Maritime Territorial and Exclusive Economic
Zone (EEZ) Disputes Involving China:
Issues for Congress
Ronald O'Rourke
Specialist in Naval Affairs
May 31, 2016
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.
Congressional Research Service
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).
Congressional Research Service
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 .................................................... 1
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 ............................................................................................................ 7
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 ....................................................................................... 8
Overview of the Maritime Disputes .......................................................................................... 9
Maritime Territorial Disputes .............................................................................................. 9
Dispute Regarding China’s Rights Within Its EEZ ........................................................... 10
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 ......................................................... 23
Use of China Coast Guard Ships, Fishing Boats/Maritime Militia, and Oil
Exploration Platforms .................................................................................................... 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
A Notional Framework ..................................................................................................... 33
Overview of U.S. Actions ................................................................................................. 34
DOD “Lines of Effort” ...................................................................................................... 35
April 2016 Press Report on U.S. Actions.......................................................................... 39
Administration Actions Announced in November 2015 ................................................... 40
Potential Further U.S. Actions Suggested by Observers ................................................... 42
Cost-Imposing Actions...................................................................................................... 43
Congressional Research Service
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
U.S. Navy Freedom of Navigation (FON) Operations in SCS ......................................... 44
Risk of United States Being Drawn into a Crisis or Conflict .................................................. 48
Whether United States Should Ratify United Nations Convention on the Law of the
Sea (UNCLOS) .................................................................................................................... 49
Legislative Activity in 2016 .......................................................................................................... 50
FY2017 National Defense Authorization Act (H.R. 4909/S. 2943) ........................................ 50
House ................................................................................................................................ 50
Senate ................................................................................................................................ 51
Asia-Pacific Maritime Security Initiative Act of 2016 (S. 2865) ............................................ 52
S.Res. 370, Regarding the United States and ASEAN ............................................................ 60
Resolutions Introduced in 2015 .............................................................................................. 62
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 ........................................................................... 39
Figure C-1. EEZs in South China Sea and East China Sea ........................................................... 79
Figure C-2. Claimable World EEZs............................................................................................... 80
Appendixes
Appendix A. U.S. Security Treaties with Japan and Philippines ................................................... 63
Appendix B. Statements from U.S. Officials Regarding U.S. Position ......................................... 65
Appendix C. Operational Rights in EEZs ..................................................................................... 78
Appendix D. Options Suggested by Observers for Strengthening U.S. Actions to Counter
China’s “Salami-Slicing” Strategy ............................................................................................. 84
Contacts
Author Contact Information .......................................................................................................... 87
Congressional Research Service
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.
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:
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.
Congressional Research Service
1
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 attempting to control or dominate the surrounding waters and
airspace.
Nationalism. The maritime territorial claims have become matters of often-
intense nationalistic pride.
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.)
See also Keith Johnson, “Fishing Disputes Could Spark a South China Sea Crisis,” Foreign Policy, April 7, 2012.
Congressional Research Service
2
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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., a defended 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
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
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. The exact position and shape of the lines demarcating the first and second
island chains often differ from map to map.
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 See, for example, Dan Lamothe, “Navy Admiral Warns of Growing Sense That ‘Might Makes Right’ in Southeast
Asia,” Washington Post, March 16, 2016.
Congressional Research Service
3
link to page 25 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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
8 U.S. Department of Defense (DoD) Freedom of Navigation (FON) Report for Fiscal Year (FY) 2015, accessed April
27, 2016, at http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FON_Report_FY15.pdf.
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.
11 One observer states (quoting from his own address to Japan’s Ministry of Foreign Affairs):
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
(continued...)
Congressional Research Service
4
link to page 15 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
operating areas in the Western Pacific, the Persian Gulf, and the Mediterranean Sea.12 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.13
An August 12, 2015, press report states (emphasis added):
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.”14
(...continued)
big deal.
(James R. Holmes, “Has China Awoken a Sleeping Giant in Japan?” The Diplomat, March 1, 2014. See
also Roncevert Ganan Almond, “Lords of Navigation: Grotius, Freitas, and the South China Sea,” The
Diplomat, May 22, 2016.)
12 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.)
13 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.
14 Jim Gomez, “Chinese Diplomat Outlines Limits to Freedom of Navigation,” Military Times, August 12, 2015.
Congressional Research Service
5
link to page 68 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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.
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.
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.
Congressional Research Service
6
link to page 12 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 long-standing 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 have led some observers, starting in late 2013, to conclude that the international
security environment has undergone a shift from the familiar post-Cold War era of the last 20 to
25 years, also sometimes known as the unipolar moment (with the United States as the unipolar
power), to a new and different situation that features, among other things, renewed great power
competition with China and Russia and challenges by these two countries and others 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.
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)
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.
Congressional Research Service
7
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 long-
standing status of the United States as the leading military power in the Western Pacific.24
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).25 The United States has bilateral security
treaties with Japan, South Korea, and the Philippines, and an additional security treaty with
Australia and New Zealand.26 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.
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.
24 For more on China’s naval modernization effort, see CRS Report RL33153, China Naval Modernization:
Implications for U.S. Navy Capabilities—Background and Issues for Congress, by Ronald O'Rourke. For more on
China’s military modernization effort in general, see CRS Report R44196, The Chinese Military: Overview and Issues
for Congress, by Ian E. Rinehart.
25 For further discussion, see CRS In Focus IF10275, Taiwan: Select Political and Security Issues, by Susan V.
Lawrence
26 For a summary, see “U.S. Collective Defense Arrangements,” accessed July 24, 2015, at http://www.state.gov/s/l/
treaty/collectivedefense/.
Congressional Research Service
8
link to page 15 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.27 There are additional maritime territorial
disputes in the Western Pacific that do not involve China.28
Maritime territorial disputes in the SCS and ECS date back many years, and have periodically led
to incidents and periods of increased tension.29 The disputes have again intensified in the past few
years, leading to numerous confrontations and incidents involving fishing vessels, oil exploration
vessels and oil rigs, coast guard ships, naval ships, and military aircraft. The intensification of the
disputes in recent years has substantially heightened tensions between China and other countries
in the region, particularly Japan, the Philippines, and Vietnam.
27 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.
28 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.
29 One observer states that “notable incidents over sovereignty include the Chinese attack on the forces of the Republic
of Vietnam [South Vietnam] in the Paracel Islands in 1974, China’s attack on Vietnamese forces near Fiery Cross Reef
[in the Spratly Islands] in 1988, and China’s military ouster of Philippines forces from Mischief Reef [also in the
Spratly Islands] in 1995.” Peter Dutton, “Three Dispute and Three Objectives,” Naval War College Review, Autumn
2011: 43. A similar recounting can be found in Department of Defense, Annual Report to Congress, Military and
Security Developments Involving the People’s Republic of China, 2011, p. 15.
Congressional Research Service
9
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Figure 1. Maritime Territorial Disputes Involving China
Island groups involved in principal disputes
Source: Map prepared by CRS using base maps provided by Esri.
Note: Disputed islands have been enlarged to make them more visible.
Dispute Regarding China’s Rights Within Its EEZ
In addition to maritime territorial disputes in the SCS and ECS, China is involved in a dispute,
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
Congressional Research Service
10
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.30 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.31
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.32
30 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.
31 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.
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, pp. 7-8.)
32 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.
Congressional Research Service
11
link to page 18 link to page 18 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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;33
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;
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 Island34—
DOD characterized the intercept as “very, very close, very dangerous”;35 and
an incident on May 17, 2016, in which Chinese fighters flew within 50 feet of a
Navy EP-3 electronic surveillance aircraft in international airspace in the South
China Sea—a maneuver that DOD characterized as “unsafe.”36
Figure 2 shows the locations of the 2001, 2002, and 2009 incidents listed in the first two bullets
above. The incidents shown in Figure 2 are the ones most commonly cited prior to the December
2013 involving the Cowpens, but some observers list additional incidents as well. For example,
one set of observers, in an August 2013 briefing, provided the following list of incidents in which
33 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..
34 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.
35 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.
36 See, for example, Michael S. Schmidt, “Chinese Aircraft Fly Within 50 Feet of U.S. Plane Over South China Sea,
Pentagon Says,” New York Times, May 18, 2016; Thomas Gibbons-Neff, “Chinese Jets Intercept U.S. Recon Plane,
Almost Colliding Over South China Sea,” Washington Post, May 18, 2016; Idrees Ali and Megha Rajagopalan,
“Chinese Jets Intercept U.S. Military Plan over South China Sea: Pentagon,” Reuters, May 19, 2016; Jamie Crawford,
“Pentagon: ‘Unsafe’ Intercept over South China Sea,” CNN, May 19, 2016.
Congressional Research Service
12
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
China has challenged or interfered with operations by U.S. ships and aircraft and ships from
India’s navy:
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 p. 6.
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
Congressional Research Service
13
link to page 22 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
USNS Impeccable (July 2013).37
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),38 which was signed in April 2014.39
Relationship of Maritime Territorial Disputes to EEZ Dispute
The issue of whether China has the right under UNCLOS to regulate foreign military activities in
its EEZ is related to, but ultimately separate from, the issue of territorial disputes in the SCS and
ECS:
The two issues are related because China can claim EEZs from inhabitable
islands over which it has sovereignty, so accepting China’s claims to sovereignty
over inhabitable islands in 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.
37 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
YouTube at http://www.youtube.com/watch?v=TiyeUWQObkg.
38 For more on the CUES agreement, see “April 2014 Code for Unplanned Encounters At Sea (CUES)” below.
39 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 14-15.
Congressional Research Service
14
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 March 15, 2016, 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).40
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, 1994.41 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.
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
40 Source: Chronological lists of ratifications of, accessions and successions to the Convention and the related
Agreements as at January 2, 2015 (updated March 15, 2016), accessed April 1, 2016, 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.
41 Treaty Document 103-39.
Congressional Research Service
15
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
of its coast. This will provide United States jurisdiction for mineral resources out to 200
nautical miles that are not on the continental shelf.42
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),43 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.”44 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.”45
In a February 18, 2014, letter to Senator Marco Rubio concerning the December 5, 2013, incident
involving the Cowpens, the State Department stated:
In order to minimize the potential for an accident or incident at sea, it is important that
the United States and China share a common understanding of the rules for operational
air or maritime interactions. From the U.S. perspective, an existing body of international
rules and guidelines—including the 1972 International Regulations for Preventing
Collisions at Sea (COLREGs)—are sufficient to ensure the safety of navigation between
U.S. forces and the force of other countries, including China. We will continue to make
clear to the Chinese that these existing rules, including the COLREGs, should form the
basis for our common understanding of air and maritime behavior, and we will encourage
China to incorporate these rules into its incident-management tools.
Likewise, we will continue to urge China to agree to adopt bilateral crisis management
tools with Japan and to rapidly conclude negotiations with ASEAN46 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.47
42 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.
43 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.
44 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.
45 Rule 1(a) of the convention.
46 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.
47 Letter dated February 18, 2014, from Julia Frifield, Assistant Secretary, Legislative Affairs, Department of State, to
(continued...)
Congressional Research Service
16
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.48
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),49 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.50 The CUES agreement in effect supplements the 1972 COLREGs Convention (see
previous section); it does not cancel or lessen commitments that countries have as parties to the
COLREGS Convention.
Two observers stated that “The [CUES] resolution is non-binding; only regulates communication
in ‘unplanned encounters,’ not behavior; fails to address incidents in territorial waters; and does
(...continued)
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.
48 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2014, p. 4.
49 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/.)
50 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,”
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.
Congressional Research Service
17
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.”51 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....52
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.53
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.
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.54
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
51 Jeff M. Smith and Joshua Eisenman, “China and America Clash on the High Seas: The EEZ Challenge,” The
National Interest, May 22, 2014.
52 Jeremy Page, “China Won’t Necessarily Observe New Conduct Code for Navies,” Wall Street Journal, April 23,
2014.
