Maritime Territorial and Exclusive Economic
Zone (EEZ) Disputes Involving China: Issues
for Congress
Ronald O'Rourke
Specialist in Naval Affairs
September 18, 2015
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 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 could substantially affect U.S. strategic, political, and
economic interests in the Asia-Pacific region and elsewhere.
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.
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 2014.
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 supports the principle that disputes between countries should be
resolved peacefully, without coercion, intimidation, threats, or the use of force, and in
a manner consistent with international law.
The United States supports the principle of freedom of seas, meaning the rights,
freedoms, and uses of the sea and airspace guaranteed to all nations in international
law. 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 takes no position on competing claims to sovereignty over
disputed land features in the ECS and SCS.
Although the United States takes no position on competing claims to sovereignty
over disputed land features in the ECS and SCS, the United States does have a
position on how competing claims should be resolved: Territorial disputes should be
resolved peacefully, without coercion, intimidation, threats, or the use of force, and in
a manner consistent with international law.
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.
Parties should avoid taking provocative or unilateral actions that disrupt the status
quo or jeopardize peace and security. The United States does not believe that large-
scale land reclamation with the intent to militarize outposts on disputed land features
is consistent with the region’s desire for peace and stability.
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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.
China’s actions for asserting and defending its maritime territorial and EEZ claims in the ECS
and SCS raise several potential policy and oversight issues for Congress, including whether the
United States has an adequate strategy for countering China’s “salami-slicing” strategy, whether
the United States has taken adequate actions to reduce the risk that the United States might be
drawn into a crisis or conflict over a territorial dispute involving China, and whether the United
States should become a party to the United Nations Convention on the Law of the Sea
(UNCLOS).
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 1
Why China, Other Countries in the Region, and the United States Consider These
Disputes Important ................................................................................................................. 1
Importance to China and Other Countries in the Region .................................................... 2
Importance to China Specifically ........................................................................................ 3
Importance to the United States .......................................................................................... 3
Strategic Context from a U.S. Perspective ................................................................................ 7
Shift in International Security Environment ....................................................................... 7
U.S. Grand Strategy ............................................................................................................ 8
U.S. Strategic Rebalancing to Asia-Pacific Region ............................................................ 8
Challenge to U.S. Sea Control and U.S. Position in Western Pacific ................................. 8
Regional U.S. Allies and Partners ....................................................................................... 9
Overview of the Maritime Disputes .......................................................................................... 9
Maritime Territorial Disputes .............................................................................................. 9
Dispute Regarding China’s Rights Within Its EEZ ............................................................ 11
Relationship of Maritime Territorial Disputes to EEZ Dispute ........................................ 14
Treaties and Agreements Related to the Disputes ................................................................... 15
United Nations Convention on the Law of the Sea (UNCLOS) ....................................... 15
1972 Multilateral Convention on Preventing Collisions at Sea
(COLREGs Convention)................................................................................................ 16
April 2014 Code for Unplanned Encounters At Sea (CUES) ........................................... 17
November 2014 U.S.-China Memorandum of Understanding (MOU) On Air and
Maritime Encounters...................................................................................................... 19
Negotiations Between China and ASEAN on SCS Code of Conduct .............................. 20
China’s Approach to the Disputes ........................................................................................... 20
Map of the Nine-Dash Line .............................................................................................. 20
“Salami-Slicing” Strategy and “Cabbage” Strategy ......................................................... 24
Use of China Coast Guard Ships and Other Ships ............................................................ 24
Preference for Treating Disputes on Bilateral Basis ......................................................... 25
Comparison with U.S. Actions Toward Caribbean and Gulf of Mexico ........................... 25
Chinese Actions Since Late 2013 That Have Heightened Concerns ................................ 26
China’s Land Reclamation and Facility-Construction Activities ...................................... 27
U.S. Position on the Disputes .................................................................................................. 29
Some Key Elements .......................................................................................................... 29
Operational Rights in EEZs .............................................................................................. 30
U.S. Freedom of Navigation (FON) Program ................................................................... 31
Issues for Congress ........................................................................................................................ 32
U.S. Strategy for Countering China’s “Salami-Slicing” Strategy ........................................... 32
Some Reported U.S. Actions ............................................................................................ 32
DOD “Lines of Effort” ...................................................................................................... 33
Joint Exercises with Other Countries ................................................................................ 34
Efforts to Build Allied and Partner Capacity .................................................................... 34
May 2015 Press Report ..................................................................................................... 37
Potential Further U.S. Actions Suggested by Observers ................................................... 38
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Whether to Send U.S. Navy Ships Inside 12-Mile Lines of Chinese-Occupied
SCS Sites ....................................................................................................................... 39
Risk of United States Being Drawn into a Crisis or Conflict .................................................. 46
Whether United States Should Ratify United Nations Convention on the Law of the
Sea (UNCLOS) .................................................................................................................... 47
Legislative Activity in 2015 .......................................................................................................... 49
Concurrent Resolution on the Budget for FY2016 (S.Con.Res. 11) ....................................... 49
Senate ................................................................................................................................ 49
FY2016 National Defense Authorization Act (H.R. 1735/S. 1376) ........................................ 49
House ................................................................................................................................ 49
Senate ................................................................................................................................ 50
Figures
Figure 1. Maritime Territorial Disputes Involving China .............................................................. 10
Figure 2. Locations of 2001, 2002, and 2009 U.S.-Chinese Incidents at Sea and In Air .............. 13
Figure 3. Map of the Nine-Dash Line ........................................................................................... 21
Figure 4. EEZs Overlapping Zone Enclosed by Map of Nine-Dash Line ..................................... 22
Figure 5. Table from August 2015 DOD Report ........................................................................... 37
Figure C-1. EEZs in South China Sea and East China Sea ........................................................... 87
Figure C-2. Claimable World EEZs............................................................................................... 88
Appendixes
Appendix A. U.S. Security Treaties with Japan and Philippines ................................................... 53
Appendix B. Statements from U.S. Officials Regarding U.S. Position ......................................... 55
Appendix C. Operational Rights in EEZs ..................................................................................... 86
Appendix D. Options Suggested by Observers for Strengthening U.S. Actions to Counter
China’s “Salami-Slicing” Strategy ............................................................................................. 92
Contacts
Author Contact Information .......................................................................................................... 95
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Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Introduction
This report provides background information and issues for Congress on maritime territorial and
exclusive economic zone (EEZ)1 disputes in the East China (ECS) and South China Sea (SCS)
involving China, with a focus on how these disputes may affect U.S. strategic and policy
interests. Other CRS reports focus on other aspects of these disputes:
For details on the individual maritime territorial disputes in the ECS and
SCS, and on actions taken by the various claimant countries in the
region, see CRS Report R42930, Maritime Territorial Disputes in East
Asia: Issues for Congress, by Ben Dolven, Mark E. Manyin, and Shirley
A. Kan.
For an in-depth discussion of China’s land reclamation and facility-
construction activities at several sites in the Spratly Islands, see CRS
Report R44072, Chinese Land Reclamation in the South China Sea:
Implications and Policy Options, by Ben Dolven et al.
For an in-depth discussion of China’s air defense identification zone in
the ECS, see CRS Report R43894, China’s Air Defense Identification
Zone (ADIZ), by Ian E. Rinehart and Bart Elias.
China’s actions for asserting and defending its maritime territorial and EEZ claims in the ECS
and SCS raise several potential policy and oversight issues for Congress. Decisions that Congress
makes on these issues could substantially affect U.S. strategic, political, and economic interests in
the Asia-Pacific region and elsewhere.
This report uses the term China’s near-seas region to mean the Yellow Sea, the ECS, and the
SCS. This report uses the term EEZ dispute to refer to a dispute principally between China and
the United States over whether coastal states have a right under international law to regulate the
activities of foreign military forces operating in their EEZs. There are also other kinds of EEZ
disputes, including disputes between neighboring countries regarding the extents of their adjacent
EEZs.
Background
Why China, Other Countries in the Region, and the United States
Consider These Disputes Important
Although the maritime disputes discussed in this report at first glance may appear to be disputes
over a few seemingly unimportant rocks and reefs in the ocean, these disputes are considered
important by China, other countries in the region, and the United States for a variety of strategic,
political, and economic reasons, including those briefly outlined 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.
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Importance to China and Other Countries in the Region
The disputes discussed in this report are considered important by China and other countries in the
region for the following reasons, among others:
Trade routes. Major commercial shipping routes pass through these
waters. It is frequently stated, for example, that more than $5 trillion
worth of international shipping trade passes through the SCS each year.2
Much of this trade travels to or from China and other countries in the
region.
Fish stocks and hydrocarbons. The ECS and SCS contain significant
fishing grounds and potentially significant oil and gas exploration areas.3
Military position. Some of the disputed land features are being used, or
in the future might be used, as bases and support locations for military
and law enforcement (e.g., coast guard) forces, which is something
countries might do not only to improve their ability to assert and defend
their maritime territorial claims and their commercial activities in
surrounding waters, but for other reasons as well, such as improving their
2 A July 24, 2015, Department of Defense (DOD) news report, for example, states:
In a security forum panel discussion in Aspen, Colorado, Navy Adm. Harry B. Harris Jr. said
China’s assertiveness in the South China Sea is an issue the American public must know about and
the United States must address....
Each year, he noted, more than $5.3 trillion in global sea-based trade relies on unimpeded sea lanes
through the South China Sea, adding that the Strait of Malacca alone sees more than 25 percent of
oil shipments and 50 percent of all natural gas transits each day.
(Terri Moon Cronk, “Pacom Chief: China’s Land Reclamation Has Broad Consequences,” DoD
News, July 24, 2015.)
An August 2015 DOD report to Congress states:
Maritime Asia is a vital thruway for global commerce, and it will be a critical part of the region’s
expected economic growth. The United States wants to ensure the Asia-Pacific region’s continued
economic progress. The importance of Asia-Pacific sea lanes for global trade cannot be overstated.
Eight of the world’s 10 busiest container ports are in the Asia-Pacific region, and almost 30 percent
of the world’s maritime trade transits the South China Sea annually, including approximately $1.2
trillion in ship-borne trade bound for the United States. Approximately two-thirds of the world’s oil
shipments transit through the Indian Ocean to the Pacific, and in 2014, more than 15 million barrels
of oil passed through the Malacca Strait per day.
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, p. 1. The report was submitted in response to Section 1259 of the Carl Levin and Howard P.
“Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (H.R. 3979/P.L. 113-
291 of December 19, 2014).
3 DOD states:
There are numerous, complex maritime and territorial disputes in the Asia-Pacific region. The
presence of valuable fish stocks and potential existence of large hydrocarbon resources under the
East and South China Seas exacerbate these complicated claims. A United Nations report estimates
that the South China Sea alone accounts for more than 10 percent of global fisheries production.
Though figures vary substantially, the Energy Information Administration estimates that there are
approximately 11 billion barrels and 190 trillion cubic feet of proved and probable oil and natural
gas reserves in the South China Sea and anywhere from one to two trillion cubic feet of natural gas
reserves, and 200 million barrels of oil in the East China Sea. Claimants regularly clash over
fishing rights, and earlier attempts at joint development agreements have faltered in recent years.
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, p. 5.)
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ability to monitor and respond to activities on or near the mainland areas
of other countries in the region.
Nationalism. The maritime territorial claims have become matters of
often-intense nationalistic pride.
Importance to China Specifically
In addition to the factors cited above, some observers believe that China wants to achieve a
greater degree of control over its near-seas region in part for one or more of the following
reasons:
to create a buffer zone inside the so-called first island chain4 for keeping
U.S. military forces away from China’s mainland in time of conflict;
to create a bastion (i.e., an operating sanctuary) in the SCS for China’s
emerging sea-based strategic deterrent force of nuclear-powered ballistic
missile submarines (SSBNs);5 and
to help achieve a broader goal of becoming a regional hegemon in its
part of Eurasia.6
Importance to the United States
The maritime disputes discussed in this report are considered important by the United States for
several reasons, including those discussed below.
Non-use of Force or Coercion as a Means of Settling Disputes Between Countries
The maritime disputes discussed in this report pose a potential challenge to two key elements of
the U.S.-led international order that has operated since World War II. One of these key elements is
the principle 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 principle and could help reestablish the very different principle of “might makes
right” as a routine or defining characteristic of international relations.7
4 The first island chain is a term that refers to a string of islands, including Japan and the Philippines, that encloses
China’s near-seas region. The so-called second island chain, which reaches out to Guam, includes both China’s near-
seas region and the Philippine Sea between Guam and the Philippines. For a map of the first and second island chains,
see Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the
People’s Republic of China 2015, p. 87.
5 See, for example, Mathieu Duchatel and Eugenia Kazakova, “Tensions in the South China Sea: the Nuclear
Dimension,” SIPRI, July-August 2015; “S China Land Reclamation Aimed at Distracting US from Hainan,” Want
China Times, September 12, 2015; . For more on China’s emerging SSBNs force, which observers believe will be
based at a facility on Hainan Island in the SCS, see CRS Report RL33153, China Naval Modernization: Implications
for U.S. Navy Capabilities—Background and Issues for Congress, by Ronald O'Rourke.
6 See, for example, Gary Roughead, “China, Time and Rebalancing,” Hoover Institution, undated (but with copyright
of 2014), accessed Marh 25, 2014, at http://www.hoover.org/taskforces/military-history/strategika/11/roughead; Jim
Talent, “The Equilibrium of East Asia,” National Review Online, December 5, 2013; Robert E. Kelly, “What Would
Chinese Hegemony Look Like?” The Diplomat, February 10, 2014.
7 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
(continued...)
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Freedom of the Seas
A second 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
areas, as opposed to the freedom for conducting various activities at sea. A more complete way to
refer to the principle, as stated in the Department of Defense’s (DOD’s) annual FON report, is
“the rights, freedoms, and uses of the sea and airspace guaranteed to all nations in international
law.”8 The principle of freedom of the seas dates back hundreds of years.9 DOD states:
The United States has, throughout its history, advocated for the freedom of the seas for
economic and security reasons....
Freedom of the seas, however, includes more than the mere freedom of commercial
vessels to transit through international waterways. While not a defined term under
international law, the Department uses “freedom of the seas” to mean all of the rights,
freedoms, and lawful uses of the sea and airspace, including for military ships and
aircraft, recognized under international law. Freedom of the seas is thus also essential to
ensure access in the event of a crisis. Conflicts and disasters can threaten U.S. interests
and those of our regional allies and partners. The Department of Defense is therefore
committed to ensuring free and open maritime access to protect the stable economic order
that has served all Asia-Pacific nations so well for so long, and to maintain the ability of
U.S. forces to respond as needed.10
(...continued)
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 Ambassador 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.”
See also Andrew S. Erickson, “China’s Near-Seas Challenges,” National Review Online, January 13, 2014; Jack David,
“The Law of the Jungle Returns,” National Review Online, March 6, 2014.
8 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.
9 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.
10 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 1, 2.
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Some observers are concerned that China’s maritime territorial claims, particularly as shown in
China’s so-called map of the nine-dash line (see “Map of the Nine-Dash Line” below), appear to
challenge 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 principle of
international law in one part of the world, if accepted, could serve as a precedent for challenging
it in other parts of the world. Overturning the principle 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 and
significantly change the international legal regime governing sovereignty over the surface of the
world.11
An August 12, 2015, press report states:
China respects freedom of navigation in the disputed South China Sea but will not allow
any foreign government to invoke that right so its military ships and planes can intrude in
Beijing's territory, the Chinese ambassador [to the Philippines] said.
Ambassador Zhao Jianhua said late Tuesday [August 11] that Chinese forces warned a
U.S. Navy P-8A [maritime patrol aircraft] not to intrude when the warplane approached a
Chinese-occupied area in the South China Sea's disputed Spratly Islands in May....
“We just gave them warnings, be careful, not to intrude,” Zhao told reporters on the
sidelines of a diplomatic event in Manila....
When asked why China shooed away the U.S. Navy plane when it has pledged to respect
freedom of navigation in the South China Sea, Zhao outlined the limits in China's view.
“Freedom of navigation does not mean to allow other countries to intrude into the
airspace or the sea which is sovereign. No country will allow that,” Zhao said. “We say
freedom of navigation must be observed in accordance with international law. No
freedom of navigation for warships and airplanes.”12
Some observers are concerned that if China’s position on whether coastal states have a right
under international law to regulate the activities of foreign military forces in their EEZs (see
“Dispute Regarding China’s Rights Within Its EEZ”) were to gain greater international
acceptance under international law, it could substantially affect U.S. naval operations not only 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. Significant
portions of the world’s oceans are claimable as EEZs, including high-priority U.S. Navy
11 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, March 1, 2014.)
12 Jim Gomez, “Chinese Diplomat Outlines Limits to Freedom of Navigation,” Military Times, August 12, 2015.
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operating areas in the Western Pacific, the Persian Gulf, and the Mediterranean Sea.13 The legal
right of U.S. naval forces to operate freely in EEZ waters—an application of the principle of
freedom of the seas—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 changes (possibly very significant ones)
in U.S. military strategy or U.S. foreign policy goals.14
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.15
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 intervene
militarily in a crisis or conflict between China and Taiwan. It could also complicate the ability of
the United States to fulfill its obligations under its defense treaties with Japan, South Korea, and
the Philippines. 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.-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.16
13 The National Oceanic and Atmospheric Administration (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 June 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.)
14 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.
15 For additional background information on these treaties, see Appendix A.
16 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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Interpreting China’s Rise as a Major World Power
As China continues to emerge as a major world power, observers are assessing what kind of
international actor China will ultimately 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,17 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.
U.S. Strategic Goal of Preventing Emergence of Regional Hegemon in Eurasia
As mentioned earlier, some observers believe that China is pursuing a goal of becoming a
regional hegemon in its part of Eurasia, and that achieving a greater degree of control over its
near-seas region is a part of this effort. From a U.S. standpoint, such an effort would be highly
significant, because it has been a longstanding goal of U.S. grand strategy to prevent the
emergence of a regional hegemon in one part of Eurasia or another (see “U.S. Grand Strategy”
below).
Strategic Context from a U.S. Perspective
This section presents brief comments from a U.S. perspective on some elements of the strategic
context in which the maritime disputes discussed in this report may be considered. There is also a
broader context of U.S.-China relations and U.S. foreign policy toward the Asia-Pacific that is
covered in other CRS reports.18
Shift in International Security Environment
World events since late 2013 have led some observers to conclude that the international security
environment has undergone a shift from the familiar post-Cold War era of the last 20-25 years,
also sometimes known as the unipolar moment (with the United States as the unipolar power), to
a new and different strategic situation that features, among other things, renewed great power
competition and challenges to elements of the U.S.-led international order that has operated since
World War II.19 China’s actions to assert and defend its maritime territorial claims can be viewed
as one reflection of that shift.
17 DOD states that “In January 2013, the Philippines requested that an arbitral tribunal set up under the Law of the Sea
Convention address a number of legal issues arising with respect to the interpretation and application of the
Convention.... How China responds to a potential ruling from the arbitral tribunal will reflect China’s attitude toward
international maritime law.” (Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released
August 2015, p. 17.) See also Isaac B. Kardon, “The Enabling Role of UNCLOS in PRC Maritime Policy,” Asia
Maritime Transparency Initiative (Center for Strategic & International Studies), September 11, 2015.
18 See, for example, CRS Report R41108, U.S.-China Relations: An Overview of Policy Issues, by Susan V. Lawrence,
and CRS Report R42448, Pivot to the Pacific? The Obama Administration’s “Rebalancing” Toward Asia, coordinated
by Mark E. Manyin.
19 For additional discussion, see CRS Report R43838, A Shift in the International Security Environment: Potential
Implications for Defense—Issues for Congress, by Ronald O'Rourke.
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U.S. Grand Strategy
Discussion of the above-mentioned shift in the international security environment has led to a
renewed emphasis in discussions of U.S. security and foreign policy on grand strategy and
geopolitics. From a U.S. perspective, grand strategy can be understood as strategy considered at a
global or interregional level, as opposed to strategies for specific countries, regions, or issues.
Geopolitics refers to the influence on international relations and strategy of basic world
geographic features such as the size and location of continents, oceans, and individual countries.
From a U.S. perspective on grand strategy and geopolitics, it can be noted that 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. policymakers for the last several decades have chosen to pursue, as a key element of U.S.
grand 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 represent a concentration of power strong
enough to threaten core U.S. interests by, for example, denying the United States access to some
of the other hemisphere’s resources and economic activity. Although U.S. policymakers have not
often stated this key national strategic goal explicitly in public, U.S. military (and diplomatic)
operations in recent decades—both wartime operations and day-to-day operations—can be
viewed as having been carried out in no small part in support of this key goal.20
U.S. Strategic Rebalancing to Asia-Pacific Region
A 2012 DOD strategic guidance document21 and DOD’s report on the 2014 Quadrennial Defense
Review (QDR)22 state that U.S. military strategy will place an increased emphasis on the Asia-
Pacific region. Although Administration officials state that this U.S. strategic rebalancing toward
the Asia-Pacific region, as it is called, is not directed at any single country, many observers
believe it is intended to a significant degree as a response to China’s military modernization effort
and its assertive behavior regarding its maritime territorial claims.
Challenge to U.S. Sea Control and U.S. Position in Western Pacific
Observers of Chinese and U.S. military forces view China’s improving naval capabilities as
posing a potential challenge in the Western Pacific to the U.S. Navy’s ability to achieve and
maintain control of blue-water ocean areas in wartime—the first such challenge the U.S. Navy
has faced since the end of the Cold War.23 More broadly, these observers view China’s naval
capabilities as a key element of an emerging broader Chinese military challenge to the
longstanding status of the United States as the leading military power in the Western Pacific.
20 For additional discussion, see CRS Report R43838, A Shift in the International Security Environment: Potential
Implications for Defense—Issues for Congress, by Ronald O'Rourke.
21 Department of Defense, Sustaining U.S. Global Leadership: Priorities for 21st Century Defense, January 2012, 8 pp.
For additional discussion, see CRS Report R42146, Assessing the January 2012 Defense Strategic Guidance (DSG): In
Brief, by Catherine Dale and Pat Towell.
22 Department of Defense, Quadrennial Defense Review 2014, 64 pp. For additional discussion, see CRS Report
R43403, The 2014 Quadrennial Defense Review (QDR) and Defense Strategy: Issues for Congress, by Catherine Dale.
23 The term blue-water ocean areas is used here to mean waters that are away from shore, as opposed to near-shore (i.e.,
littoral) waters. Iran is viewed as posing a challenge to the U.S. Navy’s ability to quickly achieve and maintain sea
control in littoral waters in and near the Strait of Hormuz. For additional discussion, see CRS Report R42335, Iran’s
Threat to the Strait of Hormuz, coordinated by Kenneth Katzman.
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Regional U.S. Allies and Partners
The United States has certain security-related policies pertaining to Taiwan under the Taiwan
Relations Act (H.R. 2479/P.L. 96-8 of April 10, 1979). The United States has bilateral security
treaties with Japan, South Korea, and the Philippines, and an additional security treaty with
Australia and New Zealand.24 In addition to U.S. treaty allies, certain other countries in the
Western Pacific can be viewed as current or emerging U.S. security partners.
Overview of the Maritime 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):
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 controlled since 2012 by China;
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, and shoals, as well as some near-surface submerged features. The territorial
status of some of these other features is also in dispute.25 There are additional maritime territorial
disputes in the Western Pacific that do not involve China.26
24 For a summary, see “U.S. Collective Defense Arrangements,” accessed July 24, 2015, at http://www.state.gov/s/l/
treaty/collectivedefense/.
25 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.
26 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.
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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.
Maritime territorial disputes in the SCS and ECS date back many years, and have periodically led
to incidents and periods of increased tension.27 The disputes have again intensified in the past few
27 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
(continued...)
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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.
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,
principally 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
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.28 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.29
(...continued)
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.
28 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.
29 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.
DOD states that
Regarding excessive maritime claims, several claimants within the region have asserted maritime
claims along their coastlines and around land features that are inconsistent with international law.
For example, Malaysia attempts to restrict foreign military activities within its Exclusive Economic
Zone (EEZ), and Vietnam attempts to require notification by foreign warships prior to exercising
the right of innocent passage through its territorial sea. A number of countries have drawn coastal
baselines (the lines from which the breadth of maritime entitlements are measured) that are
inconsistent with international law, including Vietnam and China, and the United States also has
raised concerns with respect to Taiwan’s Law on the Territorial Sea and the Contiguous Zone’s
provisions on baselines and innocent passage in the territorial sea. Although we applaud the
Philippines’ and Vietnam’s efforts to bring its maritime claims in line with the Law of the Sea
Convention, more work remains to be done. Consistent with the long-standing U.S. Freedom of
Navigation Policy, the United States encourages all claimants to conform their maritime claims to
international law and challenges excessive maritime claims through U.S. diplomatic protests and
operational activities.
