in a peaceful, non-coercive way. This can and should include bilateral as well as
multilateral diplomatic dialogue among the claimants. But at the same time we fully support
the right of claimants to exercise rights they may have to avail themselves of peaceful
dispute settlement mechanisms. The Philippines chose to exercise such a right last year with
the filing of an arbitration case under the Law of the Sea Convention.
Both legal and diplomatic processes will take time to play out. The effort to reach agreement
on a China-ASEAN Code of Conduct has been painfully slow. However, there are important
steps that the relevant parties can take in the short term to lower tensions and avoid
escalation. One line of effort, as I mentioned earlier, is to put in place practical mechanisms
to prevent incidents or manage them when they occur. Another common-sense measure
would be for the claimants to agree not to undertake new unilateral attempts to change the
status quo, defined as of the date of the signing of the 2002 Declaration of Conduct, that
would include agreement not to assert administrative measures or controls in disputed areas.
And as I have indicated, all claimants—not only China—should clarify their claims in terms
of international law, including the law of the sea.
In the meantime, a strong diplomatic and military presence by the United States, including
by strengthening and modernizing our alliances and continuing to build robust strategic
partnerships, remains essential to maintain regional stability. This includes our efforts to
promote best practices and good cooperation on all aspects of maritime security and bolster
maritime domain awareness and our capacity building programs in Southeast Asia. The
Administration has also consistently made clear our desire to build a strong and cooperative
relationship with China to advance peace and prosperity in the Asia-Pacific, just as we
consistently have encouraged all countries in the region to pursue positive relations with
China. And this includes working with all countries in the region to strengthen regional
institutions like ASEAN and the East Asia Summit as venues where countries can engage in
clear dialogue with all involved about principles, values and interests at stake, while
developing cooperative activities – like the Expanded ASEAN Seafarers Training initiative
we recently launched – to build trust and mechanisms to reduce the chances of incidents.
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To conclude, this is an issue of immense importance to the United States, the Asia-Pacific,
and the world. And I want to reaffirm here today that the United States will continue to play
a central role in underwriting security and stability in the Asia-Pacific.
Mr. Chairman, I thank you for this opportunity to appear before you today to discuss this
important issue. I look forward to answering any questions you may have.117138
Author Contact Information
Ronald O'Rourke
Specialist in Naval Affairs
rorourke@crs.loc.gov, 7-7610
117138
Testimony [prepared statement] of Deputy Assistant Secretary of Defense Robert Scher, Asian and Pacific Security
Affairs, Office of the Secretary of Defense, before the Subcommittee on East Asian and Pacific Affairs, Senate
Committee on Foreign Relations, United States Senate, July 15, 2009, [hearing on] Maritime Issues and Sovereignty
Disputes in East Asia, 7 pp.
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