53 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.
54 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 31.
Congressional Research Service
18
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
guard ships.55 Officials from Singapore and Malaysia reportedly have expressed support for the
idea.56 An Administration fact sheet about Chinese President Xi Jinping’s state visit to the United
States on September 24-25, 2015, stated:
The U.S. Coast Guard and the China Coast Guard have committed to pursue an
arrangement whose intended purpose is equivalent to the Rules of Behavior Confidence
Building Measure annex on surface-to-surface encounters in the November 2014
Memorandum of Understanding between the United States Department of Defense and
the People's Republic of China Ministry of National Defense.57
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.58 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.59 The MOU as signed in November 2014 included an annex on rules of
55 See, for example, Rosalin Amthieson, “Chinese Navy in South China Sea Draws U.S. Admiral’s Praise,” Bloomberg,
April 26, 2016; 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; Andrea Shalal, “U.S., Chinese Officers Encouraged by Use of Rules for Ship Meetings,” Reuters, January 20,
2016; Prashanth Parameswaran, “US Wants Expanded Naval Protocol Amid China’s South China Sea Assertiveness,”
The Diplomat, February 18, 2016.
56 See, for example, Prashanth Parameswaran, “Malaysia Wants Expanded Naval Protocol Amid South China Sea
Disputes,” The Diplomat, December 4, 2015; Prashanth Parameswaran, “What Did the 3rd ASEAN Defense Minister’s
Meeting Plus Achieve?” The Diplomat, November 5, 2015. See also Lee YingHui, “ASEAN Should Choose CUES for
the South China Sea,” East Asia Forum, April 6, 2016.
57 “FACT SHEET: President Xi Jinping’s State Visit to the United States,” September 25, 2015, accessed November
24, 2015, at https://www.whitehouse.gov/the-press-office/2015/09/25/fact-sheet-president-xi-jinpings-state-visit-
united-states
58Memorandum 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.
59 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,
(continued...)
Congressional Research Service
19
link to page 26 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
behavior for safety of surface-to-surface encounters. An additional annex on rules of behavior for
safety of air-to-air encounters was signed on September 15 and 18, 2015.60
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....61
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].”62
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). The area inside the nine
(...continued)
February 8, 2015; Peter Dutton and Andrew Erickson, “When Eagle Meets Dragon: Managing Risk in Maritime East
Asia,” Real Clear Defense, March 25, 2015.
60 For a critical commentary on the annex for air-to-air encounters, see James Kraska and Raul “Pete” Pedrozo, “The
US-China Arrangement for Air-to-Air Encounters Weakens International Law,” Lawfare, March 9, 2016.
61 Text as taken from http://www.aseansec.org/13163.htm.
62 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.
Congressional Research Service
20
link to page 27 
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 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.
Congressional Research Service
21
link to page 26 
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
The map of the nine-dash line, also called the U-shaped line or the cow tongue,63 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.64 In a
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.65
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.
63 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.
64 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/.
65 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.
Congressional Research Service
22
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.66
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.67 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.68
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.69
“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. 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
66 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.
67 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.
68 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.
69 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.
(Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, p. 8.)
Congressional Research Service
23
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Coast Guard ships, and then finally Chinese naval ships.70 Other observers have referred to
China’s approach as a strategy of creeping annexation71 or creeping invasion,72 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.73
Use of China Coast Guard Ships, Fishing Boats/Maritime Militia, and Oil
Exploration Platforms
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.74 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.75 CCG ships are generally unarmed or lightly
armed, but can be effective in asserting and defending maritime territorial claims, particularly in
terms of confronting or harassing foreign vessels that are similarly lightly armed or unarmed.76 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.77
China also uses civilian fishing ships as a form of maritime militia, as well as mobile oil
exploration platforms, to assert and defend its maritime claims.78
70 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.
71 See, for example, Alan Dupont, “China’s Maritime Power Trip,” The Australian, May 24, 2014.
72 Jackson Diehl, “China’s ‘Creeping Invasion,” Washington Post, September 14, 2014.
73 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.
74 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.
75 See, for example, Office of Naval Intelligence, The PLA Navy, New Capabilities and Missions for the 21st Century,
2015, pp. 44-46.
76 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.
77 See, for example, Trefor Moss and Rob Taylor, “Chinese Naval Patrol Prompts Conflicting Regional Response,”
Wall Street Journal, February 20, 2014.
78 See Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the
People’s Republic of China 2015, pp. 3, 7; Ryan D. Martinson, “Shephards of the South Seas,” Survival, June-July
2016: 187-212; Conor M. Kennedy and Andrew S. Erickson, “From Frontier to Frontline: Tanmen Maritime Militia’s
Leading Role Pt. 2,” Center for International Maritime Security (CIMSEC), May 17, 2016; Matthew Carney, “China’s
Secret Maritime Militia: Fishermen the Forward guard in South China Sea Dispute,” ABC News (Australia), May 8,
2016; Reuters, “Beijing Training ‘Fishing Militia’ for South China Sea,” Straits Times, May 2, 2016; Megha
Rajagopalan, “China Trains ‘Fishing Militia’ to Sail into Disputed Waters,” Reuters, April 30, 2016; Conor M.
Kennedy and Andrew S. Erickson, “Model Maritime Militia: Tanmen’s Leading Role in the April 2012 Scarborough
(continued...)
Congressional Research Service
24
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.79 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.80 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
(...continued)
Shoal Incident,” Center for International Maritime Security (CIMSEC), April 21, 2016; Simon Denyer, “How China’s
Fishermen Are Fighting A Covert War in the South China Sea,” Washington Post, April 12, 2016; Tom Hanson,
“China’s Super Strategy to Dominate South China Sea: Little Green Fisherman,” National Interest, April 7, 2016; Teo
Cheng Wee, “China’s Front-Line Fisherman,” Straits Times, April 5, 2016; Brendan Nicholson, “China’s Huge Fleet
‘Is Fishing for Information for Its Navy,’” The Australian, March 15, 2016; Minnie Chan and Liu Zhen, “Beijing
Enlists Trawlers to Help Protect maritime Rights in Disputed Waters,” South China Sea Morning Post, March 7, 2016;
Yao Jianing, “Maritime Militia Increases Drills, Expands in Scope,” China Daily, February 2, 2016; Andrew S.
Erickson and Conor M. Kennedy, “Trailblazers in Warfighting: The Maritime Militia of Danzhou,” Center for
International Maritime Security, February 1, 2016; Andrew S. Erickson and Conor M. Kennedy, “China’s Daring
Vanguard: Introducing Sanya City’s Maritime Militia,” Center for International Maritime Security (CIMSEC),
November 5, 2015; Andrew S. Erickson and Conor M. Kennedy, “Irregular Forces at Sea: ‘Not Merely Fisherman—
Shedding Light on China’s Maritime Militia,” Center for International Maritime Security (CIMSEC), November 2,
2015; Christopher P. Cavas, “China’s ‘Little Blue Men’ Take Navy’s Place in Disputes,” Defense News, November 2,
2015; Justin Chock, “China’s Non-Military Maritime Assets as a Force Multiplier for Security,” Asia Pacific Bulletin,
September 22, 2015; 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.
79 See, for example, Donald K. Emmerson, “China Challenges Philippines in the South China Sea,” East Asia Forum,
March 18, 2014.
80 See, for example, Robert D. Kaplan, “China’s Budding Ocean Empire,” The National Interest, June 5, 2014.
Congressional Research Service
25
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Caribbean and the Gulf of Mexico. Unlike China in its approach to its near-seas region, the
United States has not asserted any form of sovereignty or historical rights over the broad waters
of the Caribbean or Gulf of Mexico (or other sea areas beyond the 12-mile limit of U.S. territorial
waters), has not published anything akin to the nine-dash line for these waters (or other sea areas
beyond the 12-mile limit), and does not contest the right of foreign naval forces to operate and
engage in various activities in waters beyond the 12-mile limit.81
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;82
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;83
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;84
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;85
81 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.
82 See CRS Report R43894, China's Air Defense Identification Zone (ADIZ), by Ian E. Rinehart and Bart Elias.
83 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.
84 See, for example, Natalie Thomas, Ben Blanchard, and Megha Rajagopalan, “China Apprehending Boats Weekly in
Disputed South China Sea,” Reuters.com, March 6, 2014.
85 See CRS Report R44072, Chinese Land Reclamation in the South China Sea: Implications and Policy Options, by
Ben Dolven et al.. See also Edward Wong and Jonathan Ansfield, “To Bolster Its Claims, China Plants Islands in
(continued...)
Congressional Research Service
26
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 2015,86 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:
China paused its two-year land reclamation effort in the Spratly Islands in late 2015 after
adding over 3,200 acres of land to the seven features it occupies; other claimants
reclaimed approximately 50 acres of land over the same period. As part of this effort,
China excavated deep channels to improve access to its outposts, created artificial
harbors, dredged natural harbors, and constructed new berthing areas to allow access for
larger ships. Development of the initial four features—all of which were reclaimed in
2014—has progressed to the final stages of primary infrastructure construction, and
includes communication and surveillance systems, as well as logistical support facilities.
At the three features where the largest outposts are located, China completed major land
reclamation efforts in early October 2015 and began transitioning to infrastructure
development, with each feature having an airfield—each with approximately 9,800 foot-
long runways—and large ports in various stages of construction. Additional substantial
infrastructure, including communications and surveillance systems, is expected to be built
on these features in the coming year.
China’s Government has stated these projects are mainly for improving the living and
working conditions of those stationed on the outposts, safety of navigation, and research.
However, most analysts outside China believe that China is attempting to bolster its de
facto control by improving its military and civilian infrastructure in the South China Sea.
The airfields, berthing areas, and resupply facilities will allow China to maintain a more
flexible and persistent coast guard and military presence in the area. This would improve
China’s ability to detect and challenge activities by rival claimants or third parties, widen
(...continued)
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.
86 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.)
Congressional Research Service
27
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
the range of capabilities available to China, and reduce the time required to deploy
them.87
DOD stated in 2015 that
[China’s] Recent land reclamation activity has little legal effect, but will support China’s
ability to sustain longer patrols in the South China Sea....
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,
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.
87 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2016, p. 13. The report presents figures and photographs of the reclamation sites on pp. 14-20. See
also pp. i, 7, and 44.
Congressional Research Service
28
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.88
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.
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
88 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 15-17.
Congressional Research Service
29
link to page 70 link to page 70 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.89
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.
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.
89 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.
Congressional Research Service
30
link to page 83 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.90
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.91
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 challenge what the United States views as excessive maritime claims and 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.92 DOD’s record of “excessive maritime claims that were challenged by DoD operational
90 [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.
91 Testimony [prepared statement] of Deputy Assistant Secretary of Defense Robert Scher, Asian and Pacific Security
Affairs, Office of the Secretary of Defense, before the Subcommittee on East Asian and Pacific Affairs, Senate
Committee on Foreign Relations, United States Senate, July 15, 2009, [hearing on] Maritime Issues and Sovereignty
Disputes in East Asia, pp. 3-4. See also Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right
to Conduct Military Activities in China’s Exclusive Economic Zone,” Chinese Journal of International Law, 2010: 9-
29.
92 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.)
(continued...)
Congressional Research Service
31
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
assertions and activities during the period of October 1, 2014, to September 30, 2015, in order to
preserve the rights, freedoms, and uses of the sea and airspace guaranteed to all nations in
international law” includes a listing for multiple challenges that were conducted to challenge
Chinese claims relating to “Excessive straight baselines; jurisdiction over airspace above the
Exclusive Economic Zone (EEZ); restriction on foreign aircraft flying through an Air Defense
Identification Zone (ADIZ) without the intent to enter national airspace; [and] prior permission
required for innocent passage of foreign military ships through the TTS [territorial sea].”93
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.