(continued...)
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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.30
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;31
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
(...continued)
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, pp. 7-8.)
30 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.
31 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
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.
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Island.32 DOD characterized the intercept as “very, very close, very
dangerous.”33
Figure 2 shows the locations of the 2001, 2002, and 2009 incidents listed in the first two bullets
above.
Figure 2. Locations of 2001, 2002, and 2009 U.S.-Chinese Incidents at Sea and In Air
Source: Mark E. Redden and Phil ip 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.
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
32 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.
33 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.
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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).34
DOD states that
The growing efforts of claimant States to assert their claims has led to an increase in air
and maritime incidents in recent years, including an unprecedented rise in unsafe activity
by China’s maritime agencies in the East and South China Seas. U.S. military aircraft and
vessels often have been targets of this unsafe and unprofessional behavior, which
threatens the U.S. objectives of safeguarding the freedom of the seas and promoting
adherence to international law and standards. China’s expansive interpretation of
jurisdictional authority beyond territorial seas and airspace causes friction with U.S.
forces and treaty allies operating in international waters and airspace in the region and
raises the risk of inadvertent crisis.
There have been a number of troubling incidents in recent years. For example, in August
2014, a Chinese J-11 fighter crossed directly under a U.S. P-8A Poseidon operating in the
South China Sea approximately 117 nautical miles east of Hainan Island. The fighter also
performed a barrel roll over the aircraft and passed the nose of the P-8A to show its
weapons load-out, further increasing the potential for a collision. However, since August
2014, U.S.-China military diplomacy has yielded positive results, including a reduction in
unsafe intercepts. We also have seen the PLAN implement agreed-upon international
standards for encounters at sea, such as the Code for Unplanned Encounters at Sea
(CUES),35 which was signed in April 2014.36
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:
34 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. As of September 26, 2014, a video of part of the incident was posted on
You Tube at http://www.youtube.com/watch?v=TiyeUWQObkg.
35 For more on the CUES agreement, see “April 2014 Code for Unplanned Encounters At Sea (CUES)” below.
36 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 14-15.
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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 the SCS or ECS could
permit China to expand the EEZ zone within which China claims a right
to regulate foreign military activities.
The two issues are ultimately separate from one another 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 EEZ dispute. From the U.S. perspective, however, the EEZ
dispute is arguably as significant as the maritime territorial disputes because of the EEZ dispute’s
proven history of leading to U.S.-Chinese incidents at sea and because of its potential for
affecting U.S. military operations not only in the SCS and ECS, but around the world.
Treaties and Agreements Related to the Disputes
This section briefly reviews some international treaties and agreements that bear on the disputes
discussed in this report.
United Nations Convention on the Law of the Sea (UNCLOS)
The United Nations Convention on the Law of the Sea (UNCLOS) establishes a treaty regime to
govern activities on, over, and under the world’s oceans. 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 January 7, 2015, 167 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).37
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, 1994.38 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. A March 10, 1983, statement on U.S. ocean policy by President
Ronald Reagan states that UNCLOS
contains provisions with respect to traditional uses of the oceans which generally confirm
existing maritime law and practice and fairly balance the interests of all states.
Today I am announcing three decisions to promote and protect the oceans interests of the
United States in a manner consistent with those fair and balanced results in the
Convention and international law.
37 Source: Chronological lists of ratifications of, accessions and successions to the Convention and the related
Agreements as at 3 October 2014 (updated January 7, 2015), accessed April 15, 2015, 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.
38 Treaty Document 103-39.
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First, the United States is prepared to accept and act in accordance with the balance of
interests relating to traditional uses of the oceans—such as navigation and overflight. In
this respect, the United States will recognize the rights of other states in the waters off
their coasts, as reflected in the Convention, so long as the rights and freedoms of the
United States and others under international law are recognized by such coastal states.
Second, the United States will exercise and assert its navigation and overflight rights and
freedoms on a worldwide basis in a manner that is consistent with the balance of interests
reflected in the convention. The United States will not, however, acquiesce in unilateral
acts of other states designed to restrict the rights and freedoms of the international
community in navigation and overflight and other related high seas uses.
Third, I am proclaiming today an Exclusive Economic Zone in which the United States
will exercise sovereign rights in living and nonliving resources within 200 nautical miles
of its coast. This will provide United States jurisdiction for mineral resources out to 200
nautical miles that are not on the continental shelf.39
UNCLOS builds on four 1958 law of the sea conventions to which the United States is a party:
the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas,
the Convention on the Continental Shelf, and the Convention on Fishing and Conservation of the
Living Resources of the High Seas.
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),40 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.”41 Although
commonly referred to as a set of rules or regulations, this 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.”42
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
39 United States Ocean Policy, Statement by the President, March 10, 1983, accessed April 15, 23015, at
http://www.state.gov/documents/organization/143224.pdf. The text is also available at http://www.reagan.utexas.edu/
archives/speeches/1983/31083c.htm.
40 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.
41 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-15824-
English.pdf.
42 Rule 1(a) of the convention.
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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 ASEAN43 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.44
In the 2014 edition of its annual report on military and security developments involving China,
the 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.45
April 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),46 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.47 The CUES agreement in effect supplements the 1972 COLREGs Convention (see
43 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.
44 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-provocative-
chinese-behavior.
45 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2014, p. 4.
46 For more on the WPNS, see 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/.)
47 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, April 23, 2014; Megha Rajagopalan, “Pacific Accord on Maritime Code Could Help Prevent Conflicts,”
(continued...)
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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 ‘unplanned encounters,’ not behavior; fails to address incidents in territorial waters; and does
not apply to fishing and maritime constabulary vessels [i.e., coast guard ships and other maritime
law enforcement ships], which are responsible for the majority of Chinese harassment
operations.”48 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....49
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.50
DOD states that
The Department marked a significant milestone in this effort in April 2014 when member
navies at the WPNS adopted the CUES in Qingdao, China. The CUES provides
standardized navigation and communication protocols for use when ships and aircraft
meet at sea, including a standardized set of language-independent communication
protocols to allow for communication between navies absent a common language.
(...continued)
Reuters.com, April 22, 2014.
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.
8-9. 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.
48 Jeff M. Smith and Joshua Eisenman, “China and America Clash on the High Seas: The EEZ Challenge,” The
National Interest, May 22, 2014.
49 Jeremy Page, “China Won’t Necessarily Observe New Conduct Code for Navies,” Wall Street Journal, April 23,
2014.
50 Patrick Cronin, “China’s Problem With Rules: Managing A Reluctant Stakeholder,” War on the Rocks, 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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The Department continues to seek regular opportunities for practical application of these
protocols. In July 2014, a U.S. Navy vessel was able to use CUES for the first time
during an unplanned encounter with the PLAN. It has since been used many times. Going
forward, the Department is also exploring options to expand the use of CUES to include
regional law enforcement vessels and Coast Guards. Given the growing use of maritime
law enforcement vessels to enforce disputed maritime claims, expansion of CUES to
MLE vessels would be an important step in reducing the risk of unintentional conflict.51
U.S. Navy officials have stated that the CUES agreement is working well, and that the United
States (as noted in the passage above) is interested in expanding the agreement to cover coast
guard ships.52
November 2014 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.53 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
(MMCA), and CUES.54
51 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 31.
52 See, for example, Michael Fabey, “Sino-U.S. Naval Drills Pay Off, Greenert Says,” Aerospace Daily & Defense
Report, August 20, 2015; David Tweed, “U.S. Seeks to Expand China Navy Code to Coast Guard, Swift Says,”
Bloomberg Business, August 25, 2015; Christopher P. Cavas, “New CNO Richardson Invited To Visit China,” Defense
News, August 25, 2015; Nina P. Calleja, “Positive Relations With China A Must—US Admiral,” Philippine Daily
Inquirer, August 26, 2015; Shannon Tiezzi, “US Admiral: China ‘Very Interested’ in RIMPAC 2016,” The Diplomat,
August 27, 2015.
53Memorandum 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.
54 DOD states that
In 2014, then-Secretary Hagel and his Chinese counterpart signed a historic Memorandum of
Understanding (MOU) on Rules of Behavior for Safety of Air and Maritime Encounters. The MOU
established a common understanding of operational procedures for when air and maritime vessels
meet at sea, drawing from and reinforcing existing international law and standards and managing
risk by reducing the possibility of misunderstanding and misperception between the militaries of
the United States and China. To date, this MOU includes an annex for ship-to-ship encounters. To
augment this MOU, the Department of Defense has prioritized developing an annex on air-to-air
encounters by the end of 2015. Upon the conclusion of this final annex, bilateral consultations
under the Rules of Behavior MOU will be facilitated under the existing MMCA forum.
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, p. 30.)
For additional discussion of the MOU, see Peter A. Dutton, “MOUs: The Secret Sauce to Avoiding a U.S.-China
Disaster?” The National Interest, January 30, 2015; Mira Rapp-Hooper and Bonnie Glaser, “In Confidence: Will We
Know If US-China CBMs Are Working?” Asia Maritime Transparency Initiative (Center for Strategic and
International Studies), February 4, 2015; Mira Rapp-Hooper, “What’s in a Confidence Building Measure?” Lawfare,
February 8, 2015; Peter Dutton and Andrew Erickson, “When Eagle Meets Dragon: Managing Risk in Maritime East
Asia,” Real Clear Defense, March 25, 2015.
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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....55
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 quoted 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 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].”56
China’s Approach to the Disputes
Map of the Nine-Dash Line
China depicts its 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).
55 Text as taken from http://www.aseansec.org/13163.htm.
56 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, 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 ful 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,57 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.58 In a
57 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.
58 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-line-
in-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.59
The map does not always have exactly nine dashes. Early versions of the map had as many as 11
dashes, and a map of China published by the Chinese government in June 2014 includes 10
dashes.60
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.61 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.62
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.63
59 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.
60 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, June 25, 2014. See also “China
Adds Another Dash to the Map,” Maritime Executive, July 4, 2014.
61 See Andrew Browne, “China’s line in the Sea,” Wall Street Journal, 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, July 1, 2014.
62 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.
63 DOD states that
China has not clearly defined the scope of its maritime claims in the South China Sea. In May
2009, China communicated two Notes Verbales to the UN Secretary General stating objections to
the submissions by Vietnam and Malaysia (jointly) and Vietnam (individually) to the Commission
on the Limits of the Continental Shelf. The notes, among other things, included a map depicting
nine line segments (dashes) encircling waters, islands and other features in the South China Sea and
encompassing approximately two million square kilometers of maritime space. The 2009 Note
Verbales also included China’s assertion that it 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.” China’s actions and rhetoric have left
unclear the precise nature of its maritime claim, including whether China claims all of the maritime
area located within the line as well as all land features located therein.
(continued...)
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“Salami-Slicing” Strategy and “Cabbage” Strategy
Observers 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.64 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.65 Other observers have referred to
China’s approach as a strategy of creeping annexation66 or creeping invasion,67 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.68
Use of China Coast Guard Ships and Other Ships
China makes regular use of China Coast Guard (CCG) ships to assert and defend its maritime
territorial claims, with Chinese Navy ships sometimes available over the horizon as backup
forces.69 China has, by far, the largest coast guard of any country in the region, and is currently
building many new ships for its Coast Guard.70 CCG ships are generally unarmed or lightly
(...continued)
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, p. 8.)
64 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,
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, February 25, 2014; Robert Haddick,
“America Has No Answer to China’s Salami-Slicing,” War on the Rocks, February 6, 2014; Bonnie S. Glaser, “Is
China’s Charm Offensive Dead?” China Brief, July 31, 2014; Patrick M. Cronin, The Challenge of Responding to
Maritime Coercion, Center for a New American Security, September 2014, pp. 5-6.
65 See Harry Kazianis, “China’s Expanding Cabbage Strategy,” The Diplomat, 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; Rafael M.
Alunan III, “China’s Cabbage Strategy,” Business World (Manila), 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;
Huseyin Erdogan, “China Invokes ‘Cabbage Tactics’ in South China Sea,” Anadolu Ajansi, March 25, 2015.
66 See, for example, Alan Dupont, “China’s Maritime Power Trip,” The Australian, May 24, 2014.
67 Jackson Diehl, “China’s ‘Creeping Invasion,” Washington Post, September 14, 2014.
68 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, January 21, 2012; Derek Bolton, “Pivoting Toward the South China
Sea?” Foreign Policy In Focus, June 11, 2012; John Lee, “China’s Salami-slicing Is Dicey Diplomacy,” Hudson
Institute, November 27, 2013; Fernando Fajardo, “Asia and the US Interest,” Cebu Daily News, April 16, 2014;
Jacqueline Newmyer Deal, “Chinese Dominance Isn’t Certain,” The National Interest, April 22, 2014; David Brown,
“Viets Gamble Vainly on Appeasement in South China Sea,” Asia Sentinel, May 7, 2014.
69 See Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the
People’s Republic of China 2015, pp. 3, 7, and 44, and Department of Defense, Asia-Pacific Maritime Security
Strategy, undated but released August 2015, p. 14.
70 See, for example, Office of Naval Intelligence, The PLA Navy, New Capabilities and Missions for the 21st Century,
2015, pp. 44-46. See also “China Builds the World’s Largest Coast Guard Cutters,” Want China Times, January 10,
2015.
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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.71 In
addition to being available as backups for CCG ships, Chinese navy ships conduct exercises that
in some cases appear intended, at least in part, at reinforcing China’s maritime claims.72 China
also uses civilian fishing ships and mobile oil exploration platforms to assert and defend its
maritime claims.73
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.74 China resists and objects to U.S. involvement in the disputes.
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.75 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 centuries and today—to the
Caribbean and the Gulf of Mexico. Unlike China in its approach to its near-seas region, the
71 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.
72 See, for example, Trefor Moss and Rob Taylor, “Chinese Naval Patrol Prompts Conflicting Regional Response,”
Wall Street Journal, February 20, 2014.
73 See Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the
People’s Republic of China 2015, pp. 3, 7; Andrew S. Erickson and Conor Kennedy, “Directing China’s ‘Little Blue
Men’: Uncovering the Maritime Militia Command Structure,” Asia maritime transparency Initiative (Center for
Strategic & International Studies), September 11, 2015; “Beijing Expands Its Maritime Militia in South China Sea,”
Want China Times, August 3, 2015; Andrew S. Erickson and Conor M. Kennedy, “Tanmen Militia: China’s ‘Maritime
Rights Protection’ Vanguard,” The National Interest, May 6, 2015; Andrew S. Erickson and Conor M. Kennedy, “Meet
the Chinese Maritime Militia Waging a ‘People’s War at Sea,” Wall Street Journal (China Real Time), March 31,
2015; 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, 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, 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, July 22, 2014; John Ruwitch, “Satellites and Seafood:
China Keeps Fishing Fleet Connected in Disputed Waters,” Reuters, July 27, 2014; Wendell Minnick, “Fishing Vessels
in China Serve as Proxy Enforcers,” Defense News, August 17, 2014.
74 See, for example, Donald K. Emmerson, “China Challenges Philippines in the South China Sea,” East Asia Forum,
March 18, 2014.
75 See, for example, Robert D. Kaplan, “China’s Budding Ocean Empire,” The National Interest, June 5, 2014.
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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.76
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 observers, particularly since late 2013, include the following:
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;77
ongoing Chinese pressure against the small Philippine military presence
at Second Thomas Shoal in the Spratly Islands, where a handful of
Philippine military personnel occupy a beached (and now derelict)
Philippine navy amphibious ship;78
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;79
land-reclamation and facility-construction activities, begun in December
2013 and publicly reported starting in May 2014, at several locations in
the SCS occupied by China (primarily the Spratly islands) that observers
view as a prelude to the construction of expanded Chinese facilities and
fortifications at those locations;80
76 See, for example, James R. Holmes, “The Nine-Dashed Line Isn’t China’s Monroe Doctrine,” The Diplomat, June
21, 2014, and James Holmes, “China’s Monroe Doctrine,” The Diplomat, June 22, 2012.
77 See CRS Report R43894, China’s Air Defense Identification Zone (ADIZ), by Ian E. Rinehart and Bart Elias.
78 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/south-
china-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, March 11, 2014; Kyodo News International, “Philippines Protests Chinese Actions in Disputed Sea,” Global Post,
March 3, 2014.
79 See, for example, Natalie Thomas, Ben Blanchard, and Megha Rajagopalan, “China Apprehending Boats Weekly in
Disputed South China Sea,” Reuters.com, March 6, 2014.
80 See CRS Report R44072, Chinese Land Reclamation in the South China Sea: Implications and Policy Options, by
(continued...)
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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; 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.
China’s Land Reclamation and Facility-Construction Activities
China’s land reclamation and facility-construction activities in the SCS have attracted particular
attention and concern among observers, particularly since mid-February 2015,81 due to the
apparent speed and scale of the activities and their potential for quickly and significantly
changing the status quo in the SCS. DOD states that
One of the most notable recent developments in the South China Sea is China’s
expansion of disputed features and artificial island construction in the Spratly Islands,
using large-scale land reclamation. Although land reclamation – the dredging of seafloor
material for use as landfill – is not a new development in the South China Sea, China’s
recent land reclamation campaign significantly outweighs other efforts in size, pace, and
nature.
In the 1970s and 1980s, the Philippines and Malaysia conducted limited land reclamation
projects on disputed features, with Vietnam and later Taiwan initiating efforts. At the
time, the Philippines constructed an airfield on Thitu Island, with approximately 14 acres
of land reclamation to extend the runway. Malaysia built an airfield at Swallow Reef in
the 1980s, also using relatively small amounts of reclaimed land. Between 2009 and
2014, Vietnam was the most active claimant in terms of both outpost upgrades and land
reclamation. It reclaimed approximately 60 acres of land at 7 of its outposts and built at
least 4 new structures as part of its expansion efforts. Since August 2013, Taiwan has
reclaimed approximately 8 acres of land near the airstrip on Itu Aba Island, its sole
outpost.
China’s recent efforts involve land reclamation on various types of features within the
South China Sea. At least some of these features were not naturally formed areas of land
that were above water at high tide and, thus, under international law as reflected in the
Law of the Sea Convention, cannot generate any maritime zones (e.g., territorial seas or
exclusive economic zones). Artificial islands built on such features could, at most,
(...continued)
Ben Dolven et al. See also Edward Wong and Jonathan Ansfield, “To Bolster Its Claims, China Plants Islands in
Disputed Waters,” New York Times, June 16, 2014; Trefor Moss, “China Rejects Philippines’ Call for Construction
Freeze,” Wall Street Journal, June 16, 2014; Wendell Minnick, “Beijing Continues S. China Sea Expansion,” Defense
News, June 14, 2014; Joel Guinto, “China Building Dubai-Style Fake Islands in South China Sea,” Bloomberg News,
June 11, 2014; David Dizon, “Why China Military Base in West PH Sea Is A ‘Game-Changer,’” ABS-CBN News,
June 10, 2014; Andrew Erickson and Austin Strange, “Pandora’s Sandbox, China’s Island-Building Strategy in the
South China Sea,” Foreign Affairs, July 13, 2014.
81 Awareness of, and concern about, China’s land reclamation activities in the SCS among observers appears to have
increased substantially following the posting of an article showing a series of “before and after” satellite photographs of
islands and reefs being changed by the work. (Mira Rapp-Hooper, “Before and After: The South China Sea
Transformed,” Asia Maritime Transparency Initiative [Center for Strategic and International Studies], February 18,
2015.)
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generate 500-meter safety zones, which must be established in conformity with
requirements specified in the Law of the Sea Convention. Although China’s expedited
land reclamation efforts in the Spratlys are occurring ahead of an anticipated ruling by the
arbitral tribunal in the Philippines v. China arbitration under the Law of the Sea
Convention, they would not be likely to bolster the maritime entitlements those features
would enjoy under the Convention.
Since Chinese land reclamation efforts began in December 2013, China has reclaimed
land at seven of its eight Spratly outposts and, as of June 2015, had reclaimed more than
2,900 acres of land. By comparison, Vietnam has reclaimed a total of approximately 80
acres; Malaysia, 70 acres; the Philippines, 14 acres; and Taiwan, 8 acres. China has now
reclaimed 17 times more land in 20 months than the other claimants combined over the
past 40 years, accounting for approximately 95 percent of all reclaimed land in the
Spratly Islands.
All territorial claimants, except Brunei, maintain outposts in the South China Sea, which
they use to establish presence in surrounding waters, assert their claims to sovereignty,
and monitor the activities of rival claimants. All of these claimants have engaged in
construction-related activities. Outpost upgrades vary widely but broadly are composed
of land reclamation, building construction and extension, and defense emplacements.
At all of its reclamation sites, China either has transitioned from land reclamation
operations to infrastructure development, or has staged construction support for
infrastructure development. As infrastructure development is still in its early stages, it
remains unclear what China ultimately will build on these expanded outposts. However,
China has stated publicly that the outposts will have a military component to them, and
will also be used for maritime search and rescue, disaster prevention and mitigation,
marine scientific research, meteorological observation, ecological environment
conservation, navigation safety, and fishery production. At the reclamation sites currently
in the infrastructure phase of development, China has excavated deep channels and built
new berthing areas to allow access for larger ships to the outposts. China is also
completing construction of an airstrip at Fiery Cross Reef, joining the other claimants
with outposts – Malaysia, Philippines, Taiwan, and Vietnam – that have an airstrip on at
least one of their occupied features, and may be building additional ones.
Though other claimants have reclaimed land on disputed features in the South China Sea,
China’s latest efforts are substantively different from previous efforts both in scope and
effect. The infrastructure China appears to be building would enable it to establish a more
robust power projection presence into the South China Sea. Its latest land reclamation and
construction will also allow it to berth deeper draft ships at outposts; expand its law
enforcement and naval presence farther south into the South China Sea; and potentially
operate aircraft – possibly as a divert airstrip for carrier-based aircraft – that could enable
China to conduct sustained operations with aircraft carriers in the area. Ongoing island
reclamation activity will also support MLEs’ ability to sustain longer deployments in the
South China Sea. Potentially higher-end military upgrades on these features would be a
further destabilizing step. By undertaking these actions, China is unilaterally altering the
physical status quo in the region, thereby complicating diplomatic initiatives that could
lower tensions.82
For additional discussion of China’s land reclamation and facility-construction activities, see CRS
Report R44072, Chinese Land Reclamation in the South China Sea: Implications and Policy
Options, by Ben Dolven et al.
82 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 15-17.
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U.S. Position on the Disputes
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 supports the principle that disputes between countries should be
resolved peacefully, without coercion, intimidation, threats, or the use of force, and in
a manner consistent with international law.
The United States supports the principle of freedom of seas, meaning the rights,
freedoms, and uses of the sea and airspace guaranteed to all nations in international
law. 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 takes no position on competing claims to sovereignty over
disputed land features in the ECS and SCS.
Although the United States takes no position on competing claims to sovereignty
over disputed land features in the ECS and SCS, the United States does have a
position on how competing claims should be resolved: Territorial disputes should be
resolved peacefully, without coercion, intimidation, threats, or the use of force, and in
a manner consistent with international law.
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.
Parties should avoid taking provocative or unilateral actions that disrupt the status
quo or jeopardize peace and security. The United States does not believe that large-
scale land reclamation with the intent to militarize outposts on disputed land features
is consistent with the region’s desire for peace and stability.
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.83
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.
83 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,
August 26, 2014; Bill Gertz, “White House Rejects Chinese Demand to End U.S. Spy Flights,” Washington Free
Beacon, September 15, 2014.
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For examples of recent statements from U.S. officials regarding the U.S. position, see Appendix
B.
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.84
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 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.85
84 [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.
85 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
(continued...)
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For additional information on the issue of operational rights in EEZs, see Appendix C.
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
inconsistent with international law.86 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, 2013, to September 30, 2014, 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
(...continued)
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: 9-
29.
86 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.
DOD states that
As part of the Department’s routine presence activities, the U.S. Navy, U.S. Air Force, and U.S.
Coast Guard conduct Freedom of Navigation operations. These operational activities serve to
protect the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all nations in
international law by challenging the full range of excessive maritime claims asserted by some
coastal States in the region. The importance of these operations cannot be overstated. Numerous
countries across the Asia-Pacific region assert excessive maritime claims that, if left unchallenged,
could restrict the freedom of the seas. These excessive claims include, for example, improperly-
drawn straight baselines, improper restrictions on the right of warships to conduct innocent passage
through the territorial seas of other States, and the freedom to conduct military activities within the
EEZs of other States. Added together, EEZs in the USPACOM region constitute 38 percent of the
world’s oceans. If these excessive maritime claims were left unchallenged, they could restrict the
ability of the United States and other countries to conduct routine military operations or exercises
in more than one-third of the world’s oceans.