(...continued)
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
claim–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.)
93 U.S. Department of Defense (DoD) Freedom of Navigation (FON) Report for Fiscal Year (FY) 2015, accessed April
27, 2016, at http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FON_Report_FY15.pdf.
Congressional Research Service
32
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
A Notional Framework
A notional framework for establishing, implementing, and assessing the effects of a U.S. strategy
for countering China’s salami-slicing strategy in the ECS and SCS might include the following
five elements:
goals and measures—establishing and articulating a clear set of U.S. policy
goals, and measures or benchmarks of success in achieving those goals;
identifying actions—identifying specific actions that are intended to support
those goals;
implementation—implementing those actions;
assessment—evaluating the success of those actions against the measures or
benchmarks of success; and
iteration—deciding whether to continue implementing the strategy, stop
implementing it, or modify it in some way.
Regarding the first item above—establishing and articulating a clear set of U.S. policy goals—
potential U.S. policy goals in connection with countering China’s salami-slicing strategy in the
ECS and SCS might include, but are not necessarily limited to, one or more of the following,
which are not mutually exclusive:
peaceful resolution of disputes—defending the principle under the current U.S.-
led international order 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, and resisting the emergence of an
alternative “right-makes-right” approach to international affairs;
freedom of the seas—defending the principle under the current U.S.-led
international order of freedom of seas, meaning the rights, freedoms, and uses of
the sea and airspace guaranteed to all nations in international law, including the
interpretation held by the United States and many other countries concerning
operational freedoms for military forces in EEZs;
U.S. commitments and security structure—fulfilling U.S. security
commitments in the Western Pacific, and maintaining and enhancing the U.S.-led
security architecture in the Western Pacific, including U.S. security relationships
with treaty allies and partner states; and
preventing a regional hegemon—preventing China from becoming a regional
hegemon in East Asia, and potentially as part of that, preventing China from
controlling or dominating the ECS or SCS.
Regarding the second of the five items listed at top—identifying specific actions that are intended
to support U.S. policy goals—a key element would be to have a clear understanding of which
actions are intended to support which goals, and to maintain an alignment of actions with policy
goals. For example, U.S. freedom of navigation (FON) operations can directly support the second
potential policy goal above, but might support the other policy goals only indirectly, marginally,
or not at all.
On the basis of the above notional framework, potential oversight questions for Congress in
assessing the Administration’s strategy for countering China’s salami-slicing strategy include the
following:
Congressional Research Service
33
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Policy goals. Has the Administration clearly identified and articulated a set of
U.S. policy goals? If so, are the Administration’s goals appropriate? Should other
goals be added? Should some be dropped or modified? Has the Administration
established adequate benchmarks or measures of success in achieving U.S. policy
goals?
Actions. Has the Administration identified adequate actions for supporting U.S.
policy goals? Has the Administration implemented those actions at an appropriate
pace? Has the Administration maintained a clear alignment between actions and
policy goals?
Results. How effective have the Administration’s actions been in supporting U.S.
goals? Should the current U.S. strategy for countering China’s salami-slicing
tactics be continued, ended, or modified?
Overview of 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;
taking steps to strengthen U.S. security cooperation with Japan, the Philippines,
Vietnam, and Singapore, 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, relaxing
limits on sales of certain U.S. arms to Vietnam,94 and operating U.S. Navy P-8
maritime patrol aircraft from Singapore;95
expressing support for the idea of Japanese patrols in the SCS;96 and
stating that the United States would support a multinational maritime patrol of
the SCS by members of ASEAN.97
94 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
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.
95 See, for example, Dan De Luce, “Singapore Approves U.S. Surveillance Flights,” Foreign Policy, December 7,
2015; Mike Yeo, “U.S. to Deploy Navy P-8A Poseidon Aircraft to Singapore,” USNI News, December 8, 2015; David
Brunnstrom, “U.S. to Deploy Spy Plane in Singapore amid China Tensions,” Reuters, December 8, 2015.
96 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.
97 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;
(continued...)
Congressional Research Service
34
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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.98
(...continued)
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.
98 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 19-20.
Italics as in original.
Congressional Research Service
35
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.99
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
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.
99 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.
Congressional Research Service
36
link to page 55 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.100 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
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
100 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, “America’s New Maritime Security
Initiative for Southeast Asia,” The Diplomat, April 2, 2016; 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 201”).
Congressional Research Service
37
link to page 44 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.101
Figure 5 shows a table that DOD presented in connection with the passage quoted above.
101 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 25-28.
Congressional Research Service
38
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Figure 5. Table from August 2015 DOD Report
Source: Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 27.
April 2016 Press Report on U.S. Actions
An April 18, 2016, press report on U.S. actions to bolster the maritime security capabilities of
Southeast Asian countries stated:
Defense Secretary Ash Carter said the department recently released funding under the
Maritime Security Initiative, which totals $425 million total over five years. Nearly 85
percent of this year’s funding, about $42 million of $50 million total, will go to the
Philippines....
The Maritime Security Initiative will “enable our partners in the South China Sea (SCS)
region to detect activity within their sovereign territorial domain more effectively, share
information with domestic and international partners, and contribute to regional peace
Congressional Research Service
39
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
and security,” according to a summary of the Fiscal Year 2016 Southeast Asia Maritime
Security Initiative programs obtained by USNI News. FY 2016 projects, costing about
$50 million, are meant to help the Philippines, Vietnam, Malaysia, Indonesia and
Thailand increase maritime security and maritime domain awareness, while also working
with Brunei, Singapore and Taiwan on training and headquarter-level integration.
Philippines
MSI funds four separate projects between the United States and the Philippines this year,
costing nearly $42 million.
First, to assist Filipino military and law enforcement organizations, a maritime and joint
operations center support project will “provide automatic identification systems (AIS)
sensors, communications-network enhancements (software and hardware), and training to
increase and strengthen the command and control (C2) relationships among the
individual capabilities of the Armed Forces of the Philippines (AFP), the Philippines
Coast Guard, and the Philippines National Coast Watch Center (NCWC).”
The Navy’s Space and Naval Warfare Systems Command (SPAWAR) will oversee the
biggest part of this project – equipment upgrades for the three organizations to create a
common operating picture, worth nearly $15 million....
Second in the summary of projects is a maritime intelligence, surveillance and
reconnaissance (ISR) improvement project worth nearly $18 million....
In a third program, Naval Sea Systems Command (NAVSEA) will help determine what
command, control, communications, and computers (C4) may be needed for Hamilton-
class high- endurance cutters the Philippines bought from the U.S. Coast Guard under the
Excess Defense Articles program....
Vietnam
The Pentagon included nearly $1.8 million for programs with Vietnam, primarily to
understand what Vietnam’s current capabilities are and assess what might be useful in the
FY 2017 MSI programs....
Malaysia
SPAWAR will outfit Malaysia with $1.2 million in secure communications and an
expanded Malaysia Armed Forces (MAF) common operating picture to connect the
Royal Malaysian Flight Operations Center, Operational Forces, and MAF headquarters....
Indonesia
U.S. Pacific Command will help outfit operations centers with commercial off-the-shelf
(COTS) mobile devices with Android applications for data collection, assessment,
analysis, and dissemination to Indonesia Maritime Command Centers.102
Administration Actions Announced in November 2015
A fact sheet released by the Administration on November 17, 2015, stated:
We are increasing the maritime security capacity of our allies and partners, to respond to
threats in waters off their coasts and to provide maritime security more broadly across the
region. We are not only focused on boosting capabilities, but also helping our partners
develop the necessary infrastructure and logistical support, strengthen institutions, and
enhance practical skills to develop sustainable and capable maritime forces.
102 Megan Eckstein, “The Philippines at Forefront of New Pentagon Maritime Security Initiative,” USNI News, April
18, 2016 (updated April 17, 2016).
Congressional Research Service
40
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Advancing Maritime Capabilities
We are expanding our regional maritime capacity building efforts by:
— Committing $119 million in FY 2015 to develop Southeast Asian maritime
capabilities and will seek to provide $140 million in assistance during FY 2016 subject to
appropriation, totaling more than $250 million over two years.
— Developing regional maritime security programs and funds to rapidly respond to
evolving challenges.
— Pursuing the Southeast Asia Maritime Security Initiative announced by Secretary of
Defense Ash Carter at the Shangri-La Dialogue, a new effort to work together with our
allies and partners in Southeast Asia to build a shared maritime domain awareness
architecture that will help countries share information, identify potential threats, and
work collaboratively to address common challenges.
— Coordinating with our strong allies Japan and Australia on maritime security
assistance to align and synchronize regional security and law enforcement assistance
programs for maximum effect.
— Funding will be allocated to Southeast Asian countries, including the Philippines,
Vietnam, Indonesia, and Malaysia, including as described below.
The United States is expanding its maritime cooperation with the Philippines:
— The Philippines remains the largest recipient of maritime security assistance, and
will receive a record $79 million in bilateral assistance of the FY 2015 funds allocated for
developing Southeast Asian maritime capabilities. This assistance is largely focused on
building the training and logistical base for expanding the Philippine Navy, Coast Guard,
and Air Forces’ ability to conduct operations within waters off the Philippines’ coasts.
We are assisting with naval maintenance capacity building as well as providing
interdiction vessels, naval fleet upgrades, communications equipment, and aircraft
procurement.
— We are prioritizing transfer of maritime related Excess Defense Articles (EDA) to
rapidly enhance capability within limited budgets. The United States intends to grant the
high-endurance U.S. Coast Guard Cutter (USCGC) Boutwell to the Philippine Navy, the
third ship of its class that we have provided in the past few years. This will provide the
Philippines the ability to maintain greater maritime presence and patrols throughout its
EEZ. We are also in the process of transferring the research vessel R/V Melville to
support naval research and law enforcement capabilities.
— We will continue to support the National Coast Watch System and assist the
Philippines through the Global Security Contingency Fund (GSCF), building capacity in
Philippine maritime vessel maintenance, training, law enforcement support, and
intelligence assistance to expand the country’s ability to detect, track, and interdict where
necessary criminal and terrorist elements involved in the smuggling of sensitive items
and illicit goods.
— We will hold increased and more complex exercises and training with U.S.
government agencies and U.S. Pacific Command to increase interoperability and
professionalization.
— We will continue assisting improvements in security at ports to prevent illegal
activity and illegal shipments.
The United States is expanding its maritime assistance to Vietnam by:
— Increasing maritime program assistance to $19.6 million in FY 2015 to support
developing Southeast Asian maritime capabilities which we will seek to expand by
providing $20.5 million in FY 2016 subject to appropriation. We are helping Vietnam
Congressional Research Service
41
link to page 89 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
bolster its maritime Intelligence, Surveillance, and Reconnaissance (ISR) and command
and control within Vietnam’s maritime agencies.
— Lifting the ban on sales of maritime-related lethal capabilities to allow development
of Vietnam’s maritime capacity and encourage interoperability with other regional forces.
— Expanding bilateral training and exercises, focusing on disaster relief and
humanitarian issues.
The United States is expanding its maritime assistance to Indonesia by:
— Maintaining robust security assistance programs, with nearly $11 million in
maritime-related assistance in FY 2015 and almost $10 million planned for FY 2016
subject to appropriations.
— Increasing Indonesia’s patrol capacity, ISR integration, and maintenance capacity to
enhance the Indonesian government’s ability to protect its maritime areas, safeguard its
natural resources, and contribute to regional security and stability.
— Supporting the Indonesian Coast Guard’s organizational development, focusing on
human resource capacity, technical skills, and educational partnerships.
The United States is assisting Malaysia by:
— Providing almost $500,000 in FY 2015 and planning to provide over $2 million in
FY 2016, subject to appropriation, to work with Malaysia to build maritime law
enforcement training capacity and interagency coordination to help improve their
maritime domain awareness.
— Enhancing port security to prevent illicit activity and transshipment of illegal
goods.103
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;
making a statement (analogous to the one that U.S. leaders have made concerning
the Senkaku islands and the U.S.-Japan treaty on mutual cooperation and
security) that clarifies what the United States would do under the U.S.-
103 “FACT SHEET: U.S. Building Maritime Capacity in Southeast Asia,” November 17, 2015, accessed November 24,
2015, at https://www.whitehouse.gov/the-press-office/2015/11/17/fact-sheet-us-building-maritime-capacity-southeast-
asia. For press reports on these actions, see, for example, Michael D. Shear, “China in Mind, Obama Pledges Military
Aid to Allies in Southeast Asia,” New York Times, November 17, 2015; Josh Lederman and Kathleen Hennessey, “In
Signal to China, Obama to Give 2 Ships to Philippines,” Associated Press, November 17, 2015; Philippine News
Agency, “US Identifies 2 Ships to be Given to PHL,” Manila Bulletin, November 18, 2015; Manuel Mogato, “U.S.
Raises Military Aid to Philippines Amid Sea Tension with China,” Reuters, November 25, 2015.
See also “FACT SHEET: Advancing the Rebalance to Asia and the Pacific,” November 16, 2015, accessed November
24, 2015, at https://www.whitehouse.gov/the-press-office/2015/11/16/fact-sheet-advancing-rebalance-asia-and-pacific.
Congressional Research Service
42
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Philippines mutual defense treaty in the event of certain Chinese actions at
Scarborough Shoal, Second Thomas Shoal, or elsewhere in the SCS;104
further increasing and/or accelerating actions to strengthen the capacity of allied
and partner countries in the region to maintain maritime domain awareness
(MDA) and defend their maritime claims by conducting coast guard and/or navy
patrols of claimed areas;
further increasing U.S. Navy operations in the region, including sending U.S.
Navy ships more frequently to waters within 12 nautical miles of Chinese-
occupied sites in the SCS, and conducting freedom of navigation operations in
the SCS jointly with navy ships of U.S. allies;
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;105 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.
Cost-Imposing Actions
Some of the actions taken to date by the United States, as well as some of those suggested by
observers who argue in favor of stronger U.S. actions, are intended to impose costs on China for
conducting certain activities in the ECS and SCS, with the aim of persuading China to stop or
reverse those activities. Cost-imposing actions can come in various forms (e.g.,
reputational/political, institutional, or economic).106
Although the potential additional or strengthened actions listed in the previous section all relate to
the Western Pacific, potential cost-imposing actions do not necessarily need to be limited to that
region. As a hypothetical example for purposes of illustrating the point, one potential cost-
imposing action might be for the United States to respond to unwanted Chinese activities in the
ECS or SCS by opposing the renewal of China’s observer status on the Arctic Council.107
Expanding the potential scope of cost-imposing actions to regions beyond the Western Pacific can
make it possible to employ elements of U.S. power that cannot be fully exercised if the
examination of potential cost-imposing strategies is confined to the Western Pacific. It may also,
104 See, for example, Zack Cooper and Mira Rapp-Hooper, “Protecting the Rule of Law on the South China Sea,” Wall
Street Journal, March 31, 2016; Bill Gertz, “U.S. Mulls Pledge on Disputed Philippines Outpost,” Washington Times,
February 24, 2016.
105 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.
106 For an example of a report that discusses potential cost-imposing strategies in some detail, see Patrick M. Cronin,
The Challenge of Responding to Maritime Coercion, Center for a New American Security, Washington, September
2014.
107 For more on the Arctic Council, see CRS Report R41153, Changes in the Arctic: Background and Issues for
Congress, coordinated by Ronald O'Rourke.
Congressional Research Service
43
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
however, expand, geographically or otherwise, areas of tension or dispute between the United
States and China.
Actions to impose costs on China can also impose costs, or lead to China imposing costs, on the
United States and its allies and partners. Whether to implement cost-imposing actions thus
involves weighing the potential benefits and costs to the United States and its allies and partners
of implementing those actions, as well as the potential consequences to the United States and its
allies and partners of not implementing those actions.
U.S. Navy Freedom of Navigation (FON) Operations in SCS
At a September 17, 2015, hearing before the Senate Armed Services Committee on DOD’s
maritime security strategy in the Asia-Pacific region, DOD witnesses stated, in response to
questioning, that the United States had not conducted a freedom of navigation (FON) operation
within 12 miles of a Chinese-occupied land feature in the Spratly Islands since 2012. This led to a
public debate in the United States (that was watched by observers in the Western Pacific) over
whether the United States should soon conduct such an operation. Opponents argued that
conducting such an operation could antagonize China108 and give China an excuse to militarize its
occupied sites in the SCS.109 Supporters argued that not conducting such an operation was
inconsistent with the underlying premise of the U.S. FON program that navigational rights which
are not regularly exercised are at risk of atrophy; that it was 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); that it effectively rewarded
(rather than imposed costs on) China for its assertive actions in the SCS, potentially encouraging
further such actions; and that China intends to militarize its occupied sites in the Spratly Islands,
regardless of whether the United States conducts FON operations there.
The Administration reportedly considered, for a period of weeks, whether to conduct such an
operation in the near future. Some observers argued that the Administration’s extended
consideration of the question, and the press reporting on that deliberation, unnecessarily raised
the political stakes involved in whether to conduct what, in the view of these observers, should
have been a routine FON operation.110
108 A September 18, 2015, press report, for example, stated:
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.
(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.) See also Lyle Goldstein, “How Will China Respond In the South China
Sea? Ask the Soviet Union,” National Interest, November 2, 2015.
109 See, for example, Doug Bandow and Eric Gomez, “Further Militarizing the South China Sea May Undermine
Freedom of Navigation,” The Diplomat, October 22, 2015.
110 See, for example, Michael Mazza, “In South China Sea, A Slow Death for Freedom of Navigation,” American
Enterprise Institute, October 16, 2015; Euan Graham, “South China Sea Dispute: US Challenge May Fall Into China
(continued...)
Congressional Research Service
44
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
The Administration decided in favor of conducting the operation, and the operation reportedly
was conducted near the Chinese-occupied site of Subi Reef on October 27, 2015 (which was
October 26, 2015, in Washington, DC), using the U.S. Navy destroyer Lassen in conjunction with
a U.S. Navy P-8 maritime patrol aircraft flying overhead.
Statements from executive branch sources about the operation that were reported in the press
created some confusion among observers regarding how the operation was conducted and what
rationale the Administration was citing as the legal basis for the operation. In particular, there was
confusion among observers as to whether the United States was defending the operation as an
expression of the right of innocent passage111—a rationale, critics argued, that muddled the legal
message sent by the operation, possibly implying U.S. acceptance of Chinese sovereignty over
Subi Reef, which would inadvertently turn the operation into something very different and
perhaps even self-defeating from a U.S. perspective.112
Following the October 27, 2015, FON operation near Subi Reef, Administration officials stated
that the United States would continue to conduct freedom of navigation operations in the SCS at a
rate of about twice per quarter.113 Press reports in late November 2015 stated that the next such
operation would take place before the end of 2015 near the Chinese-occupied site of Mischief
Reef, using two Navy ships.114 Subsequent press reports in December 2015 stated that the next
operation would take place not in December 2015, but in 2016.115 The operation was conducted
(...continued)
Trap,” Lowy Institute, October 19, 2015; Sydney J. Freedberg, “The Price of Delay: US Navy To Challenge Chinese
Claims,” Breaking Defense, October 26, 2015; Andrea Shalal, Matt Spetalnick, and David Brunnstrom, “Insight—As
Obama Weighed Patrol to Counter China, Pentagon Urged Faster Action,” Reuters, October 28, 2015.
111 See, for example, Christopher P. Cavas, “Navy Chiefs Talk, New Details On Destroyer’s Passage,” Defense News,
October 31, 2015; Sam LaGrone, “U.S. Destroyer Made an ‘Innocent Passage’ Near Chinese South China Sea
Artificial Island in Recent Mission,” USNI News, November 2, 2015; David Bosco, “How Far Did the United States Go
with the Lassen Operation?” Lawfare, November 3, 2015; Adam Klein, “An Answer to the Innocent Passage
Mystery?” Lawfare, November 6, 2015.
112 See, for example, Adam Klein, “What Did The Navy Do In The South China Sea?” Lawfare, November 4, 2015;
Brendan S. Mulvaney, “The Unintended Consequences of the US Freedom of Navigation Operations in the South
China Sea,” The Diplomat, November 4, 2015; Timothy Choi, “Why the US Navy’s First South China Sea FONOP
Wasn’t a FONOP,” The Diplomat, November 4, 2015; Anthony Cowden, “Opinion: USS Lassen’s Transit of Subi Reef
Was Not So ‘Innocent,’” USNI News, November 4, 2015; Euan Graham, “Innocent Passage: Did the US Just Fumble
Its South China Sea Strategy?” Lowy Institute Interpreter, November 4, 2015; Sam LaGrone, “Confusion Continues to
Surround U.S. South China Sea Freedom of Navigation Operation,” USNI News, November 5, 2015; Keith Johnson
and Dan De Luce, “Washington’s Muddled Message in the South China Sea,” Foreign Policy, November 5, 2015;
Bonnie S. Glaser and Peter A. Dutton, “The U.S. Navy’s Freedom of Navigation Operation around Subi Reef:
Deciphering U.S. Signaling,” National Interest, November 6, 2015; Demetri Sevastopulo and Geoff Dyer, “US Navy
Operations Send Muddled Message to China,” Financial Times, November 7, 2015; Andrea Shalal, “U.S. Patrol
Sought to Avoid Provocation, Not Reinforce China Island Claim: Officials,” Reuters, November 7, 2015; Sam
LaGrone, “McCain Seeks Clarity on Recent U.S. South China Sea Freedom of Navigation Operation,” USNI News,
November 10, 2015; James Holmes, “How Washington Can Get Back on Course in the South China Sea,” Foreign
Policy, November 12, 2015; Raul “Pete” Pedrozo and James Kraska, “Can’t Anybody Play This Game? US FON
Operations and law of the Sea,” Lawfare, November 17, 2015; Joseph A. Bosco, “PacNet #80—South China Sea
Aftermath,” Center for Strategic and International Studies, November 24, 2015.
113 Morgan Chalfont, “U.S. Navy to Conduct Patrols of China’s Artificial Islands Twice Per Quarter,” Washington Free
Beacon, November 2, 2015; Andrea Shalal and and Idrees Ali, “U.S. Navy Plans Two or More Patrols in South China
Sea Per Quarter,” Reuters, November 2, 2015.
114 Andrea Shalal and David Brunnstrom, “U.S. Likely to Make ANother South China Sea Patrol Before year-End:
Navy Official,” Reuters, November 20, 2015; Bill Gertz, Navy Warships to Sail by Mischief Reef,” Washington Free
Beacon, November 20, 2015.
115 See, for example, Andrea Shalal, “Exclusive: Another U.S. Patrol in South China Sea Unlikely This Year—
Officials,” Reuters, December 15, 2016; David Larter, “U.S. Navy Plans more South China Sea Patrols in 2016,” Navy
(continued...)
Congressional Research Service
45
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
on January 30, 2016, near Triton Island in the Paracel Islands, by the U.S. Navy destroyer Curtis
Wilber.116
An April 26, 2016, press report stated that
In recent weeks, the U.S. had sought to “lower the temperature” over Scarborough
[Shoal], a senior U.S. official said. According to other U.S. officials, that included
canceling one “freedom of navigation” patrol in the South China Sea that had been
planned for this month....
The six U.S. aircraft that flew near Scarborough Shoal on April 19 are based at Clark [Air
Base in the Philippines]. The four A-10 Thunderbolt fighters and two HH-60 Pave Hawk
helicopters “conducted a flying mission through international airspace…providing air and
maritime situational awareness,” [a] U.S. Air Force statement said.