Over the past two years, the Department has undertaken an effort to reinvigorate our Freedom of
Navigation program, in concert with the Department of State, to ensure that we regularly and
consistently challenge excessive maritime claims. For example, in 2013, the Department challenged
19 excessive maritime claims around the world. In 2014, the Department challenged 35 excessive
claims – an 84 percent increase. Among those 35 excessive maritime claims challenged in 2014, 19
are located in U.S. Pacific Command’s geographic area of responsibility, and this robust Freedom
of Navigation program will continue through 2015 and beyond.
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, pp. 23-24.)
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multiple challenges that were conducted to challenge Chinese claims relating to “excessive
straight baselines; jurisdiction over airspace above the EEZ; restriction on foreign aircraft flying
through an Air Defense Identification Zone (ADIZ) without the intent to enter national airspace;
[and] domestic law criminalizing survey activity by foreign entities in the EEZ.”87
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 China’s “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, one potential oversight issue for Congress is
whether the United States has an adequate strategy for countering China’s “salami-slicing”
strategy.
Some Reported U.S. Actions
In apparent response to China’s “salami-slicing” strategy, the United States has taken a number of
actions, including the following:
reiterating the U.S. position on maritime territorial claims in the area in
various public fora;
expressing strong concerns about China’s land reclamation and facilities-
construction activities, and calling for a halt on such activities by China
and other countries in the region;
taking steps to improve the ability of the Philippines and Vietnam to
maintain maritime domain awareness (MDA) and patrol their EEZs,
including transferring two ex-U.S. Coast Guard Hamilton-class high-
endurance cutters to the Philippine Coast Guard and announcing a
commitment of $32.5 million in new regional and bilateral assistance to
advance maritime capacity building in Southeast Asia;88
taking steps to strengthen U.S. security cooperation with Japan, the
Philippines, and Vietnam, including signing an agreement with the
Philippines that provides U.S. forces with increased access to Philippine
bases, increasing the scale of joint military exercises involving U.S. and
Philippine forces, and relaxing limits on sales of certain U.S. arms to
Vietnam;89
87 U.S. Department of Defense Freedom of Navigation Report for Fiscal Year 2014, accessed April 15, 2015, at
http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/
20150323%202015%20DoD%20Annual%20FON%20Report.pdf.
88 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, and Department of State Fact Sheet,
“Southeast Asia maritime Law Enforcement Initiative,” April 10, 2015, accessed April 17, 2015, at
http://www.state.gov/r/pa/pl/240798.htm.
89 See, for example, Michael R. Gordon, “U.S. Eases Embargo on Arms to Vietnam,” New York Times, October 2,
23014; Associated Press, “U.S. Eases Ban on Arms Sales to Vietnam,” Wall Street Journal, October 3, 2014; Lesley
Wroughton and Andrea Shalal, “US Eases Arms Embargo Against Vietnam for Maritime Security,” Reuters, October
(continued...)
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expressing support for Japanese patrols in the SCS,90 and
stating that the United States would support a multinational maritime
patrol of the SCS by members of ASEAN.91
DOD “Lines of Effort”
DOD states that it
is enhancing our efforts to safeguard the freedom of the seas, deter conflict and coercion,
and promote adherence to international law and standards.
The Department of Defense, in concert with our interagency partners, therefore is
employing a comprehensive maritime security strategy [for the Asia-Pacific region]
focused on four lines of effort: strengthening U.S. military capabilities in the maritime
domain; building the maritime capacity of our allies and partners; leveraging military
diplomacy to reduce risk and build transparency; and, strengthening the development of
an open and effective regional security architecture.
DoD LINES OF EFFORT
First, we are strengthening our military capacity to ensure the United States can
successfully deter conflict and coercion and respond decisively when needed. The
Department is investing in new cutting-edge capabilities, deploying our finest maritime
capabilities forward, and distributing these capabilities more widely across the region.
The effort also involves enhancing our force posture and persistent presence in the
region, which will allow us to maintain a higher pace of training, transits, and operations.
The United States will continue to fly, sail, and operate in accordance with international
law, as U.S. forces do all around the world.
Second, we are working together with our allies and partners from Northeast Asia to the
Indian Ocean to build their maritime capacity. We are building greater interoperability,
updating our combined exercises, developing more integrated operations, and
cooperatively developing partner maritime domain awareness and maritime security
capabilities, which will ensure a strong collective capacity to employ our maritime
capabilities most effectively.
Third, we are leveraging military diplomacy to build greater transparency, reduce the
risk of miscalculation or conflict, and promote shared maritime rules of the road. This
includes our bilateral efforts with China as well as multilateral initiatives to develop
stronger regional crisis management mechanisms. Beyond our engagements with regional
counterparts, we also continue to encourage countries to develop confidence-building
measures with each other and to pursue diplomatic efforts to resolve disputed claims.
(...continued)
2, 2014; Aaron Mehta, “US State Department Opens Door to maritime Defense Weapon Sales To Vietnam,” Defense
News, October 2, 2014; Aaron Mehta, “New Vietnam Ruling Could Open Door To Further Exports,” Defense News,
October 4, 2014.
90 Tim Kelly and Nobuhiro Kubo, “U.S. Would Welcome Japan Air Patrols in South China Sea,” Reuters, January 29,
2015; Sam LaGrone, “U.S. 7th Fleet CO: Japanese Patrols of South China Sea ‘Makes Sense,’” USNI News, January 29,
2015.
91 Sam LaGrone, “U.S. 7th Fleet Would Support ASEAN South China Sea patrols,” USNI News, March 20, 2015. See
also “US Navy Head Calls For Regional Force to Patrol S China Sea,” Today, March 18 (updated March 19), 2015;
Andrea Chen and Agencies, “Asean Nations React Coolly to US Navy Commander’s Call for Joint Patrols in South
China Sea,” South China Morning Post, March 19, 2015; Sharon Chen, “U.S. Navy Urges Southeast Asian Patrols of
South China Sea,” Bloomberg News, March 17, 2015.
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Finally, we are working to strengthen regional security institutions and encourage the
development of an open and effective regional security architecture. Many of the most
prevalent maritime challenges we face require a coordinated multilateral response. As
such, the Department is enhancing our engagement in ASEAN-based institutions such as
the ASEAN Defense Ministers Meeting Plus (ADMM-Plus), ASEAN Regional Forum
(ARF), and the Expanded ASEAN Maritime Forum (EAMF), as well as through wider
forums like the Western Pacific Naval Symposium (WPNS) and Indian Ocean Naval
Symposium (IONS), which provide platforms for candid and transparent discussion of
maritime concerns.92
Joint Exercises with Other Countries
Regarding joint exercises with other countries in the region, DOD states that
U.S. Pacific Command maintains a robust shaping presence in and around the South
China Sea, with activities ranging from training and exercises with allies and partners to
port calls to Freedom of Navigation Operations and other routine operations. They are
central to our efforts to dissuade conflict or coercion, preserve the freedom of the seas
and our access to the region, encourage peaceful resolution of maritime disputes and
adherence to the rule of law, and to strengthen our relationships with partners and
allies....
The Department is also pursuing a robust slate of training exercises and engagements
with our allies and partners that will allow us to explore new areas of practical bilateral
and multilateral maritime security cooperation, build the necessary interoperability to
execute multilateral operations, and promote regional trust and transparency. We are
increasing the size, frequency, and sophistication of our regional exercise program, with a
particular focus on developing new exercises with Southeast Asian partners and
expanding our multilateral exercise program. We have also begun incorporating a
maritime focus into many of these engagements in order to tailor our training to address
regional partners’ evolving requirements.93
Efforts to Build Allied and Partner Capacity
Regarding efforts to build allied and partner capacity, DOD states:
Given the growing array of challenges the United States and our allies face in the
maritime domain, one of the Department’s top priorities is to enhance the maritime
security capacity of our allies and partners, both to respond to threats within their own
territories as well as to provide maritime security more broadly across the region. The
Department is not only focused on providing enhanced capabilities, but also on helping
our partners develop the necessary infrastructure and logistical support, strengthen
institutions, and enhance practical skills to develop sustainable and capable maritime
forces. The Department is particularly focused on helping our partners enhance their
maritime domain awareness and establish a common maritime operating picture that
would facilitate more timely and effective regional responses to maritime challenges.
In Northeast Asia, the Department of Defense is working closely with Japan to augment
its already extremely capable maritime forces. The United States and Japan recently
announced new Guidelines for Japan-U.S. Defense Cooperation, which will enable the
92 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 19-20.
Italics as in original.
93 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 23, 24. For
details on some of these joint exercises, see pp. 24-25.
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U.S. Armed Forces and the Self-Defense Forces to work more closely together to support
peace and security, including in the maritime domain. Our expanded bilateral cooperation
will now encompass a wide range of activities from peacetime cooperation on shared
maritime domain awareness up to cooperation in a contingency.
We are also working together with Japan to improve the maritime-related capabilities of
the JSDF, which is especially salient given the new Guidelines for U.S.-Japan Defense
Cooperation. The United States is augmenting Japan’s amphibious capabilities for island
defense, including through sales of AAVs and V-22 Ospreys. Through the sale of E-2D
Hawkeyes and Global Hawk Unmanned Aerial Vehicles, Japan is improving its ability to
monitor the maritime domain and airspace around the country, an issue of particular
importance given the large increase in Chinese and Russian air and naval activity in the
area, including continuing Chinese incursions in the vicinity of the Senkaku Islands.
In Southeast Asia, the Department’s first priority is working together with our allies and
partners to develop the most effective mix of capabilities to provide credible maritime
defenses and patrol capabilities. At the Shangri-La Dialogue on May 30, 2015, Secretary
Carter announced the Southeast Asia Maritime Security Initiative, a new effort to work
together with our allies and partners in Southeast Asia to build greater regional capacity
to address a range of maritime challenges.94 As part of this initiative, DoD, in
coordination with the Department of State, will consult with our allies and partners to
ascertain their needs and requirements more effectively and to explore new opportunities
for maritime collaboration. In particular, we are focused on several lines of effort:
working with partners to expand regional maritime domain awareness capabilities, with
an effort to work towards a regional common operating picture; providing the necessary
infrastructure, logistics support, and operational procedures to enable more effective
maritime response operations; further strengthening partner nation operational
capabilities and resilience by deepening and expanding bilateral and regional maritime
exercises and engagements; helping partners strengthen their maritime institutions,
governance, and personnel training; and identifying modernization or new system
requirements for critical maritime security capabilities. To support this initiative, the
Department is working to maximize and rebalance Title 10 security cooperation
resources to prioritize the Southeast Asia region more effectively.
Even before this initiative, and in conjunction with the Department of State and the U.S.
Coast Guard, we have dramatically expanded our maritime security assistance in recent
years. In the Philippines, the Department is providing coastal radar systems and assisting
the Department of State with naval maintenance capacity building as well as providing
interdiction vessels, naval fleet upgrades, communications equipment, and aircraft
procurement. We are helping Vietnam bolster its maritime ISR and command and control
within their maritime agencies, and we are working with Malaysia to build maritime law
enforcement training capacity and interagency coordination to help improve their
maritime domain awareness. The Department also is working with Indonesia to increase
94 On May 30, 2015, in a speech at an international conference on security, Secretary of Defense Ashton Carter stated:
“Today, I am pleased to announce that DoD will be launching a new Southeast Asia Maritime Security Initiative. And
thanks to the leadership of the Senators here today… [ellipse as in original] and others, Congress has taken steps to
authorize up to $425 million dollars for these maritime capacity-building efforts.” (Secretary of Defense Speech, IISS
Shangri-La Dialogue: “A Regional Security Architecture Where Everyone Rises,” As Delivered by Secretary of
Defense Ash Carter, Singapore, Saturday, May 30, 2015, accessed August 7, 2015, at
http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1945. See also Prashanth Parameswaran, “US Launches
New Maritime Security Initiative at Shangri-La Dialogue 2015,” The Diplomat, June 2, 2015; Aaron Mehta, “Carter
Announces $425M In Pacific Partnership Funding,” Defense News, May 30, 2015.)
Carter’s reference to the authorization of up to $425 million appears to be a reference to the South China Sea Initiative,
an effort that would be created by Section 1261 of the Senate-passed version of H.R. 1735, the FY2016 National
Defense Authorization Act (see “Legislative Activity in 2015”).
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its patrol capacity, ISR integration, and maintenance capability. In 2015, we established
new bilateral working groups with both Indonesia and Vietnam to help clarify their
maritime defense requirements.
An additional priority for the Department is helping our partners develop the institutional
structures and procedures necessary to manage their growing maritime forces effectively.
This includes establishing unified maritime agencies, such as the Malaysian Maritime
Enforcement Agency (MMEA), as well as developing standard training protocols and
procedures for maritime personnel. For example, the Defense Threat Reduction Agency
(DTRA) is helping to construct a Philippine National Coast Watch Center in Manila that
will assist the Philippine Coast Guard (PCG) in assuming increased responsibility for
enhancing information sharing and interagency coordination in maritime security
operations. Brunei, Indonesia, Malaysia, and Vietnam are similarly improving their
maritime capabilities.
One of the Department’s top priorities is to promote greater maritime domain awareness,
which is an essential capability for all coastal States. Given the size of the Asian maritime
domain, no coastal State can provide effective maritime domain awareness on its own.
This is why DoD is working closely with partners in the Asia-Pacific region to encourage
greater information sharing and the establishment of a regional maritime domain
awareness network that could provide a common operating picture and real-time
dissemination of data. Singapore has been a leading partner in this effort. Together, we
have established the Singapore Maritime Information-Sharing Working Group, an ideal
platform to share best practices and lessons learned from recent regional maritime
activities and explore options for increased information sharing across partnerships in the
Asia-Pacific region. The near-term iterations of the working group will be bilateral and
then expand to include other regional partners to participate in this community of interest.
The United States and Singapore also are working together to support Singapore’s
development of the Information Fusion Center (IFC) into an interagency information-
sharing hub for the region.
A key element of DoD’s approach to maritime security in Southeast Asia is to work
alongside capable regional partners. There is broad regional agreement on the importance
of maritime security and maritime domain awareness, and we’re working closely with
our friends in Australia, Japan, South Korea, and elsewhere to coordinate and amplify our
efforts toward promoting peace, stability, and prosperity in Asia. In part, we are
partnering trilaterally to achieve these goals. In November 2014, President Obama, Prime
Minister Abe, and Prime Minister Abbott hosted their first trilateral meeting and agreed
to expand maritime cooperation, trilateral exercises, and defense development. The
Department is working with these two allies in a coordinated fashion to maximize the
efficiency and effectiveness of our maritime security capacity building efforts in
Southeast Asia, beginning with the Philippines.95
Figure 5 shows a table that DOD presented in connection with the passage quoted above.
95 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 25-28.
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Figure 5. Table from August 2015 DOD Report
Source: Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 27.
May 2015 Press Report
In addition to the actions discussed above, a May 12, 2015, press report states that
The U.S. military is considering using aircraft and Navy ships to directly contest Chinese
territorial claims to a chain of rapidly expanding artificial islands, U.S. officials said, in a
move that would raise the stakes in a regional showdown over who controls disputed
waters in the South China Sea.
Defense Secretary Ash Carter has asked his staff to look at options that include flying
Navy surveillance aircraft over the islands and sending U.S. naval ships to within 12
nautical miles of reefs that have been built up and claimed by the Chinese in an area
known as the Spratly Islands.
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Such moves, if approved by the White House, would be designed to send a message to
Beijing that the U.S. won’t accede to Chinese territorial claims to the man-made islands
in what the U.S. considers to be international waters and airspace.
The Pentagon’s calculation may be that the military planning, and any possible
deployments, would increase pressure on the Chinese to make concessions over the
artificial islands. But Beijing also could double down, expanding construction in defiance
of the U.S. and potentially taking steps to further Chinese claims in the area....
Officials said there was now growing momentum within the Pentagon and the White
House for taking concrete steps in order to send Beijing a signal that the recent buildup in
the Spratlys went too far and needed to stop....
U.S. military aircraft have repeatedly approached the 12-nautical-mile zone declared by
China around the built up reefs. But to avoid an escalation, the planes haven’t penetrated
the zone. A senior military official said the flights “have kept a distance from the islands
and remained near the 12-mile mark.”...
The USS Fort Worth, a combat ship, has been operating in recent days in waters near the
Spratlys. “We’re just not going within the 12 miles—yet,” a senior U.S. official said....
The military proposals haven’t been formally presented to the White House, which would
have to sign off on any change in the U.S. posture. The White House declined to
comment on the deliberations.
Officials said the issue is a complicated one because at least some of the areas where the
Chinese have been doing construction are, in eyes of the U.S. government, legitimate
islands, which would be entitled to a 12-nautical-mile zone.
The proposal under consideration would be to send Navy ships and aircraft to within 12
nautical miles of only those built-up sites that the U.S. doesn’t legally consider to be
islands, officials say.96
Potential Further U.S. Actions Suggested by Observers
Some observers, viewing China’s ongoing activities in its near-seas region, argue that the current
U.S. strategy for countering China’s salami-slicing strategy as outlined above is inadequate, and
have proposed taking stronger actions. Appendix D presents a bibliography of some recent
writings by these observers. In general, actions proposed by these observers include (but are not
limited to) the following:
making even stronger U.S. statements to China about the consequences
for China of continuing assertive or coercive actions in the ECS and
SCS, and more generally, changing the U.S. tone of conversation with
China;
further increasing and/or accelerating actions to strengthen the capacity
of allied and partner countries in the region to maintain maritime domain
awareness (MDA), coast guard patrols, and a fishing fleet operations in
the area;
96 Adam Entous, Gordon Lubold, and Julian E. Barnes, “U.S. Military Proposes Challenge to China Sea Claims,” Wall
Street Journal, May 12, 2015. See also Phil Stewart, David Alexander, and David Brunnstrom, “Pentagon Mulls
Sending Planes, Ship Near Disputed South China Sea Islands,” May 12, 2015; Agence France-Presse, “US Weighs
Moves To Counter China’s ‘Wall of Sand,’” Defense News, May 13, 2015; David S. Cloud, “U.S. Looking at Strategy
for Countering China’s Moves in South China Sea,” Los Angeles Times, May 15, 2015.
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further increasing U.S. Navy operations in the region, including sending
U.S. Navy ships to waters inside 12-nautical-mile perimeters of Chinese-
occupied sites in the SCS;
further strengthening U.S. security cooperation with allied and partner
countries in the region, and with India, to the point of creating a coalition
for balancing China’s assertiveness;97 and
taking additional actions to impose costs on China for its actions in its
near-seas region, such as disinviting China to the 2016 RIMPAC (Rim of
the Pacific) exercise, a U.S.-led multilateral naval exercise that takes
place every two years, and/or inviting Taiwan to participate in the
exercise.
Whether to Send U.S. Navy Ships Inside 12-Mile Lines of Chinese-Occupied
SCS Sites
Regarding the above-listed item about sending U.S. Navy ships inside 12-nautical-mile
perimeters of Chinese-occupied sites in the SCS, one U.S. specialist on international law of the
sea states (emphasis added):
Regarding features in the water whose sovereignty is in dispute, “Every feature
occupied by China is challenged by another claimant state, often with clearer line
of title from Spanish, British or French colonial rule. The nation, not the land, is
sovereign, which is why there is no territorial sea around Antarctica – it is not
under the sovereignty of any state, despite being a continent. As the United
States has not recognized Chinese title to the features, it is not obligated to
observe requirements of a theoretical territorial sea. Since the territorial sea
is function of state sovereignty of each rock or island, and not a function of
simple geography, if the United States does not recognize any state having
title to the feature, then it is not obligated to observe a theoretical territorial
sea and may treat the feature as terra nullius. Not only do U.S. warships have a
right to transit within 12 nm of Chinese features, they are free to do so as an
exercise of highs seas freedom under article 87 of the Law of the Sea
Convention, rather than the more limited regime of innocent passage.
Furthermore, whereas innocent passage does not permit overflight, high seas
freedoms do, and U.S. naval aircraft lawfully may overfly such features.... More
importantly, even assuming that one or another state may have lawful title to
a feature, other states are not obligated to confer upon that nation the right
to unilaterally adopt and enforce measures that interfere with navigation,
until lawful title is resolved. Indeed, observing any nation’s rules pertaining to
features under dispute legitimizes that country’s claim and takes sides.”
97 An August 2015 press report states that “The Philippines defense chief said he asked the visiting U.S. Pacific
commander on Wednesday [August 26] to help protect the transport of fresh Filipino troops and supplies to Philippine-
occupied reefs in the disputed South China Sea by deploying American patrol planes to discourage Chinese moves to
block the resupply missions.” (Jim Gomez, “Philippines Seeks U.S. Help to Protect Troops in Disputed Sea,” Military
Times, August 2 6, 2015. See also Agence France-Presse, “Spokesman: US, Philippines Hold Talks On Boosting
Military Capacity,” Defense News, August 26, 2015; Manuel Mogato, “Philippines Seeks ‘Real-Time’ U.S. Help in
Disputed South China Sea,” Reuters, August 27, 2015.
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Regarding features in the water whose sovereignty has been resolved, “It is
unclear whether features like Fiery Cross Reef are rocks or merely low-tide
elevations that are submerged at high tide, and after China has so radically
transformed them, it may now be impossible to determine their natural state.
Under the terms of the law of the sea, states with ownership over naturally
formed rocks are entitled to claim a 12 nm territorial sea. On the other hand, low-
tide elevations in the mid-ocean do not qualify for any maritime zone
whatsoever. Likewise, artificial islands and installations also generate no
maritime zones of sovereignty or sovereign rights in international law,
although the owner of features may maintain a 500-meter vessel traffic
management zone to ensure navigational safety.”
Regarding features in the water whose sovereignty has been resolved and which
do qualify for a 12-nautical-mile territorial sea, “Warships and commercial
vessels of all nations are entitled to conduct transit in innocent passage in the
territorial sea of a rock or island of a coastal state, although aircraft do not enjoy
such a right.”98
Supporters of not sending U.S. Navy ships inside 12-nautical-mile perimeters of Chinese-
occupied sites in the SCS might argue that doing so could provoke China, and that there are other
ways for the United States to assert and defend freedom of the seas under international law,
including making periodic verbal assertions of navigational rights (and encouraging allied and
partner states to do the same), conducting U.S. military sea and air operations elsewhere in the
SCS, and working through multilateral fora. A September 18, 2015, press report states:
China said on Friday [September 18] it was "extremely concerned" about a suggestion
from a top U.S. commander that U.S. ships and aircraft should challenge China's claims
in the South China Sea by patrolling close to artificial islands it has built....
Chinese Foreign Ministry spokesman Hong Lei said China was "extremely concerned"
about the comments and China opposed "any country challenging China's sovereignty
and security in the name of protecting freedom of navigation".
"We demand that the relevant country speak and act cautiously, earnestly respect China's
sovereignty and security interests, and not take any risky or provocative acts," Hong said
at a daily news briefing.99
Supporters of sending U.S. Navy ships inside 12-nautical-mile perimeters of Chinese-occupied
sites in the SCS might argue that not doing so undercuts each of the three legal points listed
above, thus weakening freedom of the seas under international law; that it is inconsistent with the
underlying premise of the U.S. Freedom of Navigation (FON) program that navigational rights
which are not regularly exercised are at risk of atrophy; that it is inconsistent with the U.S.
position of taking no position on competing claims to sovereignty over disputed land features in
the SCS (because it tacitly accepts Chinese sovereignty over those features); and that it
effectively rewards (rather than imposes costs on) China for its assertive actions in the SCS,
potentially encouraging further such actions.
98 James Kraska, “The Legal Rationale for Going Inside 12,” Asia Maritime Transparency Initiative (Center for
Strategic & International Studies), September 11, 2015. See also James Kraska, “The Nine Ironies of the South China
Sea Mess,” The Diplomat, September 17, 2016.
99 Ben Blanchard and Megha Rajagopalan, “China ‘Extremely Concerned’ By Proposed U.S. Challenge to Claims,”
Reuters, September 18, 2015. See also “Foreign Ministry Spokesperson Hong Lei's Regular Press Conference on
September 18, 2015,” accessed September 18, 2015, at:
http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1298026.shtml.
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The question of whether to send U.S. Navy ships inside 12-nautical-mile perimeters of Chinese-
occupied sites in the SCS was a focus of discussion during a September 17, 2015, hearing before
the Senate Armed Services Committee on DOD’s Asia-Pacific maritime security strategy. During
the hearing, the following exchange occurred:
SENATOR JOHN MCCAIN, CHAIRMAN:
You operate in that area but you haven't operated within 12 miles of these reclaimed
features have you?