None of the U.S. flights flew to within 12 nautical miles of Scarborough, according to a
U.S. official, which would have amounted to a legal challenge to China’s claims on the
shoal, but the proximity of the flights was clearly intended to send a message to
Beijing.117
On May 10, 2016, the Navy conducted its next reported FON operation in the South China Sea,
sending the destroyer William P. Lawrence to conduct an innocent passage within 12 nautical
miles of Fiery Cross Reef, a Chinese-occupied feature in the Spratly Islands that is also claimed
by Taiwan, Vietnam, and the Philippines.118
In assessing U.S. FON operations that take place within 12 nautical miles of Chinese-occupied
sites in the SCS, one question relates to whether to conduct such operations, exactly where, and
how often. A second question relates to the rationale that is cited as the legal basis for conducting
them. Regarding this second question, one U.S. specialist on international law of the sea states the
following regarding three key legal points in question (emphasis added):
(...continued)
Times, December 19, 2015.
116 See Jane Perlez, “U.S. Challenges China’s Claim of Islands With Maritime Operation,” New York Times, January
30, 2016; Sam LaGrone, “U.S. Destroyer Challenges More Chinese South China Sea Claims in New Freedom of
Navigation Operation,” USNI News, January 30, 2016; Barbara Starr and Joshua Berlinger, “U.S. Navy Sends Ship
Near Disputed Island in South China Sea,” CNN, January 31, 2016; Sam LaGrone, “China Upset Over
‘Unprofessional’ U.S. South China Sea Freedom of Navigation Operation,” USNI News, January 31, 2016 (updated
February 1, 2016); Ben Blanchard, “China Says U.S. Seeks ‘Hegemony’ After South China Sea Sailing,” Reuters,
February 1, 2016; Gregory Poling, “South China Sea FONOP 2.0: A Step in the Right Direction,” Asia Maritime
Transparency Initiative, February 2, 2016; Shannon Tiezzi, “China Rejects Latest US FONOP in the South China Sea,”
The Diplomat, February 2, 2016; Lawfare Staff, “Water Wars: U.S. Navy Back for FON in the South China Sea,”
Lawfare, February 5, 2016; Sam Bateman, “Revealed: America’s ‘Soft’ Operation in the South China Sea,” National
Interest, February 9, 2016; Truong-Minh Vu and Jeremy Lagelee, “U.S. Navy Sets the Record Straight on FONOPs,”
National Interest, February 24, 2016.
117 Gordon Lubold and Jeremy Page, “U.S. Sees New Flashpoint in South China Sea Dispute,” Wall Street Journal,
April 26, 2016. See also Ankit Panda, “The US Cancelled a Scheduled FONOP in the South China Sea. What Now?”
The Diplomat, April 27, 2016.
118 See, for example, Jane Perlez, “U.S. Sails Warship Near Island in South China Sea, Challenging Chinese Claims,”
New York Times, May 10, 2016; Sam LaGrone, “U.S. Destroyer Passes Near Chinese Artifical Island in South China
Sea Freedom of Navigation Operation,” USNI News, May 10, 2016; Michael Martina, Greg Torode, and Ben
Blanchard, “China Scrambles Fighters as U.S. Sails Warship Near Chinese-Claimed Reef,” Reuters, May 11, 2016;
Zack Cooper and Bonnie S. Glaser, “How America Picks Its Next Move in the South China Sea,” The National
Interest, May 11, 2016; Julian Ku, “We’ve Seen This Movie Before: The Latest U.S. ‘Innocent Passage’ Freedom of
Navigation Operation in the South China Sea,” Lawfare, May 11, 2016.
Congressional Research Service
46
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 [nautical miles] of Chinese features, they are free to do so as
an exercise of high 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.”
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 [LTEs] 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.”119
These three legal points appear to create at least four options for the rationale to cite as the legal
basis for conducting an FON operation within 12 miles of Chinese-occupied sites in the SCS:
One option would be to state that since there is a dispute as to the sovereignty of
the site or sites in question, that site or those sites are terra nullius, that the
United States consequently is not obligated to observe requirements of a
theoretical territorial sea, and that U.S. warships thus have a right to transit
119 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.
Congressional Research Service
47
link to page 68 link to page 68 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
within 12 nautical miles of the site or sites as an exercise of high seas freedom
under article 87 of the Law of the Sea Convention.
A second option, if the site or sites were LTEs prior to undergoing land
reclamation, would be to state that the site or sites are not entitled to a 12-
nautical-mile territorial sea, and that U.S. warships consequently have a right to
transit within 12 nautical miles as an exercise of high seas freedom.
A third option would be to state that the operation was being conducted under the
right of innocent passage within a 12-nautical-mile territorial sea.
A fourth option would be to not provide a public rationale for the operation, so as
to create uncertainty for China (and perhaps other observers) as to exact U.S.
legal rationale.
If the fourth option is not taken, and consideration is given to selecting from among the first three
options, then it might be argued that choosing the second option might inadvertently send a signal
to observers that the legal point associated with the first option was not being defended, and that
choosing the third option might inadvertently send a signal to observers that the legal points
associated with the first and second options were not being defended.
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?
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
Congressional Research Service
48
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving 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, 1994.120 In the absence of Senate advice and consent to adherence, the United
States is not a party to the convention and the associated 1994 agreement. During the 112th
Congress, the Senate Foreign Relations Committee held four hearings on the question of whether
the United States should become a party to the treaty on May 23, June 14 (two hearings), and
June 28, 2012.
Supporters of the United States becoming a party to UNCLOS argue or might argue one or more
of the following:
The treaty’s provisions relating to navigational rights, including those in EEZs,
reflect the U.S. position on the issue; becoming a party to the treaty would help
lock the U.S. perspective into permanent international law.
Becoming a party to the treaty would give the United States greater standing for
participating in discussions relating to the treaty—a “seat at the table”—and
thereby improve the U.S. ability to call on China to act in accordance with the
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.121
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 EEZs122 shows that UNCLOS does not adequately protect U.S.
120 Treaty Document 103-39.
121 See, for example, Andrew Browne, “A Hole in the U.S. Approach to Beijing,” Wall Street Journal, May 20, 2014.
122 For a discussion of China’s legal justifications for its position on the EEZ issue, see, for example, Peter Dutton,
(continued...)
Congressional Research Service
49
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
Legislative Activity in 2016
FY2017 National Defense Authorization Act (H.R. 4909/S. 2943)
House
The House Armed Services Committee, in its report (H.Rept. 14-537 of May 4, 2016) on H.R.
4909, states:
Department of Defense Briefing on United States Ratification of the United Nations
Convention on the Law of the Sea
The committee has heard testimony from a multitude of U.S. military leaders who are
supportive of the U.S. becoming a formal signatory of the United Nations Convention on
the Law of the Sea (UNCLOS). The committee is aware that these military leaders
testified that ratifying UNCLOS is in our national interest, specifically regarding
developing territorial challenges in the South China Sea and the Arctic.
The committee therefore directs the Secretary of Defense to provide a briefing to the
House Committee on Armed Services not later than September 30, 2016, regarding
United States ratification of UNCLOS. The briefing should contain, at a minimum, the
strategic implications and surmised impacts—both benefits and disadvantages—to
national security, current foreign military relations, and ongoing military operations
should the United States ratify UNCLOS or maintain the status quo. The brief should also
identify those areas in which the lack of ratification has impacted the interests of the
United States and our allies. (Page 215)
H.Rept. 114-537 also states:
(...continued)
“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.
Congressional Research Service
50
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Chinese Participation in Rim of the Pacific Exercise
The committee is concerned by certain unilateral actions taken by the People’s Republic
of China in the South China Sea and by the implications that those actions may have on
regional stability. Rather than abiding by internationally accepted norms and contributing
to a peaceful and equitable resolution to the many disputed claims in the South China
Sea, China has engaged in controversial land reclamation projects and resorted to
aggressive tactics, short of open conflict, to further its foreign policy goals.
The committee notes that the United States has maintained its invitation to China to
participate, to a limited extent, in the Rim of the Pacific (RIMPAC) exercise for 2016,
despite China’s concerning actions in the South China Sea. The committee acknowledges
the benefits of inviting China to participate in international exercises, which aim to
reinforce the merits of cooperative security. However, the committee believes that these
invitations should be continuously evaluated in light of China’s conduct. Therefore, the
committee directs the Secretary of Defense to provide a briefing to the House Committee
on Armed Services, which may include a classified portion, not later than July 1, 2016,
on the merits of continued Chinese participation in forthcoming RIMPAC exercises.
(Pages 239-240)
Senate
Section 1241 of S. 2943 as reported by the Senate Armed Services Committee (S.Rept. 114-255
of May 18, 2016) states:
SEC. 1241. Annual update of Department of Defense Freedom of Navigation Report.
(a) In general.—The Secretary of Defense shall submit to the Committees on Armed
Services of the Senate and the House of Representatives on an annual basis a report
setting forth an update of the most current Department of Defense Freedom of Navigation
Report under the Freedom of Navigation Operations (FONOPS) program. The purpose of
each report shall be to document the types and locations of excessive claims that the
Armed Forces of the United States have challenged in the previous year in order to
preserve the rights, freedoms, and uses of the sea and airspace guaranteed to all countries
by international law.
(b) Elements.—Each report under this section shall include, for the year covered by such
report, the following:
(1) Each excessive maritime claim challenged by the United States under the program
referred to in subsection (a), including the country making each such claim.
(2) The nature of each claim, including the geographic location or area covered by such
claim (including the body of water and island grouping, when applicable).
(3) The specific legal challenge asserted through the program.
(c) Form.—Each report under this section shall be submitted in unclassified form.
Section 1246 of S. 2943 as reported states:
SEC. 1246. Redesignation of South China Sea Initiative.
(a) Redesignation as Southeast Asia Maritime Security Initiative.—Subsection (a)(2) of
section 1263 of the National Defense Authorization Act for Fiscal Year 2016 (P.L. 114-
114–92; 129 Stat. 1073; 10 U.S.C. 2282 note) is amended by striking “the ‘South China
Sea Initiative’” and inserting “the ‘Southeast Asia Maritime Security Initiative’”.
(b) Conforming amendment.—The heading of such section is amended to read as
follows:
Congressional Research Service
51
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
“SEC. 1263. Southeast Asia Maritime Security Initiative”.
Regarding Section 1246, S.Rept. 114-255 states:
Redesignation of South China Sea Initiative (sec. 1246)
The committee recommends a provision that would amend section 1261 of the National
Defense Authorization Act for Fiscal Year 2016 (P.L. 114-114–92) to redesignate the
South China Sea Initiative as the Southeast Asia Maritime Security Initiative.
The committee strongly supports the Southeast Asia Maritime Security Initiative. The
committee encourages the Department to continue a robust effort to build the maritime
capabilities of Southeast Asian countries that are committed to an inclusive maritime
order where all states have access to the open seas. (Page 315)
S.Rept. 114-255 also states:
People’s Liberation Army Navy (PLAN) participation in Rim of the Pacific exercise
The committee is concerned by China’s ongoing reclamation and militarization of the
South China Sea. Despite President Xi Jinping’s assurances in September 2015 that
“China does not intend to pursue militarization” of the South China Sea, the committee is
aware that China is now constructing runways, radar facilities, hangars, and other
infrastructure that will enable the sustainment of military capabilities in the Spratly
Islands. The committee notes the assessment of Director of National Intelligence James
Clapper that “China will continue to pursue construction and infrastructure development
at its expanded outposts in the South China Sea. Based on the pace and scope of
construction at these outposts, China will be able to deploy a range of offensive and
defensive military capabilities and support increased People’s Liberation Army Navy
(PLAN) and Chinese Coast Guard (CCG) presence beginning in 2016.”
The committee notes that the United States invited China to participate in the 2014 Rim
of the Pacific exercise (RIMPAC). The committee is aware that China sent four surface
vessels to join the official exercise, in addition to a Dongdiao-class Auxiliary General
Intelligence (AGI) surveillance ship. The committee recognizes that the inclusion of this
vessel at an exercise designed to build trust and cooperation between global navies
undermined the spirit of the exercise. The committee acknowledges the Department of
Defense’s desire to build cooperative relationships through participation in bilateral and
multilateral maritime exercises and the potential benefits to regional security gained
through military engagements. However, the committee believes that military
engagements such as RIMPAC should be routinely evaluated to identify the value of each
individual exercise to U.S. national interests.
Therefore, the committee directs the Secretary of Defense to provide a briefing to the
Senate Armed Services Committee, which may include a classified portion, not later than
July 1, 2016, regarding the merits of continued Chinese participation in RIMPAC 2016,
the intended scope of PLA participation in RIMPAC 2016, and the compliance of PLAN
participation in RIMPAC 2016 with the 12 operational areas that were prohibited for
military-to-military contact between the Department of Defense and PLA consistent with
Section 1201(a) of the National Defense Authorization Act for Fiscal Year 2000 (P.L.
106-106–65). (Page 324)
Asia-Pacific Maritime Security Initiative Act of 2016 (S. 2865)
S. 2865 was introduced in the Senate on April 26, 2016. The text of the bill reads:
SECTION 1. Short title.
This Act may be cited as the “Asia-Pacific Maritime Security Initiative Act of 2016”.
Congressional Research Service
52
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
SEC. 2. Definitions.
In this Act:
(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term “appropriate
committees of Congress” means—
(A) the Committee of Foreign Relations, the Committee on Armed Services, and the
Committee on Appropriations of the Senate; and
(B) the Committee of Foreign Affairs, the Committee on Armed Services, and the
Committee on Appropriations of the House of Representatives.
(2) INCREMENTAL EXPENSES.—The term “incremental expenses”—
(A) means the reasonable and proper cost of the goods and services that are consumed by
a country as a direct result of that country’s participation in training under the authority
of this section, including rations, fuel, training ammunition, and transportation; and
(B) does not include pay, allowances, and other normal costs of a country’s personnel.
(3) OTHER SECURITY FORCES.—The term “other security forces” includes national
security forces that conduct maritime security, but does not include self-described militias
and paramilitary organizations.
TITLE I—United States policy on Asia-Pacific maritime security
SEC. 101. Statement of policy on maintenance of freedom of operations in international
waters and airspace in the Asia-Pacific maritime domains.
It is the policy of the United States that, as a longstanding Asia-Pacific power, the United
States will maintain and exercise routine freedom of operations in the international waters
and airspace in the Asia-Pacific maritime domains, which are critical to the prosperity,
stability, and security of the Asia-Pacific region.
SEC. 102. Statement of policy on claims that impinge on rights, freedoms, and lawful use
of the seas.
It is the policy of the United States—
(1) to oppose all claims in the maritime domains that impinges on the rights, freedoms,
and lawful use of the seas that belong to all nations; and
(2) to uphold the principle that territorial and maritime claims, including territorial waters
or territorial seas, must be derived from land features and otherwise comport with
international law.
SEC. 103. Statement of policy on opposition to unilateral actions to change the status quo
in the South China Sea.
It is the policy of the United States—
(1) to oppose the unilateral actions by any claimant seeking to change the status quo in
the South China Sea through the use of coercion, intimidation, or military force;
(2) to oppose reclamation activities in the South China Sea, including the militarization of
any reclaimed features;
(3) to oppose actions by any country to prevent any other country from exercising its
sovereign rights to the resources of the exclusive economic zone (EEZ) and continental
shelf by making claims to those areas in the South China Sea that have no support in
international law;
(4) to oppose unilateral declarations of administrative and military districts in contested
areas in the South China Sea;
Congressional Research Service
53
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
(5) to oppose the militarization of new and reclaimed land features in the South China
Sea;
(6) to oppose the imposition of new fishing regulations covering disputed areas in the
South China Sea, which have raised tensions in the region; and
(7) (A) to welcome the expected landmark decision by the International Tribunal on the
Law of the Sea in the case of “The Republic of Philippines v. The People's Republic of
China”;
(B) to note that the decision is binding on all parties involved and will constitute
international law;
(C) to call on all parties to abide by the ruling; and
(D) to encourage other South China Sea claimants to seek similar clarification of
maritime disputes through arbitration.
SEC. 104. Statement of policy on the commitment and support of the United States for
allies and partners in the Asia-Pacific region.
It is the policy of the United States—
(1) to reaffirm its unwavering commitment and support for allies and partners in the Asia-
Pacific region, including longstanding United States policy regarding Article V of the
United States-Philippines Mutual Defense Treaty;
(2) to reaffirm that Article V of the United States-Japan Mutual Defense Treaty applies to
the Japanese-administered Senkaku Islands; and
(3) to station and regularly deploy the newest and most advanced United States air power
assets to the Asia-Pacific region, including F–22 stealth fighters, B–2 and B–52 strategic
bombers, and the expected forward-stationing of F–35 aircraft in Iwakuni, Japan.
SEC. 105. Statement of policy on efforts of the association of Southeast Asian nations
and the People’s Republic of China to develop an effective code of conduct.
It is the policy of the United States—
(1) to support efforts by the Association of Southeast Asian Nations (ASEAN) and the
People’s Republic of China to develop an effective Code of Conduct; and
(2) to encourage claimants not to undertake new or unilateral attempts to change the
status quo since the signing of the 2002 Declaration of Conduct, including reclamation
activities or asserting administrative measures or controls in disputed areas in the South
China Sea.
SEC. 106. Statement of policy on the continuity of operations by the Armed Forces in the
Asia-Pacific region.
It is the policy of the United States to assure the continuity of operations by the United
States Armed Forces in the Asia-Pacific region, including, when appropriate, in
cooperation with partners and allies, in order to reaffirm the principle of freedom of
operations in international waters and airspace in accordance with established principles
and practices of international law.
TITLE II—Maritime security initiative
SEC. 201. Maritime security initiative.
(a) Program authorized.—
(1) IN GENERAL.—The Secretary of Defense, in concurrence with the Secretary of
State, is authorized to provide assistance, for the purpose of increasing maritime security
and domain awareness for countries in the Asia-Pacific region—
Congressional Research Service
54
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
(A) to provide assistance to national military or other security forces of such countries
that have among their functional responsibilities maritime security missions;
(B) to provide training to ministry, agency, and headquarters level organizations for such
forces; and
(C) to provide assistance to and training to other relevant foreign affairs, maritime, or
security-related ministries, agencies, departments or offices that manage and oversight of
maritime activities and policy that the Secretary may so designate.
(2) DESIGNATION OF ASSISTANCE AND TRAINING.—The provision of assistance
and training under this section may be referred to as the “Maritime Security Initiative”.
(3) CONSTRUCTION OF LIMITATIONS.—The Secretary may provide assistance
under this section without regard to any other provision of law, other than section 620M
of the Foreign Assistance Act of 1961 (22 U.S.C. 2378d).
(b) Eligible countries.—In selecting countries in the Asia-Pacific region to which
assistance is to be provided under the Initiative, the Secretary of Defense, in concurrence
with the Secretary of State, shall prioritize the provision of assistance to countries that
will contribute to the achievement of following objectives:
(1) Retaining unhindered access to and use of international waterways in the Asia-Pacific
region that are critical to ensuring the security and free flow of commerce and achieving
United States national security objectives.
(2) Improving maritime domain awareness in the Asia-Pacific region.
(3) Countering piracy in the Asia-Pacific region.
(4) Disrupting illicit maritime trafficking activities and other forms of maritime
trafficking activity in the Asia-Pacific that directly benefit organizations that have been
determined to be a security threat to the United States.
(5) Enhancing the maritime capabilities of a country or regional organization to respond
to emerging threats to maritime security in the Asia-Pacific region.
(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
Congressional Research Service
55
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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) Availability of funds.—
(1) FISCAL YEAR 2017.—Of the amounts authorized to be appropriated for fiscal year
2017 for the Department of Defense for operation and maintenance, Defense-wide,
$75,000,000 may be available for the provision of assistance and training under
subsection (a).
(2) FISCAL YEARS 2018 THROUGH 2021.—In each of fiscal years 2018 through
2021, from amounts authorized to be appropriated for the Department of Defense for
such fiscal year for operation and maintenance, Defense-wide, $100,000,000 may be
available for the provision of assistance and training under subsection (a).
(3) NOTICE ON SOURCE OF FUNDS.—If the Secretary of Defense uses funds
available to the Department pursuant to paragraph (1) to provide assistance and training
under subsection (a) during a fiscal half-year, not later than 30 days after the end of such
fiscal half-year, the Secretary shall submit to the appropriate congressional committees a
notice on the account or accounts providing such funds.
(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
country, the Secretary of Defense shall submit to the appropriate congressional
committees a notification containing the following information:
(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) Annual report.—The Secretary of Defense shall submit to the appropriate
congressional committees each year a report on the status of the provision of equipment,
training, supplies, or other services provided pursuant to the program carried out under
this section during the preceding year.
Congressional Research Service
56
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
(i) Expiration.—Assistance and training may not be provided under this section after
September 30, 2022.
TITLE III—Special foreign military sales status for the Philippines
SEC. 301. Special foreign military sales status for the Philippines.
The Arms Export Control Act (22 U.S.C. 2751 et seq.) is amended—
(1) in sections 3(d)(2)(B), 3(d)(3)(A)(i), 3(d)(5), 21(e)(2)(A), 36(b), 36(c), 36(d)(2)(A),
62(c)(1), and 63(a)(2), by inserting “the Philippines,” before “or New Zealand” each
place it appears;
(2) in section 3(b)(2), by inserting “the Government of the Philippines,” before “or the
Government of New Zealand”; and
(3) in section 21(h), by inserting “the Philippines,” before “or Israel” each place it
appears.
TITLE IV—IMET
SEC. 401. Authorization of appropriations.
There is authorized to be appropriated for fiscal year 2017 for the Department of State,
out of amounts appropriated or otherwise made available for assistance under chapter 5
of part II of the Foreign Assistance Act of 1961 (22 U.S.C. 2301 et seq.) (relating to
international military education and training (IMET) assistance), $15,000,000 for
activities in the Asia-Pacific region in accordance with this Act.
TITLE V—Foreign military financing
SEC. 501. Authorization of appropriations.
In addition to any amounts appropriated pursuant to section 23 of the Arms Export
Control Act (22 U.S.C. 2763) (relating to foreign military financing assistance), there is
authorized to be appropriated $10,000,000 for fiscal year 2017 for activities in the Asia-
Pacific region in accordance with this Act.
SEC. 502. Priorities for assistance.
(a) Selection of countries.—In selecting countries in the Asia-Pacific region to which
security assistance should be provided, the Secretary of State may prioritize the provision
of maritime capacity building assistance to countries in the Asia-Pacific that will
contribute to the achievement of following objectives:
(1) Retaining unhindered access to and use of international waterways in the Asia-Pacific
region that are critical to ensuring the security and free flow of commerce and achieving
United States national security objectives.
(2) Improving maritime domain awareness in the Asia-Pacific region.
(3) Countering piracy in the Asia-Pacific region.
(4) Disrupting illicit maritime trafficking activities and other forms of maritime
trafficking activity in the Asia-Pacific that directly benefit organizations that have been
determined to be a security threat to the United States.
(5) Enhancing the maritime capabilities of a country or regional organization to respond
to emerging threats to maritime security in the Asia-Pacific region.