ASSISTANT SECRETARY OF DEFENSE DAVID SHEAR:
We have conducted freedom of navigations operations...
MCCAIN:
And have you gone within the 12 miles of the reclaimed area?
SHEAR:
We have gone -- we have gone within 12...
MCCAIN:
The answer is -- the answer is -- the answer I believe is no.
SHEAR:
We have not recently gone within 12 miles of a reclaimed area, however...
MCCAIN:
When was the last time we did?
SHEAR:
I believe the last time we conducted a freedom of navigation operation in the South China
Sea was April of this year.
MCCAIN:
Within the 12-mile limit. Come on Mr. Secretary I'm -- I'm very interested in the 12-mile
limit, because if you respect the 12-mile limit then that's de facto sovereignty agreed to
tacitly by the -- to the Chinese. Now have we or have we not cooperated within the 12-
mile limit in recent years?
SHEAR:
I believe the last time we conducted a -- a -- a freedom of navigation operation within 12
nautical miles of one of those features was 2012.
MCCAIN:
2012. 2012. Three years ago.
SHEAR:
Freedom of navigation operations are one tool in a larger tool box that we're going to
need to use in -- in fixing this issue. And we're in the process of putting together that tool
box. And as we move forward we're -- we're going to consider Freedom of Navigation
Operation, along with a variety other option, to ensure that both the Chinese and the
region understands that we can operate and we do operate anywhere we can.
MCCAIN:
We ought to -- and it seems to me we ought to do it. Because you see those -- area that
has now been filled in. Since the last time we operated within the 12-mile limit, that --
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that number of acres has been dramatically increased and we have watched it and really --
well, the -- the best sign of respecting freedom of the seas is not to de facto recognize a
12-mile limit, and the best way you can make sure that that is not recognized is to sail
your ships in international waters, which it clearly is -- these are artificial islands -- and
pass right on by.
And that then puts the lie to the admiral who said the South China Sea, as the name
indicated, is a -- it belongs to China. It does not belong to China; it belongs to the
international waterways that people are allowed to fill in islands, and so therefore then
they're subject to a 12-mile limit.
The best way to prove that they're not is to go ahead and go in it, and we haven't done
that since 2012. I don't find that acceptable, Mr. Secretary.
With all of the other tools you have in the toolbox, the most visible assertion of freedom
of the seas is to peaceful sail inside the 12-mile limit of artificial islands, which
(inaudible) of international law is not allowed to be sovereign territory of any nation.
SHEAR:
Well, I agree with you, Mr. Chairman, that the South China Sea doesn't belong to China.
We have in recent years conducted freedom-of-navigation operations in the vicinity of
those features, and doing so again is one of the options, one of the array of options we're
considering...
(CROSSTALK)
MCCAIN:
Well, it's an option that hasn't been exercised in three years.
Admiral Harris, what do you feel about it?
ADMMIRAL HARRY HARRIS JR., COMMANDER, U.S. PACIFIC COMMAND:
Sir, I agree that the South China Sea is no more China's than the Gulf of Mexico is
Mexico's.
I think that we must exercise our freedom of navigation throughout the region, and part of
my responsibilities as the Pacific Command commander is to give options to the
president and to the secretary, and those options are being considered, and we'll execute
as -- as directed by the president and the secretary.100
Later in the hearing, the following exchange occurred:
SENATOR JACK, REED, RANKING MEMBER (continuing):
And just to -- to clarify the type of operations, have we conducted fly-overs of these
artificial facilities recently? When's the most recent fly-over?
SHEAR:
100 Transcript of hearing as posted on CQ.com. See also Austin Wright, “Navy Steering Clear of China’s Reclaimed
Islands,” Politico, September 17, 2015; David Brunnstrom and David Alexander, “U.S. Commander Backs
Challenging China Over Disputed Islands,” Reuters, September 17, 2015; Deb Riechmann and Lolita C. Baldor,
“McCain: US Should Ignore China’s Claims in South China Sea,” ABC News (Associated Press), September 17, 2015;
Sydney J. Freedberg, Jr., “US Hasn’t Challenged Chinese ‘Islands’ Since 2012,” Breaking Defense, September 17,
2015; Brendan McGarry, “US Navy Hasn’t Sailed or Flown Near China’s Manmade Islands Since 2012,”
Military.com, September 17, 2015; Bill Gertz, “Obama Blocks Navy from Sailing Near Disputed Chinese Islands,”
Washington Free Beacon, September 17, 2015; Philip Ewing, “U.S. Debates Challenging Chinese Sovereignty
Claims,” Politico, September 16, 2015.
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I defer to the admiral on that question, sir.
HARRIS:
Senator Reed, we have not conducted a fly-over of any -- a direct fly-over -- overflight of
any of the reclaimed lands and territories that China has reclaimed recently.
REED:
So that is another option that you have, but you have not exercised that option?
HARRIS:
You're correct, sir. We have -- we have a lot of options that are on the table.101
Later in the hearing, the following exchange occurred:
SENATOR DANIEL SULLIVAN (continuing):
In your professional opinion, Admiral Harris, what -- should we sail or fly inside the 12-
mile area with regard to the islands as Secretary Carter stated we should?
HARRIS:
Senator, I believe that there's only one policymaking, Senator, and not -- not three, and
that runs through the secretary of defense...
SULLIVAN:
No, but I'm asking your professional opinion as a military...
HARRIS:
And -- and I believe that we should exercise the -- allow to exercise freedom of
navigation and flight -- maritime and flight in the South China Sea against those islands
that are not islands.
SULLIVAN:
Inside the 12-mile limit?
HARRIS:
Depending on the feature. You know, if...
SULLIVAN:
What about that one?
HARRIS:
That one, yes. We should -- we should be able to fly.
SULLIVAN:
Have you -- have you or Secretary Carter asked the White House for permission to do
that?
HARRIS:
Senator, I have given policy options, military options to the secretary, and -- and I -- I
would leave it to the -- to the secretary or the ambassador to address whether...
SULLIVAN:
101 Transcript of hearing as posted on CQ.com.
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What -- what has the White House said when you've asked permission to go within the 12
-- within the 12-mile zone of a feature like that?
HARRIS:
Senator, PACOM, along with the Department of Defense, are options-generating
institutions, and the secretary's particularly interested in options with regard to the South
China Sea in general...
SULLIVAN:
But I mean, I just asked a simple question. What did the White House say if you asked
for permission to go within -- inside the 12-mile limit. What did the White House say?
HARRIS:
Conducting that kind of freedom about operation -- freedom-of-navigation operation is
one of the operations we're considering.
SULLIVAN:
You're not answering my question. Did you ask the White House for permission to do
this, and what did they tell you?
HARRIS:
Sir, I'm not -- I'm not able to discuss current policy deliberations, but I can assure you
that that's one of the...
(CROSSTALK)
SULLIVAN:
You're not being forthright here.
HARRIS:
... that the -- the administration is considering.
SULLIVAN:
OK, I appreciate you just answering the question.
HARRIS:
It's -- again, I -- I'm just not able to go into the details of policy deliberations.
SULLIVAN:
But I think when the secretary of defense makes a definitive statement like that a very
important meeting of defense ministers in Asia and then we don't follow up on it, it
undermines our credibility, and that's something that we can't afford anymore. Our
credibility is undermined everywhere in the world, and we -- we do it here.
It would be good if you give me an answer to that question. You're obviously dodging
right now.
HARRIS:
Sir, I'd be delighted to give you the best possible answer, and -- and I think that is that I'm
just not able to...102
Later in the hearing, the following exchange occurred:
102 Transcript of hearing as posted on CQ.com.
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SENATOR KELLY AYOTTE (continuing):
I wanted to ask and follow up on some of the questions that you have been asked
Admiral. Just so, I think I understand from the testimony that you've given. But I want to
make sure that we're clear because I know that you've been asked about the Asia Pacific
Maritime Security Strategy that you know, that China's artificial islands could at most
generate a 500 meter safety zone.
And that of course the Department of Defense had released a statement saying that,
"these features under international law don't generate any maritime zones," because you
believe that they're not legitimate. What this means in practice is that the Navy actually
can as you know, set sail it's ships within 500 meters of these new land masses without
violating the law because they're not legitimately there under international law.
So I wanted to understand, is the Navy sailing within 500 meters of China's artificial
islands at this point?
HARRIS:
No ma'am.
AYOTTE:
OK.
Has the Pacific Command at least sent Navy surface ships within 12 miles of China's
artificial islands?
HARRIS:
No, we have not.
AYOTTE:
OK.
So I guess the big question many of us are trying get at, at this point and I don't know
Admiral Harris whether you or Ambassador Shear are the appropriate person to answer
the question. But why not?
Saying we are going to sail and fly where international law permits, and then not doing it,
I'm concerned leaves China with the impression that, we're, again, going to say
something but not follow through on our actions. And we are going to invite more
aggression by the Chinese with the activities they've been taking that are in violation of
international law in building this artificial islands.
So, I wanted to get your answer to that.
SHEAR:
Let me elaborate a little on what the admiral said.
In recent years, we have challenged every category of Chinese claim in the South China
Sea, as recently as this year.
And we -- we will continue to conduct Freedom of Navigation operations in the South
China Sea. But let me be clear on this point; Freedom of Navigation operations are
important for demonstrating our rights under international law, but Freedom of
Navigation of Operation alone won't stop Chinese activities on these features.
Preventing the Chinese from further militarizing those features is going to take a range of
options, including Freedom of Navigation operations, and we're in the process of
considering those operations now.
AYOTTE:
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Admiral, did you want add to that?
HARRIS:
I'll just that PACOM presents options, military options to the secretary. And those
options come with a full range of opportunities in the South China Sea, and we're ready
to execute those options when directed.
AYOTTE:
So you're waiting for, obviously, the administration to make the call on that?
HARRIS:
Well, I mean the Freedom of Navigation operation in itself, as Ambassador Shear said, is
not a military-only device. You know, it has a military component, obviously, because
the military executes it.
But it has other elements to it, which are derived by the secretary and the White House.
So, we're waiting for direction. And I'm comfortable and am confident that the options
that we presented are being considered equitably.
AYOTTE:
Well, as I look at the situation, though, I appreciate, obviously, Admiral, that PACOM, as
the commander, you'd be waiting for direction from the White House.
But as I look at it, the Chinese have to be looking at this situation, saying, the United
States has declared that under international law, this is not legitimate, and that we have
the right to obviously put our vessels in these areas, and -- but the Navy has not sailed
within, you know, 12 nautical miles of the Chinese artificial islands at this point.
And so, I think they get it both ways. So, they're -- we're saying one thing, but we're
certainly not willing to address where we have a free right to navigate.
So, I hope that we follow up with our actions and our words on this. Otherwise, I fear that
the Chinese will continue their actions. Because otherwise, they think, hey, why not?
And my time is up, but I'm going to submit for the record, Admiral Harris...103
Risk of United States Being Drawn into a Crisis or Conflict
Another potential issue for Congress is whether the United States has taken adequate 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 (see Appendix A) 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?
103 Transcript of hearing as posted on CQ.com.
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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
(see Appendix A) 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 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 question of whether the United States should become a
party to UNCLOS. As mentioned earlier, 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, 1994.104 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.
104 Treaty Document 103-39.
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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 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.105
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.
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 EEZs106 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.
105 See, for example, Andrew Browne, “A Hole in the U.S. Approach to Beijing,” Wall Street Journal, May 20, 2014.
106 For a discussion of China’s legal justifications for its position on the EEZ issue, see, for example, Peter Dutton,
“Three Disputes and Three Objectives,” Naval War College Review, Autumn 2011: 54-55. See also Isaac B. Kardon,
“The Enabling Role of UNCLOS in PRC Maritime Policy,” Asia Maritime Transparency Initiative (Center for
Strategic & International Studies), September 11, 2015.
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Legislative Activity in 2015
Concurrent Resolution on the Budget for FY2016 (S.Con.Res. 11)
Senate
On March 27, 2015, as part of its consideration of S.Con.Res. 11, the Senate agreed by
unanimous consent to S.Amdt. 705, which added a new section. The new section (Section 399uu)
states:
SEC. 399uu. Deficit-neutral reserve fund relating to Indo-Pacific partner capacity
building and strategy.
The Chairman of the Committee on the Budget of the Senate may revise the allocations
of a committee or committees, aggregates, and other appropriate levels in this resolution
for one or more bills, joint resolutions, amendments, amendments between the Houses,
motions, or conference reports relating to supporting a comprehensive multi-year partner
capacity building and security cooperation plan in the Indo-Pacific region, including for a
regional maritime domain awareness architecture and for bilateral and multilateral
exercises, port calls, and training activities of the United States Armed Forces and Coast
Guard to further a comprehensive strategy to strengthen United States alliances and
partnerships, freedom of navigation, and the unimpeded access to the maritime commons
of the Asia-Pacific by the amounts provided in such legislation for those purposes,
provided that such legislation would not increase the deficit over either the period of the
total of fiscal years 2016 through 2020 or the period of the total of fiscal years 2016
through 2025.
FY2016 National Defense Authorization Act (H.R. 1735/S. 1376)
House
Section 1254 of H.R. 1735 as reported by the House Armed Services Committee (H.Rept. 114-
102 of May 5, 2015) states:
SEC. 1254. Sense of Congress on the United States alliance with 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 decision to contribute more proactively to
regional and global peace and security;
(3) the United States supports recent changes in Japanese defense policy, including the
adoption of collective self-defense and the new bilateral Guidelines for U.S.-Japan
Defense Cooperation which were approved on April 27, 2015, and will promote a more
balanced and effective alliance to meet the emerging security challenges of this century;
(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;
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(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”.
H.Rept. 114-102 also states:
U.S.-Philippines Defense Cooperation
The committee notes that in April 2014, the Governments of the United States and the
Republic of the Philippines announced a bilateral Enhanced Defense Cooperation
Agreement. This 10-year agreement, building upon the 1951 Mutual Defense Treaty,
would facilitate the enhanced rotational presence of U.S. forces, expand opportunities for
joint military training and exercises, and support the long-term modernization of the
Philippine military. It would also provide for greater U.S. presence in the region to
reassure allies and partners and to monitor U.S. interests, particularly freedom of
navigation in the South China Sea.
The committee welcomes the enhancement of defense cooperation with the Philippines
and the expansion of bilateral military training opportunities. The committee also
recognizes the willingness of the Philippines to host U.S. forces on a rotational basis as a
strong signal of its commitment to the bilateral strategic partnership. It further supports
efforts to modernize the Armed Forces of the Philippines and to strengthen their maritime
security, maritime domain awareness, and humanitarian assistance and disaster relief
capabilities, so that they can enhance their defensive capabilities and provide a greater
contribution to regional security and stability. (Page 260)
Senate
Section 1261 of S. 1376 as reported by the Senate Armed Services Committee (S.Rept. 114-49 of
May 19, 2015) states:
SEC. 1261. South China Sea Initiative.
(a) Assistance authorized.—
(1) IN GENERAL.—The Secretary of Defense, with the concurrence of the Secretary of
State, is authorized, for the purpose of increasing maritime security and maritime domain
awareness of foreign countries along the South China Sea—
(A) to provide assistance to national military or other security forces of such countries
that have among their functional responsibilities maritime security missions; and
(B) to provide training to ministry, agency, and headquarters level organizations for such
forces.
(2) DESIGNATION OF ASSISTANCE AND TRAINING.—The provision of assistance
and training under this section may be referred to as the “South China Sea Initiative”.
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(b) Recipient countries.—The foreign countries that may be provided assistance and
training under subsection (a) are the following:
(1) Indonesia.
(2) Malaysia,
(3) The Philippines.
(4) Thailand.
(5) Vietnam.
(c) Types of assistance and training.—
(1) AUTHORIZED ELEMENTS OF ASSISTANCE.—Assistance provided under
subsection (a)(1)(A) may include the provision of equipment, supplies, training, and
small-scale military construction.
(2) REQUIRED ELEMENTS OF ASSISTANCE AND TRAINING.—Assistance and
training provided under subsection (a) shall include elements that promote the following:
(A) Observance of and respect for human rights and fundamental freedoms.
(B) Respect for legitimate civilian authority within the country to which the assistance is
provided.
(d) Priorities for assistance and training.—In developing programs for assistance or
training to be provided under subsection (a), the Secretary of Defense shall accord a
priority to assistance, training, or both that will enhance the maritime capabilities of the
recipient foreign country, or a regional organization of which the recipient country is a
member, to respond to emerging threats to maritime security.
(e) Incremental expenses of personnel of certain other countries for training.—
(1) AUTHORITY FOR PAYMENT.—If the Secretary of Defense determines that the
payment of incremental expenses in connection with training described in subsection
(a)(1)(B) will facilitate the participation in such training of organization personnel of
foreign countries specified in paragraph (2), the Secretary may use amounts available
under subsection (f) for assistance and training under subsection (a) for the payment of
such incremental expenses.
(2) COVERED COUNTRIES.—The foreign countries specified in this paragraph are the
following:
(A) Brunei.
(B) Singapore.
(C) Taiwan.
(f) Funding.—Funds may be used to provide assistance and training under subsection (a)
as follows:
(1) In fiscal year 2016, $50,000,000 from amounts authorized to be appropriated for the
Department of Defense for that fiscal year for operation and maintenance, Defense-wide.
(2) In fiscal year 2017, $75,000,000 from amounts authorized to be appropriated for the
Department of Defense for that fiscal year for operation and maintenance, Defense-wide.
(3) In each of fiscal years 2018 through 2020, $100,000,000 from amounts authorized to
be appropriated for the Department of Defense for such fiscal year for operation and
maintenance, Defense-wide.
(g) Notice to Congress on assistance and training.—Not later than 15 days before
exercising the authority under subsection (a) or (e) with respect to a recipient foreign
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country, the Secretary of Defense shall submit to the congressional defense committees a
notification containing the following:
(1) The recipient foreign country.
(2) A detailed justification of the program for the provision of the assistance or training
concerned, and its relationship to United States security interests.
(3) The budget for the program, including a timetable of planned expenditures of funds to
implement the program, an implementation timeline for the program with milestones
(including anticipated delivery schedules for any assistance under the program), the
military department or component responsible for management of the program, and the
anticipated completion date for the program.
(4) A description of the arrangements, if any, to support host nation sustainment of any
capability developed pursuant to the program, and the source of funds to support
sustainment efforts and performance outcomes to be achieved under the program beyond
its completion date, if applicable.
(5) A description of the program objectives and an assessment framework to be used to
develop capability and performance metrics associated with operational outcomes for the
recipient force.
(6) Such other matters as the Secretary considers appropriate.
(h) Expiration.—The authority provided under this section may not be exercised after
September 30, 2020.
Regarding Section 1261, S.Rept. 114-49 states:
South China Sea Initiative (Sec. 1261)
The committee recommends a provision that would authorize the Secretary of Defense,
with the concurrence of the Secretary of State, to provide equipment, supplies, and
training to national military or other security forces of foreign countries to respond to
threats to maritime security. The provision would authorize $50.0 million with increase in
future years, in Operation and Maintenance, Defense-wide (OMDW) for the Global Train
and Equip Program to provide assistance to the recipient countries, which include
Indonesia, Malaysia, the Philippines, Thailand, and Vietnam. The provision would
require that the Secretary of Defense provide prior notification to the congressional
defense committees not later than 15 days before exercising this authority. (Page 234)
On June 17, 2015, the Senate, in considering the House-passed version of H.R. 1735, agreed to
S.Amdt. 1463, an amendment in the nature of a substitute. On June 18, 2015, the Senate agreed
by unanimous consent to a group of amendments to S.Amdt. 1463. On June 18, 2015, the Senate
passed, 71-25, H.R. 1735 as amended.
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Appendix A. U.S. Security Treaties with Japan and
Philippines
This appendix presents brief background information on the U.S. security treaties with Japan and
the Philippines.
U.S.-Japan Treaty on Mutual Cooperation and Security
The 1960 U.S.-Japan treaty on mutual cooperation and security107 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.”108 (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.109
In April 2015, it was reported that
Japan and the United States will likely include an explicit reference to defence of far-
flung Japanese islands in an update of security cooperation guidelines amid concerns
about China’s increasing military assertivness, a Japanese newspaper reported.
The daily Yomiuri Shimbun said on Tuesday [April 14] that Japan had requested the
revision include a clear commitment by U.S. forces in the event of an attack on Japanese
107 Treaty of mutual cooperation and security, signed January 19, 1960, entered into force June 23, 1960, 11 UST 1632;
TIAS 4509; 373 UNTS.
108 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.
109 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, 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), 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, June 21, 2013.
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islands. Tokyo is locked in a long-running dispute with Beijing over islets in the East
China Sea known as the Senkaku in Japan and the Diaoyu in China.
The allies are expected to announce agreement over the revised guidelines later this
month. U.S. President Barack Obama is due to meet Japan’s Prime Minister Shinzo Abe
in Washington on April 28 for a summit.110
U.S.-Philippines Mutual Defense Treaty111
The 1951 U.S.-Philippines mutual defense treaty112 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.113 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.114 U.S. officials have made their own
statements regarding the treaty’s application to territorial disputes in the SCS.115
110 Kiyoshi Takenaka, “U.S.-Japan Defense Guidelines To Specify Islands’ Defense: Newspaper,” Reuters, April 14,
2015.
111 For additional discussion of U.S. obligations under the U.S.-Philippines mutual defense treaty, see CRS Report
R43498, The Republic of the Philippines and U.S. Interests—2014, by Thomas Lum and Ben Dolven.
112 Mutual defense treaty, signed August 30, 1951, entered into force August 27, 1952, 3 UST 3947, TIAS 2529, 177
UNTS 133.
113 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.
114 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-u-
s-mutual-defense-treaty-may-9-2012/.
115 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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Appendix B. Statements from U.S. Officials
Regarding U.S. Position
This appendix presents excerpts from recent statements by U.S. officials regarding the U.S.
position on maritime territorial and EEZ disputes involving China, organized by date, beginning
with the most-recent item.
September 17, 2015, Defense Department Testimony
At a September 17. 2015, hearing before the Senate Armed Services Committee on DOD’s Asia-
Pacific maritime security strategy, David Shear, the Assistant Secretary of Defense for Asian and
Pacific Security Affais, stated:
I am pleased to be here to discuss maritime issues in the Asia-Pacific and the Department
of Defense’s new Asia-Pacific Maritime Security Strategy, which we released last month.
This strategy reflects the enduring interests the United States has in the region and the
premium we place on maritime peace and security in this critical part of the world.
Throughout its history, the United States has relied upon and advocated for freedom of
the seas, and this freedom is essential to our economic and security interests, nowhere
more so than in the Asia-Pacific.
It is important to note that while this strategy reflects the Defense Department’s maritime
objectives and activities in the Asia-Pacific, DoD’s efforts are simply one aspect of a
much broader U.S. strategy to protect America’s principled interests in upholding
international law, freedom of navigation, unimpeded lawful commerce, and peaceful
resolution of disputes. The United States has a comprehensive strategy to uphold
maritime security in the region—one that leverages diplomacy, multilateral institutions,
commitment to international law, maritime capacity building, trade, and continued
engagement across the region.
The Department of Defense plays an important part in supporting these goals. For
seventy years, our robust maritime capabilities, and the presence of U.S. sailors, soldiers,
Marines, and airmen, have helped protect the freedom of navigation and commerce upon
which the United States and all Asia-Pacific nations rely. As we note in the Asia-Pacific
Maritime Security Strategy report, “freedom of the seas” reflects far more than simply
freedom of navigation for commercial vessels. It also implies all of the rights, freedoms,
and lawful uses of the sea and airspace, including for military ships and aircraft,
recognized under international law.
Unfortunately, in recent years, we have seen a number of changes take place in the
maritime security environment that have the potential to undermine the freedoms and the
peace and security the region has enjoyed for decades. So before I discuss the details of
our strategy, allow me to offer some thoughts on the strategic context for this report.
Strategic Context
Over the past several decades, the Asia-Pacific has experienced one of the most
tremendous economic transformations in modern history, thanks in no small part to the
growth of free and open trade across the region’s sea lanes. As Secretary Carter noted,
this growth has been the result of a peaceful security environment. While regional trade
and prosperity continue to grow, recent developments in the maritime domain, if left
unaddressed, could challenge the stable security environment that has enabled this
historic progress. These include rapid military modernization, growing competition for
resources, and intensifying territorial and maritime disputes.
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In recent years, Asia-Pacific nations have significantly increased their surface,
subsurface, and air capabilities, leading to a dramatic increase in the number of military
planes and vessels operating in close proximity in the maritime domain. At the same
time, this military modernization has been accompanied by a corresponding increase in
regional law enforcement capabilities, which have become increasingly relevant as some
countries, particularly China, are using their civilian assets to assert claims over disputed
maritime areas.
While military modernization efforts are a natural and expected element of economic
growth, they also increase the potential for dangerous miscalculations or conflict. This
places a premium on the need for Asia-Pacific nations to adhere to shared maritime rules
of the road, such as the Code for Unplanned Encounters at Sea (CUES), and to pursue
increased transparency and risk reduction mechanisms to ensure safe behavior in the
maritime domain.
The potential for instability is also exacerbated by the existence of long-standing
territorial and maritime disputes across the region, most notably in the South China Sea.
While we do not take a position on conflicting territorial claims in the South China Sea,
we do emphasize that all maritime claims must be derived from land features in
accordance with international law as reflected in the Law of the Sea Convention, and any
disputes should be settled peacefully and in accordance with international law. We have
called for all claimants to reciprocally and permanently halt land reclamation, the
construction of new facilities, and the further militarization of outposts on disputed
features. We have also encouraged all claimants to conclude a Code of Conduct by the
time of the East Asia Summit in November, one that would create clear rules of the road
in the South China Sea.
China’s large-scale land reclamation on disputed features over the past two years has
brought concerns about regional stability into sharper focus. While land reclamation is
not a new development, and China is not the only claimant to have conducted
reclamation, China’s recent activities significantly exceed other efforts in size, pace, and
effect. China has now reclaimed more than 2,900 acres, amounting to 17 times more land
in 20 months than the other claimants combined over the past 40 years, and accounting
for approximately 95 percent of all reclaimed land in the Spratly Islands. China has
clearly stated that the outposts will have a military component to them, and by
undertaking these actions, China is not only unilaterally altering the status quo in the
region, they are also complicating the lowering of tensions and the resolution of South
China Sea disputes. We continue to encourage all claimants to commit to reciprocally and
permanently halt further land reclamation, construction, and militarization of outposts in
the South China Sea, in order to create space for diplomatic solutions to emerge.
DoD’s Maritime Strategy
The Department has devised a comprehensive and systematic maritime strategy to meet
these challenges. Our strategy is focused on three fundamental goals: safeguarding the
freedom of the seas; deterring conflict and coercion; and promoting adherence to
international law and standards.
In pursuit of these goals, the Department is: strengthening U.S. military capacity;
building the maritime capabilities of allies and partners in maritime Asia; reducing the
risk of potential conflicts by leveraging military diplomacy; and strengthening regional
security institutions.
Strengthening U.S. Military Capacity
As part of the rebalance to the Asia-Pacific, we are strengthening our military capacity to
ensure the United States can successfully deter conflict and coercion and respond
decisively when needed. To achieve this objective, the Department is investing in new
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cutting-edge capabilities, deploying our finest maritime capabilities forward, and
distributing these capabilities more widely across the region.
We also are enhancing our regional force posture – particularly air and maritime assets –
to ensure our ability to execute key missions. We are deploying some of our most
advanced surface ships to the Asia-Pacific, including replacing the aircraft carrier USS
George Washington in 2015 with the newer USS Ronald Reagan; sending our newest air
operations-oriented amphibious assault ship, the USS America, to the region by 2020;
deploying two additional Aegis-capable destroyers to Japan; and home-porting all three
of our newest class of stealth destroyers, the DDG-1000, with the Pacific fleet. Through
these and other efforts, the U.S. Navy will increase the size of Pacific Fleet’s overseas
assigned forces by approximately 30 percent over the next five years.
This enhanced military capacity will allow the Department to maintain a higher tempo of
routine and persistent maritime presence activities across the Asia-Pacific. In short, you
will see more of the U.S. Navy in the region in the coming years. U.S. Pacific Command
maintains a robust shaping presence in and around the South China Sea, with activities
ranging from training and exercises with allies and partners to port calls to Freedom of
Navigation Operations and other routine operations. These activities are central to our
efforts to dissuade conflict, preserve our access to the region, encourage peaceful
resolution of maritime disputes and adherence to the rule of law, and to strengthen our
relationships with partners and allies.
A key component of DoD operations falls under the Freedom of Navigation (FON)
program, conducted in conjunction with our interagency partners. The Department is
placing new emphasis on these operations, which challenge excessive maritime claims
around the world and directly support adherence to international maritime law. Between
2013 and 2014, we increased global FON operations by 84 percent, the majority of which
were conducted in the Asia-Pacific. As Secretary Carter has stated, the United States will
continue to fly, sail, and operate wherever international law allows, as U.S. forces do all
around the world, and our FON Operations are a critical example of this.
The Department is also enhancing its forward presence by using existing assets in new
ways, across the entire region, with an emphasis on operational flexibility and
maximizing the value of U.S. assets despite the tyranny of distance. This is why the
Department is working to develop a more distributed, resilient, and sustainable posture.
As part of this effort, the United States will maintain its presence in Northeast Asia, while
enhancing defense posture across the Western Pacific, Southeast Asia, and the Indian
Ocean. The cornerstone of our forward presence will continue to be our presence in
Japan, and in an effort to ensure that this presence is sustainable, we have worked within
the alliance to develop a new laydown for the U.S. Marine Corps in the Pacific. Through
the bilateral Force Posture Agreement (FPA) with Australia and the Enhanced Defense
Cooperation Agreement (EDCA) with the Philippines, the Department will be able to
increase our routine and persistent rotational presence in Southeast Asia for expanded
training with regional partners.
Through these efforts, there should be no doubt that the United States will maintain the
necessary military presence and capabilities to protect our interests and those of our allies
and partners against potential threats in the maritime domain.
Building Ally and Partner Capacity
However, our strategy involves far more than U.S. capacity and presence. The bedrock of
our approach in the region is our strong network of allies and partners, and the combined
capabilities these relationships can bring to bear. Through regular and close consultations
with our allies and partners from Northeast Asia to the Indian Ocean, the Department of
Defense is working to bolster the maritime capacity and capabilities of countries in the
region.
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First, we are building greater interoperability and developing more integrated operations
with our allies and partners. For example, with our close ally Japan, we are working to
improve the maritime-related capabilities of the Japan Self-Defense Forces. As Japan
acquires advanced capabilities such as V-22 Ospreys, E-2D Hawkeyes, and Global Hawk
Unmanned Aerial Vehicles, we are building a stronger and more interoperable alliance.
Our expanded bilateral cooperation will now encompass a range of activities, from
peacetime cooperation on shared maritime domain awareness, up to cooperation across a
range of contingencies. In Southeast Asia, the Department is assisting the Philippines to
more effectively establish a minimum credible defense, and we have established new
bilateral working groups with Vietnam, Indonesia, and Singapore to support their
maritime defense requirements. And in South Asia, we are working with the Indian Navy
on aircraft carrier technology sharing and design; the U.S.-India Joint Aircraft Carrier
Working Group (JACWG) had its first formal meeting in August, led by Vice ADM
Cheema, the Commander in Chief of India’s Western Fleet.
We also are increasing the size, frequency, and sophistication of our regional exercise
program, with a particular focus on developing new exercises with Southeast Asian
partners and expanding our multilateral exercise program. A large contingent of U.S.,
Philippine, and Australian military personnel participated in this year’s exercise
Balikatan in the Philippines, including observers from Japan. DoD is continuing to
expand its maritime engagements elsewhere in Southeast Asia, with important partners
like Indonesia, Malaysia, and Vietnam. In Indonesia, the April 2015 iteration of the Sea
Surveillance Exercises included a flight portion over the South China Sea for the first
time, and the U.S. Marine Corps participated in an amphibious exercise with the
Malaysian Armed Forces. In Vietnam, we are rapidly growing our maritime training, and
in just six years, our naval cooperation has grown from a simple port visit to multi-day
engagements that allow our sailors to better understand each other’s operations and
procedures.
But our maritime capacity building efforts in Southeast Asia do not stop there. As
Secretary Carter announced at the Shangri-La Dialogue, the Department is implementing
a new Southeast Asia Maritime Security Initiative (MSI) that will increase training and
exercises, personnel support, and maritime domain awareness capabilities for our partners
in Southeast Asia. As part of MSI, DoD, in coordination with the Department of State,
will consult with our allies and partners to define the requirements needed to accomplish
the goals of MSI and explore other enduring opportunities for maritime collaboration. In
the near term, we are focused on several lines of effort: working with partners to expand
regional maritime domain awareness capabilities and develop a regional common
operating picture; providing the necessary infrastructure, logistics support, and
operational procedures to enable more effective maritime response operations;
strengthening partner nation operational capabilities through expanded maritime
exercises and engagements; helping partners strengthen their maritime institutions,
governance, and personnel training; and identifying modernization and new system
requirements for critical maritime security capabilities. I not only thank you for
remaining focused on this important effort, but also urge your continued support as we
move forward to implement this strategy.
Reducing Risk
In addition to our efforts to improve regional capabilities, the Department is also
leveraging defense diplomacy to build greater transparency, reduce the risk of
miscalculation or conflict, and promote shared maritime rules of the road. The
Department is pursuing a two-pronged approach to achieve this objective, one focusing
on our bilateral relationship with China, and the other focused on region-wide risk
reduction measures.
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In recent years, we have reinvigorated efforts to expand bilateral risk reduction
mechanisms with China, including the Military Maritime Consultative Agreement
(MMCA) and the establishment of an historic Memorandum of Understanding (MOU) on
Rules of Behavior for Safety of Air and Maritime Encounters in 2014. This MOU
established a common understanding of operational procedures for air and maritime
encounters to reduce the possibility of misunderstanding between the U.S. and Chinese
militaries. The MOU currently includes an annex on ship-to-ship encounters and we are
working to expand it further by the end of 2015. Already, U.S.-China defense diplomacy
has yielded positive results; there have been no unsafe intercepts since August 2014. In
further efforts to reduce risk, U.S. Navy and PLA Navy vessels have successfully
employed CUES during recent interactions, lowering the likelihood of miscalculations
that could lead to dangerous escalation.
Of course, reaching agreement on bilateral risk reduction measures with China is
necessary, but not sufficient. The Department is also working to help the Association of
Southeast Asian Nations (ASEAN) and other regional partners establish regional risk
reduction mechanisms, such as operational-level hotlines to establish more reliable and
routine crisis communication mechanisms. As I mentioned, MSI will help develop a
regional common operating picture to reduce risk, but we also encourage the efforts of
countries that seek to reduce tensions through their own initiatives – such as Indonesia
and Malaysia – who recently announced their intention to exchange maritime envoys in
an effort to increase mutual transparency. We also have supported the efforts between
China and Japan to do the same in the East China Sea.
Building Regional Architecture
Finally, we are working to strengthen regional security institutions and encourage the
development of a transparent, integrated, and diversified effective regional security
architecture. ASEAN is an increasingly important DoD partner, and the Department is
continuing to enhance its engagement in ASEAN-based institutions such as the ASEAN
Defense Ministers Meeting Plus (ADMM-Plus). To this end, Secretary Carter will travel
to Kuala Lumpur in November for the next ADMM-Plus meeting. This will follow a host
of new initiatives and engagements with various ASEAN-related institutions. For
example, at the May 2015 Shangri-La Dialogue in Singapore, the Secretary of Defense
announced DoD’s commitment to deploy a technical advisor to augment the U.S. Mission
to ASEAN in support of ASEAN’s maritime security efforts, and we are making progress
toward that goal. We are also leveraging informal opportunities to strengthen regional
cooperation, such as the first U.S.-ASEAN Defense Forum then-Secretary of Defense
Chuck Hagel hosted in Hawaii in April 2014. Through these venues, we aim to promote
candid conversations about ongoing challenges in the maritime domain, and encourage
greater information sharing and cooperative solutions.
At its core, any discussion about the future of the Asia-Pacific naturally involves a
discussion about maritime security, given the defining characteristic of the maritime
domain in the region. Our strategy enables countries in the region to have confidence in
our conviction to uphold our principled maritime interests. Our strategy also is designed
to strengthen the rules-based order, where laws and standards, not size and strength,
determine outcomes to disputes. We are not alone in seeking to advance this vision for
the region, which aligns our interests with our values; indeed, it is widely shared by
countries across the region that eagerly support our efforts. Even as we address
immediate challenges to our interests and those of our allies and partners, we remain
committed to this longer term goal.
Conclusion
The Asia-Pacific and its maritime waterways remain critical to U.S. security. The
Department is actively working to stay ahead of the evolving maritime security
environment in the Asia-Pacific by implementing a comprehensive strategy that will
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protect peace and stability in the maritime domain. Together with our interagency
colleagues and regional allies and partners, the Department will help ensure that maritime
Asia remains open, free, and secure in the decades ahead.116
September 17, 2015, U.S. Pacific Command Testimony
At the same September 17, 2015, hearing before the Senate Armed Services Committee hearing
on DOD’s Asia-Pacific maritime security strategy, Admiral Harry B. Harris, Jr., Commander, U.S.
Pacific Command (PACOM), stated:
The United States is a maritime nation and the importance of Asia-Pacific region to our
Nation’s security and prosperity cannot be overstated. Almost 30 percent of the world’s
maritime trade – $5.3 trillion – transits the South China Sea annually. This includes $1.2
trillion in ship-borne trade bound for the United States. The Asia-Pacific region is critical
for our nation’s economic future.
For decades, this region has remained free from major conflicts, allowing the United
States and other Pacific nations, including China, to enjoy the benefits of its vast
maritime spaces. However, the security environment is changing, potentially placing this
stability at risk. Rapid economic and military modernization and a growing demand for
resources have increased the potential for conflict. Peacetime freedom of navigation is
under pressure.
If not handled properly, territorial and maritime disputes in the East and South China
Seas could disrupt stability throughout the region. Claimants to disputed areas routinely
use maritime law enforcement and coast guard vessels to enforce their claims while
nominally keeping these issues out of the military sphere. While no country appears to
desire military conflict, tactical miscalculations can lead to strategic consequences.
The United States does not take sides on issues of sovereignty with respect to these
territorial disputes, but we do insist that all maritime claims be derived from naturally-
formed land features in accordance with customary international law, as reflected in the
Law of the Sea Convention. The United States also emphasizes the importance of
peacefully resolving maritime and territorial disagreements in accordance with
international law, and we oppose the use of intimidation, coercion, or aggression. The
U.S. believes every nation, large or small, should have the opportunity to develop and
prosper, in line with international laws and standards. If one country selectively ignores
these rules for its own benefit, others will undoubtedly follow, eroding the international
legal system and destabilizing regional security and the prosperity of all Pacific states.
Part of PACOM’s role in the Asia-Pacific Maritime Strategy will be ensuring all nations
have continued access to the maritime spaces vital to the global economy.
International recognition and protection of freedom of navigation is vital to the world’s
economy and our way of life. To safeguard the freedom of the seas, USPACOM routinely
exercises with allies and partners, executes Freedom of Navigation operations, and
maintains a robust presence throughout the region. These activities help build partner
capacity to contribute to the region’s security, enhance relationships, improve
understanding of shared challenges, and message the U.S.’s resolve.
The Asia-Pacific Maritime Security Strategy outlines our plan to safeguard freedom of
the seas, deter conflict, and promote adherence to international law and standards. It
reaffirms our commitment to the principles found in UNCLOS. In accordance with this
strategy and in pursuit of these goals, Pacific Command’s forces will fly, sail, and operate
116 ASD [Assistant Secretary of Defense] [David] Shear, Statement for the Record, SASC [Senate Armed Services
Committee] Hearing on DoD Asia-Pacific Maritime Security Strategy, [September 17, 2015].
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wherever international law allows, while continuing to strengthen the relationships and
rule of law that enabled the peaceful rise of every nation in the region.
A fundamental factor in the feasibility of this new strategy has been the Rebalance to the
Pacific. The Rebalance, initiated almost four years ago by President Obama, set the
conditions for the implementation of this strategy. The Rebalance strengthened treaty
alliances and partnerships, increased partner capacity and cooperation, improved
interoperability, and increased security capabilities in the region. DoD’s new maritime
strategy capitalizes on the momentum of the Rebalance and continues with its initiatives.
In executing the new maritime strategy, PACOM will continue to:
the Pacific.
aggression.
force internationally accepted rules and norms including the concepts of freedom
of navigation and innocent passage.
he Code for Unplanned Encounters at
Sea and the U.S.-China Confidence Building Measures to help prevent accidents and
tactical miscalculations.
Japan, Korea, Australia, Thailand and the Philippines, while building new and deeper
military relationships in places like Singapore, India, Vietnam, and with other likeminded
friends and partners.117
September 16, 2015, Secretary of Defense Remarks
In a September 16, 2015, speech at an aerospace convention, Secretary of Defense Ashton Carter
stated:
As our military adjusts its focus on counterinsurgency and re-doubles its full-spectrum
capabilities, the Air Force will play a critical role. Just take the Asia-Pacific, a region that
encompasses close to half of humanity, counts for more than half the world's economic
power and where we are positioning the majority of the Air Force is high end assets. This
is part of a present strategic re-balance, where we're working to align our security,
economic and diplomatic investments in the region to match our vital and growing
interest there.
Our re-balance has always been about sustaining peace and prosperity across the Asia-
Pacific and helping the region continue to fulfill its promise. We will preserve America's
support for a regional security architecture in the Asia-Pacific that is inclusive enough,
capable enough and resilient enough to ensure that all nations -- all nations have the
opportunity to continue to rise.
Here, the Air Force is playing a vital role of the stronger posture in the region, including
tactical aircraft like the F-22, space and cyber forces, and ISR [intelligence, surveillance
and reconnaissance] assets like MQ-9 and the Global Hawk. We will continue to
strengthen and modernize our infrastructure in places like Guam and across the Pacific
117 Statement of Admiral Harry B. Harris, Jr., U.S. navy, Commander, U.S. Pacific Command, Before the Senate
Armed Services Committee on Maritime Security Strategy in the Asia-Pacific Region, September 17, 2015.
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and we will continue to deepen our security cooperation with long-standing allies, like
Japan, South Korea, Australia and the Philippines, and new partners, like India and
Vietnam.
We'll strengthen our partnerships, our presence and posture so that the Asia-Pacific is a
region where everyone rises together, and so that its security architecture grows stronger,
not weaker.
With China, we see our relationship is defined by elements of both cooperation and
competition. Our military engagement with China seeks to build sustained and
substantive dialogue to advance concrete practical cooperation in areas of mutual interest
and to enhance risk-reduction measures, to diminish the potential for miscalculation.
At the same time, given our concern about China's growing military capabilities and
coercive approach to disputes, we're taking prudent steps to prepare for heightened
competition. Along with many of our Pacific partners and nations across the world, the
United States is deeply concerned about the pace and scope of land reclamation in the
South China Sea, the prospect of further militarization, as well as the potential for these
activities to increase the risk of miscalculation or conflict, among claimant states.
As a Pacific nation, a trading nation and ally and partner to many -- most actually, of the
nations of the region, from Japan to Australia to India, the United States will persist in its
decades-long strategic approach. First, we will continue to seek a peaceful resolution of
all disputes. To that end, there should be an immediate and permanent halt to land
reclamation by all claimants.
We also oppose any further militarization of disputed features. We all know there's no
military solution to the South China Sea disputes. Right now at this critical juncture, is
the time for renewed diplomacy focused on finding a lasting solution that protects the
rights and interests of all. As it is central to the regions -- regional security architecture,
ASEAN must be part of that effort.
Meanwhile, the United States will continue to protect freedom of navigation and
overflight, principles that have insured security and prosperity in this region for decades.
There should be no mistake. The United States will fly, sail and operate wherever
international law allows, as U.S. forces do all over the world.
America, alongside its allies and partners in the regional architecture, will not be deterred
from exercising these rights. After all, turning an underwater rock into an airfield simply
does not afford the rights of sovereignty or permit restrictions on international air or
maritime transit.
Finally, with its actions in the South China Sea, China is out of step with both the
international rules and norms that underscore the Asia-Pacific security architecture and
the regional consensus that favors diplomacy and opposes coercion. These actions are
spurring nations to respond together in new ways, including bilateral and multilateral
exercises with us, joint operations with us and the new U.S. maritime security initiative.
The United States will always stand with its allies and partners. It's important for the
region to understand that America is going to remain engaged, continue to stand up for
international law and universal principles, and help provide security and stability in the
Asia-Pacific for decades to come, as it has for many decades.118
118 Remarks by Secretary Carter at the Air Force Association's Air & Space Conference 2015, at the Gaylord National
Resort and Convention Center, National Harbor, Maryland, Secretary of Defense Ash Carter, September 16, 2015,
accessed September 18, 2015, at: http://www.defense.gov/News/News-Transcripts/Transcript-
View/Article/617480/remarks-by-secretary-carter-at-the-air-force-associations-air-space-conference .
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August 2015 DOD Report to Congress
A DOD report to Congress on the U.S. maritime security strategy for the Asia-Pacific region that
was released in late August 2015 states:
Although the United States takes no position on competing sovereignty claims to land
features in the region, all such claims must be based upon land (which in the case of
islands means naturally formed areas of land that are above water at high tide), and all
maritime claims must derive from such land in accordance with international law, as
reflected in the Law of the Sea Convention. The United States has a strong interest in
ensuring all claimants seek to address and resolve their issues peacefully, without conflict
or coercion. We also encourage and support the efforts of claimant States to pursue
diplomatic and other peaceful efforts to resolve the issues of sovereignty.
In the East China Sea, we continue to acknowledge Japan’s administration of the
Senkaku Islands and oppose any unilateral action that seeks to undermine it. In the South
China Sea, we urge all parties to pursue peaceful means of resolving their disputes, which
includes diplomacy as well as third party dispute settlement, such as the Philippines’
submission of its claims for arbitration in accordance with the dispute resolution
procedures in the Law of the Sea Convention. We also urge all parties to take action to
implement the Declaration on the Conduct of Parties in the South China Sea (DoC) and
take steps towards early conclusion of a meaningful Code of Conduct (CoC), which
would provide agreed upon rules of the road to reduce tension among claimant States.119
The report also states:
As President Obama noted in Tokyo last year and reiterated earlier this year during Prime
Minister Abe’s visit, “our treaty commitment to Japan’s security is absolute, and Article
5 covers all territories under Japan's administration, including the Senkaku Islands” – a
point that Secretaries Carter and Kerry also reaffirmed with their Japanese counterparts
on Monday, April 27, 2015, during the “2+2” meeting in New York. We will continue to
oppose any unilateral action that seeks to undermine Japan’s administration.120
The report also states:
In our bilateral discussions, we continue to express to China our concerns about its
behavior in the East and South China Seas, including restricting access to fishing grounds
in disputed waters, engaging in provocative energy exploration in other nations’ claimed
exclusive economic zones, undertaking dramatic land reclamation activities on disputed
features, and unilaterally announcing an ADIZ in the East China Sea. China’s actions are
having the effect of increasing uncertainty about its intentions, and this is shrinking space
for diplomatic solutions to emerge. We therefore continue to urge China to take active
steps to build trust with its neighbors, including clarifying the scope and nature of its
maritime claims in accordance with the international law of the sea and committing
reciprocally to halt land reclamation, construction of new facilities, and further
militarization of outposts it occupies if other claimants similarly commit themselves to do
so.121
August 7, 2015, Secretary of State Remarks
On August 7, 2015, in remarks on U.S.-Vietnam relations, Secretary of State John Kerry stated:
119 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 6.
120 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 8.
121 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 30.
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Our two governments also share an interest in freedom of navigation and peaceful
resolution of disputes in the South China Sea. The United States has made it clear that we
do not favor one set of claims over another – but we do support a process through which
disputes can be resolved peacefully and in accordance with international law.
International law treats all countries equally; it does not recognize spheres of influence or
the right of large nations to impose their will on smaller neighbors simply because they
can; it tells us that the resolution of disputes should depend on who has the better
argument, who has the law on their side – not who has the bigger army. That is a core
tenet of America’s foreign policy in this region as it has been in other regions over the
years. Whether big or small, all countries should refrain from provocative acts that add to
tensions or might further militarize the sea.122
August 6, 2015, Secretary of State Remarks
On August 6, 2015, in remarks at the East Asia Summit, Secretary Kerry stated:
Now, let me turn to an urgent regional priority the tensions caused by territorial and
maritime disputes. With great respect to my friend and colleague Foreign Minister Wang,
the United States and others have expressed concern to China over the pace and scope of
its land reclamation efforts. And the construction of facilities for military purposes only
raises tensions and the destabilizing risk of militarization by other claimant states.