(b) Priorities.—In carrying out the provision of maritime capacity building—
(1) priority may be placed on assistance to enhance the maritime security capabilities of
the military or security forces of countries in the Asia-Pacific region that have maritime
missions and the government agencies responsible for such forces; and
Congressional Research Service
57
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
(2) assistance may be provided to a country in the Asia-Pacific region to enhance the
capabilities of that country, or of a regional organization that includes that country, to
conduct—
(A) maritime intelligence, surveillance, and reconnaissance;
(B) littoral and port security;
(C) Coast Guard operations;
(D) command and control; and
(E) management and oversight of maritime activities.
(c) Annual report.—The Secretary of State shall submit to the appropriate committees of
Congress each year a report on the status of the provision of equipment, training,
supplies, or other services provided pursuant to maritime capacity building in the Asia-
Pacific in the preceding year.
TITLE VI—Maritime law enforcement initiative
SEC. 601. Authorization of appropriations.
There is authorized to be appropriated for fiscal year 2017 for the Department of State for
International Narcotics Control and Law Enforcement (INCLE), $7,500,000 for the
support of the Southeast Asia maritime Law Enforcement Initiative.
TITLE VII—Transfer of excess defense articles
SEC. 701. Priority for transfer of excess defense articles.
Section 516(c)(2) of the Foreign Assistance Act of 1961 (22 U.S.C. 2321j(c)(2)) is
amended by striking “and to the Philippines” and inserting “to the Philippines, and to
other major non-NATO allies of the United States located in the Asia-Pacific region
(including Japan, South Korea, Thailand, Australia and New Zealand) and other maritime
ASEAN member states”.
SEC. 702. Transfer of naval vessels to foreign recipient.
The Secretary of State, with the concurrence of the Secretary of Defense, is authorized to
transfer one OLIVER HAZARD PERRY class guided missile frigate on a grant basis
under section 516 of the Foreign Assistance Act of 1961 (22 U.S.C. 2321j) to a foreign
government pursuant to the program authorized in section 201(a) for the purposes of this
Act.
TITLE VIII—Equality of treatment in arms sales for Taiwan
SEC. 801. Equality of treatment in arms sales for taiwan.
(a) In general.—The President shall ensure that the United States Government treats
every proposed arms sales for Taiwan with the same timelines, processes, and
procedures, including formal notification to Congress under the Arms Export Control Act
(22 U.S.C. 2751 et seq.), accorded to proposed arms transfers for all other countries.
(b) Inspector General reporting.—Not later than one year after the date of the enactment
of this Act, and annually thereafter for 5 years, the Inspectors General of the Department
of State and the Department of Defense shall review and report to the appropriate
congressional committees on the compliance of those departments with the requirements
of subsection (a).
TITLE IX—Reports
SEC. 901. Report on plans for the maintenance of freedom of operations in international
waters and airspace in the Asia-Pacific maritime domains.
Congressional Research Service
58
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Not later than 180 days after the date of the enactment of this Act, the Secretary of
Defense shall, with the concurrence with the Secretary of State, submit to the appropriate
committees of Congress a report in classified form setting forth a plan, for each of the
six-month, one-year, and three-year periods beginning on the date of such report, for
freedom of navigation assertions, shows of force, bilateral and multilateral military
exercises, port calls, and training intended to enhance the maritime capabilities, respond
to emerging threats, and maintain freedom of operations in international waters and
airspace in the Asia-Pacific maritime domains.
SEC. 902. Report on plans for partner capacity building.
Not later than 180 days after the date of the enactment of this Act, the Secretary of State
shall, with the concurrence with the Secretary of Defense, submit to the appropriate
congressional committees a report (in classified or unclassified form) setting forth a plan,
for each of the six-month, one-year, and five-year periods beginning on the date of such
report, for Partner Capacity Building assistance intended to enhance the maritime
capabilities, respond to emerging threats, and maintain freedom of operations in
international waters and airspace in the Asia-Pacific maritime domains.
SEC. 903. Annual report on military and nonmilitary activities of China in the South
China Sea.
Not later than 90 days after the date of the enactment of this Act, and annually thereafter,
the Secretary of State, in consultation with the Secretary of Defense, shall submit to the
appropriate congressional committees an unclassified comprehensive report, with a
classified annex if necessary, detailing the military and nonmilitary activities of the
People’s Republic of China in the South China Sea.
SEC. 904. Notice to Congress on assistance and training.
Not later than 15 days before exercising the authority under section 201, section 401, or
section 501 or pursuant to the amendments made by section 301 with respect to a
recipient foreign country, the Secretary of State or the Secretary of Defense, as the case
may be, shall submit to the appropriate congressional committees a notification
containing the following elements:
(1) The name of the recipient foreign country.
(2) A detailed justification 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) a timetable of planned expenditures of funds to implement the program;
(B) an implementation timeline for the program with milestones (including anticipated
delivery schedules for any assistance under the program);
(C) the military department or component responsible for management of the program;
and
(D) 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.
Congressional Research Service
59
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
S.Res. 370, Regarding the United States and ASEAN
S.Res. 370—“A resolution recognizing that for nearly 40 years, the United States and the
Association of South East Asian Nations (ASEAN) have worked toward stability, prosperity, and
peace in Southeast Asia”—was introduced in the Senate on introduced on February 10, 2016. The
resolved portion of the resolution states:
Resolved, That the Senate—
(1) welcomes the leaders of the Association of South East Asian Nations (ASEAN) to the
United States for the special February 2016 U.S.-ASEAN summit meeting at Rancho
Mirage, California, and affirms the summit as the first regular U.S.-ASEAN summit;
(2) supports and welcomes the elevation of the United States-ASEAN relationship to a
strategic partnership and recommits the United States to ASEAN centrality and to helping
to build a strong, stable, politically cohesive, economically integrated, and socially
responsible ASEAN community with common rules, norms, procedures, and standards
consistent with international law and the principles of a “rule-based” Asia-Pacific
community;
(3) supports efforts towards increasing two-way trade and investment, promoting trade
and investment liberalization and facilitation, encouraging strong, sustainable, and
inclusive economic growth and job creation, and deepening connectivity;
(4) urges ASEAN to continue its efforts to foster greater integration and unity, including
with non-ASEAN economic, political, and security partners, including Japan, the
Republic of Korea, Australia, the European Union, and India, both inside of and outside
of Asia;
(5) supports efforts by ASEAN nations to address maritime and territorial disputes in a
constructive manner and to pursue claims through peaceful, diplomatic, and legitimate
regional and international arbitration mechanisms, consistent with international law;
(6) urges all parties to maritime and territorial disputes in the Asia-Pacific region to—
(A) respect the status quo;
(B) exercise self-restraint in the conduct of activities that would undermine stability or
complicate or escalate disputes through the use of coercion, intimidation, or military
force;
(C) cease land reclamation activities; and
(D) refrain from inhabiting or garrisoning or otherwise militarizing uninhabited islands,
reefs, shoals, and other features;
(7) opposes actions by any country to prevent any other country from exercising its
sovereign rights to the resources of the exclusive economic zone (EEZ) and continental
shelf by making claims to those areas in the South China Sea that have no support in
international law;
(8) opposes unilateral declarations of administrative and military districts in contested
areas in the South China Sea;
(9) opposes the imposition of new fishing regulations covering disputed areas in the
South China Sea, which have raised tensions in the region;
(10) urges parties to refrain from unilateral actions that cause permanent physical change
to the marine environment in areas pending final delimitation;
(11) supports efforts by the Association of Southeast Asian Nations (ASEAN) and the
People’s Republic of China to develop an effective Code of Conduct (COC) and urges
Congressional Research Service
60
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
ASEAN to implement and work toward the expeditious conclusion of an effective Code
of Conduct with regards to the South China Sea;
(12) urges ASEAN to develop a common approach to reaffirm the decision of the
Permanent Court of Arbitration in The Hague’s ruling with respect to the case between
the Republic of the Philippines and the People’s Republic of China;
(13) supports efforts by United States partners and allies in ASEAN—
(A) to enhance maritime capability;
(B) to retain unhindered access to and use of international waterways in the Asia-Pacific
region that are critical to ensuring the security and free flow of commerce;
(C) to improve maritime domain awareness;
(D) to counter piracy;
(E) to disrupt illicit maritime trafficking activities and other forms of maritime trafficking
activity; and
(F) to enhance the maritime capabilities of a country or regional organizations to respond
to emerging threats to maritime security in the Asia-Pacific region;
(14) reaffirms the enhancement of United States-ASEAN economic engagement,
including the elimination of barriers to cross-border commerce, and supports the ASEAN
Economic Community’s goals, including strong, inclusive, and sustainable growth and
cooperation between the United States and ASEAN that focuses on innovation and
capacity building efforts in technology, education, disaster management, food security,
human rights, and trade facilitation, including for ASEAN's poorest countries;
(15) supports the Lower Mekong Initiative, which has made significant progress in
promoting sustainable economic development in mainland Southeast Asia and fostering
integrated subregional cooperation and capacity building;
(16) supports capacity building for the promotion and protection of human rights and
related priority, programs, and activities;
(17) supports the Young Southeast Asian Leaders Initiative program as an example of
people-to-people partnership building that provides skills and networks to a new
generation of people who will create and fill the jobs of the future;
(18) reaffirms the commitment of the United States to continue joint efforts with ASEAN
to halt human smuggling and trafficking of persons and urges ASEAN to make increased
efforts to create and strengthen regional mechanisms to provide assistance and support to
refugees and migrants;
(19) urges ASEAN nations to engage directly with leaders of civil society, human rights,
and environmental groups before, during, and after the February 2016 summit; and
(20) encourages the President to communicate to ASEAN leaders the importance of
releasing political prisoners and ending politically motivated prosecutions.
H.Res. 631, Regarding U.S. Ratification of UNCLOS
H.Res. 631 —a resolution “calling upon the United States Senate to give its advice and consent to
the ratification of the United Nations Convention on the Law of the Sea”—was introduced in the
House on March 1, 2016. The resolved portion of the resolution states:
Resolved, That the House of Representatives—
(1) affirms that it is in the national interest for the United States to become a formal
signatory of the United Nations Convention of the Law of the Sea;
Congressional Research Service
61
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
(2) urges the United States Senate to give its advice and consent to the ratification of the
United Nations Convention of the Law of the Sea (UNCLOS); and
(3) recommends the ratification of UNCLOS remain a top priority for the administration,
having received bipartisan support from every President since 1994, and having most
recently been underscored by the strategic challenges the United States faces in the Asia-
Pacific region and more specifically in the South China Sea.
Resolutions Introduced in 2015
Resolutions introduced in 2015 include S.Res. 183 and S.Res. 153.
Congressional Research Service
62
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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 security123 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.”124 (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.125
U.S.-Philippines Mutual Defense Treaty126
The 1951 U.S.-Philippines mutual defense treaty127 states in Article IV that
123 Treaty of mutual cooperation and security, signed January 19, 1960, entered into force June 23, 1960, 11 UST 1632;
TIAS 4509; 373 UNTS.
124 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.
125 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.
126 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.
127 Mutual defense treaty, signed August 30, 1951, entered into force August 27, 1952, 3 UST 3947, TIAS 2529, 177
UNTS 133.
Congressional Research Service
63
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.128 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.129 U.S. officials have made their own
statements regarding the treaty’s application to territorial disputes in the SCS.130
128 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.
129 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/.
130 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.
Congressional Research Service
64
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Appendix B. Statements from U.S. Officials
Regarding U.S. Position
This appendix presents excerpts from some recent statements by U.S. officials regarding the U.S.
position on maritime territorial and EEZ disputes involving China.
December 14, 2015, Address by Commander, U.S. Pacific Fleet
In a December 14, 2015, address at a cooperative security forum held in Hawaii, Admiral Scott H.