Freedom of navigation and overflight are among the essential pillars of international
maritime law. Despite assurances that these freedoms will be respected, we have seen
warnings issued and restrictions attempted in recent months. Let me be clear: The United
States will not accept restrictions on freedom of navigation and overflight, or other lawful
uses of the sea. These are intrinsic rights that we all share. It doesn’t matter whether a
vessel is a large warship or a tiny fishing boat. The principle is clear: The rights of all
nations must be respected.
To that end, I have urged all claimants to make a joint commitment to halt further land
reclamation and construction of new facilities or militarization on disputed features. Such
steps would lower tensions and create diplomatic space for a meaningful Code of
Conduct to emerge by the time our leaders meet here in November.123
August 6, 2015, Secretary of State Remarks
On August 6, 2015, in remarks at a press availability, Secretary Kerry stated:
At the ASEAN regional forum, ministers endorsed a statement committing everyone to
tackle illegal, unregulated, and unreported fishing. And I was proud to announce a new
multiyear Oceans and Fisheries Partnership with the Southeast Asian Fisheries
Development Center in order to develop a system for documenting and tracing illegal
fishing with an initial commitment by the United States of 4.3 million for the first year as
it gets going.
On the security side, I expressed our serious concerns over the developments in the South
China Sea, including a massive land reclamation and the potential militarization of land
features. I reiterated America’s strong support of freedom of navigation, overflight, and
other lawful uses of the sea. These rights, I would remind everybody, are universal rights
122 Remarks on U.S.-Vietnam: Looking to the Future, John Kerry, Secretary of State, Daewoo Hotel, Hanoi, Vietnam,
August 7, 2015, accessed August 7, 2015, at http://www.state.gov/secretary/remarks/2015/08/245789.htm.
123 Intervention at the East Asia Summit, John Kerry, Secretary of State, Kuala Lumpur, Malaysia, August 6, 2015,
accessed August 7, 2015, at http://www.state.gov/secretary/remarks/2015/08/245758.htm.
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and they must be respected by every nation, large and small. To that end, I made clear our
belief that the claimants to some of these reefs, islands, to some of these areas, should –
all of them, every one of them – take concrete steps in order to try to lower the tensions
by refraining from further land reclamation, militarization, and construction projects. A
number of the claimants today made clear their willingness to refrain from those very
actions.
So this is an important step forward, but obviously there’s work left to be done since no
claimant is going to be expected to stop if others are disregarding this call and continuing
to proceed with their work. So a policy of restraint will create the diplomatic space that is
required for a meaningful code of conduct to emerge. And we will work very hard with
all of our partners in order to try to help that code of conduct come into being. It is vital
that claimants refrain from provocative unilateral actions, that they pursue their claims
according to international law, and that they settle their differences peacefully through
rule of law.
I also reaffirm that the United States has very strong interests itself in the South China
Sea and we have a strong interest in the way that disputes are addressed. The United
States will continue to take steps to support peace and stability in this region, to uphold
international law, and protect our interests throughout this arena as we have, in fact, for
decades.
In response to a question, Secretary Kerry added:
Now, with respect to the South China Sea, first of all, let me remind everybody that the
United States doesn’t take a position on the competing claims. We’re not choosing
between claimants, and that’s for the legal process or the diplomatic process to do. What
we do urge is all the claimants to refrain from unilateral actions that create tension or the
potential of conflict, or frankly, the potential of a mistake that could then become an
international incident. And it’s our sense that the Chinese have indicated that they have
stopped. I hope it’s true. I don’t know yet. What’s really needed, though, is an agreement
to stop not just the reclamation but the large-scale construction and militarization. So it’s
not just an issue of reclamation. And our hope is we put forward a proposal that people
stop all three and that they step back and work the process of the code of conduct and
whatever other legal process to try to resolve these issues.
I did find, and I will say this openly, that in my meeting with Foreign Minister Wang Yi,
he indicated a – I think a different readiness of China to try to resolve some of this,
though I think it still was not as fulsome as many of us would like to see, but it’s a
beginning. And it may open up some opportunity for conversation on this in the months
ahead; we’ll have to wait and see. But the easiest thing of all would be for everybody to
adopt a position of we’re not going to do anything except routine maintenance – no new
buildings, no new facilities, no militarization, no more reclamation – while the legal
process is resolved in order to give certainty to everybody, which is what is required
here.124
August 5, 2015, Secretary of State Remarks
On August 5, 2015, in remarks at a U.S.-ASEAN Ministerial Meeting, Secretary Kerry stated:
Let me say to all of our friends assembled around the table that ASEAN is really at the
very center at the Asia Pacific’s multilateral architecture. And that is where the United
States of America wants it to remain. ASEAN is essential to upholding the rules-based
124 Press Availability in Kuala Lumpur, Malaysia, John Kerry, Secretary of State, JW Marriott, Kuala Lumpur,
Malaysia, August 6, 2015, accessed August 7, 2015, at http://www.state.gov/secretary/remarks/2015/08/245768.htm.
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system in Asia and to ensuring that all countries, big and small, have a say in how we
address shared challenges, including economic development, climate change, human
trafficking, and marine conservation.
The United States remains deeply committed to ASEAN and to our shared vision of a
stable, peaceful, and prosperous region that respects the rule of law and safeguards
universal human rights....
And finally, the United States shares the frequently expressed desire of ASEAN members
to preserve the peace and stability of the South China Sea. We want to ensure the security
of critical sea lanes and fishing grounds, and we want to see that disputes in the area are
managed peacefully and on the basis of international law.125
July 21, 2015, State Department Remarks
On July 21, 2015, in remarks at a conference on the South China Sea, Daniel Russel, Assistant
Secretary of State, Bureau of East Asian and Pacific Affairs, stated:
There are many types of investment the world, and Asia, needs in order to grow—
investment in people, first and foremost; investment in business; in physical
infrastructure, and just as important; investment in “cooperative capital” – the
international law and order infrastructure that facilitates the interactions between
countries, that advances regional economic integration, and helps states peacefully
manage and settle disputes.
The U.S. makes balanced investments in all of these areas.
The last one, the international rules-based system, has been the ‘essential but
underappreciated underpinning’ of global growth over the last 70 years. That’s especially
true in Asia, where many countries have grown – and continue to grow – their economies
through international trade, especially trade with the U.S.
Asia’s nations have achieved so much in recent decades—reducing poverty, raising living
standards, and creating opportunities for their people. They’ve done it through hard work,
cooperation with each other, partnership with the U.S., and by jointly developing and
operating within a rules-based system....
We’re taking the security architecture that underpins this brighter future to a new level by
investing in regional institutions like the East Asia Summit and the Association of
Southeast Asian Nations (ASEAN), in addition to our longstanding work with global
ones like the U.N.
These institutions uphold norms and tackle tough challenges; they can help bring parties
together to hash out disagreements, or when bilateral diplomacy doesn’t succeed, help to
have those disputes resolved peacefully in a fair, impartial manner....
As we pursue this broad, forward-looking vision for the region, we’ve worked
constructively with China—a lot....
And in the last couple years, all of this work has paid off—we’ve made measurable
progress in a range of cooperative efforts....
But unfortunately, the situation in the South China Sea does not fit this cooperative
pattern.
125 Remarks at the U.S.-ASEAN Ministerial Meeting, John Kerry, Secretary of State, Putra World Trade Center, Kuala
Lumpur, Malaysia, August 5, 2015, accessed August 7, 2015, at http://www.state.gov/secretary/remarks/2015/08/
245706.htm.
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Now, the U.S. is not a claimant. As I’ve said here at CSIS, these maritime and territorial
disputes are not intrinsically a US-China issue. The issue is between China and its
neighbors and—ultimately—it’s an issue of what kind of power China will become. But
for a variety of reasons, the competing claims and problematic behavior in the South
China Sea have emerged as a serious area of friction in the U.S.-China relationship.
Let’s take a step back and recall, as I’m sure you discussed this morning, that there is a
history of competing assertions of sovereignty and jurisdiction in the South China Sea,
and even violent conflicts in 1974 and 1988.
There are no angels here. The occupation of land features in this contested space over the
years looked a lot like “squatters’ rights.” But that is something that in 2002 the claimants
agreed to stop doing.
In that year, all the claimants (and the ASEAN states) signed a Declaration of Conduct.
In it, and on other occasions, they have committed “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 … inhabiting the presently
uninhabited… features and to handle their differences in a constructive manner”.
In the Declaration of Conduct, they also committed to negotiate a Code of Conduct that
would lay out and lock in responsible behavior. But in the ensuing 13 years, work on the
Code has stalled, and the Declaration has not been sufficient to prevent confrontations or
to help claimants resolve these disputes peacefully.
Recently, the level of concern in the region has escalated as the scale and speed of
China’s reclamation work has become public. The Chairman’s statement at the ASEAN
leaders’ summit in April was unusually blunt, speaking of “serious concerns” about “land
reclamation being undertaken in the South China Sea, which has eroded trust and
confidence and may undermine peace, security and stability….” [ellipse as in original]
While China’s statement on June 16 that it would stop reclamation work “soon” was
presumably intended to reassure, its effect was in fact alarming since the statement went
on to warn that China would construct military facilities on these reclaimed outposts.
So we are pushing the parties to revive the spirit of cooperation embodied in the 2002
Declaration of Conduct.
We see a broad consensus within ASEAN on a path forward to reduce tensions and
promote peaceful handling of these disputes. And we support ASEAN’s efforts to
expeditiously conclude an effective, rigorous Code of Conduct that builds on the
Declaration by translating its cooperative spirit into specific “do’s and don’ts.”
But to make this happen, the parties need to create room for diplomacy.
In the famous words of Rich Armitage’s Dictum Number 1, “when you find yourself in a
hole – stop digging.” That is the advice we are giving to all the claimants: lower the
temperature and create breathing room by: stopping land reclamation on South China Sea
features; stopping construction of new facilities; and stopping militarization of existing
facilities.
These are steps the parties could commit to immediately; steps that would cost them
nothing; steps that would significantly reduce risks; steps that would open the door to
eventual resolution of the disputes.
Secretary Kerry has made this point to Chinese leaders and to the other claimants, and
will be meeting with his counterparts early next month in Malaysia at the ASEAN
Regional Forum, or ARF, to push for progress on this important priority.
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Now, steps to exercise restraint through a moratorium and a Code of Conduct will create
diplomatic space and help keep the peace, but they won’t address the question of
maritime boundaries or sovereignty over land features.
So what’s the way forward?
When it comes to competing claims, two of the main peaceful paths available to
claimants are negotiations and arbitration.
Countries across the region in fact have resolved maritime and territorial disputes
peacefully and cooperatively, whether through direct negotiations or through third-party
dispute settlement mechanisms.
Just a few examples: Indonesia and the Philippines recently agreed on their maritime
boundary;
Malaysia and Singapore used international court and tribunal proceedings to resolve
disputes concerning the Singapore Strait; and the International Tribunal for the Law of
the Sea delimited the maritime boundary between Bangladesh and Burma.
A common thread runs through the maritime boundary disputes that have been resolved
peacefully: the parties asserted maritime claims based on land features, and were
prepared to resolve those disputes in accordance with international law.
This is why we’ve consistently called on all claimants to clarify the scope of their claims
in the South China Sea, in accordance with international law as reflected in the 1982 Law
of the Sea Convention. Doing so would narrow the differences and offer the basis for
negotiations and cooperative solutions.
Regrettably, I don’t know anyone in the region who believes that a negotiated settlement
between China and other claimants is attainable in the current atmosphere.
And the multiple competing claims in some parts of the South China Sea make
negotiations that much more difficult.
And then there is the absolutist political position taken by some claimants who insist that
their own claims are “indisputable” and represent territory – however distant from their
shores – that was “entrusted to them by ancestors” and who vow never to relinquish “one
inch.”
What about arbitration? As this audience knows, there currently is an arbitration case
pending under the Law of the Sea Convention between the Philippines and China.
At the heart of the case is the question of the so-called “Nine Dash Line” and whether
that has a legal basis under the international law of the sea. It also asks what maritime
entitlements, if any, are generated by features that China occupies? In other words,
regardless of whose jurisdiction it may fall under, would Mischief Reef, for example, be
entitled to a 12 nautical mile territorial sea? A 200nm exclusive economic zone? A
continental shelf?
Now, it’s important to note that the Tribunal is not being asked – and is not authorized to
rule – on the question of sovereignty over disputed land features. Everyone recognizes
that the sovereignty issue is beyond the Tribunal’s jurisdiction. Claimants would need to
agree to bring that sort of sovereignty dispute before a court or tribunal, typically the ICJ.
But under the Law of the Sea Convention, the Tribunal is authorized to first determine
whether it has jurisdiction under the Convention over any of the Philippines’ claims in
the case and, if it does, whether the Philippines’ arguments have merit.
The United States, of course, is not a party to this arbitration and does not take a position
on the merits of the case. But when they became parties to the Convention, both the
Philippines and China agreed to its compulsory dispute settlement regime.
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Under this regime, the decision of the arbitral tribunal is legally binding on the parties to
the dispute. It’s a treaty. In keeping with the rule of law, both the Philippines and China
are obligated to abide by whatever decision may be rendered in the case, whether they
like it or not.
Now China has argued that the tribunal lacks jurisdiction, and the tribunal has
specifically considered this issue in recent hearings in The Hague, looking very carefully
at a position paper published by China. But if the Tribunal concludes that it in fact has
jurisdiction in this case, it will proceed to the merits, including potentially the question of
the legality of China’s “Nine-Dash Line.”
Should it then rule that the “Nine-Dash Line” is not consistent with the Law of the Sea
Convention, and particularly if the Tribunal ruled that the features cited in the case do not
generate EEZ or continental shelf entitlements, the scope of the overlapping maritime
claims – and hopefully the points of friction – would be significantly reduced.
But it’s also important to recognize that even in this outcome, important sovereignty and
boundary issues would remain unresolved.
This is as good a time as any to acknowledge (as China has often pointed out) that the
United States has not acceded to the Law of the Sea Convention, although accession has
been supported by every Republican and Democratic administration since the Convention
was signed and sent to the Senate in 1994. It is supported by the U.S. military, by
industry, environmental groups, and other stakeholders.
For the United States to secure the benefits of accession, the Senate has to provide its
advice and consent, as I hope it ultimately will.
But even as we encourage the parties to work for long term solutions, we are obligated to
protect U.S. interests. Let me take a moment to examine what some of those interests are:
• Protecting unimpeded freedom of navigation and overflight and other lawful uses of the
sea by all, not just the U.S. Navy;
• Honoring our alliance and security commitments, and retaining the full confidence of
our partners and the region in the United States;
• Aiding the development of effective regional institutions, including a unified ASEAN;
• Promoting responsible marine environmental practices;
• Fostering China’s peaceful rise in a manner that promotes economic growth and
regional stability, including through consistency with international law and standards.
• And more generally, an international order based on compliance with international law
and the peaceful of disputes without the threat or use of force.
As a practical matter, in addition to our support for principles such as the rule of law, we
are taking steps to help all countries in the region cooperate on maritime issues. For
example, we’re investing in the maritime domain awareness capabilities of coastal states
in the region.
This allows countries to protect safety at sea and respond to threats such as piracy, marine
pollution and illegal trafficking. Maritime awareness also advances transparency, in line
with our call to all claimants to be more open and transparent about their capabilities,
actions, and intentions at sea.
The U.S. military’s freedom of navigation operations are another element of a global
policy to promote compliance with the international law of the sea.
Our goal is to ensure that not only can the U.S. Navy or Air Force exercise their
navigational rights and freedoms, but ships and planes from even the smallest countries
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are also able to enjoy those rights without risk. The principles underlying unimpeded
lawful commerce apply to vessels from countries around the globe.
And under international law, all countries—not just the United States—enjoy the rights,
freedoms, and lawful uses of the sea that our diplomacy and the U.S. military’s freedom
of navigation operations help protect.
For us, it’s not about the rocks and shoals in the South China Sea or the resources in and
under it, it’s about rules and it’s about the kind of neighborhood we all want to live in. So
we will continue to defend the rules, and encourage others to do so as well. We will also
encourage all countries to apply principles of good neighborliness to avoid dangerous
confrontations.
Let me close by mentioning that we have a host of cooperative initiatives we’re working
on for the upcoming ASEAN Regional Forum meeting, the Asia-Pacific Economic
Cooperation forum, and the East Asia Summit—all of which will advance much more
quickly and effectively when tensions in the South China Sea are lower.
President Obama and Secretary Kerry have shown that they are not afraid to tackle the
biggest challenges facing US foreign policy and the world. And we’re energized, here in
the fourth quarter of this administration to do much more in partnership with our Allies,
with ASEAN and with China.
For us, for the region, and for China—finding a peaceful, lawful and responsible way
forward on the South China Sea is a prerequisite to achieving our longer term goals.126
May 30, 2015, Secretary of Defense Remarks
On May 30, in a speech at an international conference on security, Secretary of Defense Ashton
Carter stated:
[T]he United States wants a shared regional architecture that is strong enough, capable
enough, and connected enough to ensure that all Asia-Pacific peoples and nations have
the opportunity to rise—and continue to rise—in the future.... And the United States
wants to protect the rights of all countries, whether large or small, to win…[ellipse as in
original] to rise, to prosper and to determine their own destiny.
To realize that future, the Asia-Pacific’s security architecture must be inclusive, it must
be open, and it must be transparent. It must respect rights, and not just might. It cannot
shy away from the hard issues…[ellipse as in original] it must provide a forum to openly
discuss the challenges we face, so that we can tackle them collectively. It must be action-
oriented to help us manage today’s challenges and prevent tomorrow’s crises. And it
must reward cooperation, not coercion....
Today and in the years ahead, security must be the shared responsibility of all us, of all
our nations. With the strengthening of the East Asia Summit, we have the foundation for
a stronger architecture. It’s incumbent upon all of us to make it better…[ellipse as in
original] by reaffirming our long-standing rules and norms, strengthening our institutions,
modernizing alliances, enhancing capabilities, and improving connectivity. As President
Obama said in Brisbane last year, an effective security order for Asia must be based—not
on spheres of influence, or coercion, or intimidation where big nations bully the small—
but on alliances of mutual security, international law and international norms, and the
peaceful resolution of disputes.
126 Remarks at the Fifth Annual South China Sea Conference, Daniel R. Russel, Assistant Secretary, Bureau of East
Asian and Pacific Affairs, The Center for Strategic and International Studies, Washington, DC, July 21, 2015, accessed
August 7, 2015, at http://www.state.gov/p/eap/rls/rm/2015/07/245142.htm.
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First, we must all reaffirm the guiding principles and the rules that have served this
region so well. Disputes should be resolved peacefully…[ellipse as in original] through
diplomacy, not aggression or intimidation. All countries should have the right to freedom
of navigation and overflight so global commerce can continue unimpeded. And all
nations should be able to make their own security and economic choices free from
coercion.
These are the rights of all nations. They are not abstractions, and nor are they subject to
the whims of any one country. They are not privileges to be granted or withdrawn by any
country. These rules make sense: they’ve worked, and they can continue to help all our
nations to rise—as long as we reinforce them instead of putting them at risk....
... in addition to strengthening relationships, we must enhance the capacities of the
regional security architecture, particularly on maritime security.
American men and women in uniform are working together with countries in the region
to build that capacity—especially on maritime security.
For example, the U.S.S. Fort Worth, one of the Navy’s nimble littoral combat ships
[LCSs], just returned from a regional tour, where it was welcomed everywhere from
South Korea to Southeast Asia. And Singapore’s willingness to host LCS ships like Fort
Worth helps all of us respond more quickly and effectively to regional crises. For
example, when Air Asia Flight 8501 disappeared this past winter, the Fort Worth was
able to be on the scene within 24 hours to help with search and recovery.
We’re doing even more together. In Vietnam, where I will travel next, the United States
is providing equipment and infrastructure support to the Vietnamese coast guard. Just
this month in Malaysia, the U.S.S. Carl Vinson carrier strike group participated in air
combat training with Malaysian air and surface units. In the Philippines, the United
States is helping to build a National Coast Watch System to improve Manila’s maritime
domain awareness. And in Indonesia, America recently began conducting sea
surveillance exercises together, which included, for the first time flight portions over the
South China Sea.
And that’s just a start. Today, I am pleased to announce that DoD will be launching a
new Southeast Asia Maritime Security Initiative. And thanks to the leadership of the
Senators here today… [ellipse as in original] and others, Congress has taken steps to
authorize up to $425 million dollars for these maritime capacity-building efforts.
And
fifth,
to
ensure
that
our
institutions,
alliances,
partnerships,
and
capability…cap…[ellipses as in original] excuse me, capacity building efforts meet their
potential, we must be better connected. We can accomplish this by working together,
communicating better, and developing habits of cooperation.
Every year the United States helps plan and host hundreds of exercises and engagements
in the region. From Foal Eagle to Balikatan, from Malabar to Garuda Shield, RIMPAC,
Talisman Sabre to Cobra Gold, with every engagement we get smarter and more effective
together, while decreasing the risk of misinterpretation and miscalculation.
We can also limit that risk by improving communication further. For example, the
United States and China have agreed to two historic confidence-building agreements this
past fall, and the United States hopes to do more. We’re working to complete another
measure this year that aims to prevent dangerous air-to-air encounters. Building better
habits of U.S.-China military-to-military cooperation not only benefits both countries but
benefits the whole region as well....
To realize that future a future where everyone continues to rise and everyone continues to
win], we must tackle urgent issues like the security and stability of the South China Sea.
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Yesterday, I took an aerial transit of the Strait of Malacca. And when viewed from the
air, it is even clearer how critical this region’s waterways are to international trade and
energy resources. We’ve all benefitted from free and open access to the South China Sea
and the Strait of Malacca. We all have a fundamental stake in the security of the South
China Sea. And that’s why we all have deep concerns about any party that attempts to
undermine the states [sic: status] quo and generate instability there, whether by force,
coercion, or simply by creating irreversible facts on the ground, in the air, or in the water.
Now, it’s true that almost all the nations that claim parts of the South China Sea have
developed outposts over the years…of differing scope and degree. In the Spratly Islands,
Vietnam has 48 outposts; the Philippines, eight; Malaysia, five; and Taiwan, one.
Yet, one country has gone much further and much faster than any other. And that’s
China.
China has reclaimed over 2,000 acres, more than all other claimants combined…[ellipse
as in original] and more than in the entire history of the region. And China did so in only
the last 18 months. It is unclear how much farther China will go. That is why this stretch
of water has become the source of tension in the region and front-page news around the
world.
The United States is deeply concerned about the pace and scope of land reclamation in
the South China Sea, the prospect of further militarization, as well as the potential for
these activities…[ellipse as in original] to increase the risk of miscalculation or conflict
among claimant states. As a Pacific nation, a trading nation, and a member of the
international community, the United States has every right to be involved and concerned.
But these are not just American concerns. Nations across the region and the world, many
of you here in the room today, have also voiced the same concerns and raised questions
about China’s intentions in constructing these massive outposts.
So let me make clear the position of the United States:
First, we want a peaceful resolution of all disputes. To that end, there should be an
immediate and lasting halt to land reclamation by all claimants. We also oppose any
further militarization of disputed features. We all know there is no military solution to
the South China Sea disputes. Right now, at this critical juncture, is the time for
renewed diplomacy, focused on a finding a lasting solution that protects the rights and the
interests of all. As it is central to the regional security architecture, ASEAN must be a
part of this effort: the United States encourages ASEAN and China to conclude a Code of
Conduct this year. And America will support the right of claimants to pursue
international legal arbitration and other peaceful means to resolve these disputes, just as
we will oppose coercive tactics.
Second, the United States will continue to protect freedom of navigation and overflight—
principles that have ensured security and prosperity in this region for decades. There
should be no mistake: the United States will fly, sail, and operate wherever international
law allows, as U.S. forces do all over the world. America, alongside its allies and
partners in the regional architecture, will not be deterred from exercising these rights –
the rights of all nations. After all, turning an underwater rock into an airfield simply does
not afford the rights of sovereignty or permit restrictions on international air or maritime
transit.
Finally, with its actions in the South China Sea, China is out of step with both the
international rules and norms that underscore the Asia-Pacific’s security architecture, and
the regional consensus that favors diplomacy and opposes coercion. These actions are
spurring nations to respond together in new ways: in settings as varied as the East Asia
Summit to the G-7, countries are speaking up for the importance of stability in the South
China Sea. Indonesia and the Philippines are putting aside maritime disputes and
resolving their claims peacefully. And in venues like ADMM-Plus and East Asia
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Maritime Forum [sic: Expanded ASEAN Maritime Forum], nations are seeking new
protocols and procedures to build maritime cooperation.127
May 13, 2015, State Department Testimony
At a May 13, 2015, hearing before the Senate Foreign Relations Committee on safeguarding
American interests in the ECS and SCS, Daniel Russel, Assistant Secretary of State, Bureau of
East Asian and Pacific Affairs, stated:
For nearly 70 years, the United States, along with our allies and partners, has helped to
sustain in Asia a maritime regime, based on international law, which has underpinned the
region’s stability and remarkable economic growth. 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 has been
instrumental in safeguarding the rights and freedoms of all countries regardless of size or
military strength. We have an abiding interest in freedom of navigation and overflight
and other internationally lawful uses of the sea related to those freedoms in the East and
South China Seas and around the world.
The East and South China Seas are important to global commerce and regional stability.
Their economic and strategic significance means that the handling of territorial and
maritime issues in these waters by various parties could have economic and security
consequences for U.S. national interests. While disputes have existed for decades,
tensions have increased considerably in the last several years. One of our concerns has
been the possibility that a miscalculation or incident could touch off an escalatory cycle
that would be difficult to defuse. The effects of a crisis would be felt around the world.
This gives the United States a vested interest in ensuring that territorial and maritime
issues are managed peacefully. Our strategy aims to preserve space for diplomatic
solutions, including by pressing all claimants to exercise restraint, maintain open
channels of dialogue, lower rhetoric, behave responsibly at sea and in the air and
acknowledge that the same rules and standards apply to all claimants, without regard for
size or strength. We strongly oppose the threat of force or use of force or coercion by any
claimant.
East China Sea
Let me begin with the situation in the East China Sea. Notwithstanding any competing
sovereignty claims, Japan has administered the Senkaku Islands since the 1972 reversion
of Okinawa to Japan. As such, they fall under Article V of the U.S.-Japan Security
Treaty. With ships and aircraft operating in close proximity to the Senkakus, extreme
caution is needed to reduce the risk of an accident or incident. We strongly discourage
any actions in the East China Sea that could increase tensions and encourage the use of
peaceful means and diplomacy. In this regard, we welcome the resumed high level
dialogue between China and Japan and the restart of talks on crisis management
mechanisms. We hope that this will translate into a more peaceful and stable environment
in the East China Sea.
South China Sea
Disputes regarding sovereignty over land features and resource rights in the Asia-Pacific
region, including the South China Sea, have been around for a long time. Some of these
disputes have led to open conflict such as those over the Paracel Islands in 1974 and
127 Secretary of Defense Speech, IISS Shangri-La Dialogue: “A Regional Security Architecture Where Everyone
Rises,” As Delivered by Secretary of Defense Ash Carter, Singapore, Saturday, May 30, 2015, accessed August 7,
2015, at http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1945.
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Johnson South Reef in 1988. While we have not witnessed another conflict like those in
recent years, the increasing frequency of incidents in the South China Sea highlights the
need for all countries to move quickly in finding peaceful, diplomatic approaches to
address these disputes.
We know that this is possible. There are instances throughout the region where neighbors
have peacefully resolved differences over overlapping maritime zones. Recent examples
include Indonesia’s and the Philippines’ successful conclusion of negotiations to delimit
the boundary between their respective exclusive economic zones (EEZs) and India’s and
Bangladesh’s decision to accept the decision of an arbitral tribunal with regard to their
overlapping EEZ in the Bay of Bengal. There have also been instances where claimants
have agreed to shelve the disputes and find peaceful ways to manage resources in
contested areas. In its approach to the East China Sea, Taiwan forged a landmark fishing
agreement with Japan through cooperative dispute resolution. These examples should be
emulated.
All disputes over claims in the South China Sea should be pursued, addressed, and
resolved peacefully. In our view, there are several acceptable ways for claimants to
handle these disputes. In the first instance, claimants should use negotiations to try and
resolve the competing sovereignty claims over land features and competing claims to
maritime resources. However, the fact remains that if every claimant continues to hold a
position that their respective territorial and maritime claims are “indisputable,” that
leaves parties with very little room for compromise. In addition, mutually agreeable
solutions to jointly manage or exploit marine resources are more difficult to find if not all
claimants are basing their claims on the Law of the Sea.
Another reasonable option would be for claimants to submit their maritime claims to
arbitration by a neutral third party to assess the validity of their claims. The Philippines,
for example, is seeking clarification from an international tribunal on the validity of
China’s nine-dash line as a maritime claim under the United Nations Law of the Sea
Convention, as well as greater clarity over what types of maritime entitlements certain
geographic features in the South China Sea are actually allowed. This approach is not
intended to resolve the underlying sovereignty dispute, but rather could help provide
greater clarity to existing claims and open the path to other peaceful solutions.
With respect to resolving the claimants’ underlying sovereignty disputes, a wide array of
mutually-agreed third party dispute settlement mechanisms, including recourse to the
International Court of Justice, would be available to them.
Short of actually resolving the disputes, there is another option which past Chinese
leaders have called for – namely, a modus vivendi between the parties for an indefinite
period or until a more favorable climate for negotiations could be established. In the case
of the South China Sea, this could be achieved by any number of mechanisms, including,
as a first step, a detailed and binding meaningful ASEAN-China Code of Conduct.
But for any claimant to advance its claims through the threat or use of force or by other
forms of coercion is patently unacceptable.
In my testimony before the House Foreign Affairs Subcommittee on Asia and the Pacific
in February 2014, I noted U.S. concern over an apparent pattern of behavior by China to
assert its nine-dash line claim in the South China Sea, despite the objections of its
neighbors and the lack of clarity of the claim itself. More than a year later, China
continues to take actions that are raising tensions and concerns throughout the region
about its strategic intentions.
In particular, in the past year and a half China’s massive land reclamation on and around
formerly tiny features, some of which were under water, has created a number of artificial
above-water features. Three of China’s land fill areas are larger than the largest naturally
formed island in the Spratly Islands. China is constructing facilities on these expanded
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outposts, including at least one air strip on Fiery Cross reef that looks to be the longest air
strip in the Spratlys and capable of accommodating military aircraft. China is also
undertaking land reclamation efforts in the Paracel Islands, which it currently occupies.
Under international law it is clear that no amount of dredging or construction will alter or
enhance the legal strength of a nation's territorial claims. No matter how much sand you
pile on a reef in the South China Sea, you can’t manufacture sovereignty.
So my question is this: What does China intend to do with these outposts?
Beijing has offered multiple and sometimes contradictory explanations as to the purpose
of expanding these outposts and constructing facilities, including enhancing its ability to
provide disaster relief, environmental protection, search and rescue activities,
meteorological and other scientific research, as well as other types of assistance to
international users of the seas.
It is certainly true that other claimants have added reclaimed land, placed personnel, and
conducted analogous civilian and even military activities from contested features. We
have consistently called for a freeze on all such activity. But the scale of China’s
reclamation vastly outstrips that of any other claimant. In little more than a year, China
has dredged and now occupies nearly four times the total area of the other five claimants
combined.
Far from protecting the environment, reclamation has harmed ecosystems and coral reefs
through intensive dredging of the sea bed. Given its military might, China also has the
capability to project power from its outposts in a way that other claimants do not. And
perhaps most importantly, these activities appear inconsistent with commitments under
the 2002 ASEAN China Declaration on the Conduct of Parties in the South China Sea,
which calls on all parties to forgo actions that “would complicate or escalate disputes.”
More recently, Beijing indicated that it might utilize the islands for military purposes.
The Chinese Foreign Ministry stated that the outposts would allow China to “better
safeguard national territorial sovereignty and maritime rights and interests” and meet
requirements for “military defense.” These statements have created unease among
neighbors, in light of China’s overwhelming military advantage over other claimants and
past incidents with other claimants. As the statement last week from the ASEAN Leaders
Summit in Malaysia made clear, land reclamation in the South China Sea is eroding trust
in the region and threatens to undermine peace, security, and stability in the South China
Sea.
Apart from reclamation, the ambiguity and potential breadth of China’s nine-dash line
maritime claim also fuels anxiety in Southeast Asia. It is important that all claimants
clarify their maritime claims on the basis of international law, as reflected in the United
Nations Convention on the Law of the Sea. On April 29, Taiwan added its voice to the
regional chorus by calling on “countries in the region to respect the principles and spirit
of all relevant international law, including the Charter of the United Nations, and the
United Nations Convention on the Law of the Sea.” The ASEAN claimant states have
indicated that their South China Sea maritime claims derive from land features. Beijing,
however, has yet to provide the international community with such a clarification of how
its claims comport with international law. Removing ambiguity goes a long way to
reducing tensions and risks.
Simple common sense dictates that tensions and risks would also be reduced if all
claimants commit to halt reclamation activities and negotiate the acceptable uses of
reclaimed features as part of a regional Code of Conduct. Talks on a regional Code of
Conduct over several years have been inconclusive, but we share the growing view in the
region that a binding Code should be completed in time for the 2015 East Asia Summit in
Malaysia.
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Mr. Chairman, let me now turn the question of what the United States is doing to ensure
peace and stability in the South China Sea.
The United States can and does play an active role in the South China Sea to defend our
national interests and international legal principles. And while it falls to the claimants to
resolve their disputes, we will continue to play an active and constructive role. U.S.
engagement in regional fora has been crucial in placing the South China Sea and
maritime cooperation at the top of the agenda in the region’s multilateral forums, and
these issues are a major part of bilateral discussions with the relevant countries. By
shining a spotlight on problematic behavior, including massive land reclamation, the
United States has helped ensure that problematic behavior is exposed and censured, if not
stopped.
We also play an important role building regional consensus around rules and acceptable
practices with regard to maritime and territorial issues. We defend the use of legal dispute
settlement mechanisms that may be available to countries – including arbitration under
the Law of the Sea Convention – when diplomatic negotiations have not yielded results.
I would like to make two points regarding the Law of the Sea Convention. First, with
respect to arbitration, although China has chosen not to participate in the case brought by
the Philippines, the Law of the Sea Convention makes clear that “the absence of a party
or failure of a party to defend its case shall not constitute a bar to the proceedings.” It is
equally clear under the Convention that a decision by the tribunal in the case will be
legally binding on both China and the Philippines. The international community expects
both the Philippines and China to respect the ruling, regardless of outcome.
Secondly, I respectfully urge the Senate to take up U.S. accession of the Law of the Sea
Convention. Accession has been supported by every Republican and Democratic
administration since it was transmitted to the Senate in 1994. It is supported by the U.S.
military, by industry, environmental groups, and other stakeholders. I speak in the
interests of U.S. foreign policy in the South China Sea in requesting Senate action to
provide advice and consent to accede to the Convention. Doing so will help safeguard
U.S. national security interests and provide additional credibility to U.S. efforts to hold
other countries’ accountable to their obligations under this vitally important treaty.
Another line of effort is our work to forge strong partnerships with Southeast Asian
coastal states to improve their maritime domain awareness so they have a clearer picture
of what is developing in waters off their mainland coasts. We are also working with allies
such as Japan and Australia to coordinate and maximize the impact of our assistance and
to ensure that we are not duplicating efforts. By developing a common operating picture,
claimants can work together to avoid unintended escalations and identify potential areas
of cooperation.
We have also encouraged the sharing of information and enhanced coordination amongst
the claimants and others in the region to ensure that all countries with an interest in the
peaceful resolution of disputes in the South China Sea are aware of events there, and
understand what everyone else is doing.
My colleague Assistant Secretary for Defense, Dave Shear, will speak next about the
military implications of recent developments as well as the Department of Defense’s
efforts to ensure regional peace and stability. It is my belief that the consistent presence
of the Seventh Fleet and our recent force posture movements have been significant
factors in deterring conflict between claimants in recent years. Disputes in the South
China Sea have simmered, but not boiled over.
But against the backdrop of a strong and sustained U.S. military presence, which is
welcomed by the overwhelming majority of countries in the region, diplomacy will
continue to be our instrument of first resort. We are vigorously engaging with all of the
claimants. We do so at major multilateral meetings like the East Asia Summit and
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ASEAN Regional Forum and we do so bilaterally, as President Obama did in Beijing late
last year. Next week, I will host my ten ASEAN counterparts here in Washington and
then will accompany Secretary Kerry to China in advance of the Strategic and Economic
Dialogue he will host this summer. In each of these meetings, we will push forward on
restraint and push back against destabilizing behavior; we will push for respect for the
rules and push back on unilateral actions to change the status quo.
Mr. Chairman, the net effect of what we are seeing in the South China Sea is a
heightened interest from the region in ensuring that the existing rules-based order remains
intact as well as a strengthened demand for the United States to continue playing a
leading role in regional security affairs.
Despite our differences over the South China Sea, the United States and China have
worked hard to expand cooperation and develop effective channels of communication to
manage differences. This administration has been clear and consistent in welcoming
China’s peaceful rise, and in encouraging China to take on a greater leadership role in
addressing regional and global challenges. This was demonstrated clearly by our two
countries’ joint announcement of climate targets and military CBMs last November in
Beijing. We are working with China constructively on a wide range of security and other
challenges – including with respect to North Korea, Iran, climate change, and global
healthy security. Moreover, we actively encourage all countries to pursue constructive
relations with China, just as we urge China to take actions that reassure the region of its
current and future strategic intentions. As President Obama pointed out recently, there is
much to admire about China’s rise and reason for optimism with regard to cooperation.
But as he also noted, we cannot ignore attempts by any country to use its “sheer size and
muscle to force countries into subordinate positions,” including in the South China Sea.
For the President and Secretary of State on down, maritime issues remain at the top of
this administration’s agenda with Beijing. We consistently raise our concerns directly
with China’s leadership and urge China to manage and resolve differences with its
neighbors peacefully and in accordance with international law. We also underscore that
the United States will not hesitate to defend our national security interests and to honor
our commitments to allies and partners in the Asia-Pacific.
Fundamentally, these maritime security issues are about rules, not rocks. The question is
whether countries work to uphold international legal rules and standards, or whether they
flout them. It’s about whether countries work together with others to uphold peace and
stability, or use coercion and intimidation to secure their interests.
The peaceful management and resolution of disputes in the South China Sea is an issue of
immense importance to the United States, the Asia-Pacific region, and the world. This is
a key strategic challenge in the region. And I want to reaffirm here today that we will
continue to champion respect for international law, freedom of navigation and overflight
and other internationally lawful uses of the seas related to those freedoms, unimpeded
lawful commerce, and the peaceful resolution of disputes.128
May 13, 2015, Defense Department Testimony
At the same May 13, 2015, hearing before the Senate Foreign Relations Committee, David Shear,
Assistant Secretary of Defense for Asian & Pacific Security Affairs, stated:
East China Sea
128 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, May 13, 2015, [on] Maritime Issues in East Asia.
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In the East China Sea, through a persistent military and paramilitary presence as well as
the announcement in November 2013 of a new Air Defense Identification Zone, China
continues to engage in actions that appear designed to challenge Japan's administration of
the Senkaku Islands. As President Obama noted in Tokyo last year and reiterated again
last week during Prime Minister Abe’s visit, "our treaty commitment to Japan's security
is absolute, and Article 5 covers all territories under Japan's administration, including the
Senkaku Islands" -- a point that Secretaries Carter and Kerry also reaffirmed with their
Japanese counterparts on Monday, April 27, 2015, during the "2+2" meeting in New
York. We have been clear, and remain so, that while we do not take a position on the
question of sovereignty, the islands are under the administration of Japan. We will
continue to oppose any unilateral action that seeks to undermine Japan's administration.
South China Sea
The challenges we face in the SCS, while troubling, are not new. In fact, the territorial
and maritime disputes are decades old. These disputes are centered around three primary
areas: the Paracel Islands, claimed by China Taiwan, and Vietnam; Scarborough Reef,
claimed by China, Taiwan, and the Philippines; and the Spratly Islands (which include
over 200 features, most of which are underwater) claimed all or in part by Vietnam, the
Philippines, China, Malaysia, , and Taiwan. Indonesia's maritime claims also project into
the South China Sea.
Over the past two decades, all of the territorial claimants, other than Brunei, have
developed outposts in the South China Sea, which they use to project civilian or maritime
presence into surrounding waters, assert their sovereignty claims to land features, and
monitor the activities of other claimants. In the Spratly islands, Vietnam has 48 outposts;
the Philippines, 8; China, 8; Malaysia, 5, and Taiwan, 1. All of these same claimants have
also engaged in construction activity of differing scope and degree. The types of outpost
upgrades vary across claimants but broadly are comprised of land reclamation, building
construction and extension, and defense emplacements. Between 2009 and 2014,
Vietnam was the most active claimant in terms of both outpost upgrades and land
reclamation, reclaiming approximately 60 acres. All territorial claimants, with the
exception of China and Brunei, have also already built airstrips of varying sizes and
functionality on disputed features in the Spratlys. These efforts by claimants have
resulted in a tit-for-tat dynamic which continues to date.
China’s activities
While other claimants have upgraded their South China Sea outposts over the years,
China’s land reclamation activity vastly exceeds these other claimants’ activities. Since
2014, China has reclaimed 2,000 acres -- more land than all other claimants combined
over the history of their claims. When combined with a range of activities, including:
assertion of its expansive Nine-Dash Line claim, relocation of oil rigs in disputed
maritime zones, efforts to restrict access to disputed fishing zones, and efforts to interfere
with resupply of the Philippine outpost at Second Thomas Shoal, we see a pattern of
behavior that raises concerns that China is trying to assert de facto control over disputed
territories, and strengthen its military presence in the South China Sea.
We are concerned that the scope and nature of China’s actions have the potential to
disrupt regional security. China's actions and increased presence could prompt other
regional governments to respond by strengthening their military capabilities at their
outposts, which would certainly increase the risk of accidents or miscalculations that
could escalate. In contrast to China, the other claimants have been relatively restrained in
their construction activities since the signing of the China-ASEAN Declaration of
Conduct (DOC) in 2002. This restraint may not hold in the face of China’s unprecedented
altering of the post-DOC status quo.
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Furthermore, China’s ultimate intentions regarding what to do with this reclaimed land
remain unclear. A Chinese spokesperson said on April 9 that it was carrying out
reclamation work to “better perform China’s international responsibility and obligation in
maritime search and rescue, disaster prevention and mitigation, marine science and
research.” However, the Spokesperson also said China will use this construction to better
safeguard “territorial sovereignty and maritime rights and interests… (and
for)…necessary military defense.” This is not reassuring.
Militarily speaking, China’s land reclamation could enable it, if it chose, to improve its
defensive and offensive capabilities, including: through the deployment of long-range
radars and ISR aircraft to reclaimed features; ability to berth deeper draft ships at its
outposts and thus to expand its law enforcement and naval presence further south into the
South China Sea; and, airstrips will provide China with a divert airfield for carrier-based
aircraft, enabling China to conduct more sustained air operations. Higher end military
upgrades, such as permanent basing of combat aviation regiments or placement of
surface-to-air, anti-ship, and ballistic missile systems on reclaimed features, would
rapidly militarize these disputed features in the South China Sea.
To be clear, the United States welcomes China's peaceful rise. We want to see a reduction
– not an escalation – of tensions in the South China Sea, we want to see a diplomatic
solution to these disputes, and we want constructive relations between China and other
claimants. But as the President pointed out on April 9, “(w)here we get concerned with
China is where it is not necessarily abiding by international norms and rules, and is using
its size and muscle to force countries into subordinate positions.” These concerns are
amplified when put into the broader context of China’s rapidly increasing, and opaque
defense budget – a budget that has more than doubled since 2008. As well as China’s
comprehensive military modernization effort that includes investments in capabilities
such as ballistic missiles, anti-ship cruise missiles, and counter-space weapons. Though
increased military capabilities are a natural outcome of growing power, the way China is
choosing to advance its territorial and maritime claims is fueling concern in the region
about how it would use its military capabilities in the future. Having these capabilities per
se is not the issue – the issue is how it will choose to use them.
China’s actions are not viewed solely in the context of territorial and maritime disputes;
they are viewed as indicators of China’s long-term strategic intentions. China’s
unwillingness to exercise restraint in its actions or transparency in its intentions is
deepening divisions between China and its neighbors, as ASEAN leaders expressed
collectively at the last ASEAN Summit in April. As a result, our allies and partners are
seeking to deepen their defense, security and economic relationships with us and with
each other. China could reduce strategic uncertainty by taking concrete steps to: clarify or
adjust its Nine Dash Line claim in order to bring it into accordance with international law
as reflected in the Law of the Sea Convention; to renounce any intent to claim a territorial
sea or national airspace around any artificial features formed by China’s reclamation
activities; halt reclamation activity and enter into discussions with other claimants about
establishing limits to military upgrades in the South China Sea (either unilaterally and
voluntarily as a confidence-building measure or in coordination with other claimants);
and rapidly conclude a binding South China Sea Code of Conduct with ASEAN member
states.
Current DoD Activities
DoD is taking action to protect U.S. national interests in the South China Sea: peaceful
resolution of disputes, freedom of navigation and overflight and other internationally
lawful uses of the sea related to these freedoms, unimpeded lawful commerce, respect for
international law, and the maintenance of peace and stability. These objectives are
directly linked to the continued prosperity and security of the United States and the Asia-
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Pacific region. We therefore have a strong interest in how all claimants, including China,
address their disputes and whether maritime claims accord with international law.
First, we are committed to deterring coercion and aggression and thereby reinforcing the
stability of the Asia-Pacific region, and we are taking proactive steps to do so. Our
primary effort in this regard is to work to refresh and modernize our long-standing
alliances. With Japan, we concluded last week an historic update to our bilateral
Guidelines for U.S.-Japan Defense Cooperation, with an eye to enhancing the ability of
the U.S.-Japan Alliance to support peace and security across the region and the globe.
With the ROK, we are developing a comprehensive set of Alliance capabilities to counter
the growing range of threats on the peninsula, while expanding our ability to tackle
global challenges together. And in Australia and the Philippines, we signed ground-
breaking agreements in 2014 that will provide enhanced access for U.S. forces while
greatly expanding the combined training opportunities for our alliances.
To expand the reach of these alliances, we are embarking on unprecedented “trilateral”
cooperation – in other words we are networking our relationships. In some cases this
cooperation directly benefits our work on maritime security. For example, we’re
cooperating trilaterally with Japan and Australia to strengthen maritime security in
Southeast Asia and explore defense technology cooperation.
Second, we are adapting our overall defense posture in the region to be more
geographically distributed, operationally resilient, and politically sustainable. For
example, we’re shifting our Marines from a concentrated presence in Okinawa to
Australia, Hawaii, Guam, and mainland Japan. We are already leveraging changes in our
force posture to make existing engagements more robust. Our rotational deployments of
Littoral Combat Ships to Singapore has provided the U.S. Navy with its first sustained
forward presence in Southeast Asia since the closing of Subic Bay in the early 1990s and
has opened the door for greater training and engagement opportunities with our allies and
partners in Southeast Asia.
We are also leveraging the assets we have in theater to maintain and enhance our visible
presence in the Asia-Pacific, and the South China Sea. This presence not only reinforces
our regional diplomacy, it also deters provocative conduct and reduces the risk of
miscalculation in the area. The Department maintains a robust regional presence in and
around the South China Sea. In an average month, U.S. military forces are conducting
multiple port calls in and around the South China Sea, flying regular regional ISR
missions, conducting presence operations, and exercising with allies and partners like the
Philippines and Malaysia, all while maintaining a persistent surface ship presence with
routine transits throughout the area. For example, our new Littoral Combat Ship, the USS
Fort Worth, recently concluded a successful naval engagement with the Vietnamese Navy
that included a full day of at-sea activities. And before her deployment is done, the LCS
will have completed bilateral Cooperation Afloat Readiness and Training (CARAT) with
seven different Asia-Pacific partners.
Third, we are working with governments in the region to improve their maritime security
capacity and maritime domain awareness in order to increase regional transparency and
deter further conflict. In the Philippines, for example, we recently concluded the
Enhanced Defense Cooperation Agreement and have transferred vessels to help our ally
police its own waters and are helping to build a National Coast Watch System that will
improve Manila’s awareness of its maritime domain. The Philippines has also been the
largest recipient of U.S. Foreign Military Financing (FMF) funds in the region. These
funds have been used to assist the Philippines with communications interoperability,
maritime interdiction boats, shipyards capacity and patrol vessel upgrades. We are also
providing equipment and infrastructure support to the Vietnamese Coast Guard and are
helping to support effective maritime security institutions there. Last October, the U.S.
government took steps to allow for the future transfer of maritime security related
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defense articles to Vietnam. We have three annual dialogues with Vietnam on defense
cooperation – the Defense Policy Dialogue; Bilateral Defense Dialogue; and Political,
Security, and Defense Dialogue
To support efforts to improve the maritime domain awareness of our allies and partners,
we are encouraging greater information sharing in the region. PACOM will be hosting a
workshop with our ASEAN partners next month to discuss lessons-learned and best
practices in maritime domain awareness, to include information sharing. We also support
initiatives from within the region like the Regional Cooperation Agreement on
Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) Information
Sharing Center and Changi Information Fusion Center in Singapore to encourage greater
collaboration among our allies and partners to establish a timely and accurate common
operating picture of maritime activities in the region.