Swift, Commander, U.S. Pacific Fleet, stated:
Today all Indo-Asia-Pacific nations benefit from a rising tide of prosperity. We all have
major stakes in this region’s continued success, especially at sea, where so much of our
trade, investment and interaction takes place. Global seaborne trade is expected to reach
eleven billion tons by the end of this year, with half of that number shipped through this
region. Eight of the world’s busiest container ports are in the region; 30 percent of global
maritime trade, roughly 5.3 trillion dollars yearly, passes through the South China Sea
alone; of that, 1.2 trillion dollars transits to ports in the United States. Given those
volumes, regional countries increasingly view access to maritime resources and freedom
of the seas as the essential drivers of continued economic prosperity.
How nations pursue these interests matters greatly. This is especially true here in the
Pacific as underscored by recent spikes in regional tensions. All nations want to reach
ever-higher levels of prosperity—but we cannot all rise by pushing the competition down
and then pulling the ladder up behind us—not if we want to continue up the shared path
that benefitted so many in this region. I’m convinced the continued promotion of the
rules-based system that evolved over the past 70 years remains the best way forward for
all nations in this region—large and small—to continue to rise peacefully, confidently,
securely and economically. My concern is that after many decades of peace and
prosperity at sea, we may be seeing the leading edge of a return of “might makes right” to
the region. Such an approach may once again impact the vibrant but vulnerable waters of
Southeast Asia.
This is particularly true in the South China Sea, where excessive maritime claims,
prolonged disputes involving multiple parties, and nascent militarization of outposts are
challenging freedom of the seas and the rules-based system. In the Spratly Islands, larger
claimants are piling sand, building facilities and deploying garrisons on disputed features
at unprecedented rates. Though senior leaders vowed to prevent it, the question of future
militarization of these features looms large on the horizon and on the minds of those in
the region.
Even now, ships and aircraft operating nearby these features, in accordance with
international law, are subject to superfluous warnings that threaten routine commercial
and military operations. Merchant vessels that have navigated shipping lanes freely on
behalf of lawful international commerce are diverted after entering so-called military
zones. Intimidated by the manner in which some navies, coast guards and maritime
militia enforce claims in contested waters, fishermen who trawled the seas freely for
generations are facing threats to their livelihoods imposed by nations with unresolved,
and often unrecognized claims. Taken together, these actions already transform the status
quo in the South China Sea and are eroding the rules-based system in ways that affect
security, stability and prosperity for all regional countries.
Alarmed by these trends, claimants and non-claimants alike are transferring larger shares
of national wealth to develop more capable naval forces beyond what is needed merely
for self-defense, raising the risk of a sustained arc of increased regional tension and
Congressional Research Service
65
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
instability. As the Pacific Fleet commander, I’m focused on the behavior of all naval and
maritime forces in the region, not on any specific country. I expect all naval and maritime
forces, including my own, to operate responsibly, safely and in full compliance with
international law. As more maritime actors share the South China Sea without established
patterns of safe and professional behavior, tactical friction points at sea could become
strategic friction points ashore. If even one regional navy—or maritime forces under its
command—does not fly, sail or operate in accordance with international law, then
unilateral assertiveness could become the new regional norm, driving increased
instability in multiple domains. I think we all can agree that such a trend is unacceptable.
The lack of progress with respect to dispute resolution has opened the door for many of
these destabilizing activities. As stated many times before, the United States does not
take a position on the merits of competing claims but does care about how these claims
are resolved. There are many ways to pursue resolution peacefully in accordance with
international law, but global best practices and precedents point to the success of
multilateral negotiations, agreements and third-party support. Given the prolonged nature
of South China Sea disputes and a prevailing climate of mistrust, I am not surprised by
the broad regional view that these issues are best resolved in a multilateral, collaborative,
and transparent way. This view is particularly compelling with those smaller claimants
who are challenged when faced with a negotiation across what is at best a lopsided table.
With so many overlapping claims, how can two sides negotiate fairly without imposing
on another claimant’s equities?
As we saw with the latest round of regional summits, growing uncertainty and a lack of
consensus are straining institutional mechanisms’ ability to address disputes in the South
China Sea transparently and multilaterally. More than thirteen years have passed since
the Declaration on the Conduct of Parties was signed and yet the objective of a Code of
Conduct in the South China Sea remains elusive and aspirational. Despite ongoing talks,
claimants are not waiting to pursue enforcement of their claims. While it did not include
all claimants, the Joint Statement on the ASEAN-U.S. Strategic Partnership was a
welcome reaffirmation of the importance of fully implementing the Declaration and
expeditiously concluding the Code of Conduct.
Until implementation occurs, the need for credible third parties, like the International
Tribunal for the Law of the Seas, to help manage tensions and resolve disputes could not
be greater.131
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 Affairs, 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.
131 Commander, U.S. Pacific Fleet, Admiral Scott H. Swift, [address at] Cooperative Strategy Forum, Honolulu,
Hawaii, December 14, 2015, [Text] As delivered, accessed December 22, 2015, at http://www.cpf.navy.mil/leaders/
scott-swift/speeches/2015/12/cooperative-strategy-forum.pdf.
Congressional Research Service
66
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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
Congressional Research Service
67
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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
Congressional Research Service
68
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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
Congressional Research Service
69
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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
Congressional Research Service
70
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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.132
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
132 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].
Congressional Research Service
71
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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.
cepted rules and norms including the concepts of freedom
of navigation and innocent passage.
counters at
Sea and the U.S.-China Confidence Building Measures to help prevent accidents and
tactical miscalculations.
Congressional Research Service
72
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.133
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
133 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.
Congressional Research Service
73
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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.
Congressional Research Service
74
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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
Congressional Research Service
75
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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.
Congressional Research Service
76
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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.134
134 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.
Congressional Research Service
77
link to page 84 link to page 85 Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.135
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)136 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
135 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.)
136 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/)
Congressional Research Service
78
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
freedoms of navigation and overflight, in the Exclusive Economic Zone he established
for the United States consistent with the 1982 Convention.137
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.
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
137 Navy Office of Legislative Affairs email to CRS dated September 4, 2012.
Congressional Research Service
79
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
China’s decades-old position that similar foreign military activities in China’s EEZ are
unlawful.138
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.
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.139 The ship conducted operations inside
U.S. EEZ off Hawaii, where the exercise was located. A July 29, 2014, press report stated that
The high profile story of a Chinese surveillance ship off the cost of Hawaii could have a
positive aspect for U.S. operations in the Pacific, the head of U.S. Pacific Command
(PACOM) said in a Tuesday [July 29] afternoon briefing with reporters at the Pentagon.
“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.
138 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2013, p. 39.
139 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.
Congressional Research Service
80
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
“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.”140
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
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
140 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.
Congressional Research Service
81
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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
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
Congressional Research Service
82
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
clarification on Beijing’s legal interpretation, it will also be important to watch for
indications regarding the next SROs in China’s EEZ.141
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.”142
141 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.
142 Erik Slavin, “Chinese Ship Spies on Valiant Shield, And That’s OK With US,” Stars and Stripes, September 22,
2014.
Congressional Research Service
83
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
Jerry Hendrix, “Is War with China Now Inevitable?” National Review, May 24, 2016.
Dennis Blair, “Assertive Engagement: An Updated U.S.-Japan Strategy for China,” The National
Interest, May 23, 2016.
Tom Rogan, “Facing Off with China,” National Review, May 20, 2016.
James E. Fanell and Caludia Rosett, “It’s Time for Tougher U.S. Pushback Against China’s
Maritime Midconduct,” Fox News, May 20, 2015.
Julian G. Ku, M. Taylor Fravel, and Malcolm Cook, “Freedom of Navigation Operations in the
South China Sea Aren’t Enough,” Foreign Policy, May 16, 2016.
Patrick M. Cronin and Marcel Angliviel de la Beaumelle,” How the Next US President Should
Handle the South China Sea,” The Diplomat, May 2, 2016.
Wallace C. Gregson, “South China Sea: Bracing for Beijing’s Next Move,” The National Interest,
April 27, 2016.
Grant Newsham and Kerry Gershaneck, “How to Get Tough with China,” National Interest, April
25, 2016.
Harry Kazianis, “A Scarborough ‘Shoaldown’: An Opportunity to Push Back Against China,”
Asia Times, April 22, 2016 (reposted as Harry J. Kazianis, “Scarborough ‘Shoaldown’: An
Opportunity to Push Back Against China,” National Interest, April 25, 2016).
Shirley Kan, “Rescind China's Invitation to Join RIMPAC,” Center for Strategic & International
Studies, PacNet Number 35, April 14, 2016143 (reposted at Shirley Kan, “This Is Why America
Needs to Kick China Out of RIMPAC,” National Interest, April 19, 2016).
Edward Linczer, “South China Sea: 3 Ways to Win the Money War,” National Interest, April 12,
2016.
Michael H. Fuchs, “How to Turn The Heat Down in the South China Sea,” Defense One, April
11, 2016.
Harry Kazianis, “Introducing ‘Shamefare’: How to Push Back Against China in the South China
Sea,” Asia Times, April 6, 2016.
Harry Harry Kazianis, “Time for a New US South China Sea Strategy,” Asia Times, March 31,
2016. (A similar version was published as J. Kazianis, “This Is How America Can Make China
Pay a Price in the South China Sea,” National Interest, April 4, 2016.)
143 PacNet also posted a response to this piece; see Sean P. Quirk, “Response to PacNet #35 ‘Rescind China’s
Invitation to Join RIMPAC,’” Center for Strategic & International Studies, PacNet Number 35R, April 19, 2016.
Congressional Research Service
84
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
Zack Cooper and Mira Rapp-Hooper, “Protecting the Rule of Law on the South China Sea,” Wall
Street Journal, March 31, 2016.
Gregory Poling and Zack Cooper, “Developing A Scarborough Contingency Plan,” Asia Maritime
Transparency Initiative, March 30, 2016.
Van Jackson, “Saving the South China Sea Without Starting World War III,” National Interest,
March 30, 2016.
Andrew Krepinevich, “The South China Sea Long Game,” Real Clear Defense, March 30, 2016.
James Kraska and Pete Pedrozo, “Opinion: Don’t Miss the Boat on Australian and U.S. Policy in
the South China Sea,” USNI News, March 28, 2016.
Sean R. Liedman, “Prevent the Destruction of Scarborough Shoal,” Asia Unbound (Council on
Foreign Relations), March 28, 2016.
Joseph Bosco, “Obama Needs a JFK Moment in East Asia,” Real Clear World, February 27,
2016.
Zack Cooper, “Saving Ourselves form Water Torture in the South China Sea,” War on the Rocks,
February 23, 2016.
Peter Layton, “South China Sea: Beijing Is Winning, But Here’s How to Retake the Initiative,”
Lowy Interpreter, February 26, 2016.
Mira Rapp-Hooper, “Confronting China in the South China Sea,” Foreign Affairs, February 8,
2016.
Harry Kazianis, “Obama’s $5 Trillion Dollar Gift to China: The South China Sea?” National
Interest, December 6, 2015.
Tim Huxley and Benjamin Schreer, “Standing Up to China,” Survival, December 2015-January
2016: 127-143.
Dean Cheng, “US ‘Steadily Retreating’ In South China Sea Dispute,” Breaking Defense,
November 29, 2015.
Daniel Twining, “Time for America to Step Up in the South China Sea,” Foreign Policy,
November 22, 2015.
James Holmes, “How Washington Can Get Back on Course in the South China Sea,” Foreign
Policy, November 12, 2015.
James Holmes, “What Should America Do in the South China Sea? Ask a Fighter Pilot,” National
Interest, October 2, 2015.
Mira Rapp-Hooper and Patrick M. Cronin, “American Strategy in the South China Sea: Time to
Define ‘Militarization’ and ‘Coercion,’ National Interest, September 23, 2015.
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.
Congressional Research Service
85
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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.
Congressional Research Service
86
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China
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.
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.
Author Contact Information
Ronald O'Rourke
Specialist in Naval Affairs
rorourke@crs.loc.gov, 7-7610
Congressional Research Service
87