Furthermore, DoD has a robust slate of training exercises and activities with many allies
and partners in Asia, and we have begun incorporating a maritime focus into many of
these engagements. Exercise Balikatan, our premier joint exercise with our Philippine
allies, ended last week and is a great example of a longstanding exercise with a key ally
that has evolved to meet new security challenges. This year’s Balikatan focused on a
territorial defense scenario off the Sulu Sea. This is the largest of more than 400 planned
events we have with the Philippines to assist this important ally with a credible defense of
its borders and territorial waters. We also conduct regular bilateral naval exercises with
the Indonesians, including Cooperation and Readiness Afloat (CARAT) and Sea
Surveillance Exercises (SEASURVEX) that focus on improved interoperability through
maritime patrols, surveillance, vessel boarding, fixed and rotary wing naval aviation. The
most recent SEASURVEX took place 6-10 April out of Batam, Indonesia, which
included a flight portion over the South China Sea.
We’re also creating new defense engagements where needed. The Marines, for example,
participated in their first amphibious exercise with the Malaysian Armed Forces last year.
For the first time, last August, the US trained with the Malaysia Armed Forces in Eastern
Sabah for MALUS AMPHEX 2014. MALUS AMPHEX 2015 is scheduled for later this
summer. We are also conducting routine CARAT exercises with Malaysia with the next
scheduled for the summer where, as with Indonesia, we will focus on, among other
things, navigation and communications, interoperability and maritime air surveillance.
While the United States is doing a lot to help build partner capacity and regional
cooperation on maritime security challenges, we aren’t doing it alone. There is broad
agreement on the importance of maritime security and maritime domain awareness, and
we’re working closely with our friends in Australia, Japan, South Korea, and elsewhere
to coordinate and amplify our efforts toward promoting stability and prosperity in Asia.
Fourth, we are seeking to reduce the risk of miscalculation and unintentional conflict with
China in the South China Sea or elsewhere in Asia. To do so, we continue to speak out
against China’s disruptive behavior publically and privately. We also continue to call on
China to clarify its Nine Dash Line claim under international law. And we will continue
to urge all claimants to exercise self-restraint and pursue peaceful and diplomatic
approaches to their disputes.
At the same time, we are also working to build transparency and improve understanding
with China through mil-to-mil ties. Over the past year, through initiatives like the
confidence-building measures our two Presidents agreed to last fall, we have made
significant and prudent progress in our bilateral defense relationship. This year, we will
be working to complete another measure that aims to prevent dangerous air-to-air
encounters. In addition, we have institutionalized several key defense policy dialogues to
include the Under Secretary-led Defense Consultative Talks and the Assistant Secretary-
led Asia-Pacific Security Dialogue where we discuss a range of regional security issues,
including our concerns about the South China Sea. We also hold discussions on
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operational safety in the maritime domain at the Military Maritime Consultative
Agreement Talks.
Conclusion
In conclusion, we share the committees’ concerns about China’s land reclamation and
appreciate this opportunity to give you a sense of our thinking. We are deeply engaged
with the State Department, the NSC, and other interagency partners in adapting our
integrated, whole of government response to meet evolving challenges. We are actively
assessing the military implications of land reclamation and are committed to taking
effective and appropriate action. In addition to building our own capabilities, we are also
building closer, more effective partnerships with our allies and partners in the region to
further peace and stability.
The United States is a resident power in the Asia-Pacific. In addition to our significant
economic and security interests in the region, we have more than 7,000 miles of Pacific
coastline and more than 16 million citizens who trace their ancestry to the Asia-Pacific.
Given the importance of the Asia-Pacific to our interests, we owe it to the American
people to think, not just about the challenges of today, but also the potential problems of
tomorrow. And in this respect, our regional friends and partners should rest assured -- we
will continue to protect security and promote prosperity of the Asia-Pacific and above all,
we will honor our commitments.129
April 15, 2015, Defense Department Testimony
At an April 15, 2015, hearing before the House Armed Services Committee on the risk of losing
military technology superiority and its implications for U.S. policy, strategy, and posture in the
Asia-Pacific, Christine Wormuth, Under Secretary of Defense, stated:
As Asia-Pacific nations rise and become more prosperous, it creates enormous
opportunities for the United States. At the same time, Asia’s dynamism has also created a
much more complex security environment, with challenges ranging from rapidly
advancing military technologies to widespread humanitarian disasters.
In particular, China’s rapid military modernization, its opaque defense budget, its actions
in space and cyber space, and its behavior in places like the East China Sea and South
China Sea raise a number of serious questions. Though China’s expanding interests are a
natural part of its growing power, China continues to pursue activities and investments
that lead many in the region, including the United States, to question its long-term
intentions. Of note, China is engaging in a comprehensive military modernization
program that includes investments in capabilities such as ballistic missiles, anti-ship
cruise missiles, and counter-space weapons that seem designed to counter U.S. power
projection capabilities.
China’s behavior in the maritime domain has also created significant friction with its
neighbors. The Chinese government’s efforts to incrementally advance its East and South
China Sea claims and to block access to disputed fishing zones suggest a willingness to
assert control over contested areas through coercion or the use of force. Moreover, its
extensive land reclamation activities, especially the prospect to militarize these outposts,
are deeply concerning to us. We would therefore urge China to show restraint and refrain
from further activities that undermine regional trust. We also continue to urge China to
clarify the meaning of its ambiguous Nine Dash line claim as a starting point to reducing
tensions and creating greater transparency.
129 Statement of David Shear, Assistant Secretary of Defense for Asian & Pacific Security Affairs, Before the Senate
Committee on Foreign Relations, May 13, 2015, pp.
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The U.S. and China are not allies, but we don’t have to be adversaries. A strong,
constructive U.S.-China relationship is essential for global security and prosperity. Our
efforts to reduce the risk of miscalculation and unintentional conflict in the South China
Sea and the region more broadly are a critical element of our regional engagement. We
are therefore not only raising our concerns with China, we are also taking steps to build
transparency and improve understanding through our military-to-military ties. Over the
past year, through initiatives like the two Confidence-Building Measures we signed last
fall, we have made significant strides in our bilateral defense relationship, while still
adhering to the strict limitations guiding our defense contacts with China.130
At the same hearing, Admiral Samuel Locklear, Commander, U.S. Pacific Command, testified
that
Territorial and maritime issues in the East and South China Seas, if not handled properly,
may negatively impact stability in the regional and the security environment. The
claimants’ use of maritime law enforcement vessels to enforce their claims has largely
kept these issues out of the military sphere, despite a steady increase in military air and
sea patrols. While no country appears to desire military conflict, an escalation due to a
tactical miscalculation cannot be ruled out.
In the East China Sea, Japan and China both claim sovereignty over the Senkaku Islands.
While the United States does not take a position on ultimate sovereignty over the islands,
it has long recognized Japanese administration of them. China’s behavior in the area has
resulted in close encounters at sea, aggressive Chinese air intercepts of Japanese
reconnaissance flights, inflammatory strategic messaging, and the no-notice declaration
of a Chinese Air Defense Identification Zone in the East China Sea.
The South China Sea issues are complex. Six claimants (China, Vietnam, Malaysia,
Brunei, Taiwan, and the Philippines) have overlapping claims in the South China Sea. As
the South China Sea claimants’ populations and economies continue to grow, access to
the oil, gas, minerals, and fisheries within the South China Sea becomes more important.
Claimants appear to be asserting their claims through increased maritime patrols, outpost
and facility construction, and land reclamation.
China has the broadest claim with its self-proclaimed “Nine-Dash line” that covers
almost the entire South China Sea. China’s lack of clarity with regard to its South China
Sea claims, and China’s attempts to unilaterally enforce its ambiguous claims, has created
uncertainty in the region. Any use of the nine-dash line by China to claim maritime rights
not based on claimed land features would not align with international law. The
international community would welcome China to clarify or adjust its nine-dash line
claim and bring it into accordance with the international law of the sea, as reflected in the
Law of the Sea Convention.
To achieve its long-term goals in the region, China is executing a strategy that includes
expanding outposts in contested areas through land reclamation on South China Sea
features, taking actions to prevent other nations from establishing / maintaining outposts,
exploring for natural resources in disputed waters, and increasing its naval and air forces’
presence through exercises and patrols. China’s aggressive land reclamation and
construction projects at eight South China Sea military outposts include new buildings,
more capable berthing space for ships, and presumably an airfield on the Fiery Cross
Reef (China’s largest reclamation project). Although land reclamation cannot, for
example, change a submerged feature into a natural island that generates any legal
130 Testimony of Under Secretary of Defense Christine Wormuth, U.S. Department of Defense, [to the] House Armed
Services Committee [on] “The Risk of Losing Military Technology Superiority and its Implications for U.S. Policy,
Strategy, and Posture in the Asia-Pacific,” April 15, 2015, pp. 1-2.
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entitlements to maritime zones, the completion of these projects will give China the
ability for greater presence, increase dwell time for military and coast guard assets, and
expand the areas covered by surveillance and area-denial systems. Examples of activities
supporting China’s long-term strategy include attempts to block resupply missions to the
small Philippine garrison at Second Thomas Shoal and exclude Philippine and other
fishermen from the disputed Scarborough Reef. Last year, China also moved a China
National Offshore Oil Corporation drilling platform into Vietnam’s claimed Exclusive
Economic Zone resulting in a tense standoff between Vietnamese and Chinese maritime
assets substantially increasing the possibility of miscalculation between the two
countries.
The U.S. does not take a position on issues of sovereignty with respect to territorial
claims in the East and South China Sea, but we do insist that all maritime claims must be
derived from land features in accordance with international law as reflected in the Law of
the Sea Convention. The U.S. also continues to emphasize the importance that maritime
and territorial disagreements be resolved peacefully in accordance with international law
and opposes the use of intimidation, coercion, or force to assert claims. An example of
such an attempt at peaceful resolution is the Philippines’ arbitration against China under
the Law of the Sea Convention that is being heard by a tribunal in The Hague. Of note,
China has refused to participate in this arbitration to date.131
April 9, 2015, Remarks by President Obama
On April 9, 2015, in remarks at the University of the West Indies in Kingston, Jamaica, President
Obama stated:
Well, first of all, let me say that it is U.S. official policy and it is my strong belief that we
should welcome China’s peaceful rise. What China has done in the last 20, 30 years is
remarkable. More people have been lifted out of poverty in a shorter period of time than
perhaps any time in human history. (Applause.) And that’s good for the world. I mean,
we should be more fearful of a poorer, collapsing China than a China that is participating
in the world marketplace and trading and is getting along with its neighbors and part of
the international order, because there are a really large number of Chinese people and we
want them to be doing well.
So our policy is not to fear China’s peaceful rise. Where we get concerned with China is
where it is not necessarily abiding by international norms and rules, and is using its size
and muscle to force countries into subordinate positions. And that’s the concern we have
around maritime issues. We think this can be solved diplomatically, but just because the
Philippines or Vietnam are not as large as China doesn’t mean that they can just be
elbowed aside.
And, by the way, we don't have a particular view on the territorial disputes, the maritime
disputes. Our attitude is simply, let’s use the mechanisms that we have in place
internationally to resolve them.132
131 Statement of Admiral Samuel J. Locklear, U.S. Navy, Commander, U.S. Pacific Command, Before the House
Armed Services Committee on U.S. Pacific Command Posture, April 15, 2015, pp. 3-5.
132 Remarks by President Obama in Town Hall with Young Leaders of the Americas, University of the West Indies,
Kingston, Jamaica, April 9, 2015, accessed April 21, 2015, at https://www.whitehouse.gov/the-press-office/2015/04/09/
remarks-president-obama-town-hall-young-leaders-americas. See also David Tweed, “Obama Says Concerned China
Using Muscle in South China Sea,” Bloomberg News, April 9, 2015; Matt Spetalnick and Ben Blanchard, “Obama Says
Concerned China Bullying Others in South China Sea,” Reuters, April 10, 2015; “Obama: China ‘Using Muscle’ To
Dominate in South China Sea,” BBC News, April 10, 2015.
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March 31, 2015, Defense Department Remarks
In a March 31, 2015, speech, Admiral Harry Harris, Jr., the Commander, U.S. Pacific Fleet, stated
that in addition to other security issues in the region,
We also see the misuse of maritime claims by some coastal states. The excessive nature
of some of these claims is creating uncertainty and instability. These disruptions should
compel us to increase cooperative efforts in this region, like those announced earlier this
month, right here in Canberra, between Australia and Vietnam. Prime Minister Abbott
said both nations, and I quote, “support freedom of navigation by air and by sea in the
South China Sea. We both deplore any unilateral change to the status quo. We both think
that disputes should be resolved peacefully and in accordance with international law.”
Unquote.
Competing claims by several nations in the South China Sea increase the potential for
miscalculation. But what’s really drawing a lot of concern in the here and now is the
unprecedented land reclamation currently being conducted by China.
China is building artificial land by pumping sand on to live coral reefs—some of them
submerged—and paving over them with concrete. China has now created over four
square kilometers of artificial landmass, roughly the size of Canberra’s Black Mountain
Nature Reserve.
The Indo-Asia-Pacific region is known for its mosaic of stunningly beautiful natural
islands, from the Maldives to the Andamans, from Indonesia and Malaysia to the Great
Barrier Reef and Tahiti. And I get to live in the beautiful Hawaiian Islands, in one of
nature’s great creations, a magnificent geography formed by millions of years of volcanic
activity.
In sharp contrast, China is creating a great wall of sand, with dredges and bulldozers,
over the course of months. When one looks at China’s pattern of provocative actions
towards smaller claimant states—the lack of clarity on its sweeping nine-dash line claim
that is inconsistent with international law and the deep asymmetry between China’s
capabilities and those of its smaller neighbors—well it’s no surprise that the scope and
pace of building man-made islands raise serious questions about Chinese intentions.
The United States and other countries continue to urge all claimants to conform to the
2002 China-ASEAN “Declaration of Conduct,” where the parties committed to “exercise
self-restraint in the conduct of activities that would complicate or escalate disputes and
affect peace and stability.” How China proceeds will be a key indicator of whether the
region is heading towards confrontation or cooperation.133
133 Commander, U.S. Pacific Fleet, [remarks to] Australian Strategic Policy Institute, Canberra, Australia, [by] Admiral
Harry B. Harris Jr., March 31, 2015, as delivered.
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Appendix C. Operational Rights in EEZs
This appendix presents additional background information on the issue of operational rights in
EEZs.
As mentioned earlier, 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 C-1 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 C-2, 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.134
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 argue that U.S. policy accepts the right of other countries to 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)135 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
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
134 The National Oceanic and Atmospheric Administration (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 June 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.)
135 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, May 21, 2012, accessed October 3,
2012, at http://thediplomat.com/2012/05/21/chinas-small-stick-diplomacy/)
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freedoms of navigation and overflight, in the Exclusive Economic Zone he established
for the United States consistent with the 1982 Convention.136
Figure C-1. 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.
136 Navy Office of Legislative Affairs email to CRS dated September 4, 2012.
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Figure C-2. 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.
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.137
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.138 The ship conducted operations inside
U.S. EEZ off Hawaii, where the exercise was located. A July 29, 2014, press report stated that
137 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2013, p. 39.
138 See, for example, Sam LaGrone, “China Sends Uninvited Spy Ship to RIMPAC,” USNI News, July 18, 2014;
William Cole, “Chinese Spy Ship Off Hawaii Keeps Track of RIMPAC,” Star Advertiser, July 18, 2014; Jeremy Page,
“Chinese Ship Spies on U.S.-Led Drills,” Wall Street Journal, 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, July 19, 2014; Phil Stewart, “Update 1—China Sends Spy Ship Off Hawaii During U.S.-Led Drills,”
Reuters, July 21, 2014.
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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.
“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.”139
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 designated point of contact declined to provide information and directed
139 Sam LaGrone, “U.S. Pacific Commander: Chinese Spy SHip Off Hawaii Has An Upside,” USNI News, 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), July 29, 2014.
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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
Sino-American 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
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
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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.140
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.”141
140 Andrew S. Erickson and Emily de La Bruyere, “China’s RIMPAC Maritime-Surveillance Gambit,” The National
Interest, 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), August 1, 2014. See also Michael Auslin, “Wishful Thinking on
China’s Navy,” AEIdeas, July 30, 2014.
141 Erik Slavin, “Chinese Ship Spies on Valiant Shield, And That’s OK With US,” Stars and Stripes, September 22,
2014.
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Appendix D. Options Suggested by Observers for
Strengthening U.S. Actions to Counter China’s
“Salami-Slicing” Strategy
This appendix presents a bibliography of recent writings by observers who have suggested
options for strengthening U.S. actions for countering China’s “salami-slicing” strategy, organized
by date, beginning with the most-recent item.
Denny Roy, “China Wins The Gray Zone by Default,” PacNet #60, Center for Strategic &
International Studies, September 17, 2015.
James Kraska, “The legal Rationale for Going Inside 12,” Asia Maritime Transparency Initiative
(Center for Strategic & International Studies), September 11, 2015.
Patrick M. Cronin, “America Must Take a Stand in the South China Sea,” The National Interest,
September 5, 2015.
Patrick M. Cronin, “Why the Stakes Are So High in the South China Sea,” The Ripon Forum,
September 2015.
John Goff, “Gurrillas of the Sea,” U.S. Naval Institute Proceedings, September 2015: 52-57.
Jeremy Thompson, “Fly the U.N. Pennant Over East Asian Waters,” U.S. Naval Institute
Proceedings, September 2015: 40-45.
“China’s Unchallenged Sea Grab,” Wall Street Journal, August 26, 2015.
Elbridge Colby and Evan Braden Montgomery, “Changing Tides in South China Sea,” Wall Street
Journal, August 25, 2015.
Andrew Erickson, “New U.S. Security Strategy Doesn’ty Go Far Enough on South China Sea,”
China Real Time (Wall Street Journal), August 24, 2015.
Marvin C. Ott, “Time for a U.S. Military Strategy to Stop China in the South China Sea,”
National Interest, August 24, 2015.
Jerry Hendrix, “It’s Time to Confront Beijing About the South China Sea,” Defense One, August
21, 2015.
Seth Cropsey, “Obama Fails to Challenge Beijing’s Island-building Campaign,” Real Clear
Defense, August 20, 2015.
Gabriel Alvarado, “Defending Freedom of Navigation in the South China Sea,” Overt Action,
August 17, 2015.
Scott Devary, “Diplomacy and the South China Sea,” The Diplomat, August 17, 2015.
Joseph A. Bosco, “Deterrence Delayed: Time to Get Tough on China,” National Interest, August
11, 2015.
Thanh Hai, “A Joint Strategy for Pacifying the South China Sea,” PacNet (Pacific Forum CSIS),
Number 48, August 11, 2015.
Mira Rapp-Hooper, “Six Summertime Steps in the South China Sea,” War on the Rocks, August
6, 2015.
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Alexander Benard, “Time to Talk Tough on Chinese Aggression,” The Weekly Standard, August
5, 2015.
Michael W. “Starbaby” Pietrucha, “Regaining the Initiative in the South China Sea,” The
Diplomat, August 5, 2015.
David Feith, “China’s Next Sea Fortress,” Wall Street Journal, August 3, 2015.
Patrick M. Cronin, “10 Ways for America to Deal with the South China Sea Challenge,” The
National Interest, July 29, 2015.
Hiroshi Waguri, “South China Sea Civilian Air Patrol Capability and the U.S.-Japan Alliance,”
Asia Maritime Transparency Initiative, Center for Strategic and International Studies, July 29,
2015.
Andrew S. Erickson, “Keeping the South China Sea a Peaceful Part of the Global Commons,”
The National Interest, July 28, 2015.
Van Jackson, “How the US Outplayed China in the South China Sea,” The Diplomat, July 28,
2015.
Peter Jennings, “South China Sea: Options and Risks,” Real Clear Defense, July 21, 2015.
Joseph A. Bosco, “American-China: Heading for South China Sea Clash?” The Diplomat, July
20, 2015.
Dennis Blair and Jon Huntsman, “Commentary: A Strategy for South China Sea,” Defense News,
July 13, 2015.
Prashanth Parameswaran, “Confronting China’s ‘New’ Military Challenge in the South China
Sea,” The Diplomat, July 2, 2015.
James Stavridis, “Incoming: The Great Wall of Sand,” Signal, July 1, 2015.
Marvin Ott, “An Operational South China Sea Strategy for the United States,” cogitAsia, Center
for Strategic and International Studies, June 24, 2015.
Jeff M. Smith, “Let’s Be Real: The South China Sea Is a US-China Issue,” The Diplomat, June
24, 2015.
Harry J. Kazianis, “China’s East China Sea ADIZ Gamble: Past, Present, and South China Sea
Future?” The National Interest, June 19, 2015.
James Kraska, “Commentary: Defend Freedom of Navigation,” Defense News, June 8, 2015.
Seth Cropsey, “Beijing Threatens the International Order,” Real Clear Defense, June 1, 2015.
James R. Holmes, “5 Ways to Foil China in the South China Sea,” Real Clear Defense, May 29,
2015.
Patrick Cronin, “Respond to the China Challenge By Cooperating Through Strength,” War on the
Rocks, May 28, 2015.
Douglas Gates, “Protecting Freedom of Navigation in the South China Sea,” The Diplomat, May
28, 2015.
John Hemmings, “Here’s How America Can Stop China in the South China Sea,” The National
Interest, May 28, 2015.
Joseph A. Bosco, “Time for America to Get Tough with China,” The National Interest, May 25,
2015.
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Patrick Cronin, “Pushing Back Against China’s Strategy: Ten Steps for the United States,” War on
the Rocks, May 27, 2015.
Michael Mazza, “Time to Stand Up to China in the South China Sea,” The National Interest, May
17, 2015.
Michael Auslin, “China’s Confidence Can Be Shaken,” Wall Street Journal, May 14, 2015.
Prashanth Parameswaran, “How Would the US Challenge China in the South China Sea?” The
Diplomat, May 14, 2015.
Ankit Panda, “The United States Shouldn’t Invite China to RIMPAC 2016 (With a Catch),” The
Diplomat, May 6, 2015.
Gregory Poling, “Furthering U.S. Strategic Goals in the South China Sea,” cogitAsia, Center for
Strategic and International Studies, April 22, 2015.
Robert Williams, “A Secret Weapon to Stop China’s Island Building: The Environment?” The
National Interest, April 20, 2015.
Carlyle A. Thayer, Indirect Cost Imposition Straegies in the South China Sea: U.S. Leadership
and ASEAN Centrality, Center for a New American Security, April 2015.
Bonnie S. Glaser, “Conflict in the South China Sea,” Council on Foreign Relations, April 2015.
John Schaus, “Concrete Steps for the U.S. in the South China Sea,” War on the Rocks, March 16,
2015.
Michael J. Green and Mira Rapp Hooper, “Push China Toward Diplomacy,” Washington Post,
March 12, 2015.
Jeff W. Benson, “Essay: U.S. Should Consider Establishing a South China Sea International
Operations Center in Indonesia,” USNI News, March 9, 2015.
Harry Kazianis, “Superpower Showdown: America Can Stop Chinese Aggression in Asia,” The
National Interest, March 6, 2015.
Michael Mazza, “Obama’s China Tool Kit: In Need of Serious Repair,” American Enterprise
Institute, March 5, 2015.
Richard Fontaine, “Chinese Land Reclamation Pushes Boundaries,” Wall Street Journal, March
3, 2015.
Zack Cooper, “It’s Time for Gray Hulls in Gray Zones,” War on the Rocks, March 2, 2015.
Mira Rapp-Hooper, “To Respond to Reclamation, Aim at China’s Strategy,” War on the Rocks,
March 2, 2015.
Robert Haddick, “Publicize China’s Creeping Aggression and Bolster Allies,” War on the Rocks,
March 2, 2015.
Shawn Brimley, “Contesting China’s Facts on New Ground,” War on the Rocks, March 2, 2015.
Ely Ratner, “Can Washington Do More to Stop PRC Land Reclamation?” War on the Rocks,
March 2, 2015.
Michael Mazza, “US in the Asia-Pacific: Toward A More Effective Asia Strategy,” American
Enterprise Institute, January 30, 2015.
Robert Haddick, “The Struggle for a Strategy,” U.S. Naval Institute Proceedings, January 2015.
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Author Contact Information
Ronald O'Rourke
Specialist in Naval Affairs
rorourke@crs.loc.gov, 7-7610
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